OSHA’s critique of workers’ comp

On March 5, OSHA issued a scorching critique of the workers’ comp system today, “Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job.”


This is an unprecedented statement by a federal agency on inadequate benefits, the financial burden of injuries on injured worker households, misclassification of workers as independent contractors, under-reporting of injuries into the workers’ comp system, and other failings of the 100 year old state based workers’ comp system.


Some excerpts from the executive summary:


….More than three million workers are seriously injured, and thousands more are killed on the job. The financial and social impacts of these injuries and illnesses are huge, with workers and their families and taxpayer-supported programs paying most of the costs.


For many injured workers and their families, a workplace injury creates a trap which leaves them less able to save for the future or to make the investments in skills and education that provide the opportunity for advancement. These injuries and illnesses contribute to the pressing issue of income inequality: they force working families out of the middle class and into poverty.


The costs of workplace injuries are borne primarily by injured workers, their families, and taxpayer-supported components of the social safety net. Changes in state based workers’ compensation insurance programs have made it increasingly difficult for injured workers to receive the full benefits (including adequate wage replacement payments and coverage for medical expenses) to which they are entitled.


Employers now provide only a small percentage (about 20%) of the overall financial cost of workplace injuries and illnesses through workers’ compensation.


The pervasive misclassification of wage employees as independent contractors and the widespread use of temporary workers have increased the risk of injury and the number of workers facing financial hardships imposed by workplace injuries.



The most effective solution to the problem posed by this paper is to prevent workplace injuries and illnesses from occurring….. At the same time, it is vitally important that state-based workers’ compensation programs take steps to eliminate roadblocks that prevent workers with compensable injuries or illnesses from receiving the full compensation to which they are entitled.




States that allow undocumented workers workers’ comp benefits

“Arizona, California, Colorado, Connecticut, the District of Columbia, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas and Virginia all have case law establishing that undocumented immigrant workers are covered under the workers’ compensation statutes of those respective states.
“Just this past year, the Delaware Supreme Court ruled that a worker’s inability to provide a valid Social Security number didn’t bar his comp claim, and the California Supreme Court said a worker’s alleged use of a false Social Security number to get his job didn’t prevent him from suing his employer for disability discrimination when it failed to rehire him after he got hurt on the job.”.
From article by Sherri Okamoto in WorkCompCentral, Jan 12 2015

A free guide to immigrant worker safety and health

With generous support from Concentra and Broadspire, I authored Work Safe: An Employer’s Guide to Safety and Health in a Diversified Workforce. This first of its kind guide is a very accessible source of practical advice on special techniques in worker safety training, medical treatment issues, hiring and using interpreters and other topics. It includes an extensive guide to free online resources on occupational safety organized by key occupations of foreign-born workers.
The Guide includes simple, brief introductions to workers compensation and to work safety regulation in the U.S., in English and Spanish. They can be translated into other languages.
The Guide grants the reader wide discretion on copying and using portions of the guide.

The Year of Immigrant Workers and their work injury risks

Leaders Speak at WorkCompWire invited me to write two columns on what employers need to know about work injury risks of foreign-born workers. Below are the two columns. Thanks to Stephen Sullivan of WorkCompWire.
Part 1 (8 20 13)
This is the Year of the Immigrant Worker.
As we all know, Congress is deeply engaged in the first serious chance for comprehensive immigration law reform since the 1980s.
Foreign born workers, in part due to their numbers, in part due to their employment skewed toward above average injury risk jobs, sustain a large share of the nation’s annual three million work injuries.
In 2012, there were 25 million foreign-born persons in the U.S. labor force, comprising 16% of the total workforce. Hispanics accounted for 48% of the foreign-born labor force in 2012, and Asians accounted for 24%. (Recently Asians have been entering the U.S. at higher levels than Hispanics.) Undocumented workers account overall for about 5% of the nation’s total workforce and roughly one third of foreign-born workers.
For those engaged in some aspect of work injury risk management —work safety, claims, medical care, the law, corporate risk management, insurance, etc. – a closer look at the immigrant workforce is urgently needed:
• Work safety and claims experts who know this workforce have been warning that, when paired with a native born worker, a foreign born worker poses higher injury risk due to language barriers, cultural miscues and poor health literacy
• The growing presence of immigrant workers is not temporary and reversible. It is part of global economic forces. Some 150 million workers globally are estimated to be working outside their country of origin.
• Private sector employment growth has been and will continue be in fields with relatively high immigrant participation, ranging from software engineers to personal health aides.
These trends come to life when we examine a few key occupations below. But first a note on undocumented workers, which we often, incorrectly, view as an essentially isolated workforce.

