I attended the Labor Commission's Worker's Comp seminar today. It was evident there, as in past conferences, that there is a patronizing, we-know-better, slow erosion of employees' right to adjudicate their disputes at the Labor Commission before a fair and impartial body. This is being done under the guise of the slogan that its the Labor Commission's mission to "return injured employees to work." Yeah, why not, that's what we want right? Get people back to work?
Let me demonstrate the problem this way. If you were charged with a crime and were innocent or less culpable and merited some mercy in sentencing, how would you feel about a court system that often held conferences and had as its slogan, "We put criminals in jail and throw away the key!" Yeah, why not, that's what we want right? For criminals to go to jail and never come out to cause more harm? (That is the reality also and that is why we have the highest incarceration rate in the world).
Or how about this: if you are an employer and suspected of polluting, how would you feel about an EPA that had as its slogan, "Protecting the environment at all costs!" Yeah, why not, that's what the EPA is there for, to protect the environment?
The problem is this. A governmental body that is supposed to act neutrally among competing obligations. Those obligations are created to balance the interests either between parties or between the government's enforcement of the law and the regulated party. When an agency elevates one interest or competing goal above the others and align its resources and personnel to achieve that particular goal, the agency becomes blinded to and insensitive of its broader obligations. This creates inequity.
As to Workers Compensation, it is not the mission of the Labor Commission to return injured workers to full time employment. That is the employees, medical professions' and vocational experts jobs. The Labor Commission's mission is to manage a liability system in a manner that equitably resolves the competing interests between the employer and the employee. Stated simply, that system is supposed to enforce, due to work place injuries, payment for the injured worker's medical expenses and to provide subsistence wage replacement while the injured employee cannot work due to his or her injuries.
So, you're still asking, what are the injustices that occur when all emphasis in a worker's compensation system of justice is placed on returning an employee to work? Here are a few.
1. The injured worker or his or her doctors' opinion that injuries prevent work is always suspect and presumptively viewed as wrong or even criminal.
2. Work Med and other "work injury medical" providers and their doctors who work for and are paid by the employer and worker's compensation insurance providers to provide both care for injured workers and opinions that minimize indemnity payments and cut off care, treatment choices, and wage benefits who determine return to work dates, limitations, restrictions and impairment ratings are economically and philosophically motivated to err in favor of "returning the employees to work," whether or not that is the correct thing to do. The consequences are many. The insurance doctors skimp on treatment and diagnostics forensics which would validate the employee's position on causation and extent of injury and in the absence thereof, do the opposite - deprive the employee of validation of his or her injuries and support the employer. The insurance doctors also skimp on treatment that thereby lead to poorer outcomes.
3. Work Med and other "work injury medical," providers and their doctors who work for and are paid by the employer and worker's compensation insurance providers to provide both care for injured workers and to provide opinions that cut off care or treatment choices, who determine return to work dates, limitations, restrictions and impairment ratings have an inherent conflict of interest to act in the best interest of their patients yet are allowed in Utah to provide defense medical evaluations on behalf of employers. As a consequence of this, work med doctors are insulated from medical malpractice claims when they fail to provide adequate care.
4. Employers have an incentive to disregard light duty restrictions and intimidate employees.
5. Medical Panels are empowered to assume roles outside of their expertise on vocational issues and to assume the ALJ's functions by making credibility assessments regarding: (1) the mechanisms of injury, (2) the relevance or weight to be given when there are no witnesses of an accident, (3) the claimant's reports of pain or symptoms and the effect they have, and (4) to resolved discrepancies in the medical records.
5. Legislatures and criminal justice systems gear up to criminalize and convict employees engaging in alleged acts of worker's compensation fraud but no countervailing laws are promulgated against employers, worker compensation carriers and insurance doctors who suppress work accident reports, falsify evidence, engage in deceptive practices, interfere with worker's compensation rights, etc.
6. Injured workers are treated by all players, except, at times their own attorneys, as suspect.
7. The Labor Commissioner and Appeals Counsel, without benefit of hearing the live testimony, are given discretion to act in a patronizing manner to overturn the ALJ decisions in favor of witnesses.
8. Subconscious and conscious biases against injured workers are magnified against minorities in ad hominen attacks that are rarely lodged against dominant groups. As an example, minorities are more often viewed as using the Worker's Compensation system as a retirement mechanism, when the only concern should be, do they qualify for their benefits based on the merits of their claim.
9. Medical providers who are viewed as employee friendly are excluded from participation in medical panels and advisory roles.
10. The Labor Commission becomes understaffed, creating backlogs that incentivize claimants to compromise their claims.
11. While it may err on the side of preventing unfounded claims, it more often errs on the side of denying claims that should be paid. As you may guess, the Worker's Compensation System and its insurers don't send agents to survey an employees who has been unfairly denied benefits. You never hear about them. You only hear about the horror stories supporting the employer's position.
