Insult to Injury, Continued

Earlier this year, NPR and ProPublica began their “Insult to Injury” series, highlighting the dismantling of workers’ compensation nationally. Last week, they followed up on the investigation, making startling revelations.

“Nearly 1.5 million workers in Texas and Oklahoma do not receive state-mandated benefits under heavily regulated workers’ compensation and are dependent instead on alternative, largely unregulated benefits plans controlled by employers,” reports NPR.

“What is being allowed is the employer to have absolute and complete control over every aspect of the system,” says Rick Levy, an attorney for the Texas AFL-CIO. “No negotiation. No compromise. No standards. No due process.”

ProPublica reports:

Workers’ comp was founded on the premise that employers owed a duty to injured workers and their families. And laws in every state require them to pay workers’ medical bills and some of their lost wages until they recover — or for life if they can’t.

Earlier this year, a ProPublica and NPR investigation detailed how states have chipped away at these guarantees. A series of new laws has cut benefits, given employers and insurers more control over medical care, and made it more difficult for workers to qualify for coverage. But other than Texas and Oklahoma, no state has allowed companies to simply opt out.

As other states deny rights to millions, we are lucky to be in Washington, a national model for protecting the rights of workers. WSAJ will continue to work tirelessly to ensure that all workers have access to compensation in our great state.

The deterioration of workers’ compensation

The Center for Effective Government recently published a series of six charts showing the deterioration of workers’ compensation across the country. Washington state continues to have one of the best systems in the country and must continue to protect our workers by avoiding the national trend of dismantling the rights we’ve had since the Industrial Age.

Source: Occupational Safety and Health Administration

Source: Occupational Safety and Health Administration

For each of the charts and the whole article, visit the Center for Effective Government.

Even Washington Companies Are Trying to Restrict Workers’ Rights

Why Is Nordstrom Joining the Likes of Walmart and Lowe’s in Attacking Injured Workers?

Workers compensation is often referred to as an “historic grand bargain” in which workers gave up their right to sue their employer for the “sure and certain” relief of workers’ compensation. Employers received immunity from lawsuits in exchange for providing more limited but certain support for workers injured on the job. The ProPublica studies referenced in this edition shows how that promise is being unraveled. Now, not satisfied with tearing down the “sure and certain” relief in so many states around the union, a group of employers has banded together and seeks to totally renege on the historic bargain altogether.

Mother Jones details the lobbying efforts emerging to tear down the workers’ comp system and replace it with employer-provided “benefit programs.” The catch? The employers write the rules, pick the doctors, handle the disputes, determine the scope of coverage (or lack there of), and construct the whole system in their own interests, not their workers’. Two states have already enacted this travesty, and the results are horrid for workers.

The big question for Washingtonians is why Nordstrom is joining this sordid effort and disreputable group.  A generation ago, Nordstrom was the gold standard for customer service and was highly desired and rated as an employer. What changed? These efforts show this may not be our parents’ Nordstrom. We hope they don’t join Washington Mutual as a local company that has built good will for generations, only to suck it away for short-term profits.

Please, say it ain’t so.

Reduced Benefits Send Workers into Poverty

While reduced benefits pile medical bills on injured workers who are unable to return to work, plummeting them into poverty, insurance companies are making record profits. In 2013, insurers had their most profitable year in over a decade. At the same time, employers are paying the lowest rates for workers’ comp insurance since the 1970s, and some of the lowest costs are in Washington state.

Graphic via The Stand

Graphic via The Stand

Supporting workers is inexpensive for employers, but insurance companies focused on their corporate profits continue to claim that cutting benefits helps small businesses.

Here in Washington, we do not allow private insurers to sell insurance and loot hundreds of millions of dollars in profits. Instead, we reinvest this money in our insurance funds. Using investment returns, we maximize financial stability, keep premiums lower for employers, and keep benefits fairly strong and accessible for injured workers. Washington is also the only state in the nation where workers pay a share of the premium, further lowering employer costs, and creating ownership and partnership in our workers’ comp system. While we are far from perfect, this study shows Washington does have a better way. It also serves as a warning of why we don’t want to start down that other road.