Continue reading The Year of Immigrant Workers and their work injury risks

Race matters in award of workers comp benefits

A new study reveals that injured construction workers in Illinois received higher workers’ compensation payments than their Hispanic or black counterparts – to the tune of an additional $6,000.
EHS Today reported on the study, which was published in the Journal of Occupational and Environmental Medicine.
Per the magazine, researchers at the University of Illinois at Chicago School of Public Health assessed ethnic disparities among construction workers injured on the job by linking medical records data from the Illinois Department of Public Health and workers’ compensation data from the Illinois Workers’ Compensation Commission between 2000 and 2005. In all, they evaluated 1,039 injury cases, including 724 white construction workers, 68 black, 168 Hispanic and 79 workers of other ethnicities.
They found that white, non-Hispanic construction workers in Illinois were awarded higher settlements – approximately $6,000 more – than Hispanic or black workers with similar injuries. The settlements for white workers were substantially higher despite controlling for average weekly wage, type of injury, injury severity, weeks of temporary disability, percent permanent partial disability, and whether or not the worker used an attorney – all factors that are known to contribute to the final decision for monetary compensation in the claims process.
White construction workers consistently were awarded the higher monetary settlements despite the fact that the mean percent permanent partial disability was equivalent to or lower than that in black and Hispanic construction workers, according to the study’s authors. This was true for amputations, torso injuries, open wounds of the upper extremity and traumatic brain injury. The most common types of injuries for all workers were fractures, internal injuries, and open wounds.
The study does not explain why white construction workers would receive higher compensation, said Lee Friedman, assistant professor of environmental and occupational health sciences at UIC and lead author of the study.
“One explanation is that there is some systemic bias or prejudices occurring within the system,” he said. “Or, it could be that the level of information and knowledge about how the system works – and what can actually be litigated, disputed, or requested for compensation – might vary by ethnic group.”

Immigrant farm workers in New Mexico given a legal boost

A state court in New Mexico ruled that the legal exemption of most farm workers is unconstitutional. I expect that well over half of these workers are immigrants.
New Mexico 2nd Judicial District Judge Valerie Huling said Dec. 27 in an opinion in Griego et al. v. New Mexico Workers’ Compensation Administration that agriculture is the only industry allowed to shift the burden of injured workers onto taxpayers by not providing workers’ compensation coverage.
The distinction used to define who is exempt and who is not exempt comes down to whether the worker is directly involved in harvesting crops or working with animals. For example, a worker picking onions on a farm would be excluded from coverage, but a person who is packing those same onions inside a building on the same farm would be covered by the Act.
The court found this distinction arbitrary and thus unconstitutional.
Many thanks to WorkCompCentral and its CEO David DePaolo for permission to run the complete story on his web-based service.
The article in full:
NM Case Makes Clear Work Comp Can’t Discriminate Arbitrarily
Workers’ compensation is a creature of statute. We’re constantly reminded of that. But even though statutorily created, rules of fair play and application still apply – in other words the laws of any particular state must still meet constitutional standards.
In New Mexico a court ruled that a statute enacted in 1917 that excludes farm and agricultural workers from the New Mexico Workers’ Compensation Act is unconstitutional.