In short, the working class of America is under siege and needs to agitate for its rights before they are all lost.
Loren M. Lambert, October 16, 2015 ©
Let me demonstrate the problem this way. If you were charged with a crime and were innocent or less culpable and merited some mercy in sentencing, how would you feel about a court system that often held conferences and had as its slogan, "We put criminals in jail and throw away the key!" Yeah, why not, that's what we want right? For criminals to go to jail and never come out to cause more harm? (That is the reality also and that is why we have the highest incarceration rate in the world).
Or how about this: if you are an employer and suspected of polluting, how would you feel about an EPA that had as its slogan, "Protecting the environment at all costs!" Yeah, why not, that's what the EPA is there for, to protect the environment?
The problem is this. A governmental body that is supposed to act neutrally among competing obligations. Those obligations are created to balance the interests either between parties or between the government's enforcement of the law and the regulated party. When an agency elevates one interest or competing goal above the others and align its resources and personnel to achieve that particular goal, the agency becomes blinded to and insensitive of its broader obligations. This creates inequity.
As to Workers Compensation, it is not the mission of the Labor Commission to return injured workers to full time employment. That is the employees, medical professions' and vocational experts jobs. The Labor Commission's mission is to manage a liability system in a manner that equitably resolves the competing interests between the employer and the employee. Stated simply, that system is supposed to enforce, due to work place injuries, payment for the injured worker's medical expenses and to provide subsistence wage replacement while the injured employee cannot work due to his or her injuries.
So, you're still asking, what are the injustices that occur when all emphasis in a worker's compensation system of justice is placed on returning an employee to work? Here are a few.
1. The injured worker or his or her doctors' opinion that injuries prevent work is always suspect and presumptively viewed as wrong or even criminal.
2. Work Med and other "work injury medical" providers and their doctors who work for and are paid by the employer and worker's compensation insurance providers to provide both care for injured workers and opinions that minimize indemnity payments and cut off care, treatment choices, and wage benefits who determine return to work dates, limitations, restrictions and impairment ratings are economically and philosophically motivated to err in favor of "returning the employees to work," whether or not that is the correct thing to do. The consequences are many. The insurance doctors skimp on treatment and diagnostics forensics which would validate the employee's position on causation and extent of injury and in the absence thereof, do the opposite - deprive the employee of validation of his or her injuries and support the employer. The insurance doctors also skimp on treatment that thereby lead to poorer outcomes.
3. Work Med and other "work injury medical," providers and their doctors who work for and are paid by the employer and worker's compensation insurance providers to provide both care for injured workers and to provide opinions that cut off care or treatment choices, who determine return to work dates, limitations, restrictions and impairment ratings have an inherent conflict of interest to act in the best interest of their patients yet are allowed in Utah to provide defense medical evaluations on behalf of employers. As a consequence of this, work med doctors are insulated from medical malpractice claims when they fail to provide adequate care.
4. Employers have an incentive to disregard light duty restrictions and intimidate employees.
5. Medical Panels are empowered to assume roles outside of their expertise on vocational issues and to assume the ALJ's functions by making credibility assessments regarding: (1) the mechanisms of injury, (2) the relevance or weight to be given when there are no witnesses of an accident, (3) the claimant's reports of pain or symptoms and the effect they have, and (4) to resolved discrepancies in the medical records.
5. Legislatures and criminal justice systems gear up to criminalize and convict employees engaging in alleged acts of worker's compensation fraud but no countervailing laws are promulgated against employers, worker compensation carriers and insurance doctors who suppress work accident reports, falsify evidence, engage in deceptive practices, interfere with worker's compensation rights, etc.
6. Injured workers are treated by all players, except, at times their own attorneys, as suspect.
7. The Labor Commissioner and Appeals Counsel, without benefit of hearing the live testimony, are given discretion to act in a patronizing manner to overturn the ALJ decisions in favor of witnesses.
8. Subconscious and conscious biases against injured workers are magnified against minorities in ad hominen attacks that are rarely lodged against dominant groups. As an example, minorities are more often viewed as using the Worker's Compensation system as a retirement mechanism, when the only concern should be, do they qualify for their benefits based on the merits of their claim.
9. Medical providers who are viewed as employee friendly are excluded from participation in medical panels and advisory roles.
10. The Labor Commission becomes understaffed, creating backlogs that incentivize claimants to compromise their claims.
11. While it may err on the side of preventing unfounded claims, it more often errs on the side of denying claims that should be paid. As you may guess, the Worker's Compensation System and its insurers don't send agents to survey an employees who has been unfairly denied benefits. You never hear about them. You only hear about the horror stories supporting the employer's position.
In short, the working class of America is under siege and needs to agitate for its rights before they are all lost.
Loren M. Lambert, October 16, 2015 ©
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