33 States Have Rolled Back Benefits in Recent Years- and Many Others Before That

This graphic is color-coded to show the best (green) and worst (red) states for workers.

This graphic is color-coded to show the best (green) and worst (red) states for workers.

So-called “reforms” have been enacted in 33 states. From limiting compensation to swapping prosthetics for hooks, states have been systematically dismantling workers’ rights across the board. What else stands out is that Washington is still one of the best states for workers, despite several attempts in the Senate this session to repeal our rights, including:

  • Occupational Disease (SB 5509) – Virtually eliminating occupational disease claims by creating new burdens of proof for workers who suffer occupational diseases, and giving new legal arguments to employers that provide them with near immunity for any illnesses or condition that might possibly be partially caused by any non-work factor, or even for claims arising in multiple workplaces over the years, while also dramatically restricting the time frame for filing claims.
  • Wage simplification (SB 5510) – As introduced and moved from committee, this bill would have “simplified” wage benefit calculations by simply lowering the amounts and the percentages of wages that the wage loss is based on. This bill also overturned a unanimous Supreme Court decision requiring that the value of health benefits be recognized and included in those calculations.
  • Overturning Tobin (SB 5508) – Overturning a Supreme Court decision in the Tobin case. The bill would allow employers and the state to confiscate percentages of injured workers’ (and their survivors’) court awards for pain-and-suffering and loss of consortium claims in wrongful death and other workplace injury cases, even though no benefits were paid for those damages. This also runs afoul of a case in the US Supreme Court, where Justice Scalia said the state does not have a right to take money away for benefits they never paid (Ahlborn.).
  • Group Self-Insurance (SB 5331) – Legalizing the risky practice of multiple employers banding together to self-insure. In other states, such groups have become insolvent and passed major costs onto other employers and/or abandoned injured workers. This also gives employers the ability to handle their own claims with virtually no oversight and where every dollar saved is a dollar in their pocket.
  • Reporting Injuries (SB 5576) – Dramatically shortening the statute of limitations for filing claims and requiring that claims be filed with the employer, which opens the door to intimidation to discourage claims. This could also eliminate claims if the employer filed the notice of claim before the worker, even if the worker is, say, in critical condition or hospitalized.
  • “Three-Way” (SB 5420) – Allowing the private sale of industrial insurance in Washington, a concept overwhelmingly rejected by voters by a 60-40 count in I-1082 in 2010, and that failed in every county and legislative district.
  • Structured Settlements (SB 5513) – Lowering the age limit for lump-sum buyouts from 50 to 18, and eliminating certain protections for workers in the current law.

All of these bills aimed to cut employers’ rates by: a) having dramatically fewer injured workers be able to run the gauntlet and access workers comp benefits, and b) cutting the benefits for those who do.

WSAJ is very proud of our work defending this system over the years and very pleased with the Senators who listened to us and rejected these attacks. This year numerous Republicans joined a unanimous Democratic caucus in rejecting every single one of these draconian measures, and instead created a fairly modest workers’ comp package. WSAJ appreciates those Senators of both parties for standing up for injured workers and keeping our system strong.

Washington Workers’ Comp

This week, workers’ compensation is all over the news. NPR and ProPublica are releasing a series investigating the destruction of WC across the country. What stands out? Washington is among the fairest WC systems in the country.

NPR says:

Until recently, America’s workers could rely on a compact struck at the dawn of the Industrial Age: They’d give up their right to sue. In exchange, if they were injured on the job, their employers would pay their medical bills and enough of their wages to help them get by while they recovered.

No longer.

Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found.

Many workers who do not receive sufficient compensation plummet into poverty, unable to return to work and coping with insurmountable medical bills.

