Employee v. Employer: Who Gets The Shortest End of the Work Comp Stick

As with any legal system, some things are clear:  You either sped above 55MPH in your car, or you did not.  You either rear-ended the car in front of you or you did not.  You either robbed the drugstore or you did not. You either shot an intruder coming into your window or you did not.



Often There Are Gray Areas In Law


But it is when we start to add the “gray areas” that the law becomes muddled.  Sure, I was going over 55 MPH but that’s because I was coasting down a hill.  Or I rear-ended the car in front of me because he swerved into my lane to avoid a different accident.  I didn’t rob the drugstore and I have witnesses that say I was not even in the same city as the store that was robbed.  I shot the guy climbing into the window because he said he had a gun and was coming to kidnap my son.


Are all of these justifiable “breakings of the law” in nature?  I suppose the only people that can answer that for most of those questions would be a jury of our peers.  But this work comp system is different.  There are some guidelines, and some case laws, but there are no crimes committed within the comp system that are on the same level as some of the crimes listed above.


The comp system has been around for years, sometimes triple-digit years in most states.  But for whatever reason, it has never really gotten an overhaul.  Times change, manufacturing techniques change, work duties change, everything changes except those comp Statutes.  Recently, more and more laws have been modified to swing in favor the employees (or employers—depending on the state in which you are working) and this has led to some revolt from the opposite party that is negatively affected from said law change.  So who is getting it worse these days?





Back in the day, there was nothing that couldn’t be made in a factory.  Washing machines, cars, vacuums, planes, bombs, you name it, we were making it in a factory somewhere.  The majority of people you knew either worked on the floor in a factory, or they had some sort of office factory job.  Loss prevention was essentially unheard of, so any work injury that happened tended to be severe and left the employee crippled, and probably helpless.  It was seen as a sign of weakness to be injured from a “routine pain or routine injury”, since you were supposed to be a big tough man and just gut it out, day after day and year after year until you can retire.  Workers had fair wages, worked fair hours, and received fair benefits.



Workers Forced to Delay Retirement


Let’s fast forward to now.  The 401k you were hoping to retire on is not what you can live on. With nothing left to do, you decide to continue to work.  You are viewed as a bad piece of property.  Colleagues deem you old, slow, and unwilling to learn new more efficient ways of doing things.  You may lack some computer skills.  Your years in the factory are now catching up with you, in the form of arthritis and constant pain, which slows your ability to function.  One day while working on the floor you lift up a bin of parts and the handle breaks, jerking your shoulder.  You feel a pop and shooting pain/ numbness go down your arm.  Something bad has happened, and you know it.  The supervisor comes over and you go to the medical clinic.  You are told you have a complete rupture of the rotator cuff, and it is so bad it may not even be repairable.



Recovery More Difficult in Older Workers


The work comp person assigned to your claim grills you on your history, your medical issues, and your plans for retirement.  She questions why you never told anyone you were feeling pain for months—even years—in your shoulders and back and how you knew it was pain from years of working a heavy duty job. She states that you violated work safety rules by trying to pick up a bin that had too many parts in it, which resulted in the bin breaking.   Not too long after surgery you spot someone following you to therapy, and later your neighbor comes over to tell you that someone was walking around the neighborhood asking about you and your injury history.  Your adjuster makes you an appointment to see one of their doctors for an IME and they deem you able to work, but with a few restrictions.  Then your work comp rate gets cut, since it is deemed you are able to still work, and even though you are not employed by anyone else they begin to coordinate your TTD as if you were working, because you have a wage earning capacity.


After that you hit age 65, and more cuts take place, and later again when you turn 66.  You still have not taken your pension, hoping the market will recover.  Your arm is only 50%, and the docs say that is as good as it will get.  The scary part is that your “good” arm is starting to really bother you from overuse, as you continue to compensate for lack of use with your injured arm.



Resolution Options Not Always Appealing


Offers for settlement have been insulting.  You know that the adjuster has to pay you something until you either settle or die. But you are sick of having to deal with them.  They have stated that they can find you a job doing phone work marketing, which sounds terrible but if you do not comply you may lose what little wage loss benefits you have coming in.  So what do you do?  It seems like they have you in their clutches, and all you can do is either work a job you know you will hate, or take their insulting settlement offer and move on with your life even though you are still very much injured from what you feel was a result from you just doing your job.





Using the above example is a good way to show how the employee has to face some hardships when they become what the workforce deems “An aging injured worker.”  But the hardship an employer has to burden under the comp system is far more intense.  Using the above injury and outcome as an example, the employer had no way of downsizing this aging worker without repercussion.  Before he got hurt, the above worker was an active employee and was viewed as an asset because of his work experience, ability to train other employees, and ability to work a lot of different jobs on your work floor.  He put his time in, and was almost to retirement.  But now that he is injured, you owe him comp for life, unless he accepts the settlement offer from your insurance carrier.



More Injuries Compensable


Employers have long been the underdog in work comp battles such as above.  But the above example is not the only way the employer has faced burdens over the last 100 years.   Guidelines to what is actually deemed compensable have changed quite a bit.  Standing up, falling for an unknown reason, or just bending over a chair have now been deemed a compensable work injury. These claims can cost tens of thousands of dollars, if not more, by the time it is all said and done.



Chronic Pain Is Norm


Even worse, chronic pain is now the norm of the work injury.  Years ago, there was no diagnosis of chronic regional pain syndrome, fibromyalgia, reflex sympathetic disorder and other disorders where real tangible objective medical evidence is absent.  It seems like if a doctor cannot figure out why pain is there, they slap one of these blanket diagnoses on it and relate it to work, since they have nothing else to go on.  When judges started to award these types of injuries as compensable, the floodgates opened, and these injuries are not cheap!  Medication costs are sky high, and it seems the only treatment out there to address these chronic pain issues, which never go away.


In addition to chronic pain, other degenerative conditions are now deemed compensable if the details are just right.  Degenerative spinal conditions probably lead the way here, and nerve disorders such as stenosis can be blanketed into a work comp claim even when the worker may be borderline diabetic, or if they have non-occupational severe arthritis.  It befuddles me to see how a doctor can relate these conditions to being 100% work related, especially in the presence of inconsistent scientific medical evidence of correlation.



Complexity of Work Comp System Has Changed


As if this were not tough enough, even the complexity of the work comp system has changed into a money making machine.  If you break workers compensation down, it is supposed to be a way for an injured worker to get back to work.  It is in essence a benefit delivery system, providing lost wages and medical coverage for those who need it when dealing with a work related injury.  It sounds simple, but these days it takes a small army to arrive to this point.  You need doctors, lawyers, bill review companies and their nurses and lawyers, IME companies, SIU companies, Pharmacy delivery companies, medical network companies, and so on and so on.  Even the State requires mountains of forms to be completed, and if they are not done correctly they fine the employer per claim, sometimes to the tune of hundreds of dollars per day.


The pendulum in work comp has swung far to the side of not benefiting the employer.  The system is expensive and increasingly complex.  Long gone are the days of helping the true injured worker. Activities of daily living and the normal degenerative process of the body should not be deemed as injury arising out of the course and scope of employment.  But more and more often these cases are accepted, sometimes just because it is far cheaper to just pay or have your carrier pay instead of trying to fight it.  It is these cases which are contributing to skyrocketing work comp costs, and this is probably why more and more employers are trying to get legislation passed that allows them to opt out of the current work comp system.



The Grass Is Always Greener


So who has been given the short end of the stick?  The answer probably lies on which side of the fence you are standing on.


Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@reduceyourworkerscomp.com.


©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional about workers comp issues.

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