Workers Comp: Falling on job! The real story. Consumer Reports investigation!

Author Subject: Workers Comp: Falling on job! The real story. Consumer Reports investigation!
Consumer reports February 2000 Posted At 06:02:12 04/10/2001
Workers comp:
Falling down on the job
When Lisa Wurgler was 27, she earned about $730 a week as a nurse at a hospital in Rugby, N.D. "I felt if my parents ever needed help, if they had to go into a nursing home, I would be in a position to take care of them," she says. Now, six years later, Wurgler says she gets $200 a week from Social Security. Her parents take care of her. In 1990, Jim Stotts, then 46, earned $33,000 a year as foreman of a city utility plant in Lafayette, La. He owned his own home and had $30,000 in retirement savings. Within 18 months, he had lost it all.

In 1995, Jim Sargeant, now 37, was excited about his new job as a sales rep and distributor for a janitorial-equipment company, where he'd make $35,000 a year. He and his wife were expecting their third child. They had saved $13,000 toward a house, and they owned a minivan and a car. Two years later, short of cash, they had to give up their apartment, their cars, and all their savings. "We filed for bankruptcy," says Sargeant, of Clarkston, Wash. "We lost everything."

What caused these people to fall from the security of a regular paycheck to near-destitution? All were injured on the job, and workers compensation--the program that is supposed to pay for their medical care and some lost income--failed to help.

Lisa Wurgler injured her back lifting patients. But the North Dakota Workers Compensation Bureau cut off her benefits when she refused to go to a pain clinic after two others did her no good (among the recommended therapies: anger-management classes). The bureau declined to comment.

Jim Stotts suffered dizziness, burning nasal passages, sky-high blood pressure, headaches, and swollen eyes after being exposed to toxic solvent fumes while on the job at the power plant. Doctors recommended by his employer diagnosed him with toxic encephalopathy, a form of brain damage. But the city of Lafayette did not accept the diagnosis; according to the city's risk manager, tests showed no brain damage. It took five years to win his claim. And even then, the city did not pay Stotts' ongoing medical bills until a settlement was reached last year.

Jim Sargeant, who was diagnosed with herniated disks after handling a 55-gallon drum of industrial cleaner, qualified for permanent disability under Social Security. A state board awarded him workers-comp benefits, but then withdrew them periodically. State officials have not returned our phone calls.

Workers compensation, from which 1.8 million people collected cash benefits in 1998, was designed as a safety net for those who are injured or die on the job. And experts agree that the system can work, especially for people whose medical conditions clear up quickly. But for others, the system falls short.

In the early 1990s, state legislatures across the nation, at the behest of insurance carriers and the business community, passed reform laws designed to improve the system. They did--for insurers and businesses. Workers-comp insurance, once the money-loser of the industry, grew fat with profits. And businesses saw premiums drop substantially from 1992 to 1996, a development that public officials say stimulates job growth.

The old system needed changing, many agree. But instead of targeting insurance bureaucracies and employer fraud--two key problems that still exist--the new laws have generated profits for insurers and savings for employers mainly at the expense of injured workers. Those laws clamped down on benefits, raised eligibility requirements, and put medical treatment mainly in the hands of insurance companies, which can delay or deny medical care or income payments. The tactic is called "starving them out," according to former insurance claims adjuster Erik Grindal of Coral Gables, Fla., who is now a lawyer. While waiting for help, claimants spend down their savings and then, out of desperation, accept a settlement for only a fraction of what they should get.

Robert Hartwig, chief economist of the Insurance Information Institute, defends the reforms. "The laws are designed to encourage people to go back to work," he says. And while qualifying for workers comp may be more difficult now, he adds, "If you disagree with the decision, you can appeal; you have recourse."



JOHN McKAY of Monaca, Pa., with his wife Vickie and his son Nathan, 8, was a journeyman bricklayer before he injured his leg in 1992. Although he was declared permanently disabled and can't sit or stand well, his insurer forced him to take a telemarketing job. When he stopped working at the request of his doctor, his benefits were cut.
Photos by Matt Bulvony

Meanwhile, many people continue to believe the notion--propagated by the insurance industry--that workers who file for benefits are merely milking the system. Consumer Reports' chief medical adviser reviewed available documents of people whose stories are profiled in these pages and found evidence of disabling injuries. But all of them say they were treated like cheats. Observes Ernie Delmazzo, 42, a truck driver who hurt his neck in 1996 and now heads the Oregon Injured Workers' Alliance, one of dozens of citizen groups that have grown up around the country in the last decade: "It's a psychological nightmare. Even your neighbors look at you like you're a fraud."

To be sure, some workers abuse the system, though nobody knows exactly to what extent. The National Insurance Crime Bureau, an industry group, says workers-comp claimant fraud costs carriers about $2.4 billion a year. But the group concedes that's just a guess. Conning & Co., an insurance research firm, put claimant fraud at about 1.9 percent of premiums paid--or $477 million.

In Florida, claimant-fraud cases typically average $10,000 in undeserved payouts, says Ron Poindexter, director of the state's division of insurance fraud. By contrast, he says, employers who fail to buy workers-comp insurance or cheat on their premiums by reclassifying workers in less dangerous and less costly job categories are bilking insurers out of millions annually. Worse, the injured employees end up filing for Social Security or public assistance, which may pay less and be harder to get.


A vital safety net

Workers-compensation laws, adopted by all states between 1911 and 1940, were designed to accomplish two goals: to provide medical care and income to workers injured on the job and death benefits to families of those who died, and to protect employers from costly and unpredictable lawsuits by workers.

While each state has its own tangle of laws and regulations, most states require all businesses, except the very smallest, to provide workers-compensation coverage for their employees. To pay for the liability, employers buy insurance, usually from private carriers or state-run insurance funds, or they insure themselves.

