First, the good news. Workers compensation is by no means a monolithic system, and correcting some of its more egregious abuses should not be as difficult as overthrowing Communism and bringing down the Berlin Wall. Workers comp laws are largely controlled by the individual states. So reform of the system can begin simply when states whose workers compensation systems don’t work or are an outright nightmare, like California, adopt the methods of states whose workers compensation systems are more just and effective.
The problem of workers comp has always been with us. In fact, the ancient Babylonians required employers and slave masters to provide for workers during periods of illness and unemployment and pay “doctor’s fees” – which means the original evil empire of Babylon had better workers comp procedures than Los Angeles.
How to bring the cesspool of California’s workers comp procedures at least on a par with the rivers of Babylon could be a matter of some fairly basic administrative reforms. As many experts in the field have pointed out to me, the laws themselves, while complex, are not unjust – it’s the application of the laws, the actual handling of claims in the workers comp system, that’s corrupt and unfair. So taking steps to implement basic bureaucratic and administrative reform is a necessary first step.
We can begin by analyzing and publicizing the real reason “the system” in states such as California is so costly and inefficient: not worker abuse, not the high price of benefits, not worker fraud, which, in California, has been documented as “referred to investigation” in no more than 3% of claims. The real “claim cost drivers” are defense attorney fees due to excessive litigation by insurance companies fighting every claim (45% of “lost time” claims are litigated in California alone). Other cost drivers include claimant attorney fees that result when workers have to fight those insurance companies for compensation legally, and excessive medical investigation costs. More data has to be collected on such cost drivers and inefficiencies to provide a solid basis for reform.
More data also has to be collected about claims themselves by organizations like the Workers Compensation Research Institute. Insurers and self-insured employers must be compelled to transmit electronic information about each claim to such duly appointed public or private data collection agencies so a database can be assembled on kinds of claims and how they’re handled.
Information should also be afforded to workers to help them pursue the claim – this could be as simple as workers comp divisions enabling wider dissemination of useful small-press books such as the WORKERS COMPENSATION EMPLOYEE MEDICAL GUIDE by Dr. David Scaccia, MedPoint Press, and TAKE CHARGE OF YOUR WORKERS COMPENSATION CLAIM by Chris Ball, Nolo Press.
More states should follow the example of those Workers Compensation divisions in states such as Oregon, Texas and Wisconsin which take an active role in informing workers of their rights and monitoring claims (Texas calls each injured worker within 72 hours). Groups of information and assistance officers should be created that have access to claims information and a mandate to respond to all workers’ phone calls. Some argue that measures like hiring such public information counselors will cost too much and have a downward effect on benefits, but it seems to me that workers might be willing to accept flat or even lower benefits if they had some chance of getting them in the first place.
Above all, revoke the licenses of any insurance company that unfairly or neglectfully handles workers comp claims, as Arizona has shown the willingness to do. This will require reform of cumbersome laws such as California’s, which requires that a huge, vague number of violations must occur two years in a row for an insurance company to lose its license.
Encourage injured workers to get back to some kind of work schedule – the proverbial “desk job” – as soon as possible, in a way that perhaps reduces but does not terminate their temporary or permanent disability payments. Such arrangements should be carefully monitored by the state’s workers compensation division.
Create special agencies or utilize existing ones to rapidly respond to workers complaints that they’ve been injured on the job and never even received a proper claim form in the first place – workers comp fraud by employers and insurers often occurs right at the onset of the injury.
There should be frequent, legally mandated audits of records of insurers “delay-deny” diaries and other paperwork on claims to make sure they’re followed up correctly. Agreeing to such audits should be a condition for participation in the workers compensation insurance business.
In CONTINUOUS TRAUMA I tried to reveal defense lawyers tricks for creating delays in workers comp cases. Simply forbidding practices such as defense lawyers deliberately signing up for unworkable schedules and fining them severely for such practices would speed cases through the system.
Shorten the period during which an insurance company must decide whether to deny a case.
Forbid an insurance company from negotiating away penalties with claimant attorneys in order to achieve a settlement, and punish insurance officials and defense lawyers with fines or even jail sentences if they cannot provide accurate records of “delay-deny” schedules at the time of a Compromise and Release settlement.
Make the penalties for harassing a worker who files a claim non-negotiable and as severe as those for discrimination against the handicapped.
To sum up: the good news is that such relatively simple changes could reform systems state-by-state – especially if federal standards could be set up as a guideline (although that might be a Constitutional issue, not exactly something I’m competent to comment on).
Now here’s the tough news. The most thorough possible reform of the workers comp mess is ultimately dependent on a thoroughgoing reform of our healthcare system in general, and that’s the fight of our lifetime. We have accepted and tolerated a level of sleaze in America that makes it difficult for us even to adjust to a consciousness that depicts the perpetrators of the current healthcare and workers comp systems as just that: perpetrators, white-collar criminals, enemies of quality medical care, blind servants or cruel masters of a system that rewards short-term savings and profits gained by mishandling of patients’ illnesses or injuries. In CONTINUOUS TRAUMA I tried to show how that sleaze factor, a kind of moral laxness, a falling away of standards, had become built into my protagonist Charlie Solomon’s personality, so that even in taking a new path he at first takes a variant of his old sleazy ways. The book is primarily about how hard he has to work to change in order to change at all, and what a great change it is when it finally happens.
