The Oregon Anti-Worker Compensation System
On any given day you could become
the casualty of an on-the-job injury. The following will probably occur if your injury is
of a moderate to serious nature and of a type defined as unscheduled.
This summary should provide readers a better understanding of how changes
in
the workers'
compensation
system since 1990 have diminished your chance of recovering from an on-the-job
injury with a best case scenario.
At present time, too many workers are not provided sufficient or timely medical treatment. Many with permanent disabilities receive no vocational retraining whatsoever or substandard retraining. By allowing insurers and employers to evade their responsibilities, Oregon government deprives workers from once again providing adequately for themselves and family and to prosper economically through hard work. Thousands each year are being denied basic rights. As an example, in Koskela v. Willamette Industries, Inc. (2000), the Oregon Supreme Court ruled that the constitutional rights of workers are being violated under the Fourteenth Amendment to the United States Constitution as they are deprived their due process right to present evidence regarding their disabilities in the reconsideration process. Legislation attempting to force statutes to comply failed in the 2001 session and quite possibly may fail in the 2003 legislative session.
It's our sincere hope to save you and your family at least some of the enormous grief and suffering that injured workers have been forced to endure through no fault of their own. This report will educate you about standard practices of workers' comp insurers and to a lesser degree self-insured employers. It describes inequalities in current Oregon Workers' Compensation law. Our only chance to right these wrongs is for concerned citizens to get involved by volunteering to groups such as our own or pressing their legislator's to stop the harm being done to good and decent people throughout our state.
Here is reality for thousands of Oregon workers each year.
1. Workers' Compensation providers can close injury claims pretty much at will. To reverse their self-serving decision will take several months, or perhaps years. It's extremely rare for carriers to be penalized, even when there's well-documented proof that their decision was without merit and unlawful. For this reason, carriers ignore what few laws still exist that are not biased against workers.
2. The Oregon Workers' Compensation Ombudsman's Division has the responsibility to protect injured workers from abuse by carriers. Their oversight ability has been literately dismantled by legislators, beholden to business. The ombudsman office is grossly understaffed. There were 6 ombudsman in 1998. They had the responsibility to answer, document, investigate, and try to remedy almost 48,000 inquiries made to them in 1998. This was an increase from about 30,000 inquiries in 1996. They had not received an increase in staff since the mid-nineties.
3. When an insurance carrier accepts a work injury claim, the injured worker can expect after a few months to be ordered to a legally mandated insurer medical examination (IME) arranged and paid for by the insurer. Most workers are sent to facilities that do not treat patients and who exist solely to render medical opinions. They perform basic physicals, yet have full access to workers' tests, such as MRI's, CT's, cervical myelogram, and x-rays. Workers must attend and be cooperative or risk permanent claim closure.
Oregon Administrative Ruling 436-010-0270(8) states that the person conducting the examination shall determine the conditions under which the examination will be conducted. "Subject to the physician’s approval," the worker may use a video camera or tape recorder to record the examination. Also "subject to the physicians approval," the worker may be accompanied, or remain accompanied, by a family friend or member during the examination. If the physician does not approve a worker's request to record and/or allow the worker to be so accompanied, the physician must document the reasons.
Oregon law and administrative rules do not govern the conduct of physicians performing these examinations. They have no control over the length of examinations or the demeanor of the examiners.
It's common for these insurer paid examiners' sworn depositions and courtroom testimonials to completely contradict medical opinions made to patients during evaluations. Without a recording or witness they have no fears. Do not trust them as they usually come across as your friend. Washington State law does permit witnesses, and in some cases the recording of evaluations. The literature found at these consultant businesses state that they issue "fair and objective medical opinions," or words to that effect. Yet these firms sole revenue comes from insurance carriers and self-insured employers. Their economic survival is dependent on continuing what is a very profitable business relationship. We believe that this gives added meaning to the old phrase, "the customer is always right." Injury claims are routinely closed due to the findings of these medical evaluators. IME reports can be given equal weight and standing to the opinions of workers' own regularly seen physician(s).