If you're injured on the job, you typically have no choice but to go through the workers-comp insurance system. Your regular health-care provider can and will turn you down for medical coverage--even if you have great benefits--if it discovers you were injured at work. As for lost income, many U.S. workers would have little help without workers comp if they were laid up from an on-the-job accident or an illness. Social Security Disability Income pays a stipend to anyone who is permanently and totally disabled, but it's generally much smaller than workers comp.

Benefits available to injured workers were never princely, but by the 1970s their levels had sunk so far below the poverty line that President Nixon appointed the National Commission on State Workmen's Compensation Laws to study the problem. It recommended, among other things, that states pay totally disabled workers at least two-thirds of their salaries (workers comp is not taxable, so in theory workers don't need all their wages), up to a cap of 100 percent of the state's average weekly wage. Fearing federal takeover, states raised benefits. But as of last year, 17 states still didn't meet that standard wage.


Reforms cut benefits and costs

By the mid-1980s, however, insurance carriers found themselves deep in trouble. Medical expenses were increasing by about 11 percent a year, and returns had dropped on the investments that insurers maintain to pay future claims. Premiums were insufficient, and the workers-comp line of insurance lost money every year from 1984 to 1992.

Carriers beseeched state insurance regulators for steep premium increases, blaming their losses on runaway benefit costs and claimant fraud. However, John Burton, dean of the School of Management and Labor Relations at Rutgers University and chairman of the national workers-comp commission, says the losses came partly because insurers had previously made excessive cuts in premiums to attract customers. As rates spiked, employers complained to governors and state legislators that there was a crisis. High workers-comp rates, they argued--then about $2.20 for every $100 of payroll --would sink businesses, throw state economies into a recession, and eliminate jobs.

To whip up public support for reform, the insurance industry took its case to TV stations and newspapers across the nation. A powerful weapon was videotape culled from private investigators showing workers cheating small businesses. In a ten-day period in December 1991, no fewer than five reports appeared in the national media, including a "20/20" segment showing claimants committing outrageous abuses. Eric Oxfeld, president of UWC-Strategic Services on Unemployment and Workers' Compensation, which lobbies for insurers on this issue, now concedes that claimant fraud was never a major driver of workers-comp costs. "People understand fraud," he says. "So it got more attention perhaps than it deserved."

The campaign succeeded. In the last decade, 29 states passed major workers-comp laws designed to cut costs. For the most part, legislatures chose from a menu of standard remedies. They allowed insurers to establish managed-care programs that would require claimants to get treatment from insurer- or employer-approved doctors. Several states reduced the number of weeks that workers could collect, stopped benefits when an employee could return to any work, and cut off payments when a claimant reached age 65, whether or not he qualified for Social Security. And 12 states passed provisions cutting workers-comp benefits if claimants also collected money from Social Security or from their own pension.

Benefits and employer costs, as a percentage of payroll, dropped by more than 20 percent from 1992 to 1996, although many workplace-safety experts believe that some of the decline comes from safety measures adopted by employers, a decreasing percentage of dangerous jobs in the economy, and greater employer willingness to hire the disabled. If the Occupational Safety and Health Administration goes ahead with new ergonomics regulations, repetitive-stress injuries such as carpal tunnel syndrome could decline further.

Insurers had another reason to cheer: The Social Security offset handed them a multimillion-dollar windfall. By 1995, workers-comp carriers had become the envy of the insurance industry, with annual operating profits of 20 percent. More companies entered the business, and soon insurers were battling each other to cut premiums. Rates dropped further, and state officials crowed with joy: "We have driven a stake through the heart of the No. 1 job killer in California," said Pete Wilson, then the governor, upon passage of the state's reform in 1993.

The new laws not only reduced benefits but made them harder to collect. In many states, the burden is now on workers to prove by a preponderance of the evidence that their injuries occurred as a result of their job and not poor health habits, aging, or a pre-existing medical condition. To win a claim, says Cleveland workers-comp attorney Harold Ticktin, a worker practically has to be "convicted of injury on the job." The result is that ill and injured workers now must fight a series of battles: first, to get medical care; next, to withstand exams by insurance-company doctors who have an incentive to find excuses not to pay; then, to get a fair assessment of any permanent disability; and finally, to win a hearing if there's a dispute.


Delays in medical care

These days medical care doesn't come without a struggle. In 38 states injured workers have to choose a doctor from a company-approved list or managed-care program controlled by the insurer. The doctor may give them a palliative--even for a painful or serious injury--until the insurer agrees to pay for more-expensive care including tests, visits to specialists, surgery, or medication. If there's a dispute, the worker must petition for a hearing before one of the state workers-comp judges. That may add days or months to the wait for treatment.

For example, when Dr. Harvey Baumann, a Providence, R.I., plastic surgeon who treats hand injuries, recommends that a postsurgical workers-comp patient receive rehabilitation, the insurer will grant only nine sessions--"enough for three weeks," he says, and often, not enough. "Even if I write or call the claims adjuster asking for more sessions right away, the carrier will leave the patient waiting. By the time the insurer agrees to another nine sessions, the good of the first nine is lost." Withholding or delaying such care has cut insurers' medical cost increases to 3 percent per year this decade, from 11 percent per year in the 1980s. Those savings, however, can exacerbate the frustration and stress for some injured workers. "People become so desperate and depressed they can never return to a normal life," Baumann says.

Take the case of Paul Nessmith, a carpenter from Fort Lauderdale, Fla. In 1993 he injured his knee when he fell off a scaffold. A specialist recommended that the 24-year-old undergo arthroscopic surgery. Associated Industries of Florida, the insurer, insisted on a second opinion from its own independent medical examiner--but the claims adjuster took four months to set up the appointment. The new doctor approved the surgery, but it couldn't fix the problem, according to Nessmith's attorney, Andrea Wolfson. Nessmith's doctor told him they would try again, but the insurer wanted another independent assessment, which meant another four-month wait. He eventually got the surgery, but it did no good, his attorney says.

