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Workers' Compensation Notes: Issue 2, March/April 2000 The Ergonomics Proposal and Workers' Compensation The proposed ergonomics standard published by OSHA in November has been the subject of considerable debate in written comments and at oral hearings over the past several months. A report on the hearings as well as the full text or a summary of the comments submitted by the AFL-CIO can be obtained at http://www.aflcio.org/safety/ergo_hearings.htm. An important provision of the proposal requires that employers make musculoskeletal disorder (MSD) management available, at no cost to employees, whenever a covered MSD occurs. Under specific conditions, MSD management could require employers to provide work restriction protection (WRP), including wage and benefit continuation, until the hazard has been eliminated, the employee is determined able to return to the job or six months have passed. This provision is similar, but not nearly as protective, as medical removal protections (MRPs) present in various other OSHA standards (lead, benzene, formaldehyde, methylene chloride, etc.). Insurance associations and employer groups have blasted the proposal as interfering with the state workers' compensation system. They have charged that the proposed standard would "supersede," "gut" and effectively "nullify" state workers' compensation laws. In contrast, Emily Spieler, law professor and former West Virginia workers' compensation administrator, testified on behalf of OSHA that the proposed standard does not change or affect the way in which workers' compensation systems deal with musculoskeletal disorders. As she noted, OSHA's efforts focus on early intervention in order to promote workplace safety and prevent long-term disability, while workers' compensation focuses on intervention after the health damage has been done. "It would be nonsensical as a matter of policy ," Spieler argues, "to bar preventive activities and early intervention on the grounds that compensation programs are available." Eliot Spitzer, attorney general of the state of New York, testified that the proposed regulations would leave his state's workers' compensation scheme wholly intact. Spitzer noted that the proposal would not affect New York's workers' compensation eligibility standards and would not constitute an admission of liability under New York's law. He argued that, by encouraging early diagnosis and treatment of covered injuries, the proposed standard would promote, not obstruct, rehabilitation and early return to work. "Workers would gain new protections and businesses would gain significant economic benefits if the proposed standard is implemented," according to Spitzer. Copies of both Spieler's and Spitzer's testimonies are available from Caryl Meehan of the AFL-CIO Safety and Health Department at 202-637-5207, e-mail cmeehan@aflcio.org. Energy Employees Occupational Illness Compensation There has been a flurry of activity around the issue of compensating Department of Energy contractor employees who died or whose health was damaged by exposure to dangerous substances while working to build nuclear weapons for the defense of the United States. A bipartisan effort has begun in the Senate and the House; chief Senate sponsors of SB 2519 are George Voinovich (R-OH) and Edward M. Kennedy (D-MA), while chief House sponsors of HR 4398 are Ed Whitfield (R-KY) and Ted Strickland (D-OH). These virtually identical bills would provide compensation for all occupational diseases or deaths suffered by DOE contractor and vendor employees in the nuclear weapons complex. This would include beryllium diseases, radiation-induced cancers and illnesses from other hazardous substances. Victims or their survivors would have a choice between wage replacement benefits or a lump-sum payment. In both cases, claimants would be eligible for continuing medical benefits. The program would be administered by the secretary of labor. Sen. Jeff Bingaman (D-NM) made an effort to move an amendment, containing some of the provisions of the bipartisan bills described above, to the defense authorization bill in early May. That effort was withdrawn at the request of the chair of the Senate Armed Services Committee, John Warner (R-VA). Department of Energy Secretary Bill Richardson announced in April that "the men and women who served our nation in the nuclear weapons industries of World War II and the Cold War labored under difficult and dangerous conditions with some of the most hazardous materials known to mankind. While we cannot undo their suffering," he said, we can begin the process of healing "by admitting the government's mistakes, designing a process for compensating these workers for their suffering and by becoming an advocate for Department of Energy workers throughout the nuclear weapons complex." Workers' Compensation Comparisons The annual AFL-CIO Death on the Job report contains valuable state-by-state statistics and profiles focusing on worker safety and health. The report also has a listing of temporary total disability benefits and workers' compensation comparisons for 2000. The comparison shows that benefits vary widely from state to state and that in many states, compensation is meager. For example: a worker who loses a hand in a job accident would be entitled to $218,136 in the