Just consider the level of corruption that impedes the reform of the workers comp system in California alone. In 2000 the D.A.’s workers comp section, charged with investigating fraud, solely focussed on workers and never even went after insurers – an article in the L.A. Times published August 8 of that year revealed how the committee had been secretly funded by insurers and employers. Fremont Insurance, formerly the state’s largest workers comp carrier, which recently went belly-up Enron style, once quietly settled a case for 10,000 fraudulently backdated workers comp claims in 1996.
But times do change. A public awareness of workers compensation injustice and cruelty towards injured workers has only just begun to brew. The first National Workers Compensation Injured Workers Protest Day was May 16, 2002. A manifesto has been adopted – it can be read on workerscompensationinsurance.com. These are necessary first steps in a process by which injured workers, who have been too ashamed or angry about their plight to reach out to others in the same trap, are beginning to organize in the same way victims of other disabilities found a political voice, which ultimately resulted in the Americans With Disabilities Act. That thousands upon thousands of injured workers in the workers compensation system are disabled through social and political abuse as well as the extent of their injuries make it even more imperative that they find a socio-political means of addressing their problem.
I believe the people of this country will have to work incredibly hard to fight an ingrained casual “ironic” acceptance of the sleaze factor inherent in our whole view of living in America today, and especially in our acceptance of the commodification of health care. We will also have to fight the paralyzing fear of taking on immense, well-funded, and menacingly vague political affiliations to recover the moral vision and courage required to seize our healthcare system back from those who have perverted it. As a writer I believe in the power of language to catalyze action, so perhaps it will stimulate action to think of the heads of the HMO’s and workers compensation insurance carriers as war profiteers. If we’re now in a war against terrorism, and the main combat front is the civilian population of New York and other cities, then our healthcare system is our battlefield medicine, and the leaders of the HMO’s and workers compensation systems are deadly war profiteers. And if this war against terrorism truly is a fight for our survival, then so is the fight to restore our health care system.
Perhaps it’s time for the baby boomers to remember when they marched for civil rights and the end of the war in Vietnam and organized into protest groups and proclaimed generational solidarity. Now it’s that time again – only now it’s time to march for and organize for and proclaim solidarity with all the less fortunate members of their own generation who will slowly sicken and die not just from the ravages of time but from denial of health care. The great management theorist Peter Drucker pointed out in his essay in THE ECONOMIST “The Next Society” that growing numbers of over-50 employees “will participate in the labor force in many new and different ways, as temporaries, as part-timers, as consultants, on special assignments and so on.” That means that in all probability they will no longer be covered by private sector health care plans and, because of their part-time status, will be especially prone to potential workers comp abuses by unscrupulous employers and insurers (that is if they’re even covered by workers comp laws at all).
And if the baby boomers feel that marching for their less fortunate fellows is not as glamorous as marching in the ‘60’s once was, then they can march for all the generations after, march for their children, who will increasingly suffer from our unjust and inefficient health care and workers comp systems. We could easily go from 30 million to 80 million uninsured in this country over the next twenty years, 80 million primarily aging or young Americans with no official access to health care, not to mention all the millions of Americans whose presumed access to health care is a sham due to the bureaucratically wasteful, corner-cutting, destructive practices of our for-profit health care organizations.
We need a new term for the increasing millions of Americans who will find themselves unable to access quality medical care. I suggest “healthcare industry victims”. We need pro-healthcare-industry-victim political organizations – newsletters, NGO’s, ombudsman groups – dedicated to outlining the extent of the problem and agitating with direct, single-issue focus for change. We need collections of data that will help such organizations rate politicians according to their votes and actions for or against healthcare reform, a “litmus test” as strict as those applied by the AARP and other powerful interest groups. We need thoroughgoing support of both public and market-based alternatives (such as worker’s health care cooperatives) to the present system. In short, we need a movement the size of the civil rights movement for healthcare, one that embraces the fight against the HMO’s, the fight for alternative health care and medicine, the fight for a comprehensive National Health Insurance single-payer program, and the fight to reform the workers compensation system. It must be national and it must be relentless.
I invite your responses to this letter. Please use the bulletin board available on this website. “The System Is Going Down” – but let’s give it one hell of a push.
Michael Eric Stein
Continuous Trauma is very much its own fusion of gripping legal suspense drama and revelatory journalism. The book's expose of critical public health issues - specifically the fraud, corruption, and "people-dumping" in the massive Southern California workers compensation system - is combined with a deeply felt and artistically realized story of the personal transformation of young lawyer Charlie Solomon.