He tried to look for work as the insurer demanded, his wife says, but with only a tenth-grade education plus a leg brace and a cane, no one would hire him. The insurer contended, however, that he wasn't making a real effort and cut off his benefits. His wife, Susan, couldn't work because Paul couldn't take care of their baby, she says, adding that the family survived by borrowing from relatives and friends.

Four years later, after several hearings, a workers-comp judge ordered the insurer to pay Nessmith previously owed and ongoing benefits. The insurer made good on old payments, but paid no more. Wolfson was forced to go to court again, she says, "just to get him what the judge had already ordered." Nessmith took his own life in March 1998 by swallowing "all the prescription drugs he could lay his hands on," Wolfson says. Two days later, she received notification from the insurer that it was declaring Nessmith permanently and totally disabled and would pay Susan a $100,000 death benefit. The company declined comment on the case.


The second opinion

Getting medical care depends on the opinion of an independent medical examiner (IME), a physician called in to assess a patient's condition. IMEs are paid by the insurer. On average, they earn $507 per consultation, according to a 1997 survey of 266 IMEs conducted by SEAK, a medical-seminar company. Specialists like psychiatrists earn as much as $900 per consult.

The high fees are justified, says Dr. Chris Brigham, editor of The American Medical Association's The Guides Newsletter, which helps doctors and others evaluate workers-comp cases. A proper exam, he says, should include a complete review of the patient's medical records, a thorough interview, an appropriate physical examination (which typically takes about an hour and a half), and a written report--possibly a four- or five-hour job. Determining the severity and cause of an illness is a complicated task, and careful professionals can disagree.

But more than a dozen injured workers who spoke to Consumer Reports, whom we found through lawsuits, injured-worker groups, and the Internet, uniformly complained of doctors who clearly hadn't read their medical records and of examinations that lasted no more than 15 minutes. And even though a negative report from an IME can play a big part in an insurance company's decision to cut off benefits immediately and unilaterally, workers in some states can't have anyone witness an exam except for their treating physician, who may not be available. Others can't even know what's in an IME's report until it becomes evidence at an official hearing.

IMEs also examine a worker's medical history to find other explanations for the illness or injury. In Oregon, for example, if 51 percent of the cause of the medical problem is attributable not to the job but to ordinary aging or a pre-existing medical condition, the worker gets nothing at all.



JIM STOTTS, 55, breathed in toxic fumes at a Lafayette, La., power plant where he worked for 18 years. His doctors said that he had suffered brain damage, but his employer disallowed his workers-comp claim and terminated him.


After Jim Stotts was diagnosed with toxic encephalopathy, for example, his employer called in an IME. In a letter to the IME, Lafayette's risk- management division suggested that his illness might be explained by alcohol abuse: "The application completed for physician's appointment ... shows that Mr. Stotts consumed approximately 40 drinks over ... one weekend," it read. A copy of the application shows that Stotts admitted to an alcohol problem--12 years earlier. "The last time I had taken a drink was in 1978," he says.

Insurers sometimes shop patients around to a series of IMEs, flying them out of state and putting them up at motels. According to "Unjust Treatment," a 1998 New York AFL-CIO report, IME documents are often altered to please insurers.

Mary Jeffords, 43, has two steel rods and four screws near the base of her spine and uses two canes to get around the apartment complex for the handicapped where she lives in Sanborn, N.Y. She was injured in 1987 in a brutal beating by a mentally retarded patient at the group home where she worked as a weekend supervisor. She spent a total of four months in the hospital and won benefits only last year--12 years after the attack--as a permanently and totally disabled person.

Still asserting that she wasn't as injured as she claimed, Liberty Mutual, the insurer, asked for an assessment by an IME in 1996. After a hearing at which Liberty Mutual contended that Jeffords was only moderately disabled, she requested a copy of the report, and two surfaced. Both reports, dated the same day, were identical until the conclusion on page 7; one called her disability "total," while the second said it was "moderate." After Jeffords complained to the New York attorney general about the two reports, however, her IME said that he had merely altered his initial opinion after reviewing his notes. Liberty Mutual said it had nothing to do with his change of mind. Meanwhile, the judge refused to reduce Jeffords' benefits.


Winning lost wages

An insurer makes temporary total disability payments, usually two-thirds of salary up to the state cap, until a worker reaches "maximum medical improvement." Then a doctor may release the claimant for work or assess any permanent impairment that prevents a return to the job. The conclusion, whatever it is, will determine how much an injured worker can collect in lost wages permanently. States should weigh many elements in determining a person's disability: education, age, capacity for retraining, pain, and so on, says Brigham of the American Medical Association newsletter.

Thirty-eight states use the AMA Guides to the Evaluation of Impairment. Some go solely by the impairment scores set forth in the Guides--even though Chapter 1 warns that financial awards should be not be based solely on scores. In many states, having severely damaged shoulders is a 15 percent whole-person impairment, so if two-thirds of a worker's average weekly wage is $500, he would get $75 a week no matter how important shoulders are in doing his job.

About 1 to 3 percent of injured workers are declared totally and permanently disabled and receive the maximum state benefits. In a 1998 study of partially disabled workers who were injured in the early 1990s in California, Robert Reville, a RAND Institute analyst, found that generally claimants receive about 30 percent of their previous income instead of the two-thirds that the national commission had recommended. "They try to return to work," he says, "but their condition makes it hard for them to earn as much as before or to retain jobs."


Appealing an insurer's decision

A claimant who has been denied a medical treatment or wage-loss benefit has to take his or her case to the state workers-compensation board. That's no simple task. In Florida, which supposedly has a streamlined system, claimants must first meet with an ombudsman who tries to work out the problem with the insurance company. If that fails, there's a settlement conference, and if that fails, a trial before an administrative judge. Except for ombudsman meetings, the procedures are legal affairs, generally requiring depositions, testimony, and filing fees. Pursuing a case may take years. When the International Association of Industrial Accident Boards and Commissions polled states about how long it took for claims to get from an application for a hearing to the judge's decision, only 13 states responded. The average lag time ranged from 30 days in Michigan to 1 1/2 years in Iowa. According to the California Compensation Institute, 43 percent of that state's cases are still open after 3 1/2 years.