4. Only the Oregon Board of Medical Examiners has jurisdiction to investigate allegations of wrongdoing by examiners, some of whom are not board certified in the field relating to your injury. This agency, as reported by Common Cause, founded by Ralph Nader, has developed a policy of allowing Oregon doctors under investigation to surrender their licenses in lieu of further investigation. These surrenders are then labeled, "not a disciplinary action."
5. Tests such as MRI's, cat scans, and myelograms must be pre-approved by the insurer. The worker is financially responsibility otherwise. Insurers have refused to pay for tests that could prove injuries, then denied or closed injury claims. To get a reversal of their refusal will take at a minimum several months when the insurance company uses all the delaying tactics accorded them by law.
6. A worker is only allowed to change attending physicians two times through the life of their claim without permission from the DCBS Director. In an MCO they may not be able to choose their doctor. An employer initially sending a worker to see their doctor, which an injured worker should avoid, may count in the total of three. When an insurer refuses a request for a change, the worker must go through a lengthy process that can take several months. Workers may find themselves without crucial medical treatment for several months, unless they accept financial responsibility.
7. Compensation for pain & suffering does not exist in workers' compensation, though many workers suffer for a lifetime as a result of injury. If a worker doesn't lose in the litigation process, which in every way favors employers/carriers, and is determined to be permanently disabled, whether partial or total, they will be awarded an amount equal to a low single-digit percentage of what their actual lifetime losses including medical costs and earning capacity will be. Permanent and irreparable damage to a spinal cord that rates a 20% disability by the state may bring, usually after further litigation, a total of under ten thousand in lump sum.
8. Employers are immune from employee lawsuits in all but rare instances. They have this protection even when they're grossly negligent and an injury occurred while they were in violation of state and/or federal laws. Larry Davis, an Oregon worker, suffered permanent brain damage due to his employers' nine-year refusal to provide adequate safety improvements in the way of proper ventilation for workers who painted cars. The employer wasn't following guidelines the paint manufacturer recommended. When Mr. Davis tried to sue his employer, Lanphere Enterprises, the Oregon Court of Appeals ruled that employers could not be sued even when they have deliberately and intentionally injured their workers, unless the employers’ actual motive for doing so was to hurt that specific worker. What this means is that as long as an employer equally endangers all its employees lives and health, they have blanket protected by Oregon law. [see Smothers v. Gresham Transfer, Inc. for updated and positive news in this area]
Washington State Court considered the same issue in 1995. Their ruling stated that although in the past it may have been acceptable that "the blood of the worker was a cost of production," such a standard was no longer the public policy of a state that wished to consider itself civilized.
9. Those who try to help injured workers, such as health care professionals, are intimidated to walk away or betray the worker outright. It is common knowledge that HMO's and MCO's offer incentives to physicians to delay or deny medical treatment. Many workers' comp insurance companies also provide regular health insurance coverage and therefore have tremendous power over hospitals and physicians.
10. The amount of attorney compensation for injured workers is dictated. An attorney representing injured workers receives considerably less compensation for hours worked than any other type of litigation an attorney customarily performs. This has had the deliberate legislative effect of reducing the number of attorneys willing to practice in this field. It also increases the workload of those who do. Many workers have unjustly lost their claims due to attorneys spreading themselves too thin in trying to assist otherwise defenseless workers. These sub-par attorney fees are just one more hoax to stack-the-deck in favor of insurance carriers and employers at the expense of workers' health and well-being. Although workers' attorney fees are determined by law, the Oregon Workers' Compensation Board, or an Administrative Law Judge, this isn't true for employer and insurance company attorneys. They receive normal or above average compensation.
By several multiples, the most an injured workers’ attorney can ever hope to receive for his work on behalf of clients, is if the worker accepts a cash settlement with the insurance company or self-insured employer and simply "goes away." This inequality is not an accident. These offers to settle are pathetically low-ball. They don't come remotely close to all past unpaid and future medical expenses, past and future loss of income, unpaid attorney fees, and vocational retraining costs that may be required due to lifetime physical restrictions due to the injury. Since employers don't usually want an injured worker back, the settlement may be conditional on the worker giving up all legal rights to their job. Since an injury is now preexisting, and may be in a nationwide insurance company database, the worker may have great difficulty getting health insurance coverage, or any decent job in the future. Most workers are forced to accept these tiny settlement offers out of financial necessity. This is after repeated claim closures and other delaying tactics by insurers. This practice is named the "starve-out."
