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Don't Forget the Injured Worker on Labor Day in California
By Sam Gold
A California Injured Worker
The California insurance industry agreed to a social plan known as Workers Compensation almost 100 years ago, and they have been scheming to figure a way to keep every bit of the premium dollar collected ever since. 30 cents of it just simply isn’t good enough for them. They want the entire premium dollar, period!
Since the California Workers Compensation industry was deregulated at the end of the last century, numerous excuses have been given as to why it went to “hell in a hand basket!” Why several insurers went insolvent and eventually belly up. The cutthroat competition along with insurers getting suckered into reinsurance scams by unscrupulous agents just added fuel to the fire. It was about greed; plain and simple greed!
So how did they find a way out of the morass? Simple, blame the injured worker, the primary stakeholder in this process, and those who seek to help them thru their medical and legal nightmares.
2004 was the "Year Of The Terminator." Arnie was elected by a state unsatisfied by the performance of Gray Davis. So what did we get? We got a Senate Bill that literally intimidated every legislator in Sacramento! We got a governor who didn’t know the foggiest thing about Workers Compensation except what his advisors told him, advisors like Warren Buffett, who I might point out, are profiteering hand over fist in this new millennium due to those changes.
So who is on the losing end here? It’s the injured worker, the very person that this system was created to assist in his or her time of need. I can just hear Hiram Johnson rolling over in his grave!
But first let's get a couple of things straight. Contrary to what Governor Schwarzenegger would have you believe, the attorneys who represent injured workers thru the legal process are NOT trial attorneys and they simply don’t get paid like trial attorneys. They get paid a very small percentage of permanent disability recovery, and only at the end of the case, which in many cases can be anywhere from 2 – 10 years. So they don’t get anything until the case settles and are essentially fronting all costs on the cuff. This area of law is so complex that unless one is a specialist in this field, they are at a distinct disadvantage.
In stark contrast, defense attorneys who represent the interests of the insurance companies get paid by the hour and essentially are running an endless taxi meter. They get paid for their accumulated time during the duration of the case, not just a lump sum payout at the end.
So who here really has the financial incentive to drag these cases out for long drawn out legal fights? OK now do you get the picture? This doesn’t present a very level playing field, does it?
In 2004, the insurance industry put millions of dollars behind a concerted effort to as they say "reform" Workers Compensation. But the dictionary defines a "reform" as an improvement and Senate Bill 899 improved only one thing, insurance industry profits, nothing else. It doesn't take a rocket scientist to figure that one out. Money well spent!
Reality is that Workers Compensation is not about truth and justice, nor is it about fairness and equity. It's simply about money and power and what you can try to prove in front of a judge. It’s about medical-legal doctors who prostitute themselves and use more of their creative writing skills than their medical skills for those big money payoffs from the insurance carriers. A very sad anthem for the 21st century!
SB899 created the "Medical Provider Networks!" Now, when an injured worker goes to the doctor, the foremost goal of the doctor is to get repeat business from the employer, not take care of the injuries of the injured worker in an expeditious manner.
SB899 created "Utilization Review," which is nothing but a ploy to delay and deny treatment on a wholesale scale. Claims examiners requesting UR send case after case to these independent physicians with little or no documentation, so the review is doomed to failure from the start!
SB899 removed any meaningful penalties that kept insurers in compliance with the law. Now it's cheaper to pay the penalties than it is to comply with the law. And they don’t even get a slap on the hand for committing the most heinous of crimes.
Where else can the gross negligence of the employer and insurer with reference to the incompetent delay or denial of medical treatment that leads to the death of an injured worker allow get them to get off scott free with no fear of recrimination or financial liability?
It's getting so bad that injured workers suffering in excruciating pain and getting a blind ear from the insurance companies and their defense counsel are simply committing suicide and that is a list that keeps growing and growing as time goes on with no relief in sight.
A report just released states that the list of available Qualified Medical Examiners is down by almost 25%. And many physicians are just plain disgusted with this system and are not accepting occupational injury cases anymore. A recent article about Enloe Medical Center in Chico bears credence to that statement.
So where does that leave the injured worker? Simply, with a steadily shrinking pool of available legal advocates, as many applicants attorneys are no longer able to make a decent living since SB899 unfairly manipulated the permanent disability rating schedules by requiring the use of ACOEM guidelines, which ACOEM admits were never, ever meant for acute occupational injuries. And they are leaving the field in large numbers! It leaves the injured worker with fewer and fewer competent doctors who are genuinely concerned about their welfare, making them whole again and getting them back to work.