Thirty-three states have cut benefits or made it harder to qualify. ProPublica says:

Presented with ProPublica and NPR’s findings, Sen. Bob Casey, D-Pa., one of the leading worker advocates in Congress, said the changes undermine the basic protections for injured workers.

The rollback “would be bad if it were happening in one state,” he said. “But the fact that a number of states have moved in this direction is disturbing and it should be unacceptable to people in both political parties.”

“They call them reforms,” Casey added. “That’s a real insult to workers.”

The WC system has been designed to protect our workers when they are injured in the workplace. When we roll back their benefits, we are no longer protecting them. WSAJ supports our workers and protecting our state’s strong workers’ comp system.

Penalties Against Self-Insured Employers

Repost via Workers’ Compensation Blog

If medical bills aren’t paid when due or medical treatment not authorized in a timely fashion, it can cause significant harm to injured workers and their families. Consistent nonpayment or late payment of medical bills is one of the reasons doctors opt out of treating injured workers. It’s just too much of a headache for the doctor to continually push for payment of their bills. The bill can end up in the hands of a collection agency and, if that happens, the worker’s personal finances are impacted and their credit negatively affected. Late or nonpayment of medical bills can also delay a worker’s recovery.

RCW 51.48.017 is the statute that provides for penalties if a self-insured employer delays or refuses to pay benefits when due. Self-Insured employers interpreted this statute to only apply to “monetary” benefits payable to the claimant, such as time loss compensation, loss-of-earning power benefits, or a permanent partial disability award. The Department issued penalties only for delay in those monetary benefits. The statute states:

If a self-insured unreasonably delays or refuses to pay benefits as they become due there shall be paid by the self-insured upon order of the director an additional amount equal to five hundred dollars or twenty-five percent of the amount then due, whichever is greater, which shall accrue for the benefit of the claimant and shall be paid to him or her with the benefits which may be assessed under this title. The director shall issue an order determining whether there was an unreasonable delay or refusal to pay benefits within thirty days upon the request of the claimant. Such an order shall conform to the requirements of RCW 51.50.050.

The 2012 significant decision by the Board of Industrial Insurance Appeals – In re James C. Coston – changed that “benefit” definition to include medical bill payments.
Under this recent decision, the Department of Labor & Industries can order penalties against self-insured employers for late or non-payment of medical bills for claim-related treatment.

The Department of Labor & Industries has proposed and will implement new administrative rules regarding late payment of medical bills and delayed treatment authorization. The new rules will define how to file the penalty request and when the Department of Labor & Industries will issue a penalty. This will extend the Department’s oversight of self-insured employer actions and will specifically address timely payment of all benefits owed to the injured worker.

Injured workers are entitled to payment of time loss compensation while they are unable to work due to an industrial injury or occupational disease. They and their families rely on accurate and timely payment of all claim-related benefits. Delays in the payment of any type of benefit can cause significant hardship for the worker. Implementation of this new rule is another tool for workers in their fight for benefits.

Mine Crime

Rarely are corporate CEOs ever held accountable in a court of law for criminal acts. Last Thursday, however, Don Blankenship of Massey Energy was indicted for “orchestrat[ing] the routine violation of key federal mine safety rules…prior to an April 2010 explosion that killed 29 miners,” reported the Charleston Gazette.

He was found to be conspiring to willfully violate ventilation requirement and the coal-dust control rules made to prevent such deadly mine blasts, as well as to cover up the violations and hinder federal enforcement.

Sen. Jay Rockefeller said Don “treated miners and their safety with callousness and open disregard. As he goes to trial, he will be treated far fairer and with more dignity than he ever treated the miners he employed. And, frankly, it’s more than he deserves.”

After Blankenship’s history of putting his paycheck before his workers’ safety, WSAJ is pleased that he is being held accountable for his actions.