11. Oregon Workers’ Compensation Administrative Law Judge rulings take several months or even years to reach the point of a decision. If the decision goes against the employer/insurance carrier, they can appeal two times. Each appeal can take another 14 months or more. If they lose their appeals, the insurer can close the injury claim using several other avenues afforded them. In some cases, the injured worker is again forced to go through the entire process yet again. During each claim closure, the worker does not receive temporary disability benefits. Medical expenses are also not paid.
12. Oregon Workers' Compensation insurers are not required to pay for palliative care. This is treatment whose sole benefit is to relieve pain. The true intent of this exclusion is realized when added to the real-life events and situations that take place in situations outlined below.
13. Many doctors have a legitimate fear of losing their medical license after being accused of over-prescribing effective pain relief medicine to their patients. A quote from the March 17, 1997 issue of U.S. News & World Report says, "But few doctors will even consider using the drugs to treat people who live in chronic pain, that is, pain that is not caused by cancer and last longer than a few months. A recent survey of 204 people with chronic pain found that most had sought help from an average of 10 physicians, yet only half had received drugs that reduced their agony. Chronic-pain patients who receive workers’ compensation find the least compassion from healers. Suspecting them of being malingerers out for an easy buck, many hospitals and pain clinics turn such patients away at the door".
14. It is indisputable that several months of constant pain will create psychological depression in sufferers. When an injured worker seeks treatment from a mental health professional such as a psychologist, Oregon law allows the compensation carrier two months to approve or deny it. It is usually disallowed and in the meantime, the worker is out-of-pocket several thousand dollars in treatment expenses. This may cause the worker further depression. Oregon law releases the compensation carriers from any financial obligation if the need for treatment is, in any way, due to the behavior of the self-insured employer or insurance carrier or for that matter any horrors a worker experiences in the workers' compensation system itself. The need for treatment must only be for physical pain reasons.
15. In many instances, injured workers’ doctors and other medical facilities will receive less than their standard fees. A large percentage of doctors refuse to treat injured workers for this reason and also because of the continual nightmare of having to deal with worker compensation insurance adjusters trained in "seek and destroy tactics.
16. Until final resolution, an injured worker will receive temporary disability payments that are inadequate. Compensation may exclude tips, yearly bonuses, and other benefits. Also, the maximum allowed for wage replacement has resulted in many workers receiving considerably less than their previous earnings. Most injured workers lose employer provided health insurance coverage after three months. The worker will be given the opportunity to continue their employer coverage but it's usually at an exorbitant monthly cost.
17. If the insurance company or self-insured employer decides that treatment is not improving the workers' condition, they can close the claim by simply stating that the worker is "medically stationary" (not to improve with time). This has happened even when attending physician's disagreed. DCBS has literally no oversight over claim closures until they're appealed. Oregon statutes say that "insurers and self-insured employers shall assume the responsibility for closing all workers' compensation claims."
18. Although an employer can easily claim they have no such position, if an injured worker does return to "modified" or "light duty" work with restrictions, they may be paid only 80% of their former earnings. It's routine for returning workers to be terminated for one reason or another when the employer feels they can get away with doing so. If at any time, after they return to modified work, a worker exceeds their doctors' limitations, even though an employer may have threatened them to do so, the employer and the workers compensation insurance carrier are released from any past or future liability or responsibility whatsoever for the injury. Many employers will not hire or keep workers previously injured in the workplace. They have been led to believe that those workers will cause them excessive medical expenses in the future and that the worker will require more than average sick days off.
19. If unable to return to former employment due to medical reasons, a worker may, in many cases after an "uncompensated" period of several months of foot dragging by the insurance company, receive vocational retraining. Oregon law is weak in this area and we know of several cases where workers waited anywhere from seven to fourteen months to start retraining and the insurers were never penalized. Again, workers receive no wage replacement during this process.