District of Columbia but only $21,960 in Rhode Island; the family of a worker killed on the job would get as much as $10,000 in burial expenses in Virginia but just $2,000 in Mississippi; Iowa pays as much as $996 per week to the surviving spouse of a worker killed on the job while Oklahoma pays a maximum of $237 a week. Twenty-four states pay benefits to the surviving spouse of a worker killed on the job for life or until remarriage (as recommended by the National Commission); 27 states limit such benefits by dollar amount or duration. The comparison shows that at the same time workers are not being adequately compensated, commercial insurers continue to make substantial profits. In New York, where maximum benefits are barely half of the state's average weekly wage, insurer profits in 1998 were 19.9 percent—nearly triple the national average. Medical Privacy—If You Think You Have It, You're Wrong The following is excerpted from a presentation to the annual meeting of the Workers Compensation Research Institute (WCRI) by Don Judge, executive secretary of the Montana State AFL-CIO, in March of this year. Medical privacy, perhaps the last mediocre bastion of balance left in a medical system that has become a bane of the injured worker and a bucket of cash for the American insurance industry, is now the latest target of a national campaign to deform workers' compensation. The right to protect your most private, personal information—that which flows in your blood, resides in your fiber, wanders through your mind or is reflected by your personal life style—is the subject of great political debate. The collection and sale of data related to workers' compensation claims has become a multibillion-dollar business. Firms specializing in profiting off the misery of others include some with nationwide fame. Among the most notable are the Texas-based Industrial Foundation of America; Colorado's Avert; Louisiana's Employers' Information Service; Oklahoma's DAC Inc.; and Toronto-based MIB Inc. Together, these five companies have acquired medical data on millions of workers. They collect the data from workers' compensation systems in states where privacy laws are insufficient and then sell it to employers nationwide. Employers use the information to screen job applicants, weeding out not only the few fraudulent claimants but thousands of legitimately injured workers and others with chronic health problems as well. Although the Americans with Disabilities Act of 1990 somewhat restricted such activities, the practice continues today, and is building. And, the proposed federal rules on medical privacy do little to alleviate the problem. Under the currently proposed federal rules, private medical data which is submitted to appropriate state or federal agencies loses its protection from disclosure. Workers' compensation claims and other forms of property and casualty insurance are specifically excluded from coverage, creating a huge gap in real medical privacy. In addition, paper information (medical data which is not contained in an electronic format) is also excluded, leaving as much as 90 percent of personal medical data open for disclosure. To top it all off, Congress failed to give individuals the right to sue for violations of their medical privacy, and the administration does not have the authority to grant this right. In effect, individuals who feel that their privacy rights have been violated must initiate a complaint with the secretary of health and human services—who may impose civil penalties, but recovery for damages is not provided. So much for real enforcement. With these and other loopholes, medical privacy under the federal government's proposed new regulations is simply a façade on a crumbling foundation of personal privacy rights. Increasingly, workers' compensation insurers are seeking unlimited access to the full medical histories of injured workers. Most of this review is simply an effort to establish that a substantial part, or all, of the medical problem is not related to work, and therefore, the injury or illness is not compensable. The more an insurer can find out about an individual's medical history, the greater the chances are of coming up with an excuse to deny access to the workers' compensation system. In state after state, workers' compensation insurance providers, including some of the nation's largest, are asking workers to sign carte blanche authorizations to access every detail of their personal medical histories from every source possible. Many, if not most, workers actually sign these forms, believing that access to medical treatment and lost-wage recovery are dependent on their doing so. And in too many states, this information becomes available to companies who profit by its sale to employers of insurance companies. We've become pretty sensitive about access to medical records in Montana lately. We've witnessed an employer's withholding of private medical information about its workforce becoming the central issue of a national debate. W.R. Grace, now a household name, knew through employer-sponsored X-rays that workers who worked at their Libby vermiculite mine from one to five years had a 17 percent chance of contracting an asbestos-related disease; those who worked 11 to 20 years had a 45 percent chance; and those who worked from 21 years to 25 years had an astonishing 