Workers’ Comp Hub Newsletter: Fall 2014

Starting with this edition of the Workers’ Comp Hub newsletter, you’ll see we’re paring down the length of the newsletter to focus on one or two key stories. This fall we look at a court ruling in Florida that finds the workers’ comp system to be so inadequate in meeting injured workers’ needs that it is unconstitutional. We also report on the dangers of silica exposure in the growing fracking industry and a deadly trend in construction safety. Finally, we bring you an update on the NFL, which continues to dodge responsibility for compensating players whose head injuries on the field have landed them with lifelong degenerative brain diseases.

– Jim Ellenberger

Workers’ comp fails workers so miserably that it’s unconstitutional, rules Florida court

On August 13th, Judge Jorge Cueto declared Florida State workers’ compensation law unconstitutional, writing that “the benefits in the act have been so decimated that it no longer provides a reasonable alternative” to filing a civil lawsuit. Injured workers and advocates have long known that workers’ comp systems across the country are deeply flawed and even abusive to those they are supposed to help, but many never thought they would see the day a court would finally recognize this.

Cueto’s ruling is momentous in its courage to finally call out a system that workers’ rights advocates have long known is inadequate and abusive to the very workers it is supposed to help.

For the past century workers’ compensation has served as the “exclusive remedy” for workers injured or made ill on the job. In exchange for giving up the right to go to court over employer negligence, workers are supposed to receive modest but guaranteed wage replacement and medical care, without the delays of tort law. Today, however, many injured workers find themselves trapped in a broken system, where they face delays in medical treatment, inadequate income support, and undignified treatment by employers and insurance companies. 

The case that prompted Cueto’s decision was that of Elsa Padgett, a government employee injured in January 2012 when she fell over boxes left on the floor of her office. Still in debilitating pain after a shoulder replacement surgery, Padgett was forced into an early retirement and received no compensation for the loss of the wages she would have earned had she been able to continue working.

In 2003, Florida became the only state to cut out wage loss benefits for all injured workers except those who have been permanently and totally disabled. This means that a worker who sustains a permanent partial disability and cannot return to work in the same capacity or find a job with comparable pay receives no compensation for their loss in earnings.

Current Florida workers’ comp law also allows employers to apportion medical expenses: if an injured worker has a preexisting condition, the employer is only responsible for part of the necessary medical care expenses. Moreover, after an injured worker has reached Maximum Medical Improvement, they are required to contribute a co-payment to all ongoing treatments. This creates a grave barrier to the right to timely and adequate healthcare by conditioning people’s ability to access care on their ability to pay. Since doctors and hospitals are not required to accept partial payment, an injured worker who cannot afford their portion of the bill is left with no treatment.

Padgett’s case joins two others in challenging the constitutionality of Florida’s Workers’ Compensation Act. Drawing attention from two outside advocacy groups, the Workers’ Injury Law & Advocacy Group (WILG) and Florida Worker’s Advocates (FWA), the cases have the potential for national influence. Cueto’s ruling “is really the first time that this has happened,” said Mark Zientz, an attorney representing FWA, “It is the first time anyone has said the entire act has to fail as an exclusive remedy because benefits as a whole are so insubstantial or inadequate. It’s not a fair trade anymore.”

Cueto’s decision should be a wake-up call to find meaningful solutions for a crisis that is affecting workers across the country. In WILG president Chuck Davoli’s words, Florida’s egregious workers’ comp laws are only “the tip of the deform iceberg that is slowly floating towards state workers’ comp systems.”

For more perspective, read this op-ed from human rights lawyer and NESRI Executive Director Cathy Albisa.

New Factsheet Tracks Legislative Trends in Workers’ Comp

The National Economic and Social Rights Initiative (NESRI) has published a new fact sheet on national legislative trends and developments in workers’ compensation. The brief looks at trends and developments in state workers’ compensation systems across the nation over the last 25 years, identifying at least seven that undermine workers’ human rights to health and work with dignity. The brief calls for immediate action to end the roll back on injured and ill workers’ rights and advocates for broad systemic change based on human rights.