For those who get retraining, wages earned afterwards averaged $8 to $9 per hour in 1999. If the injured worker is earning less than about $10 an hour at time of injury, they may be forced by law to accept minimum wage work. For those who do qualify for retraining, it seldom exceeds 16 months. Most injured workers are forced to attend community college. Many times private schools are not an option due to the deliberate time restraints and maximum schooling costs imposed by law. Many schools that do meet the time and cost criteria are considered "diploma mills" by good employers. As a result these graduates are unwelcome as employees. During retraining, the insurer may seek out the flimsiest of excuses to throw the worker out of the program. After graduation, the worker is responsible for finding a job. The handicap of having been injured on-the-job and perhaps not having worked in several years due to carrier-caused delays may prevent the worker from finding a decent job.
20. A popular tactic of carriers is to claim that a worker doesn't qualify for retraining because they can find a new job paying 80%, or as close there of, to their former wage. They don’t have to prove it, just simply say it. The key words above are, "as close there of." Workers have been forced to take employment paying as little as one-third their former earnings due to those words.
21. When denied benefits, many Oregonians are left no choice but to discontinue vital medical treatment. Injured workers are forced to make decisions that may worsen their condition due to significant financial difficulties created by repeated carrier denials, claim closures, and deliberate delaying tactics. During this time, the odds of a full recovery for the worker may be greatly reduced, or eliminated altogether. Compensation carriers want injured workers to walk away, die, or give up and accept ghastly settlement offers. The carriers have given their routine business practice of never-ending claim closures and delays a name. They call it the "STARVE-OUT." A more appropriate name would be, "extortion - created by government for business with the full backing and protection of Oregon law."
Accepting responsibility and acting in a responsible, moral, and ethical manner, play no role in the decision-making process of many insurers. Instead, every hideous deed perpetrated against workers is based on maximizing corporate profits. It's not uncommon for insurance adjusters to receive considerable bonus income for their success at limiting expenditures for injury claims. This makes personal financial gain the determining factor in injury claim management.
If you were injured some years ago and treated fairly, I guarantee you this isn't the same workers' compensation system you experienced. If an injury is minor, workers are almost always treated fairly. It's when an injury is more severe, requires more than a few months to recuperate, or when surgery is necessary, that workers are mistreated, especially if the injury is of an "unscheduled" type. One would think that the Oregon Workers Compensation System would function at its best for the most severely injured yet that's when it fails workers in every way possible.
Inexpensive premiums are an inducement Oregon government uses every day to promote this state to large corporations thinking of moving here or those wanting to expand their operations here. Injured workers are treated as "acceptable losses" in that strategy even though lives are lost, the health and well being of workers ignored, and families destroyed.
Unlike all other types of insurance, which have been spiraling upward due in large part to higher medical treatment costs, Oregon's Workers' Compensation pure premium rate from 1990 through 2002 dropped 57.4 percent though it appears to exclude rebates and other factors. DCBS states that cumulative premium savings to employers since 1990 amount to approximately $6.3 billion though the Oregon AFL-CIO put that figure at more than a billion dollars in "An Action Plan for Good Jobs and Better Government" in 2003. Oregon set a U.S. historical record with nine straight years of premium reductions during the nineties. According to official documents, Oregon's average workers' compensation premium rate moved form being the sixth most expensive in the country in 1986 to 37th place by 1998.
State officials insist that workers' compensation premiums have dropped drastically due to employers providing a safer work environment. Yet Oregon OSHA, the agency responsible for enforcing workplace safety laws is performing fewer inspections. There were 4,561 inspections in 1997. This is the lowest number since 1986. Between these years, Oregon employment increased almost 50%. There were 1,064,000 Oregon workers in 1986, and 1,588,800 in 1997. Oregon OSHA administrator Peter DeLuca has publicly stated that he has brought a new approach to the agency. In regards to employers, he stated that "cooperation and collaboration are superior methods than trying to force someone to do something. If we can agree on an approach to solve a problem, then we will solve a problem. If I try to force something down an employer's throat, that will last about as long as I'm looking." DeLuca said that he doesn't want visits by OR-OSHA to be a "negative experience" for employers. "We see each compliance visit as being a learning experience for the employer," he said. IWA's response is that if the IRS shared Mr. Deluca's views, and his dismal record for fining unsafe employers, would anyone bother to pay federal income taxes. Oregon, as of 1997, imposed the lowest average penalties in all 50 states per serious citation for "conditions creating a substantial probability of death or serious physical harm to workers." It was $287. Yes, you read that right.
