Misconceptions about comp and injured workers. 

Mary Bailey Feb. 18, 2003

Testimony to the House Select Committee on Workers Comp

1. Injured workers are all frauds and are looking for a free ride.

The actual number of injured workers who are frauds are less than 1% in this state. No one with any sense would choose to stay in what injured workers call workers compensation hell. We have a saying: Injured at work, disabled by workers compensation. In my comp hell, I lost my home, my health, my vehicle, and my dignity. Most of us, if given a choice, would much prefer to be treated under our regular health insurance.

2. Injured workers run right out and get an attorney as soon as they are injured.

Most injured workers wait a period of 6 months to 1 year before going to an attorney. They only go to an attorney after they are so frustrated by the workers compensation system due to denials and delays in their medical care and benefits that they see no other option.

3. An employer will work with the injured worker to return to work.

Most employers will not work well with injured workers who return to work with or without restrictions. In my case I returned to work 3 times because I wouldn't believe my doctors when they said I couldn't work. Each time, my co-workers were told not to talk to me and if they did, they would be fired. Many employers will not adhere to the medical limitations placed on the injured workers and in some instances they force the injured worker to do more than the doctor has allowed.

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4. Settlements injured workers receive are unreasonable.

The average settlement is around $5,000.00 for injured workers and in most cases this is not even enough to cover medical expenses. Those rare, bigger, settlements like $300,000.00 are for a lifetime, though they are all computed as payouts in the same year the settlement is reached. Medical expenses are included in this amount. $300,000.00 is the equivalent of $30,000.00 a year for ten years. That isn't much to live on, especially when you consider your medical expenses are coming out of that. Imagine living on that for even just a family of 3. Your spouse and children will have no health insurance unless you pay out of the limited income you get and no one on comp can afford that. The injured worker has no health insurance either because they have settled out their case. Insurers should never be allowed to settle out medical benefits because when this happens it shifts the burden, not just for injured workers, but their families as well over to other state and federal agencies like Medicare and Medicaid.

5. Injured workers draw out their injuries to stay out of work longer.

If you had a family and you had to live on 2/3rds of your previous income, how long would you stay out of work? It is a myth that it is easy to live on what you receive from workers compensation. Remember too that if you are permanently totally disabled, PTD, that this equates to your full lifetime, leaving you not only broken physically but also financially. Your ability to improve your financial situation has become impossible, much less your ability to build a retirement fund.

6. Injured workers can live on the money they receive from comp if they ever get it.

It takes on average 6 months to several years to get medical benefits and income when the carrier controverts the coverage and the injured worker is thrown into the legal system. What happens to the regular Joe whose savings account is emptied while waiting for the legal system to wind its slow progress toward a solution?

7. Injured workers get the medical treatment they need immediately unless they are frauds or are doctor shopping.

80% of all injuries go through the comp system with no problem. These are the minor injuries like a sprained ankle or a cut thumb that needs a stitch. The problem lies with the more seriously injured employee. In the majority of cases like this, injured workers have to fight for every medication, medical treatment, and benefit that the law says the injured worker is entitled to. The carrier does what injured workers call deny and delay, gaslighting, or starving you out. The carrier tries to break you emotionally, physically, and financially during this time to get you to settle out your medical and indemnity benefits at the lowest possible amount. During this process the injured worker normally loses everything they own.

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8. The laws of this state are enforced concerning Workers Compensation.

There are plenty of laws in place today to protect the injured worker. The problem is that no one enforces them. Carriers often even fail to respond to a judges ruling or settlement agreements they themselves signed.

9. Carriers have no role in the comp crisis.

There is no one that holds the carriers accountable for internal mismanagement or poor investments causing losses. They never look internally to see where they can cut expenses. They always shift the burden to injured workers, employers, claimant attorneys, and doctors. No one holds them accountable for their deny and delay tactics that not only harm injured workers but also the employers and other state and federal agencies that have to carry the costs the carriers fail to provide. The carriers have had their say for years now and have had laws changed to favor them, each and every time, promising that the changes would fix the problem and reduce costs in workers compensation. It never does.

10. Injured workers have to look ill or they are not injured.

People freeze if you say the word cancer. There is never even a doubt as to the degree of the pain and suffering involved with this even when the person looks okay and even though it is not something you can see with your eyes. With injured workers though, if you look okay, then most people think you must be okay. That is so far from the truth.

11. Injured workers have the benefit of the doubt in comp cases. They must be proven frauds to be considered one.

For most injured workers you are assumed guilty until proven innocent. Your injury is not serious until a doctor says it is and then often that is not even enough for some carriers.

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12. Workers compensation is a retirement fund.

Workers compensation is not now nor has it ever been a retirement fund. It is an insurance policy. An insurance policy is supposed to pay out when there is a legitimate claim made. A retirement fund is when a person works until they get to an age they choose to retire, all the time contributing and building up their retirement funds. Injured workers lose their ability to build up their retirement funds and contribute to their Social Security funds to enhance their retirement, pensions, 401Ks or whatever. Injured workers are in essence trapped for life, regardless of inflation, at 2/3rds whatever income level they are at the day of their injury. Even this amount is capped so that those who made good incomes often never come close to the income they were making at the time of injury.

13. Injured workers doctor shop.

Injured workers lose the opportunity to choose their own doctor when injured at work. Many workers compensation doctors in the system are hostile towards injured workers from day one, regardless of the injury. The last thing an injured worker wants to do is to go to another comp doctor that may or may not be hostile and whose recommendations will most likely be denied and delayed. It is just another level of frustration for them. In many cases the injured worker's medical records do not get to the doctor before he sees the injured worker; it's not unusual for the records the doctor receives to not be complete, making it impossible for the doctor to see the true picture of the injured worker's injury.