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Paseo

Tuesday, Seattle blew up over the Internet about the closure of the beloved sandwich shop Paseo. Many former patrons didn’t realize that the bigger issue was not that we were losing good sandwiches, but that four Hispanic and Mexican workers were seeking justice against Paseo for discrimination and wage theft.

Since there are so many articles about the topic, we thought we’d condense the highlights here for you.

As WSAJ EAGLE member Matthew Ennis explained to the Business Journal: “This is an interesting case because it brings wage theft to the forefront of conversations. Just because of everyone’s love for a sandwich.”

FOUR FORMER EMPLOYEES CLAIM Paseo Caribbean Food, Inc. engaged in wage theft, denial of breaks, and racially-motivated mistreatment. Paseo Caribbean Food, Inc. denies the allegations.

Photo via The Stranger

  1. Four workers filed suit in September.
  2. The allegations were that they were treated differently, discouraged to seek medical treatment, were forced to work shifts longer than 12 hours, were not provided with one-hour breaks, and were denied overtime wages.
  3. After complaining about the treatment, the workers were fired on March 13 this year.
  4. Paseo disagrees. They say workers were fired for “unsatisfactory job performance, abusive language, and threatening other employees.” They also say the workers were at-will.
  5. $50 billion in wages are stolen from workers each year, which could pay for 1.2 million $20/hr jobs.
  6. Some people asked whether the employees were documented immigrants, but that doesn’t matter legally:
    “You will get, sometimes, a defense council threatening, ‘Well, these guys are illegal and we’re going to make an issue out of that.’ But it doesn’t really wash because my understanding of the Washington Minimum Wage Act and the Washington Law Against Discrimination is it applies to undocumented workers also. It’s a public policy that type of argument too, you can’t have employers knowingly employing undocumented workers and then having them do slave labor. It doesn’t matter whether you’re undocumented or not, they’re entitled to protection of the law.”
  7. A study by the Center for Urban Economic Development, the National Employment Law Project and the UCLA Institute for Research on Labor and Employment found that 76% of low-wage employees were not paid deserved overtime and that foreign-born Latino workers were more affected by wage violations than any other demographic.

No matter the outcome of the suit, we agree with Ennis that this brings attention to a very serious topic. WSAJ will continue to fight for laws pertaining to wage theft, misclassification, and retaliation against employers in the upcoming legislative session.

Washington among least expensive workers’ comp states

Workers’ compensation, as described by Cornell University, is made of “laws [that] protect people who are injured on the job. They are designed to ensure that employees who are injured or disabled on the job are provided with fixed monetary awards, eliminating the need for litigation.” Workers’ comp is how we protect employees. It is a vital part of our state’s framework and helps injured people seek justice. But some people are attacking it, according to The Stand.

According to the latest state-by-state comparison on national business competitive assessments, Washington is among the least expensive states for actual employer costs paid for workers’ compensation.

Chief Actuary for the Washington State Department of Labor and Industries (L&I), only ten state have less expensive coverage to employers:

Strangely, (or perhaps not so strangely) the Washington Roundtable, which represents big business CEOs in the state, tried to declare that “Washington is the most expensive state in the nation for workers’ compensation benefits paid per covered worker.” This was partially in response to L&I’s proposal to increase the average workers’ comp rate by 1.8 percent to keep up with wages and to help rebuild the system’s reserves.

As it would turn out, the Roundtable wasn’t referring to what employers pay, but to the benefits provided to injured workers. That is, they aren’t complaining about the cost, but our high level of care for injured and disabled workers.

They point to reports from the Oregon Department of Consumer and Business Services and the National Academy for Social Insurance, picking out certain statistics, ignoring the rest, and not noticing that these studies fail to take into account several factors. Oregon’s study, for example, misses additional costs such as the Stay at Work program and Supplemental Pension Fund, retrospective refunds, and that Washington is the only state in the nation where workers pay a portion of the cost.

Big businesses are trying to misuse this data to encourage policy makers and legislators to cut benefits to workers. This is simply another case of putting profits over people.