Special Session Activity

National Media Examines Workers Compensation Disparities

 Two things happened this week to raise the consciousness of the public towards the inadequacies of workers compensation. First was a major piece of reporting by Pro Publica and NPR that conducted an exhaustive examination of workers compensation benefits, state by state. You can find the articles here:

www.propublica.org/article/photos-living-through-california-workers-comp-cuts

www.propublica.org/article/the-demolition-of-workers-compensation

The reporters chief findings:

  • Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them.
  • Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two or three times as much on one side of a state line than the other.
  • Many states, Texas among them, have not only shrunk the payments to injured workers, they’ve also cut them off after an arbitrary time limit — even if workers haven’t recovered.
  • Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery.

As a workers compensation attorney who has been practicing since before 2003, I can attest that changes made to Texas' system that occurred after 2003 were the second such effort to reduce workers compensation benefits and make them more difficult to obtain.

Even though other states made changes to their workers' compensation schemes in part due to the success Texas has had reducing benefits, most of those states still did not take the more extreme path of reducing benefits to injured workers to the levels that Texas has done. This graphic is illustrative:

Texas Far Behind Other States in Workers' Compensation BenefitsTexas Far Behind Other States in Workers' Compensation BenefitsThose of us representing injured workers have complained for a long time that there is a race to the bottom amongst the states in what is being paid to injured workers. That race is on the verge of breaking the system. The only question is will Republicans in safely gerrymandered districts have the courage to fix the system before it breaks?

The second thing to raise some consciousness was a report put out by OSHA which can be found here:

www.dol.gov/osha/report/20150304-inequality.pdf

That report states another aspect of workers compensation law that has long been complained about by those of us who represent injured workers:

The costs of workplace injuries are borne primarily by injured workers, their families, and taxpayer-supported components of the social safety net. Changes in state based workers’ compensation insurance programs have made it increasingly difficult for injured workers to receive the full benefits (including adequate wage replacement payments and coverage for medical expenses) to which they are entitled. Employers now provide only a small percentage (about 20%) of the overall financial cost of workplace injuries and illnesses through workers’ compensation. This cost-shift has forced injured workers, their families and taxpayers to subsidize the vast majority of the lost income and medical care costs generated by these conditions.

That is, the public, not the workers' compensation insurer and not the business that purchases the insurance, bears the primary burden for the costs of injured workers. This occurs through the cost-shifting of workers onto other forms of payment.

I cannot even begin to count the number of times I have heard adjusters state that a workers isn't being disenfranchised because the worker can just apply for social security disability. Likewise, we frequently have problems on cases with doctors advising injured workers to just put their injury on medicaid so that the doctor can avoid all the pre-authorization hassles that comes with workers compensation.

One problem is the race to the bottom that impacts all injured workers. The public's attitude is "As long as it doesn't affect me, I don't care. Out of sight, out of mind." But this report confirms that it does affect the public. When the system finally breaks, remember that.

Conflicts of Interest and Confidentiality--The Importance of Hiring a Lawyer

The Office of Injured Employee Counsel was created by the legislature to better assist injured workers in the handling of their workers compensation claims than had been had previously by an ombudsman program administered by the Division of Workers Compensation. When the current workers compensation system was created, ombudsman worked within the Division to assist injured workers. This created problems for insurance carriers as it gave the ombudsmen access to files and information that insurance carrier attorneys might not have access to. In addition, the ombudsman program was overseen by personnel within the Division of Workers Compensation. Because the Division has to maintain impartiality, the ombudsman program suffered because there was no incentive to help injured workers. Excellence in customer service was valued over the results obtained for the claimant.

When the changes were passed by the legislature creating the Office of Injured Employee Counsel, what was lost on the legislature was the fact that the ombudsmen were not advocates, they were there to assist workers. The legislature explicitly stated that the office's purpose was to advocate for workers as a class, but anyone could see that the office would not distinguish between advocating for workers as a class and merely assisting workers individually.

So, with an office that is advocating for workers individually, what do you do when your customers have competing interests? This is exactly the problem confronted by our office recently. We took over a death benefits file for a claimant-beneficiary who had previously used the services of the Office of Injured Employee Counsel. However, while our client was the spouse of the deceased, another claimant emerged claiming to be common-law married to the deceased during a period when our client and the decedent were separated. When these two women were both "assisted" by the Office of Injured Employee Counsel, it was comical to see the notes taken by their office. One ombudsman would write that she had recommended woman number one to get a piece of evidence to establish her claim. Then, a second ombudsman, assisting woman number two would see that notation in the file and recommend that her customer go get some evidence to refute that piece of evidence. And around and around this went--until one of these women came to us for representation.

You see, despite how easy it is to trash lawyers, we do have rules that we must follow regarding conflicts of interest. These rules make sure that a client's secrets and a client's strategies remain confidential. This is one of the reasons why hiring a lawyer is important. Not only is a lawyer trained in the law and knows the law--a lawyer has certain rules to follow that insure that what you tell a lawyer stays private. And when you go to a lawyer, all lawyers have file systems in place to guarantee that you do not hire a lawyer who is already working for the other side on your case. Your lawyer is your advocate, no one else's. And what you tell a lawyer is confidential--the other side doesn't find out until your hearing date what your trial strategy is. Isn't that the way it should be?