The Oregon Department of Consumer and Business Services (DCBS) announced a record-low job fatality rate of 44 workers in 1997. Yet the Bureau of Labor Statistics (BLS) of the U.S. Department of Labor found that Oregon's 1997 workplace death total was 100. This is the most recorded since 1990. Oregon government explains this huge discrepancy by saying that dockworkers, fire fighters, federal workers, police officers, out-of-state workers, persons who are self-employed, to name just a few categories, are excluded from official state fatality statistics. These are just a few of the statistics that contradict government statements that Oregon workers are safer at work because if workers aren't safer, how could premiums paid by employers have dropped substantially at the same time other insurance costs and medical fees have skyrocketing.
Could it be that injury claims are being denied and workers, due to one-sided legislation, are unable to reverse the closures? Are truth-inducing investigations that would prove worker mistreatment not being undertaken? Are workers not reporting injuries occurring at work because of intimidation by employers? Many employers give management, and sometimes all workers, incentive when injuries don't occur. How many workers would want to be the person who took money out of the pockets of supervisors, who could retaliate, or from coworkers? Have workers learned from friends and co-workers what will happen to them after filing an injury claim? Since the system is designed to prevent workers from receiving adequate treatment, why risk financial ruin along with losing your good health?
On October 9, 1998 union attorneys urged a federal judge to give thousands of current and former Albertson's Inc. employees the chance to join a lawsuit that among other things alleges that the supermarket giant has discouraged employees from reporting injuries.
One of the more drastic changes in 1995 law was that workers were required to prove that their injury was the "major contributing cause of their combined or consequential condition or conditions." On the face of it this may sound fair, but by legal standards it's extremely more difficult for workers to prove. The age of an injured worker, in reality, is used in this equation. This is age discrimination, pure and simple, and it's legal in respect to workers' compensation in Oregon.
Although it's insurance carriers closing claims, realistically, it's workers and their attorneys who must prove the injuries exist and are work-related. Insurance company attorneys routinely charge or insinuate that the worker is "faking" their medical condition, even though tests, such as MRI's, prove otherwise. Insurers claimed upwards of 30% fraud in the nineties, yet other states' research, and audits of other states' insurance carrier records, have determined that claimant fraud varied from .05 to 1% of total claims. Another standard tactic of carriers is to claim an injury is "preexisting." In other words, injured workers are "guilty" until they, through an attorney if they can find one to represent them, prove themselves innocent.
Don't kid yourself into thinking these injustices can't happen to you? It only takes a moment to be injured at work. No matter what you may want to believe, you won't be treated any better than those put through the workers' compensation system before you. At the moment of injury, you become a liability, no matter how "perfect" an employee you've been.
Please contact your state and federal representatives, the governor, and the media. Let them know that you're aware of and disgusted by the flagrant disregard for the health and welfare of Oregon workers. This simple action on your part may prevent you and your loved ones from having to endure a lifetime of pain and misery, and having "literately everything humanly possible" taken away from you after an on-the-job injury.
Injured Workers' Alliance
9205 SE Clackamas Rd, #6
Clackamas, OR 97015-9657
E-mail: iwa@injuredworker.org
Web site: www.injuredworker.org
Originally written: 1998
Last updated: May 2003
Webmaster note: In May, 2001, the Oregon Supreme Court in Smothers v. Gresham Transfer, Inc. ruled that the "exclusive remedy" provision of Oregon Workers' Compensation had violated Mr. Smothers constitutional rights. Read more at http://www.injuredworker.org/Smothers.htm.