Many states limit workers-comp lawyers to small fees. One aim, of course, is to keep workers from being gouged. But the caps also have had an unintended effect: further prolonging the process.

In 28 states, insurers or state funds are required to pay a worker's legal bills if the worker wins a dispute. The bills are so small, says former Louisiana workers-comp judge Aimee Johnson, "There's not much incentive for insurers to pay a claim without challenging it." And plenty of attorneys, says Ernie Delmazzo of the Oregon Injured Workers Alliance, prod workers to accept small lump-sum settlements rather than fighting it out in court for doubtful rewards. By contrast, there are no limits on what insurance companies can pay their own lawyers to defend them from claims.

Even when workers win, their benefits may be cut off if they don't cooperate with their insurer. John McKay, 48, of Monaca, Pa., is a former journeyman bricklayer who injured his knee and sustained nerve damage in his legs when a scaffold collapsed in 1992. He was declared permanently impaired; he can't walk well, and sitting for any length of time is painful.

But in February 1997, Cigna, his insurer, forced him to take a job with a telemarketing company under a program the insurer subsidized. Hearings last year before the Pennsylvania Senate Labor and Industry Committee revealed that the businesses involved failed to determine whether disabled workers could actually perform the work, rarely gave much training, and, after six months, either fired workers for incompetence or complained to insurers that they were uncooperative. McKay received only one half-hour of training, he says, but persevered for six months by taking double his usual amount of pain medications. When he stopped working at his doctor's request, Cigna would not restore his benefits--though he got them restored six months later. The insurer declined to comment.


One-sided attack on fraud

In their reform laws, 18 states set up special agencies to ferret out workers-comp fraud. It's important to crack down on cheaters; they boost premiums and the cost of goods and services for everyone. But most current enforcement efforts are one-sided: In almost all jurisdictions, the target is the claimant. Yet fraud by medical providers and employers is much more significant.

The Texas Research and Oversight Council on Workers' Compensation found that in 1996, fraudulent billing by doctors and other health-care providers cost about $1.2 million--more than eight times the $134,000 in phony worker claims that were uncovered. In Florida, a 1997 grand jury report found that about 13 percent of a sampling of the state's businesses carried no workers-comp coverage, even though most are legally required to do so. Florida, Minnesota, Arkansas, and California have started efforts to prosecute employer fraud, but in many states it's not a priority. Claimant fraud is a felony, but a company's failure to carry workers-comp insurance may be only a misdemeanor.



SUSAN NESSMITH'S husband Paul, a Fort Lauderdale, Fla., carpenter, took his own life in 1998 after a five-year battle with his insurer to get medical benefits for his injured knee. "He was in constant pain and depressed because he couldn't take care of me and our daughter," she says. Two days after his death, she received word from the company that it had declared him permanently and totally disabled and awarded benefits.

These days, medical costs, which held steady in the early 1990s, have started spiking again. And as in their lush years, workers-comp carriers have allowed claims-handling expenses to steadily increase while cutting rates too far to cover them, according to a 1999 report on the workers-comp industry by Conning & Co., the research firm. Employers are paying about 20 percent less than they should be, says Hartwig of the Insurance Information Institute.

Insurance companies are again saying that unless something gives, premiums will rise. "Reform," says lobbyist Oxfeld, "is by no means at an end."


Recommendations

Workers deserve more help from the workers-compensation system than they're getting.

The Occupational Safety and Health Administration should persist in its enforcement and regulatory efforts to make the workplace safer. The easiest way to keep workers-comp premiums and benefits low is to cut on-the-job accidents and illnesses.

Congress should revive standards set by the National Commission on State Workmen's Compensation Laws, which, among other things, asked that benefit caps be raised to 100 percent of each state's average weekly wage.

States should audit their workers-comp systems to see whether they're too restrictive. States should also tighten deadlines for decisions and fine parties that delay, to discourage "starve out" tactics. Workers who receive good prompt treatment are less likely to be permanently impaired.

Workers should contact their state labor department to see if their employers have workers-compensation insurance, if there's any doubt. When considering a job, they should ask if the company offers group private long-term disability insurance. Consumers can also buy long-term disability insurance on their own.

If you become injured on the job, immediately report the circumstances and date in writing to your employer and get a receipt.

For more information on workers comp, visit www.aflcio.org/safety/comp.htm.



How believable are claims?
A look at reform laws




Who gets injured and how.
Workers in private industry reported 1.8 million injuries and illnesses that required time off work in 1997, the most recent year available. We list the most common injuries, and, based on 1998 data, some industries with relatively high rates per 100 full-time workers.


Injuries and illnesses
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Injury and illness rates by industry
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Sprains, strains 43.6 % Air transportation 8.4

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Bruises
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9.0
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Aluminum foundries
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6.4
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Cuts
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7.3
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Concrete block and brick
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6.1
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Fractures
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6.5
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Prepared flour mixes and doughs
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5.7
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Multiple traumatic injuries
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3.3
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Bottled and canned soft drinks
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5.4
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Heat burns
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1.6
--------------------------------------------------------------------------------

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Commercial laundry equipment
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5.3
--------------------------------------------------------------------------------


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Carpal tunnel syndrome
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1.6
--------------------------------------------------------------------------------

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Logging
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5.2
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Tendinitis
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1.0
--------------------------------------------------------------------------------

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Truck and bus body work
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5.2
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Chemical burns
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0.7
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Prefabricated wood buildings
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4.8
--------------------------------------------------------------------------------


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Amputations
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0.6
--------------------------------------------------------------------------------

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Shipbuilding and repair
--------------------------------------------------------------------------------
4.8
--------------------------------------------------------------------------------


--------------------------------------------------------------------------------
Other

--------------------------------------------------------------------------------
24.8

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Source: Bureau of Labor Statistics
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Copyright Consumers Union of U.S., Inc., 2000

Workers comp:
Falling down on the job
When Lisa Wurgler was 27, she earned about $730 a week as a nurse at a hospital in Rugby, N.D. "I felt if my parents ever needed help, if they had to go into a nursing home, I would be in a position to take care of them," she says. Now, six years later, Wurgler says she gets $200 a week from Social Security. Her parents take care of her. In 1990, Jim Stotts, then 46, earned $33,000 a year as foreman of a city utility plant in Lafayette, La. He owned his own home and had $30,000 in retirement savings. Within 18 months, he had lost it all.

