Workers’ Compensation Under Assault

In our last blog post we talked about how the workers’ compensation system came to be. As a result of the “grand bargain” between workers and employers, an injured employee these days simply files a claim for benefits with the Workers’ Compensation Commission. Once it is shown that the accident is compensable under the Workers’ Compensation Act, the worker can receive modest compensation and medical care paid for by the employer. In return for this system, the employer gains immunity from lawsuits in court even if gross negligence caused the accident.

The workers’ comp system has worked tolerably well for decades. Nevertheless, throughout the nation employers are now asking for and often receiving significant changes to the system. These changes are uniformly detrimental to workers. ProPublica has recently published an article entitled “The Fallout of Workers’ Comp ‘Reforms’: 5 Tales of Harm.” The news it reports is not hopeful for employees. In Virginia, an injured employee can receive benefits for up to 500 weeks. Other states have the same or a similar provision. Nevertheless, shortening the period of benefits is one “reform” that is underway in some states. Indeed, it can be seen just next door. The ProPublica article notes that “in West Virginia, time is on the insurer’s side.

In 2003, the state passed a law capping wage benefits for temporary injuries . . . to two years – even if the worker hasn’t recovered yet.” The article describes the plight of a West Virginia employee who suffered a shoulder injury so apparent that even the employer’s doctor agreed that immediate surgery was needed and that delay could cause greater harm. Though the workers’ compensation insurance company ultimately approved the surgery, the insurer’s delay in doing so took the employee outside the flat two-year window for compensation. After the surgery he was not healed from the original work injury, but he can never again receive compensation for his periods of disability stemming from the injury. Another so-called “reform” is the use of outside medical reviews, allegedly by independent doctors. The ProPublica article describes California’s foray in this regard: A 2012 law in California put medical disputes between the workers’ doctors and insurers into the hands of ‘independent medical reviewers’ who remain anonymous and make decisions based solely on medical records. California is one of 10 states since 2003 to expand its use of such outside doctors, who have the power to say an injury isn’t work-related or deny recommended medical care after only a brief exam or paperwork review.

The article discusses the case of a worker who became a paraplegic when the truck he was driving flipped. The workers’ comp insurance company approved a wheelchair lift for him but, relying on the new procedure above, refused to pay for a ramp and door-widening at his home pending the results of the “independent” medical review. Perhaps not surprisingly, the review sided with the company. The employee appealed and won, but the company then filed its own appeal. Only after a local TV station aired a story about the case did the company agree to make the home modifications. The stories above are but two examples of the way in which employers are attempting to renege on the grand bargain. Employees in Virginia should be aware of these troubling trends. If the occasion arises, employees should make their voices heard so that employers in Virginia are held to the grand bargain.

The article mentioned above can be found here: https://www.propublica.org/article/workers-compensation-injured-workers-share-stories-of-harm

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