92 percent chance of contracting an asbestos-related disease. And yet, they never shared this information with their workers! When the first employee from W.R. Grace filed an occupational disease claim, W.R. Grace fought them tooth and nail. But, according to confidential internal documents, when the claimant finally obtained a date for a public hearing, Grace decided it was better to settle, thereby "avoiding the necessity of exposure of all the more damaging aspects," "keeping them (damaging documents) out of the hands of the Industrial Accident Board and the general public," and to "avoid having evidence presented which would reveal the extent and severity of the problem." In the case of W.R. Grace, the employer and insurers had information which could have saved lives—perhaps tens of thousands throughout the nation—but they deliberately chose not to share it. In one instance, W.R. Grace conducted a pre-employment medical screen on one potential worker, the son of a former employee, and results showed that this family member had already contracted an asbestos-related disease (likely from the dust carried home by his father). They hired him anyway, knowing that certain harm would come through his increased exposure to the deadly asbestos fibers disturbed in their mine and milling process. Access to personal medical information is a two-way street. All across the country, citizens are becoming aware of the insidious, underground economy percolating in the purveyance of personal medical information. They are becoming more and more aware of the industry that thrives on the collection and sale of pieces of the most private aspects of a person's being. Discrimination, blackballing, arbitrary dismissal, forgone promotions, turned-down insurance applications, denied claims and economic ruin are all byproducts of this invasion. There are opportunities at both the federal and state levels for citizens to raise their voices to this most malignant of practices. And citizens are doing so through their unions, their churches, their family physicians and their elected representatives. More than 54 organizations in 31 states across the country have sprung up to represent the voice of injured workers. They're calling for changes to access restrictions, demanding improvement of benefits and insisting on an individual's right to personal medical privacy. Injured workers and their representatives understand that access to medical data specifically related to a workplace injury is important. They know that such information is relevant to their treatment, prospects for recovery and return to work. But asking for legitimate information related to a specific claim is not enough for some. Insurers, personal medical information profiteers and employers have been asking for more, and they are out of step with most Americans. This time they have gone too far—and working families are saying "no more." We're Too Polite to Call This Fraud California Insurance Commissioner Chuck Quackenbush, the top elected GOP official in the state, doesn't have the same trouble getting money out of insurance companies as injured workers do. In March, the Los Angeles Times reported that Quackenbush had collected considerable sums of money "from insurance companies with business before him and used it to repay his wife for personal loans she made to her failed state Senate campaign." One workers' comp carrier put nearly $100,000 into the commissioner's political bank account nine days after he proposed an 18.4 percent increase in workers' compensation premium rates. Then on May 5, a Sacramento judge froze a huge Quackenbush-created fund that was supposed to provide consumer assistance and earthquake research. Millions of dollars had been "donated" to the fund by insurers anxious to avoid as much as $3 billion in fines arising out of alleged claims violations from the Northridge earthquake. Seems that none of the money ever made it to consumer assistance or research. Several major newspapers in the Golden State have called on Quackenbush to resign. Many Employers Cheat, State Does Nothing Massachusetts State Auditor Joe DeNucci reported in April that thousands of employers in the Bay State go without mandatory workers' compensation coverage due to inadequate oversight and enforcement of the law by the state's Department of Industrial Accidents (DIA). The result is that good employers subsidize businesses that don't follow the law. In the past 15 years, over $65 million has been paid to injured workers of uninsured firms from a fund that other employers finance. State law provides that businesses that do not have workers' compensation insurance are to be fined $100 a day and given stop work orders (SWOs) until coverage is obtained. Had the DIA assessed fines for just four of those years, according to the audit, $22.2 million could have been collected. Instead, DeNucci's audit found that over 4,000 employers who were issued SWOs were never fined or penalized by DIA. The February issue of Consumers Report contained a first-rate article on workers' compensation by Associate Editor Marlys Harris. If you missed it: "Workers' comp: Falling down on the job," you can read it at: http://www.Kalindra.com/cr_wc1.htm. It also was excerpted in the May 2000 issue of America@work. | ||||||||
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