Tuesday, April 7, 2009

Workers Compensation Insurance: Is The System Stacked Against Workers?

Perhaps someday I will write an entire book just about Workers Compensation (WC) Insurance. Many experts before me have already done so, and I’m reluctant to plow that ground again. But I do have some comments about WC that you should know.

Workers Compensation Insurance is a very flawed system in every state of the United States. It began with the lofty intentions of politicians in each state who enacted laws to protect injured workers and get them medical benefits and treatment for their injuries. But, like most laws enacted by politicians, there are unintended consequences. Further, business lobbies, insurance companies, trial lawyers and medical lobbyists contribute huge amounts of money to the politicians at both state and Federal levels. Injured workers are individuals for the most part, and don’t have lobbyists.

Would it be too difficult for you to guess which side gets the political favors in Workers Compensation legislation?

Here’s an example of a system stacked against the injured worker. In most states, injured workers are barred from filing lawsuits against employers for their injuries. The injured worker has only the Workers Compensation system in which to receive benefits.

There are two narrow exceptions where the Workers Compensation preemption might not apply, and an employer might be subject to lawsuit:

• The employer intentionally causes injury to an employee. This exception for intentional acts is very narrow. It is not ordinarily enough that an employer creates conditions where there is a very high probability that an employee will be injured. Customarily, the employer must have committed a specific negligent act intended to cause injury to the employee.

• The employer is required to carry Workers Compensation coverage but fails to do so.

In my opinion, the Workers Compensation laws that prohibit lawsuits against employers violates the 7th Amendment, which guarantees citizens a jury trial in civil cases.

The deck may be stacked against injured workers in another way, which is that the injured worker may only seek medical treatment from a list of doctors approved by the employer or his Workers Compensation carrier.

Most injured workers receive medical treatment for their injuries and recover quickly. But whether your injuries are minor or major, the process of filing for benefits and receiving benefits can be complicated and frustrating. Most employees have no real awareness about how the system works, and only become familiar with it once they are sucked into the system by an injury.

If you are an employee who has sustained an injury, you would be well served to consult with a personal injury attorney soon after the injury. Workers Compensation is usually simpler than regular litigation since it takes place in an administrative setting and may have relaxed evidentiary rules. Also, attorney fees are often limited by state statute.

Injured workers typically need to seek legal counsel when they are refused benefits, or are told that they can return to work before they are medically able to work, or are denied disability in spite of disabling injury.

If your employer sends you to a doctor that declares you fit to return to work, even if you do not believe that you are yet able to work again, I recommend consulting a WC attorney before returning to work.

One of the tactics used occasionally by employers is to bring the recovered worker back to a position specially created for that employee to accommodate their injury. Then two or three weeks later, the employer eliminates that position and lays off the employee, ending his eligibility for workers compensation. Presto...no WC claim.

Another tactic is to refer the injured worker to doctors who are more motivated by a long-term business relationship with the WC carrier than accurately diagnosing and treating employees. In that scenario, if the doctor declares too many injured workers to have continuing disability, the carrier will terminate the business relationship and send workers to another doctor who will play the game.

A personal injury attorney specializing in WC can help protect your rights. If you seek counsel from a WC specialist, he or she will typically know the local administrative judges or hearings officers who preside over WC hearings. He will likely also know the doctors and insurance defense attorneys who are trying to block or diminish your claim. An attorney who is plugged in to the WC system in your area is your best resource to help you collect the benefits that you are due.

1 comment:

puck said...

Good analysis. Workers comp is bad in Canada too. See http://www.ciws.ca