In 1995, Jim Sargeant, now 37, was excited about his new job as a sales rep and distributor for a janitorial-equipment company, where he'd make $35,000 a year. He and his wife were expecting their third child. They had saved $13,000 toward a house, and they owned a minivan and a car. Two years later, short of cash, they had to give up their apartment, their cars, and all their savings. "We filed for bankruptcy," says Sargeant, of Clarkston, Wash. "We lost everything."

What caused these people to fall from the security of a regular paycheck to near-destitution? All were injured on the job, and workers compensation--the program that is supposed to pay for their medical care and some lost income--failed to help.

Lisa Wurgler injured her back lifting patients. But the North Dakota Workers Compensation Bureau cut off her benefits when she refused to go to a pain clinic after two others did her no good (among the recommended therapies: anger-management classes). The bureau declined to comment.

Jim Stotts suffered dizziness, burning nasal passages, sky-high blood pressure, headaches, and swollen eyes after being exposed to toxic solvent fumes while on the job at the power plant. Doctors recommended by his employer diagnosed him with toxic encephalopathy, a form of brain damage. But the city of Lafayette did not accept the diagnosis; according to the city's risk manager, tests showed no brain damage. It took five years to win his claim. And even then, the city did not pay Stotts' ongoing medical bills until a settlement was reached last year.

Jim Sargeant, who was diagnosed with herniated disks after handling a 55-gallon drum of industrial cleaner, qualified for permanent disability under Social Security. A state board awarded him workers-comp benefits, but then withdrew them periodically. State officials have not returned our phone calls.

Workers compensation, from which 1.8 million people collected cash benefits in 1998, was designed as a safety net for those who are injured or die on the job. And experts agree that the system can work, especially for people whose medical conditions clear up quickly. But for others, the system falls short.

In the early 1990s, state legislatures across the nation, at the behest of insurance carriers and the business community, passed reform laws designed to improve the system. They did--for insurers and businesses. Workers-comp insurance, once the money-loser of the industry, grew fat with profits. And businesses saw premiums drop substantially from 1992 to 1996, a development that public officials say stimulates job growth.

The old system needed changing, many agree. But instead of targeting insurance bureaucracies and employer fraud--two key problems that still exist--the new laws have generated profits for insurers and savings for employers mainly at the expense of injured workers. Those laws clamped down on benefits, raised eligibility requirements, and put medical treatment mainly in the hands of insurance companies, which can delay or deny medical care or income payments. The tactic is called "starving them out," according to former insurance claims adjuster Erik Grindal of Coral Gables, Fla., who is now a lawyer. While waiting for help, claimants spend down their savings and then, out of desperation, accept a settlement for only a fraction of what they should get.

Robert Hartwig, chief economist of the Insurance Information Institute, defends the reforms. "The laws are designed to encourage people to go back to work," he says. And while qualifying for workers comp may be more difficult now, he adds, "If you disagree with the decision, you can appeal; you have recourse."



JOHN McKAY of Monaca, Pa., with his wife Vickie and his son Nathan, 8, was a journeyman bricklayer before he injured his leg in 1992. Although he was declared permanently disabled and can't sit or stand well, his insurer forced him to take a telemarketing job. When he stopped working at the request of his doctor, his benefits were cut.
Photos by Matt Bulvony

Meanwhile, many people continue to believe the notion--propagated by the insurance industry--that workers who file for benefits are merely milking the system. Consumer Reports' chief medical adviser reviewed available documents of people whose stories are profiled in these pages and found evidence of disabling injuries. But all of them say they were treated like cheats. Observes Ernie Delmazzo, 42, a truck driver who hurt his neck in 1996 and now heads the Oregon Injured Workers' Alliance, one of dozens of citizen groups that have grown up around the country in the last decade: "It's a psychological nightmare. Even your neighbors look at you like you're a fraud."

To be sure, some workers abuse the system, though nobody knows exactly to what extent. The National Insurance Crime Bureau, an industry group, says workers-comp claimant fraud costs carriers about $2.4 billion a year. But the group concedes that's just a guess. Conning & Co., an insurance research firm, put claimant fraud at about 1.9 percent of premiums paid--or $477 million.

In Florida, claimant-fraud cases typically average $10,000 in undeserved payouts, says Ron Poindexter, director of the state's division of insurance fraud. By contrast, he says, employers who fail to buy workers-comp insurance or cheat on their premiums by reclassifying workers in less dangerous and less costly job categories are bilking insurers out of millions annually. Worse, the injured employees end up filing for Social Security or public assistance, which may pay less and be harder to get.


A vital safety net

Workers-compensation laws, adopted by all states between 1911 and 1940, were designed to accomplish two goals: to provide medical care and income to workers injured on the job and death benefits to families of those who died, and to protect employers from costly and unpredictable lawsuits by workers.

While each state has its own tangle of laws and regulations, most states require all businesses, except the very smallest, to provide workers-compensation coverage for their employees. To pay for the liability, employers buy insurance, usually from private carriers or state-run insurance funds, or they insure themselves.

