Recent years have not been favorable to injured workers. States across the nation have enacted “reform” measures curbing injured workers benefits. Disability caps have been introduced, medical care restricted. In our last blog, we discussed Oklahoma’s Opt Out provisions as an example of the court system declaring that the legislature had legislated away too much of the injured worker’s protections. A couple years ago, Florida workers’ comp laws were declared unconstitutional by a judge. Although the decision was later reversed, the Florida judge (Judge Cueto) expressed concerns regarding the loss of an employee’s right to wage-loss benefits after an accident.
NPR and ProPublica have been authoring an in-depth series on national workers’ compensation issues. ProPublica reviewed “reams of insurance industry data” and their findings confirmed what many workers’ compensation attorneys suspected for years: insurance companies are increasingly controlling medical decisions, workers are unable to pick their own doctor in many states, and insurers are denying medical care based on internal “guidelines.”
As an example, ProPublica’s article talks about a case in California where the insurance company reopened an old case and denied medical care based on the opinion of a doctor who never even saw the patient. “Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.”
The article also brings up a good point about workers’ comp fraud. Repeatedly studies show “most of the money lost to fraud results not from workers making false claims but from employers misclassifying workers and underreporting payroll to get cheaper insurance rates.”
Ever since Oklahoma employers were allowed to “opt out” of the workers’ compensation system in 2013, nearly 60 big employers have chosen the “opt out” path. By opting out, these large corporations (like Wal-Mart and Big Lots) are no longer constrained by the requirements of the Oklahoma State workers’ compensation laws. Instead they are allowed to create their own internal workers’ compensation system playing under their rules and definitions.
According to a NPR study these opt out plans “ . . . provide fewer benefits, make it easier for employers to deny benefits, give employers control over medical assessment and treatment, and leave appeals in the hands of employers, and force workers to accept lump-sum settlements.”
However, just last week, the Oklahoma Workers’ Compensation Commission unanimously declared two sections of the “Oklahoma Employee Injury Benefit Act” (a/k/a Oklahoma’s Opt Out law) unconstitutional. According to the Commission, the Opt Out provisions deprived injured workers of equal protection and access to the court. The Oklahoma Workers’ Compensation Commission called the opt out plans “a water mirage on the highway that disappears upon closer inspection.”
Here is a link to the Oklahoma Workers’ Compensation opinion filed 26 February 2016. The ruling will likely be appealed and we can expect to hear much more about these Oklahoma opt-out plans in the near future.
“Decimated.” That is the word the Honorable Circuit Court Judge Jorge Cueto used to describe what’s left of Florida’s Workers’ Compensation Act after a series of reforms, notably in 2003, which attacked injured workers’ rights and benefits. After 2003 Florida became one of the most restrictive workers’ compensation jurisdictions in the nation. As it currently exists, Florida’s Workers’ Compensation Act does not provide any benefits for permanent partial disability and medical benefits are very limited.
There is a delicate compromise between employees and employers. Employees give up potential negligence claims against their employer (including damages for pain and suffering) in exchange for access to medical care and disability benefits. Employers thereby avoid lawsuits and are protected from claims by their employees under what’s called the “exclusive remedy” defense. This is the essential trade-off of any workers’ compensation act.
So what happens when you take away almost all of the employee’s rights through legislative reforms every year? Well, according to Judge Cueto, employers lose their immunity for civil lawsuits by employees. As a result, employers may now be vulnerable to lawsuits from their employees for work-related accidents where the employer was negligent, and seek damages, including pain and suffering, from their employer.
It will be interesting to watch developments in Florida as they unfold. However, it should also serve as a reminder about consequences of stripping away injured workers’ benefits under delicately balanced workers’ compensation acts in the future.