Continue reading Immigrant farm workers in New Mexico given a legal boost

Questionable coverage by workers comp for migrant workers

According to Caitlin Fairchild, only 13 states require employers to cover seasonally agricultural workers in the same way as other workers, and 16 states do not. The remaining 21 states’ laws are apparently not clear-cut as to coverage. Farmers have tried to stay exempt from workers compensation laws in their states.
She cites two organizations as resource for more information about the laws in particular states. Farmworker Justice is working with other groups to improve workers’ access to workers’ compensation benefits. It is working with the Migrant Clinicians Network to educate clinicians about the workers’ compensation system so that more clinics are able to handle such cases.
Fairchild reports:
Specifically, only 13 states, the District of Columbia, Puerto Rico and the Virgin Islands require employers to cover seasonal agricultural workers to the same extent as all other workers. These jurisdictions are: Arizona, California, Colorado, Connecticut, the District of Columbia, Hawaii, Idaho, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, Ohio, Oregon, Puerto Rico and the Virgin Islands. In an additional 13 states (including Florida and New York), only small farmers are exempt from providing coverage to their migrant and seasonal farmworkers. Moreover, employers who hire legal temporary foreign workers under the H-2A visa program are required to provide workers’ compensation insurance or equivalent benefits to their employees.
By contrast, 16 states do not require employers to provide any workers’ compensation insurance for migrant or seasonal farmworkers. These states are: Alabama, Arkansas, Delaware, Georgia, Indiana, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, South Carolina, Tennessee and Texas. In an additional eight states, coverage is limited to full-time workers (e.g., Maine), workers in specialty jobs (e.g., South Dakota), or those employed on large farms (e.g., Rhode Island).

The immorality of denying workers comp benefits to illegal workers

Mark Noonan, a very smart workers compensation professional, weighed in today on the issue – legal and moral – over withholding workers compensation benefits from undocumented workers. Here is his column in Risk & Insurance Magazine:
Raising Debate Beyond the Borders
By Mark Noonan
By taking one simple pass through any news source, it’s obvious that we have a growing national dilemma with immigration–an issue that becomes more heated and emotional as the subject of workers’ compensation for undocumented workers is brought into the debate.
The issue of workers’ compensation benefits becomes complex as state statutes clash with the federal immigration law. Under federal law, undocumented immigrants cannot lawfully work in the United States and employers are prohibited from knowingly hiring them. Once hired, however, most states do provide workers’ compensation benefits regardless of immigration status.
Wyoming is currently the only state that has a statute prohibiting illegal immigrants from receiving workers’ compensation benefits. Georgia, Montana, New Hampshire, Ohio and South Carolina are considering passing bills that would deny workers’ compensation benefits to undocumented workers. The state of Arizona has unsuccessfully introduced bills the past two legislative sessions. Silent on the issue are Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin.
All other states expressly include undocumented workers in their workers’ compensation statues.
State workers’ compensation laws are designed to provide (among many other things) wage replacement for periods of disability caused by workplace injuries or illnesses, and promote return to work if possible. Although federal law can still impact what benefits they may receive, courts have generally ruled in favor of entitling workers’ compensation benefits to the undocumented worker, some with limitations. Courts in California, Nebraska, and Oregon, for instance, have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.
We may begin to see fewer differences between state and federal law. On December 23, 2010, in the case Asylum Company and Insurance Designers of Maryland v. District of Columbia Department of Employment Services, the District of Columbia Court of Appeals ruled that an undocumented worker is entitled to temporary total disability benefits.
The District’s administrative law judge found the undocumented worker, Palemon Cassarubias Gonzales, was eligible for workers’ compensation. On appeal, the employer argued that the federal Immigration Reform and Control Act of 1986 (IRCA) pre-empted the workers’ compensation law. IRCA bars employers from hiring individuals, including illegal aliens, who are not entitled to work in the United States. The employer, who did not know his employee was illegal, argued that IRCA makes an undocumented workers’ hire illegal and bars him from receiving workers’ compensation benefits.
Because other state court rulings have observed that, by not providing benefits to undocumented workers, some employers could exploit a financial incentive to hire them in the first place knowing they may not have to pay workers’ compensation benefits, the District of Columbia Court of Appeals ruled that it could not find a reason to disagree with other state court. In spite of the IRCA argument, it upheld the previous decision to provide Gonzales with benefits.
Over the past two years, the government has stepped up enforcement for employee verification. The Department of Homeland Security views E-Verify as a critical step to keep employers in compliance with immigration employee verification requirements. An Internet-based system, it compares information to confirm whether or not a job applicant is a legal U.S. resident.
It’s a good concept, but E-Verify alone will not force an undocumented worker to leave the country or to stop pursuing employment with false identification. It is a misplaced effort that doesn’t address the problem for employers: What to do with an injured undocumented worker.
There are more than 8 million undocumented workers and, whether the employer is aware of their illegal status or not, the injured worker deserves to be covered by workers’ compensation benefits. Legally and morally, it is the right thing to do.
As we celebrate the 100th anniversary of workers’ compensation, let’s not forget the intent– providing injured workers with benefits to assist them as they recover, while freeing the employer from the threat of litigation, thus allowing both sides to achieve a positive result.
I’ve never seen anything to suggest that someone should be excluded from receiving medical and indemnity benefits because of their citizenship status. It’s inappropriate and, in my opinion, discriminatory.
MARK NOONAN is a managing principal and the senior knowledge manager for workers’ compensation for the Casualty Practice within Integro Insurance Brokers.
The opinions expressed in this column are the author’s and do not reflect the position of this publication or Integro Insurance Brokers.