If you're injured on the job, you typically have no choice but to go through the workers-comp insurance system. Your regular health-care provider can and will turn you down for medical coverage--even if you have great benefits--if it discovers you were injured at work. As for lost income, many U.S. workers would have little help without workers comp if they were laid up from an on-the-job accident or an illness. Social Security Disability Income pays a stipend to anyone who is permanently and totally disabled, but it's generally much smaller than workers comp.

Benefits available to injured workers were never princely, but by the 1970s their levels had sunk so far below the poverty line that President Nixon appointed the National Commission on State Workmen's Compensation Laws to study the problem. It recommended, among other things, that states pay totally disabled workers at least two-thirds of their salaries (workers comp is not taxable, so in theory workers don't need all their wages), up to a cap of 100 percent of the state's average weekly wage. Fearing federal takeover, states raised benefits. But as of last year, 17 states still didn't meet that standard wage.


Reforms cut benefits and costs

By the mid-1980s, however, insurance carriers found themselves deep in trouble. Medical expenses were increasing by about 11 percent a year, and returns had dropped on the investments that insurers maintain to pay future claims. Premiums were insufficient, and the workers-comp line of insurance lost money every year from 1984 to 1992.

Carriers beseeched state insurance regulators for steep premium increases, blaming their losses on runaway benefit costs and claimant fraud. However, John Burton, dean of the School of Management and Labor Relations at Rutgers University and chairman of the national workers-comp commission, says the losses came partly because insurers had previously made excessive cuts in premiums to attract customers. As rates spiked, employers complained to governors and state legislators that there was a crisis. High workers-comp rates, they argued--then about $2.20 for every $100 of payroll --would sink businesses, throw state economies into a recession, and eliminate jobs.

To whip up public support for reform, the insurance industry took its case to TV stations and newspapers across the nation. A powerful weapon was videotape culled from private investigators showing workers cheating small businesses. In a ten-day period in December 1991, no fewer than five reports appeared in the national media, including a "20/20" segment showing claimants committing outrageous abuses. Eric Oxfeld, president of UWC-Strategic Services on Unemployment and Workers' Compensation, which lobbies for insurers on this issue, now concedes that claimant fraud was never a major driver of workers-comp costs. "People understand fraud," he says. "So it got more attention perhaps than it deserved."

The campaign succeeded. In the last decade, 29 states passed major workers-comp laws designed to cut costs. For the most part, legislatures chose from a menu of standard remedies. They allowed insurers to establish managed-care programs that would require claimants to get treatment from insurer- or employer-approved doctors. Several states reduced the number of weeks that workers could collect, stopped benefits when an employee could return to any work, and cut off payments when a claimant reached age 65, whether or not he qualified for Social Security. And 12 states passed provisions cutting workers-comp benefits if claimants also collected money from Social Security or from their own pension.

Benefits and employer costs, as a percentage of payroll, dropped by more than 20 percent from 1992 to 1996, although many workplace-safety experts believe that some of the decline comes from safety measures adopted by employers, a decreasing percentage of dangerous jobs in the economy, and greater employer willingness to hire the disabled. If the Occupational Safety and Health Administration goes ahead with new ergonomics regulations, repetitive-stress injuries such as carpal tunnel syndrome could decline further.

Insurers had another reason to cheer: The Social Security offset handed them a multimillion-dollar windfall. By 1995, workers-comp carriers had become the envy of the insurance industry, with annual operating profits of 20 percent. More companies entered the business, and soon insurers were battling each other to cut premiums. Rates dropped further, and state officials crowed with joy: "We have driven a stake through the heart of the No. 1 job killer in California," said Pete Wilson, then the governor, upon passage of the state's reform in 1993.

The new laws not only reduced benefits but made them harder to collect. In many states, the burden is now on workers to prove by a preponderance of the evidence that their injuries occurred as a result of their job and not poor health habits, aging, or a pre-existing medical condition. To win a claim, says Cleveland workers-comp attorney Harold Ticktin, a worker practically has to be "convicted of injury on the job." The result is that ill and injured workers now must fight a series of battles: first, to get medical care; next, to withstand exams by insurance-company doctors who have an incentive to find excuses not to pay; then, to get a fair assessment of any permanent disability; and finally, to win a hearing if there's a dispute.


Delays in medical care

These days medical care doesn't come without a struggle. In 38 states injured workers have to choose a doctor from a company-approved list or managed-care program controlled by the insurer. The doctor may give them a palliative--even for a painful or serious injury--until the insurer agrees to pay for more-expensive care including tests, visits to specialists, surgery, or medication. If there's a dispute, the worker must petition for a hearing before one of the state workers-comp judges. That may add days or months to the wait for treatment.

For example, when Dr. Harvey Baumann, a Providence, R.I., plastic surgeon who treats hand injuries, recommends that a postsurgical workers-comp patient receive rehabilitation, the insurer will grant only nine sessions--"enough for three weeks," he says, and often, not enough. "Even if I write or call the claims adjuster asking for more sessions right away, the carrier will leave the patient waiting. By the time the insurer agrees to another nine sessions, the good of the first nine is lost." Withholding or delaying such care has cut insurers' medical cost increases to 3 percent per year this decade, from 11 percent per year in the 1980s. Those savings, however, can exacerbate the frustration and stress for some injured workers. "People become so desperate and depressed they can never return to a normal life," Baumann says.

Take the case of Paul Nessmith, a carpenter from Fort Lauderdale, Fla. In 1993 he injured his knee when he fell off a scaffold. A specialist recommended that the 24-year-old undergo arthroscopic surgery. Associated Industries of Florida, the insurer, insisted on a second opinion from its own independent medical examiner--but the claims adjuster took four months to set up the appointment. The new doctor approved the surgery, but it couldn't fix the problem, according to Nessmith's attorney, Andrea Wolfson. Nessmith's doctor told him they would try again, but the insurer wanted another independent assessment, which meant another four-month wait. He eventually got the surgery, but it did no good, his attorney says.

