Employee v. Employer: Who Gets the Short End of the Workers’ Comp Stick?

employee benefitsThe workers’ compensation system has been in effect for decades in Washington State, and despite its restructuring in 2010, it essentially remains the same system it’s always been.  Times change, manufacturing systems change, the tasks of workers change – everything seems to evolve but those dusty old workers compensation statutes.  In recent years, an increasing number of laws have been reorganized, yet many workers advocates and L&I attorneys continue to debate whether these lean in favor of employees or employers. In many cases, this depends on the state where a person works.

So who has it better these days?

EMPLOYEES ARE GETTING THE SHORT END OF THE STICK

Earlier in the twentieth century, factory production and factory jobs were biggest game in town.  The majority of Americans either worked on the factory floor or had some administrative or management position in factory offices.  Loss prevention was virtually unknown, so work injuries were often severe and left employees maimed or disabled.  Managers (and unsympathetic co-workers) considered it a weakness to claim injury or disability from a “routine pain, stress or injury”, since workers were expected to be tough men who gutted it out, year after year.  Yet a significant number of American workers earned decent wages, worked sensible hours, and received fair benefits.

Workers Increasingly Delay Retirement

Fast forward to 2013 – 2014.  The 401k workers hoped they could retire on will no longer support them. Many have no choice but to keep on working.  But those older employees are often deemed “dead weight” by colleagues and managers: too old, too slow, and unwilling to learn the newest, cutting-edge practices and techniques.  Some of them lack computer skills. Workplace discrimination attorneys are contacted daily by these employees, who report unequal treatment and harassment on the job.  For many, their years of accumulated labor have begun to take a toll, causing them to suffer from arthritis and chronic pain Many in this condition face an scenario like the following: working in the store room, they lift up a bin and the grip handle breaks, jerking their shoulder.  The worker experiences a popping sensation and shooting pain in their arm; numbness follows.  After visiting a workers compensation doctor, they learn they have ruptured their rotator cuff, which may not be repairable even with surgery.

Older Workers Recover Much Slower, and with Less Success

If something like the above happens to you, likely your next experience will be an intense questioning/grilling session with your L&I claim manager regarding your medical history and retirement plans.  The Labor and Industries representatives will want to know why you never reported your pain, stiffness, and loss of range-of-motion in the months leading up to the final rupture (even though, of course, you have already been in low-level pain for years since this was a heavy-duty job). The Claims Manager may tell you that you violated work safety protocol by attempting to lift a bin that was too heavy.  Following your surgery, you may notice someone following you when you go to therapy, or a neighbor may reveal that someone showed up at their house to ask about you and your injury history. The insurance adjuster may schedule an appointment to see one of their IME doctors for an Independent Medical Examination and consequently determine that you can still work, just with some minor restrictions.  But this could cause your workers’ compensation benefits to get cut.

What does a worker do in this scenario? Perhaps they still haven’t taken their pension, keeping their fingers crossed for a recovery in the market.  The worker’s arm may now be functioning at a mere 50%, with the workers compensation doctor saying that is the best that can be hoped for. Meanwhile, the “good” arm may start to really bother the worker due to overuse as he or she compensates for the injured limb.

Unappealing Options for Disability Settlement

The worker in this situation may finally receive some borderline-insulting offers for settlement.  That employee recognizes that the adjuster must pay you something until you agree to settle. But workers finally fatigue from having to deal with them.  Perhaps the worker is offered a position doing telemarketing for the company, which sounds horrible to them, but if they refuse they could lose the small wage loss benefits they still have.  So what should the worker do?  The worker now feels like the L&I / Workers’ Compensation system has them in their clutches.

However, things can look equally sympathetic if one asks the employer about their experience in the Workers’ Compensation system. For the opposite point of view, check back next week for part 2 of our series on Employer vs. Employee.

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Emery Reddy