Continue reading The immorality of denying workers comp benefits to illegal workers

States may bar workers comp for illegal immigrants

This is a refrain from recent years: state legislators who want to screw illegal workers who are injured or die on the job. Not only do these proposals violate a standard of fairness, but they threaten to open employers up to tort suits outside the workers comp system. Very capable Henry Ceniceros of Business Insurance describes proposals in Georgia, Montana, New Hampshire and South Carolina.
His article in full.
States may bar comp for illegal immigrants
Roberto Ceniceros
With conservative lawmakers in control in several states, more legislation is being introduced that would deny workers compensation benefits to illegal immigrants who are hurt on the job. And while such efforts have failed in recent years, today’s changed political climate could result in some of that legislation becoming law this time around, some say.
Bills that would bar illegal immigrants from collecting workers comp benefits are pending in Georgia, Montana, New Hampshire and South Carolina.
There is growing demand from legislators and their staff for information on barring illegal immigrants from collecting workers comp benefits, said Ann Morse, program director, immigrant policy project for the bipartisan National Conference of State Legislatures in Washington.
“It seems to be making a resurgence this year,” Ms. Morse said. “It just seems like it’s heating up right now.”

Continue reading States may bar workers comp for illegal immigrants

Will New Mexico farm workers finally be covered by workers comp?

Kudos to Workcompcentral for reporting on the struggle to provider workers compensation coverage to farm workers in New Mexico. Failure to cover farm workers is one of the scandals of the current workers comp system in the country (Many states do fortunately cover these workers).
Public interest lawyers filed suit to declare the lack of coverage in New Mexico as unconstitutional.
Read the Workcompcentral article below. Republished with permission, www. workcompcentral.com, a workers’ compensation subscription news service.
Farm Labor Comp Exemption Still Being Targeted: Top [2010-12-16]
By Greg Griggs, Editor
A New Mexico lawmaker said Wednesday he’s wrestling with whether to reintroduce a bill he’s backed for the past two years with no success — a move to require the state’s agricultural industry to provide workers’ compensation insurance to farm workers.
Rep. Antonio Lujan, D-Las Cruces, said he may decide to hold off on bringing up the bill next month when the Legislature reconvenes in Santa Fe. The bill would apply to farms with three or more non-family employees.
“Truthfully the best we could hope for would be a debate on the House floor and that’s as far as it would go,” Lujan said. “But I am determined. If they go the litigation route and win, they would still have to provide coverage.”
Lujan was referring to a lawsuit filed by the New Mexico Center on Law and Poverty in August 2009 on behalf of several workers, including two who are U.S. citizens, who claim they have gotten little or no assistance for medical bills or lost wages after being disabled by on-the-job injuries.
The lawsuit argues that the state Workers’ Compensation Act violates the equal protection clause of the state constitution by excluding farm workers from benefits. The case remains in the discovery phase.
Currently, the state’s workers’ comp system excludes farm and ranch workers, domestic servants, real estate salespeople and workers in companies with fewer than three employees.
Just last month, the Advisory Council on Workers’ Compensation and Occupational Disease Disablement voted to support the Lujan bill to remove the farm worker exclusion. This week, the council voted not to endorse plans to remove the exemptions for domestic workers and real estate agents.

Continue reading Will New Mexico farm workers finally be covered by workers comp?