He tried to look for work as the insurer demanded, his wife says, but with only a tenth-grade education plus a leg brace and a cane, no one would hire him. The insurer contended, however, that he wasn't making a real effort and cut off his benefits. His wife, Susan, couldn't work because Paul couldn't take care of their baby, she says, adding that the family survived by borrowing from relatives and friends.

Four years later, after several hearings, a workers-comp judge ordered the insurer to pay Nessmith previously owed and ongoing benefits. The insurer made good on old payments, but paid no more. Wolfson was forced to go to court again, she says, "just to get him what the judge had already ordered." Nessmith took his own life in March 1998 by swallowing "all the prescription drugs he could lay his hands on," Wolfson says. Two days later, she received notification from the insurer that it was declaring Nessmith permanently and totally disabled and would pay Susan a $100,000 death benefit. The company declined comment on the case.


The second opinion

Getting medical care depends on the opinion of an independent medical examiner (IME), a physician called in to assess a patient's condition. IMEs are paid by the insurer. On average, they earn $507 per consultation, according to a 1997 survey of 266 IMEs conducted by SEAK, a medical-seminar company. Specialists like psychiatrists earn as much as $900 per consult.

The high fees are justified, says Dr. Chris Brigham, editor of The American Medical Association's The Guides Newsletter, which helps doctors and others evaluate workers-comp cases. A proper exam, he says, should include a complete review of the patient's medical records, a thorough interview, an appropriate physical examination (which typically takes about an hour and a half), and a written report--possibly a four- or five-hour job. Determining the severity and cause of an illness is a complicated task, and careful professionals can disagree.

But more than a dozen injured workers who spoke to Consumer Reports, whom we found through lawsuits, injured-worker groups, and the Internet, uniformly complained of doctors who clearly hadn't read their medical records and of examinations that lasted no more than 15 minutes. And even though a negative report from an IME can play a big part in an insurance company's decision to cut off benefits immediately and unilaterally, workers in some states can't have anyone witness an exam except for their treating physician, who may not be available. Others can't even know what's in an IME's report until it becomes evidence at an official hearing.

IMEs also examine a worker's medical history to find other explanations for the illness or injury. In Oregon, for example, if 51 percent of the cause of the medical problem is attributable not to the job but to ordinary aging or a pre-existing medical condition, the worker gets nothing at all.



JIM STOTTS, 55, breathed in toxic fumes at a Lafayette, La., power plant where he worked for 18 years. His doctors said that he had suffered brain damage, but his employer disallowed his workers-comp claim and terminated him.


After Jim Stotts was diagnosed with toxic encephalopathy, for example, his employer called in an IME. In a letter to the IME, Lafayette's risk- management division suggested that his illness might be explained by alcohol abuse: "The application completed for physician's appointment ... shows that Mr. Stotts consumed approximately 40 drinks over ... one weekend," it read. A copy of the application shows that Stotts admitted to an alcohol problem--12 years earlier. "The last time I had taken a drink was in 1978," he says.

Insurers sometimes shop patients around to a series of IMEs, flying them out of state and putting them up at motels. According to "Unjust Treatment," a 1998 New York AFL-CIO report, IME documents are often altered to please insurers.

Mary Jeffords, 43, has two steel rods and four screws near the base of her spine and uses two canes to get around the apartment complex for the handicapped where she lives in Sanborn, N.Y. She was injured in 1987 in a brutal beating by a mentally retarded patient at the group home where she worked as a weekend supervisor. She spent a total of four months in the hospital and won benefits only last year--12 years after the attack--as a permanently and totally disabled person.

Still asserting that she wasn't as injured as she claimed, Liberty Mutual, the insurer, asked for an assessment by an IME in 1996. After a hearing at which Liberty Mutual contended that Jeffords was only moderately disabled, she requested a copy of the report, and two surfaced. Both reports, dated the same day, were identical until the conclusion on page 7; one called her disability "total," while the second said it was "moderate." After Jeffords complained to the New York attorney general about the two reports, however, her IME said that he had merely altered his initial opinion after reviewing his notes. Liberty Mutual said it had nothing to do with his change of mind. Meanwhile, the judge refused to reduce Jeffords' benefits.


Winning lost wages

An insurer makes temporary total disability payments, usually two-thirds of salary up to the state cap, until a worker reaches "maximum medical improvement." Then a doctor may release the claimant for work or assess any permanent impairment that prevents a return to the job. The conclusion, whatever it is, will determine how much an injured worker can collect in lost wages permanently. States should weigh many elements in determining a person's disability: education, age, capacity for retraining, pain, and so on, says Brigham of the American Medical Association newsletter.

Thirty-eight states use the AMA Guides to the Evaluation of Impairment. Some go solely by the impairment scores set forth in the Guides--even though Chapter 1 warns that financial awards should be not be based solely on scores. In many states, having severely damaged shoulders is a 15 percent whole-person impairment, so if two-thirds of a worker's average weekly wage is $500, he would get $75 a week no matter how important shoulders are in doing his job.

About 1 to 3 percent of injured workers are declared totally and permanently disabled and receive the maximum state benefits. In a 1998 study of partially disabled workers who were injured in the early 1990s in California, Robert Reville, a RAND Institute analyst, found that generally claimants receive about 30 percent of their previous income instead of the two-thirds that the national commission had recommended. "They try to return to work," he says, "but their condition makes it hard for them to earn as much as before or to retain jobs."


Appealing an insurer's decision

A claimant who has been denied a medical treatment or wage-loss benefit has to take his or her case to the state workers-compensation board. That's no simple task. In Florida, which supposedly has a streamlined system, claimants must first meet with an ombudsman who tries to work out the problem with the insurance company. If that fails, there's a settlement conference, and if that fails, a trial before an administrative judge. Except for ombudsman meetings, the procedures are legal affairs, generally requiring depositions, testimony, and filing fees. Pursuing a case may take years. When the International Association of Industrial Accident Boards and Commissions polled states about how long it took for claims to get from an application for a hearing to the judge's decision, only 13 states responded. The average lag time ranged from 30 days in Michigan to 1 1/2 years in Iowa. According to the California Compensation Institute, 43 percent of that state's cases are still open after 3 1/2 years.

