May 8, 2008

The perils of workers' compensation

By Bil Paul

When you're seriously injured on the job, the California workers' compensation system is there to help you through difficult times. Or is it?

My wife injured her wrist in a fall and went to a Kaiser emergency room to have it X-rayed and a cast applied. Upon arrival, as usual, Kaiser asked if the injury was work related, and that began the paperwork of becoming involved with "the system." Afterwards, her employer's workers' comp insurer insisted that one of the docs on their network check out the wrist. My wife called eight docs on their list before finding one to see her. By that time, it was time for the cast to come off, and the new doctor removed it. Three weeks later, because of the original fall, her thumb lost all movement, and the workers' comp doc's office was contacted. They said they couldn't look at the thumb until two weeks later.

Concerned about the thumb, my wife made a Kaiser appointment for two days later, where she learned she needed an operation, which Kaiser made plans to do. The workers' comp insurer initially OK'd the Kaiser visit, then disapproved it along with the planned Kaiser operation, insisting that the original workers' comp doc do it. My wife is adamant that Kaiser do it.

This is a fairly mild conflict compared to some other stories. Petaluma teacher Barbara Moller similarly fell at work, tearing a ligament and cracking an anklebone. She endured five casts and an operation before having to take early retirement. At first, her claim payments went smoothly but stopped a year after the surgery because it was said her recovery period was over, even though she had trouble standing for any length of time. The next step was to determine if Moller was eligible for permanent disability, so her insurer made an appointment for two months later. The examining doc's report went to a state agency a month after that.

After a delay of six more months, the agency ruled that Moller was 31 percent permanently disabled. She assumed that her insurer, Redwood Empire Schools Insurance Group, would soon begin payments as required by law. Instead, Redwood disagreed with the degree of disability. It took another two years before Redwood finally agreed to pay her, quibbling over the amount to the very end.

Moller felt there was never any sympathy for her distress.

A Fairfield family had a double run-in with the system. A daughter, Kelly McGuire, developed a work-related condition called radial tunnel, a repetitive motion injury in the elbow. The doctor provided by the workers' comp insurer accidentally left a sponge in her arm after an operation. When that caused a growing mass, he reportedly pooh-poohed the condition. McGuire then went to her mother's doctor who removed the mass and the sponge.

Then it was the mom's (Marie Meisner's) turn. A 15-year Costco employee, she tripped and fell while working in the meat department, broke some bones in her shoulder, and was provided surgery to repair the damage. After a recovery period during which she received workers' comp payments, she returned to work. However, strong shoulder pain soon set in, and a second, more invasive operation was planned by the original surgeon to repair a rotator cuff tear. However, this time the workers' comp insurer apparently didn't take the word of its own network doc and insisted Meisner visit another physician for a second opinion. After recovering from the second operation, Costco made Meisner a cashier but she injured her shoulder again lifting a carton of water. Although their own doctor stated the injury was a new one, the insurer claimed it was just a re-injury and stopped paying benefits. This story continues back and forth ad infinitum along with a further injury until Meisner was eventually granted a lifetime impairment. However, with a strong work ethic, she's still cashiering.

It's not a primal law of nature that employers pay their employees when they're hurt on the job, or pay employees' families when deaths on the job happen. That concept developed over time in the U.S., especially since the early years of the last century. The system as it exists now is a no-fault system, in which workers ostensibly are helped with medical bills and missing wages if hurt on the job, but employers are also protected against sky-high liability lawsuits.

In California, there's been much strife over the cost of workers' comp, with business and insurance interests trying to hold down or reduce the cost of coverage, while unions and other worker-friendly organizations fight reduced coverage and delays in receiving benefits. One of the issues that brought Gov. Schwarzenegger to power was his support of reining in the cost of workers' comp, which business groups called a "job killer."

Over the years, business interests have often blamed the high cost of workers' comp in California upon legions of employees claiming false injuries. However, fraud is generally attributed to only one to two percent of those applying for compensation.

In 2004, the governor and Legislature cooperated to pass Senate Bill 899, which tightened the workers' comp system considerably. Now the window to receive temporary disability payments after an injury is capped at 104 weeks for most injuries (with a recent change allowing that number of weeks within a five-year period). Also, the amount of money that can be provided for each permanent disability case has been reduced by 50 percent, making California the fourth-lowest state in terms of payments. Due to these low payments, lawyers are less likely to want to represent employees seeking redress because the lawyers are limited to a fixed 12 to 15 percent cut of the total award by the Workers' Compensation Appeals Board. The law also allowed insurers to establish networks of approved doctors, who tend to be more conservative in diagnosing and treating medical problems.

In actuality, rising medical charges in California are mostly responsible for rising workers' comp insurance fees to California businesses (despite a gradual reduction in the number of workplace injuries and deaths).

The high cost of American workers' comp is one reason why so many companies move their manufacturing beyond our borders, where there's little or no employee impairment coverage in place, helping make manufacturing cheap.

Most of all, workers' comp is highly bureaucratic, with many layers and players. What's often missing is respect, responsiveness and consideration for the injured working men and women at the end of the funding tunnel. They shouldn't be distrusted at every turn.



Bil Paul's column appears Thursdays in the Daily News. Reach him at natural_born_writer@yahoo.com.