Work with Dignity

Rethinking Workers' Compensation

Workers' compensation, the nation's oldest social insurance program, consistently fails to protect the basic human rights of millions of injured and ill workers, most particularly their rights to health, to an adequate standard of living, and to work with dignity. The current design of workers’ compensation systems, the implementation of these systems, and the recurring reform efforts in workers’ compensation fail to conform with the overarching human rights principles of universality, dignity, participation, transparency and accountability. 

The number of people in the U.S. injured or made ill by their work environment may be as high as 12.3 million workers annually (AFL-CIO, 2008, p. 45). It is estimated that more than 54,000 workers die yearly from work-related injuries or illness (AFL-CIO, 2008, p.1). In light of these sobering statistics, there is an urgent need to reevaluate workers’ compensation systems that function poorly on multiple levels. 

The Rethinking Workers’ Compensation Project uses a human rights approach to address the systemic abuses within workers’ compensation systems, and to advocate for systems that meet the needs of injured/ill workers and protect and advance their basic human rights. A cornerstone of the project’s human rights approach is the participatory model – in which injured workers identify injustices and shape the strategies for demanding and achieving their rights. 

Through research, advocacy, and support for grassroots organizing, this project aims to:

  • support injured workers organizing on their own behalf;
  • develop human rights based analyses and strategies for addressing the needs of injured workers and create resources to facilitate information sharing among injured workers and other advocates for injured workers’ human rights;
  • coordinate coalition-building that brings together an emerging alliance of injured workers, scholars, union and labor leaders, human rights advocates, government representatives, lawyers, physicians, and others who are working to develop and implement strategies to protect injured workers’ basic human rights;
  • develop and implement carefully crafted multi-media communications strategies directed toward heightening the visibility of pro-worker perspectives in discourse around workers’ compensation.

One of the primary goals of the project is to work toward reframing the current discourse around workers’ compensation from one that focuses on containing costs to one that advocates for a system that effectively addresses and prioritizes injured and ill workers’ needs. A bit of background may serve to clarify further why this reframing effort is important.

Currently, with rare exceptions, mainstream discussion of workers’ compensation -- in house hearings for legislative reform of workers’ compensation or in the media -- focuses on the high cost of workers’ compensation and on the issue of workers’ fraud -- even though multiple studies have revealed that only 1-2% of workers’ compensation claims are fraudulent and that fraud committed by other actors in the workers’ compensation system -- insurance companies, employers, and medical providers -- is far more rampant and far more costly to the economy and to the average tax payer (McBirnie, 2001). This current prevailing narrative benefits industry interests and creates an environment unsympathetic to workers, making it much easier for legislators to push for an anti-worker reform agenda. This has the dual impact of creating a culture of shame that discourages injured workers from filing and pursuing legitimate claims, and also of making politically possible the recurrence of anti-worker legislative reform in the area of workers’ compensation (Michaels, 1998, p. 441-442; Ellenberger, 2000, p. 222-223). 

This discourse regarding workers’ compensation needs to be refocused in order to dismantle the culture of shame that dissuades many injured and ill workers with valid claims from engaging with the system and to create a political environment allowing for pro-worker legislative reform. Thus one of the principle objectives of the Rethinking Workers’ Compensation Project is to support efforts to reframe the current public discourse around workers’ compensation by elevating the perspective of injured and ill workers.  As Emily Spieler, prominent workers’ compensation scholar notes: “The importance of the human rights approach is that it moves the focus to the injured workers, who are entitled to benefits and dignity – and away from employers and their costs.” From a human right perspective, any proposed reform must be evaluated by how well it meets the needs of injured and ill workers and fulfills their human rights, not only by how well it serves business interests. When a worker-centered perspective becomes prominent in public discourse, it will help create an environment in which reform efforts aimed at addressing the grave suffering often faced by injured and ill workers as they navigate the system can gain traction. 

 

Brief Overview of Workers’ Compensation in the United States: 

Workers’ compensation legislation was passed in states across the United States in the early part of the 20th century.  Before workers’ compensation, if workers were hurt on the job, their only chance to obtain compensation was to bring a negligence lawsuit against their employer. If successful, the recovery against the employer could be considerable, including damages for pain and suffering. However, many workers were unsuccessful in these cases and received no compensation at all. 

Workers’ compensation legislation was designed to make the benefits received by workers and paid by employers more predictable for both by introducing a no-fault principle by which the employee need only prove that the injury was “work-related” and was not required to prove the employer’s negligence. In turn, workers’ compensation became the exclusive remedy for injured workers and they could no longer sue their employers in court for negligence. The primary purpose of a workers' compensation system was to provide (partial) compensation for lost wages and to pay for medical treatment and rehabilitation services for workers found to have occupational injuries or disease. 

From this bare description of workers' compensation, the system would seem to offer injured workers a reasonable deal - if only it worked. In practice, the vast majority of workers’ compensation systems within the United States force workers to prove their need for benefits in a grossly unbalanced match against powerful insurance companies and their attorneys.  What started out as a no-fault system - in part to facilitate expedited access to compensation for injured workers outside the judicial system - has become an incredibly and increasingly hostile and adversarial process in practice. 

Workers’ injuries are often assessed by insurance companies’ doctors who go to great lengths to deny claims, and the process much too often turns into a bureaucratic and procedural nightmare, where workers are humiliated, stigmatized and subjected to investigations that violate their right to privacy.  Objective medical review or public health considerations are also far too often absent from the process.  As a consequence, workers in many states face unconscionable delays in accessing medical care or wage replacement, with devastating effects on health, well-being, and financial security.  Even when workers do obtain benefits, these benefits are often inadequate to meet basic needs. 

Additionally, the cumbersome processes within workers’ compensation systems impose such a strain that many injured workers and their families are pushed into poverty and destitution and many workers who are seriously injured end up sicker as a result.  Original medical conditions can worsen, or secondary injuries can develop due to delays in receiving necessary medical treatment until final resolution of a disputed workers’ compensation claim, which can take months and even years. 

References:

  • AFL-CIO, Death on the Job: The Toll of Neglect, A National and State–by-State Profile of Health and Safety, 2008.
  • AFL-CIO, Death on the Job: The Toll of Neglect, A National and State–by-State Profile of Health and Safety, 2011.
  • David Michaels, Fraud in the Workers’ Compensation System: Origin and Magnitude, Occupational Medicine: State of the Art Reviews, Vol 13, No. 2, April-June 1998.
  • Edward Welch, A Bill of Rights for Injured Workers, Workers’ Compensation
  • James Ellenberger, Current Problems in the Workers' Compensation System, http://nycosh.org/uploads/injured_on_job/on_workers_comp/Current%20Probl...
  • James Ellenberger, The Battle over Workers’ Compensation, New Solutions, Vol 10 (3), 2000.
  • Thomas J. McBirnie, Report on the Workers’ Compensation Anti-Fraud Program, California Commission on Health and Safety and Workers’ Compensation, http://www.dir.ca.gov/CHSWC/Finalfraudreport0801.html