And now county District Attorneys are climbing on the bandwagon too by prosecuting injured workers for Workers Compensation fraud, with the most flimsiest of evidence, some that doesn't even meet the legal requirement to prove fraud, and others using tainted evidence that is "the fruit of the poison tree!" Their ulterior motive is to get a piece of that $43 million dollar Fraud Assessment Fund that the Department of Insurance hands out for successful prosecutions. Your constitutional rights and protections simply don't matter here!
When our 24 hour around-the-clock governor broke his leg last December, he was admitted into the hospital for surgery so fast (less than 72 hours) that it would make your head spin. How many injured workers can attest to that fact? Did he use his own personal medical insurance to pay for the surgery? Did he commit fraud by using it instead of informing State Compensation Insurance Fund of his injury?
It appears that their master plan is working, unless you and I rise up and help put an end to it. After all we're "WE THE PEOPLE," right?
Sam Gold is an injured worker who created the first regularly scheduled television program on the California workers' compensation system. Injured On The Job (www.injuredonthejob.tv) is produced at state-of-the-art video production facilities in San Francisco and Sacramento, and exposes that fraud and corruption in a manner that the television viewer can easily understand. He also maintains the web site Californians Injured at Work.
Comments
You are absolutely correct. But how do WE get the "busy" working individuals to take even one minute to realize that this fundamental rights to recovery from an injury at work is flawed and need to be repaired? Working people are too busy and too tired to take attention to this issue. To decipline them to take time and take a close look at their support systems and educate them before it is too late; before it is too late to participate to make these needed repair?
Many workers are UNAWARE of these issues until they actually experience these dreadful flaws. Many employers as well are unaware that they are getting the product (insurance coverages) they paid for for their employees. They are simply to concern only in one thing profit and expenses and maintaining the requirements mandated by law to run a business such requirements as obtaining a workers comp insurance for their employees. Yes the employers have a different take on the insurances they purchased for their employees. They simply concern with the minimum cost, only to meet the requirements mandated by government.
Employers are NOT fully aware of these flaws. Many who trully are concerned and care for their employee's well-being ARE surprise by what they are learning after they lose an A+ worker to a work injury. They have innocently believed that the insurances would cover the expenses and losses of their employee so that they are taken cared of when something tragically happens to them at work.
I know someone personally that have worked for an employer who has been in business for 99 years and I was told has not experienced losses or injury arising from work accident. For 99 years they have been paying for workers comp insurance for their approximately 60 to 100 employees. Not once have they been rewarded by the workers comp insurances of a discounted or reduced premium rates for good performance (no accident claims). Instead when the legislature deregulated the workers comp industry, their premium rates significantly increases year after year, resulting in laying off workers. This went on until one day my friend who worked for them as a manager was hurt at work which left my friend permanently disabled. As a manager, his wages before the injury exceeded that SB899 maximum weekly pay for TD or PD under the workers comp law, leaving my friend financially under insured for his losses, which greatly affected his ability to pay his living expenses suchas loans, credit cards due to the unexpected, unforeseen delay tactics of the insurance company to duck their obligations and responsibilities to pay entitlements. It was apparent that they were trying every possible tricks to delay paying benefits including medical care.
YES indeed MANY employees AND EMPLOYERS are NOT aware of these issues. They simply pay attention to other issues such as premium payments, and how to increase their profit margin and reduced expenses.......forgetting the ramifications of their actions on the legitimately injured workers. They simply have focus more on hanging on to money and protecting themselves from fraudulent claims. This is fine and appropriate; but in the scheme of things, they have forgotten and NOT paid enough attention to those injured workers who are legitimately entitled to coverages promised by the workers compensation system. Employers and legislatures have forgotten that they must balance their concerns co-equally with the injured also. For without the protection of people at work; regardless if you are a manager or a subordinate, or a janitor, or a doctor, or a police, WE ARE ALL WORKERS.......who should be adequately covered under the system of workers comp that will insure us when we fall victim to work injury.
This affect ALL of US including the workers who work in the WORKERS COMP SYSTEM. If one part of the WORKERS COMP SYSTEM, in this case the part for the WORKER, is NOT working or fairly being treated with appropriate attention.............then THE WORKERS COMP SYSTEM ....IS....NOT....WORKING....PROPERLY. It should be fixed before anymore WORKERS get injured and fall between the crack.
Governor should try to understand that when WORKERS are not properly protected by the insurance it is designed to protect.....the cost of burden is shifted to public services that should REALLY only be used for those who have reached rock bottom.
Workers Comp Insurance have enjoyed record profits and they should be held accountable for the "COST shifting schemes" that enable them reap a RECORD PROFIT.