Many states limit workers-comp lawyers to small fees. One aim, of course, is to keep workers from being gouged. But the caps also have had an unintended effect: further prolonging the process.

In 28 states, insurers or state funds are required to pay a worker's legal bills if the worker wins a dispute. The bills are so small, says former Louisiana workers-comp judge Aimee Johnson, "There's not much incentive for insurers to pay a claim without challenging it." And plenty of attorneys, says Ernie Delmazzo of the Oregon Injured Workers Alliance, prod workers to accept small lump-sum settlements rather than fighting it out in court for doubtful rewards. By contrast, there are no limits on what insurance companies can pay their own lawyers to defend them from claims.

Even when workers win, their benefits may be cut off if they don't cooperate with their insurer. John McKay, 48, of Monaca, Pa., is a former journeyman bricklayer who injured his knee and sustained nerve damage in his legs when a scaffold collapsed in 1992. He was declared permanently impaired; he can't walk well, and sitting for any length of time is painful.

But in February 1997, Cigna, his insurer, forced him to take a job with a telemarketing company under a program the insurer subsidized. Hearings last year before the Pennsylvania Senate Labor and Industry Committee revealed that the businesses involved failed to determine whether disabled workers could actually perform the work, rarely gave much training, and, after six months, either fired workers for incompetence or complained to insurers that they were uncooperative. McKay received only one half-hour of training, he says, but persevered for six months by taking double his usual amount of pain medications. When he stopped working at his doctor's request, Cigna would not restore his benefits--though he got them restored six months later. The insurer declined to comment.


One-sided attack on fraud

In their reform laws, 18 states set up special agencies to ferret out workers-comp fraud. It's important to crack down on cheaters; they boost premiums and the cost of goods and services for everyone. But most current enforcement efforts are one-sided: In almost all jurisdictions, the target is the claimant. Yet fraud by medical providers and employers is much more significant.

The Texas Research and Oversight Council on Workers' Compensation found that in 1996, fraudulent billing by doctors and other health-care providers cost about $1.2 million--more than eight times the $134,000 in phony worker claims that were uncovered. In Florida, a 1997 grand jury report found that about 13 percent of a sampling of the state's businesses carried no workers-comp coverage, even though most are legally required to do so. Florida, Minnesota, Arkansas, and California have started efforts to prosecute employer fraud, but in many states it's not a priority. Claimant fraud is a felony, but a company's failure to carry workers-comp insurance may be only a misdemeanor.



SUSAN NESSMITH'S husband Paul, a Fort Lauderdale, Fla., carpenter, took his own life in 1998 after a five-year battle with his insurer to get medical benefits for his injured knee. "He was in constant pain and depressed because he couldn't take care of me and our daughter," she says. Two days after his death, she received word from the company that it had declared him permanently and totally disabled and awarded benefits.

These days, medical costs, which held steady in the early 1990s, have started spiking again. And as in their lush years, workers-comp carriers have allowed claims-handling expenses to steadily increase while cutting rates too far to cover them, according to a 1999 report on the workers-comp industry by Conning & Co., the research firm. Employers are paying about 20 percent less than they should be, says Hartwig of the Insurance Information Institute.

Insurance companies are again saying that unless something gives, premiums will rise. "Reform," says lobbyist Oxfeld, "is by no means at an end."


Recommendations

Workers deserve more help from the workers-compensation system than they're getting.

The Occupational Safety and Health Administration should persist in its enforcement and regulatory efforts to make the workplace safer. The easiest way to keep workers-comp premiums and benefits low is to cut on-the-job accidents and illnesses.

Congress should revive standards set by the National Commission on State Workmen's Compensation Laws, which, among other things, asked that benefit caps be raised to 100 percent of each state's average weekly wage.

States should audit their workers-comp systems to see whether they're too restrictive. States should also tighten deadlines for decisions and fine parties that delay, to discourage "starve out" tactics. Workers who receive good prompt treatment are less likely to be permanently impaired.

Workers should contact their state labor department to see if their employers have workers-compensation insurance, if there's any doubt. When considering a job, they should ask if the company offers group private long-term disability insurance. Consumers can also buy long-term disability insurance on their own.

If you become injured on the job, immediately report the circumstances and date in writing to your employer and get a receipt.

For more information on workers comp, visit www.aflcio.org/safety/comp.htm.



How believable are claims?
A look at reform laws




Who gets injured and how.
Workers in private industry reported 1.8 million injuries and illnesses that required time off work in 1997, the most recent year available. We list the most common injuries, and, based on 1998 data, some industries with relatively high rates per 100 full-time workers.


Injuries and illnesses
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Injury and illness rates by industry
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Sprains, strains 43.6 % Air transportation 8.4

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Bruises
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9.0
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Aluminum foundries
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6.4
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Cuts
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7.3
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Concrete block and brick
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6.1
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Fractures
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6.5
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Prepared flour mixes and doughs
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5.7
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Multiple traumatic injuries
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3.3
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Bottled and canned soft drinks
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5.4
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Heat burns
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1.6
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Commercial laundry equipment
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5.3
--------------------------------------------------------------------------------


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Carpal tunnel syndrome
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1.6
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Logging
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5.2
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Tendinitis
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1.0
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Truck and bus body work
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5.2
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Chemical burns
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0.7
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Prefabricated wood buildings
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4.8
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Amputations
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0.6
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Shipbuilding and repair
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4.8
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Other

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24.8

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Source: Bureau of Labor Statistics
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Copyright Consumers Union of U.S., Inc., 2000




http://www.consumerreports.org/Special/ConsumerInterest/Reports/0002wor0.htm

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