It is worth mentioning that carriers doctor shop. They can make the employee go to doctor after doctor until they finally get one who will agree that you're not really injured or whatever it is they want.

14. Claimant attorneys are paid whether they win their case or not.

Most people believe that claimant attorneys are paid regardless of whether they win or lose. The claimant attorney is only paid if the case is settled or if the injured worker wins in court. This makes it impossible in some instances for injured workers to find an attorney. On smaller claims or if the case could go either way, often an attorney cannot be found to represent the injured worker. This is regardless of whether the injured worker has a legitimate claim or not.

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15. It is easy to get a job once the injured worker recovers from their injury.

Often an employer either will not take the injured worker back with or without limitations or will take them back just long enough for them to get off workers compensation and then fire them. It is a part of most settlement offers today that the injured worker must resign from his position to receive the settlement. Most employers will not hire a person who has ever filed a workers compensation claim despite this being illegal.

16. There are no psychological disabilities that can arise in comp.

Anyone who believes that an injured worker cannot have a psychological injury from an on-the-job injury is misinformed. Any loss of function and earning ability, either temporarily or permanently, will cause a person to go into a depression. Admittedly some people handle the psychological fallout better than others, but there is still a psychological component to every injury, work related or not. Often it is the treatment the injured worker receives while in the comp system that causes the most psychological damage. Think of how you would feel if you could no longer provide for your family.

17. Everyone is guilty of milking the system and fraud except the carriers.

If anyone enforced the law, I think we would all be shocked at the level of fraud committed by carriers in the workers compensation system.

18. Adjusters and case managers work well with injured workers to speed up their return to work.

In many cases an adjuster or case manager becomes the injured worker's worst nightmare. They are quite often rude and demeaning. They tend to over-ride our doctors' decisions and deny the procedures our doctors order. They have our whole life in their hands and they know it. They can deny our meds, cut our pay, ignore our doctors, and send us on IME, Independent Medical Exam, after IME always being in control and selecting who, what, when, where and how you will be seen. They can make decisions that countermand the doctor's orders without consulting the doctor or having permission from a judge.

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19. Injured workers, having no more pain, can work even while they are considered legally intoxicated by their prescribed medications.

An injured worker is often presumed able to return to work when the doctor is successful in relieving the pain. What some people fail to comprehend is that just because the pain is temporarily gone, it does not mean the person can return to work. Often pain meds only mask the pain. One can easily forget their initial injury and cause further harm to oneself by trying to do more than you could do if the pain was there to remind you of your injury. The other factor to consider is the pain medication itself dulls the brain and the injured worker's ability to fully comprehend what is going on around him. In many cases the injured worker is impaired to the point of being considered intoxicated under state law. They are not allowed to drive or operate dangerous machinery. Do you really want to have this person even answer your phones if they are considered intoxicated under state law?

20. The carriers approve all the medical treatment their own doctors prescribe.

For many people on short to long term disability, every doctor's appointment, treatment, or medication is questioned and litigated because the carrier denies everything. They often send the injured worker from doctor to doctor trying to find one that will say there is nothing wrong. In many cases that is the doctor they usually want to have as your treating physician even though they chose your original treating physician.

21. It is against the law to require a person to resign as a part of a settlement agreement.

Most of today's settlement agreements have a clause in them that requires you to resign your position with your employer as a part of the agreement.

22. An injured worker cannot be terminated because of an injury.

Injured workers are terminated, laid off, or whatever you want to call it on a daily basis and most often without just cause.

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23. Chemical or repetitive motion injuries cannot disable a person and are an easy way for lazy injured workers to get out of working.

Chemical and repetitive motion injuries are two of the hardest injuries to prove occurred from one's employment. Often the relationship to one's employment goes undetected. Still for those who do find out they have sustained this kind of injury from their employment, it is difficult to prove even though there may be a clear history of this type of injury or illness at the work place. These injuries and illnesses can become permanent and life threatening and can cause a person to become permanently totally disabled.

24. Most back and spinal injuries are never as serious as the injured worker says unless there is a medical test that says there is evidence of an injury that can be seen.

Most back and spinal injuries are not treated as serious and often are under-treated causing further injury complicating the original injury. In my experience people are at the most risk of becoming permanently totally disabled from this kind of injury. This is because by the time the injured workers secures treatment for this kind of injury, it is often too late for a repair to be successful. This is sad because in speaking with injured workers, I have found that most of the permanently totally disabled injured workers with back or spinal injuries, had an original prognosis, that as long as there were no complications, the injured worker would have been able to return to some kind of employment if not to their original field of employment.

25. The Social Security standard is not an acceptable standard to use for workers compensation injuries and Social Security is easy to get.

Some believe that the Social Security Disability standard is too lax and easy to obtain. This is far from the truth. On average it takes 2 years to get the SSD status. This status is reviewed every three years by Social Security by doctors and is often scrutinized harder than the Workers Compensation status of PTD. Social Security is also reviewed, in most cases, more often than the Workers Compensation status is reviewed.

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26. Injured workers can easily get retrained in rehabilitation programs.

Most injured workers never even know there is a rehabilitation program available, much less get retrained in one. Even when they find out these programs exist, they are frequently told that the money is not there for them to attend the program. Many are turned down. Many are told by employers or carriers that they don't qualify for them when if fact they may. The other disturbing fact about these programs is that if you don't have at least a high school education, you don't qualify. While I understand this standard, it is hard to understand why they don't at the very least, test these people to see if they could benefit from a program. Just because a person doesn't finish high school does not make them dumb and not trainable or they probably wouldn't have been employed to begin with. We should offer vocational as well as educational programs to any injured worker to help them retain some kind of employment. It seems to me this would be much cheaper than shifting the injured worker and his family into poverty and onto state and federal programs.

Mary Bailey

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