Employees and Employers beware! The system that is designed to insure your well-being and your dignity in times of tragedy arrising from a work related injury is SERIOUSLY flawed. Better NOT ignor it any longer or you may fall into this false sense of security. Do something about it NOW.
Posted by: ANON at September 3, 2007 02:28 PM
One other problem with getting working system to work IS, injury incidencess is significantly lower in NUMBERS compare to those were fortunately lucky NOT to fall victims to work injuries.
By the mere fact that these "NUMBERS" are lower, so as the POLITICAL VOICE for the INJURED WORKERS.
So as a ples for help, WORKERS should suport a fair and equitable and legitimate REFORM to the SYSTEM.
By not doing so, is like playing a Russian Rolet with your "safety net". It affect all of US if not directly by redistribution and allocation of our tax dollars that could be used for other needed services. Force the insurance to be more responsive to their obligation.
Posted by: anon at September 3, 2007 02:48 PM
"Rise up and help put an end to it". By all means. And in a minute I'll tell you how. Another poster wrote that we need reforms. NO!! Workingclass people are fed up with plodding reforms that do nothing in the long-run and very little in the short-run either. We need a Revolution! And by that I mean, let's say, a world-wide General Strike for a few weeks? To show the ruling class that without the workers, they are useless!
Fed up too with roll-backs, speed-ups, barbaric working conditions and a LABOR ARISTOCRACY which is in bed with the twin parties of big business, not the workers. SAFETY LAST is capitalism's motto. PROFITS BEFORE PEOPLE.
Did you know it took the American worker ONE HUNDRED YEARS of blood, sweat, tears, strikes, and massacres just to acquire the 8-hour day?? (Read Samuel Yellen's American Labor Struggles 1877-1934)
How did that happen? The workers and their families organized, went on strike, they marched, they wrote articles in the papers, THEY TOOK THEIR DEMANDS TO THE STREETS, and they didn't back off until they got the 40-hour week. The government and their capitalist cronies fought and sometimes killed the people at every step they tried to make forward. This is the American History we were not taught.
My point is if YOU ARE AS ANGRY ABOUT THIS AS YOU THINK YOU ARE, then join a group like mine, Radical Women, or the Freedom Socialist Party. These socialist feminist organizations have been battling capitalism and the Bosses for decades. You, alone, can do little. Amplify your voice by joining with others who want peace, justice, and a society where no one is hungry or over-worked or stressed out.
Screaming for action and wearing a button are not enough. If you truly want to change things, help us to root out capitalism and replace it with the sane alternative, socialism. Interested? Go to www.socialism.com and discover a world you never knew existed.
Posted by: Andrea at September 5, 2007 08:27 PM
Perhaps the simple answer is for workers to opt out of the mandated workers insurance system. In reviewing the the workers compensation system you will find at its roots farm workers and farmers in the early 20th century looking for an answer to the then current system of employee suing the employer after an injury.
Fact is that it was the farmers united in California the demanded a system that would alleviate the burden of non-stop lawsuits. Imagine Californias number one industry being crippled by individual lawsuits seeking medical cost and lost wages for injuries suffered by workers. Something needed to be done and the California legislature jumped in and created the Workers Compensation Fund.
Then in the early 70's the federal government and later the state government created the OSH act. Modeled after the late 60's mining industry agreements (Mining Safety and Health Act, MSHA) employers were charged with providing a safe and protected environment for their workers. These acts were also a result of a littany of lawsuits seeking compensation for injuries incurred by workers from their employers. Then as in the California case the government came to the aid of business and created a mandate to protect their workers.
What came next was the ADA (Americans with Disablities Act) and this too, was a government bailout of Americas business world when individual lawsuits became too burdensome for employers.
None of these federal or state programs were created for the individual. The fact is though the individual and their lawsuits provoked the business world to seek relief from the litigation. In each of these cases a fundamental flaw was inserted that would guarantee the eventual collapse of these programs.
That flaw is the intended use of private insurance companies to guarantee the cost of the programs. An absolute deathnail put in by the greedy money changers of the business world.
As Sam eloquently stated no insurance company intends to ever let a penny go out of their coffers. So if you want to reform a system that has become so corrupt that even organized crime is envious you would do well to remember the history that got you here today.
As individuals we can do just as those farm workers, miners, and disabled workers did when they were faced with a system rigged against them, they filed! In California alone their are enough injured workers to start the trend and if all workers become aware of the significance of supporting an alternative to the insurance companies get rich quick schemes business' will scream and politicians will get off of their velvet covered tush's and a new answer will be in the making.
Posted by: Zimbabalouuie at September 10, 2007 10:05 PM
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