Misclassification cheats workers of protections in one of nation’s deadliest trades

Construction accounts for more deaths each year than any other industry in the U.S., killing 796 workers in 2013 alone. Yet rather than addressing critical safety concerns, employers are increasingly misclassifying workers — or not registering them at all — in an attempt to shirk responsibility for paying fair wages, providing essential health and safety training, and carrying workers’ compensation insurance. A recent study conducted in California shows that of the state’s 895,000 construction workers, 39,800 were misclassified as independent contractors while 104,100 weren’t recorded at all. These “informal” workers are three times more likely to live under the poverty line than their “formal” employee counterparts.

In Texas, where laws protecting workers have always been notoriously weak, the Workers Defense Project estimates that almost 40% of companies misclassify their workers. This disturbing statistic is part of a slew of worrisome trends in the state’s construction industry. Construction workers in Texas are 22% likelier to die on the job than the national average, while, as a recent piece in the New York Times highlights, accessing adequate healthcare and wage compensation after an on-the-job accident is next to impossible for many workers and their families.

Fracking poses new risks for an already dangerous industry

As business lobbyists and labor groups battle over implementation of OSHA’s proposed silica rule, the growth of the fracking industry, which exposes workers to high-silica content “frac sand” and toxic chemicals, has some unions stuck between advocating for worker safety and embracing new jobs created by the burgeoning industry. A 23% jump in fatality rates in the oil and natural gas industry during 2012 alone indicates that without immediate steps to analyze the health risks of fracking, the extraction process could have devastating effects on workers both as accident rates continue to rise and as long latency diseases appear years after exposure to silica and other toxins. “Without action, the workplace fatality crisis in this industry only will get worse as production intensifies and expands,” says the AFL-CIO in its annual “Death on the Job” report.

Despite big promises, NFL tries to dodge accountability yet again

We’ve reported previously on the NFL’s repeated denial of the links between head trauma and degenerative brain diseases. After years of disputing and burying evidence that professional football puts players at a significantly higher risk for severe brain diseases, the NFL has released a report stating that rates of debilitating brain conditions in former players are “materially higher than those expected in the general population” and predicting that “players will develop these diagnoses at notably younger ages than the generation population.”

This admission, alongside an agreement made last June to pay an unlimited amount in awards to retired players suffering from dementia and other head trauma-related conditions, seems to signal progress, except for one important detail: the NFL has excluded those diagnosed with Chronic Traumatic Encephalopathy (CTE) after July 7th.

CTE is a neurodegenerative disease that has been found in the brains of 76 deceased football players since 2005 and has been at the center of the debate over football and brain injury. Called the “industrial injury” of football, CTE should by all rights be the focus of the settlement, leading one attorney involved to compare the settlement to “an asbestos case where any damage for injury to the lungs is excluded.”

CTE is a progressive disease, so like other long-latency diseases, it doesn’t show up until years after trauma occurs, often after the employee has left the place of employment that caused the condition in the first place. Moreover, because the disease’s early symptoms include behavioral and mood disorders that also exist in the general population, like depression and addiction, it is easy for the NFL to contest the connection between these conditions and head trauma sustained on the field.  While the settlement does cover dementia, a symptom of advanced CTE, the NFL has made the requirements for compensation so narrow that only those incapable of functioning independently at a basic level will qualify. In a formal objection to the settlement filed by seven former players on October 6th, leading neurologist and CTE expert Robert Stern wrote that “several key symptoms of CTE … identified in the scientific and medical literature and in my clinical and research experience are not compensable,” adding that many of the 76 deceased NFL players found to have CTE would not have qualified for compensation under the settlement.


Winning Safer Workplaces

The Center for Progressive Reform has released a manual offering practical reform proposals for stronger occupational health and safety laws.

Temped Out

The National Employment Law Project (NELP) has prepared a report documenting the challenges and human rights abuses that face temp workers as well as recent organizing victories that have won raises and greater protections across the country.

Predictors of Worker Outcomes

The corporate-backed Workers’ Compensation Research Institute (WCRI) has published research findings indicating that the fear of retaliation leads to worse outcomes and a lower chance of return to work.