Although the work is fiction, it is based on actual cases drawn from
the California Workers Compensation system. Continuous Trauma
is the first novel set against the Kafkaesque world of workers' compensation,
and a must read for anyone that has to deal with the "System." Author Stein
gives the reader some brutally honest insights into the workings of the
system that would be useful to anyone who has to cope with filing a claim.
$23.99 Direct from the publisher $20.00 plus $3.50 shipping,
hit the PayPal button.
Paperback - 342 pages
First edition ( October 2001)
Dr. Leisure; ISBN: 1-887471-28-6 ; Dimensions (in inches): .8 X 9 X 6
DrLeisure.com Sales Rank: 1
Workers comp system exposed in legal thriller
Mauian Michael Eric Stein has written a legal thriller
with a setting that will make your blood boil: the hearing rooms and hallways
of the California workers compensation system.
His beleaguered hero is lawyer Charlie Solomon who, after years of representing businesses determined not to pay a dime for worker injuries, finds himself on the other side of the hearing table when a plaintiff flips out and Solomon is suddenly an injured worker himself. It ends badly for Charlie, who loses his job, his girlfriend and identity for a while, but in the end, he makes a dent in the corrupt system that has let so many down.
Stein knows about he system, a friend was hurt on the job and lost significant mobility in one arm because her injury went so long untreated while she fought for compensation. The novel is dedicated to her.
In researching this novel in the aftermath of that experience, Stein sat in on mandatory settlement conferences, judges' conferences and trials and talked to lawyers, judges, insurance examiners and workers. "I've never seen an example of so many presumably decent, educated professionals collaborating with cynical chuckles up their sleeves in a system so irredeemably destructive to the people it was supposedly trying to help," Stein said.
Outrage is a tricky motivation for a writer; While it can fuel the flame, it also can result in turgid, preachy text. Stein has avoid that pitfall here and written a well paced thriller while exposing a wrong of which many people are not aware.
In Los Angeles, it can be deadly to work for a living.
Charlie Solomon, a shrewd young up-and-coming defense lawyer for a major workers compensation insurance company, knows his job. Treat just about every worker claiming compensation within “the System” for on-the-job injuries as a liability or a cheat. Make sure those workers get only what they deserve - as little as possible. Or deny and delay their cases until they go away, go on Social Security or welfare, or die.
Then a case in which Charlie denies an injured woman her benefits catastrophically backfires.
Charlie plunges through the looking glass. Physically and mentally damaged, he becomes just another outcast worker, a victim of the System he once fought for.
Gripped by post-traumatic nightmares, sucked into the underbelly of L.A. life, and on the verge of losing everything, including his sanity, he reaches out for the only people who can help him. A beautiful, volatile woman who just might know why the System is destroying him. A young man even more damaged by the System than he is.
With their help, he discovers evidence of massive health care fraud within the world that once nurtured his career – but can he find in himself the conviction to reveal the truth before the corruption takes an even more awful toll?
The System is going down….
Michael Eric Stein has written episodes for television shows such as Miami Vice and True Blue, and a television movie, Higher Ground, for CBS. He has also been a journalist and movie critic for Copley News, The Los Angeles Times, and Films in Review. This is his first novel. Contact the author: Michael Eric Stein at firstname.lastname@example.org
Dr. David Scaccia's WORKERS COMPENSATION EMPLOYEE MEDICAL GUIDE
Chris Ball's TAKE CHARGE OF YOUR WORKERS COMPENSATION CLAIM
Upton Sinclair's The Jungle
Michael Eric Stein's Continuous Trauma
George R. Harker's He Wouldn't Drink the Hemlock: The Firing of Dr. Leisure
George R. Harker's The
Mostly True Life Adventures of Dr Leisure Vol. II
California State Department of Industrial
Relations - Tap into this state bureau that seeks
to improve working conditions and opportunities for California residents. Read stats and laws.
California Workers' Compensation
Information - LRA's California Workers'
Compensation Information Page: WCAB Information, WCAB FORMS, Forms Software.
www.wcrinet.org Organization which attempts to provide the public with "objective, credible high quality research" on workers comp-related public policy issues, and be a catalyst for improvements in the system.
A site specifically designed to inform and assist injured workers.
Also very much a web support group, full of horror stories from across
the country about workers suffering from the denial of their legitimate
workers compensation claims. This is the site to visit to find out you're not alone. Learn about the Injured Workers Bill of Rights, the Injured Workers' Manifesto, and National Workers Compensation Protest Day (May 16).
The Nolo "Law For All" website, featuring frequently asked questions
about workers compensation.
www.workinjury.com Goldberger and Associates' useful page on California Workers Compensation laws and procedures for the injured worker.
A special report by this Santa Rosa, California paper on the nightmarish
problems of the workers comp system and possible solutions.
Guide to Hawaii's workers compensation laws.
Continuous Trauma a novel set against the nightmarish breakdown of the California workers compensation system, direct from the publisher $20.00 plus shipping, hit the PayPal button.