Failing workers’ compensation system ‘adding inequality to injury’

Note: The following article was written by Chain | Cohn | Clark senior partner James A. Yoro, who manages the Bakersfield-based law firm’s Workers’ Compensation* Department, for publication into The Bakersfield Californian’s “Community Voices” section. You can the full article in the Kern County Journal here. 

By James A. Yoro

One of the most important protections that employees have is a workers’ compensation system that is supposed to provide them with minimum necessary benefits when they suffer an injury on the job.

This system was predicated on a “Grand Bargain” that was initiated during the Industrial Revolution to deal with the rising tide of work-related injuries and death. The injured worker gave up the right to sue the employer for civil damages. In exchange, the employee would receive medical treatment and a sufficient amount of monetary benefits to help them get by during their recovery period. If their injuries caused some permanent limitation or restriction on their ability to function, additional benefits were paid to reflect their level of disability. If they were unable to return to their usual and customary job, they would be provided retraining to help them adjust to other more suitable employment within their limitations.

Workers’ compensation was a progressive idea that came to fruition at a time when we as a society recognized that it was not fair to treat injured workers as if they were nothing more than a piece of broken machinery – something to be discarded and replaced. Human capital is a valuable commodity that contributes to the success of our economy. Therefore, when workers get injured, they should be helped and cared for and not marginalized. Originally, this was the goal of the Workers’ Compensation system. At the beginning of the 20th century, all 50 states adopted such a system in accordance with this philosophy.

But in the last 15 years, things have gone horribly awry for the injured worker.

Within the last week, two investigative reports and several news articles – including by OSHA and the U.S. Department of Labor, National Public Radio and The Washington Post – reveal how poorly injured workers are now being treated in the Workers’ Compensation system and the effect this cost shifting of the burden has affected our economy and our society.

The Department of Labor report titled, “Adding inequality to injury: The costs of failing to protect workers on the job,” summarized its findings as follows:

“The costs of workplace injuries are borne primarily by injured workers, their families, and taxpayer-supported components of the social safety net. Changes in state based workers’ compensation insurance programs have made it increasingly difficult for injured workers to receive the full benefits (including adequate wage replacement payments and coverage for medical expenses) to which they are entitled. Employers now provide only a small percentage (about 20 percent) of the overall financial cost of workplace injuries and illnesses through workers’ compensation. This cost-shift has forced injured workers, their families and taxpayers to subsidize the vast majority of the lost income and medical care costs generated by these conditions.”

The study concluded that the “failure of many employers to prevent millions of work injuries and illnesses each year, and the failure of the broken workers’ compensation system to ensure that workers do not bear the costs of their injuries and illnesses, are truly adding inequality to injury.”

I have represented injured workers for more than 25 years and I’ve seen firsthand this slow deterioration in the system and how it has affected those most vulnerable in our society – the injured, the handicapped and disabled – in their struggle to obtain the benefits they deserve and achieve some measure of dignity. At times, my level of frustration is overwhelming as I gaze into the eyes of my clients and see the look of quiet desperation in their eyes as they struggle to avoid near poverty, bankruptcy and sometimes divorce simply because they got injured on the job.

Franklin Roosevelt once said, “The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.”

If this is the measure for progress then the workers’ compensation system is in a period of regression. The “Grand Bargain” is no longer a bargain.

– James A. Yoro is a certified workers’ compensation attorney with nearly 40 years of legal experience, and partner at the Bakersfield-based law firm Chain | Cohn | Clark.

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Learn more about the recent reports on the workers’ compensation system:

• “Injured Workers Suffer As ‘Reforms’ Limit Workers’ Compensation Benefits” – National Public Radio, March 4, 2015

• “The workers’ compensation system is broken — and it’s driving people into poverty” – The Washington Post, March 6, 2015

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If you’ve been hurt while on the job, contact the Bakersfield workers’ compensation attorneys at 661-323-4000. Also, visit Chain | Cohn | Clark’ specialized workers’ compensation website — for frequently asked questions and answers, and other information — by clicking here.

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*NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in a prison or a fine of up to $150,000 or double the values of the fraud, whichever is greater, or by both imprisonment and fine.