ne of the authors of this article is an industrial hygienist and safety professional who got his start working with the Occupational Safety and Health Administration.With that background he has always been amazed at the arcane protocols involving Worker’s Compensation. As part of his job in OSHA, he would visit the site, note what was out of compliance, and simply document the problem. A citation would be sent, and the employer would agree or disagree and eventually the deficiencies would be corrected. If the inspection was the result of an employee injury, he would try to determine how the injury occurred, or more specifically, if the injury resulted from noncompliance with the OSHA regulations.
Occupational Health and Safety compliance officers (aka “CSHOs”) generally didn’t have to worry about redress to injured employees. That was addressed by Worker’s Compensation, which I thought of vaguely as a form of employer-required insurance. Some safety professionals or adjustors working in the private sector would visit work sites to assess work practices and determine what kind of “modifier” the company should have attached to the required premium. Companies with a history of accidents paid a higher premium for Worker’s Compensation coverage. That potentially higher premium was the down side. The up side was significant: Injured workers couldn’t sue the company for negligence, pain and suffering, or punitive damages.
Thus, Worker’s Compensation was usually a good deal for employers. It was, however, something less than perfect for the Insurance Industry. The reason was accelerating health costs. Sending an injured employee to a doctor is one thing; it’s quite another to determine the extent of an injury using typical hospital-based visualization tools such as CAT scans and MRIs. As Washington Post columnist Ezra Klein noted in a recent article1, health care providers “have the ability to set prices, so they set them quite high.” Klein noted the health care industry has profit margins of almost 20 percent and that “they beat out even the financial sector for sheer profitability.” He also notes that health care insurers-i.e., Big Insurance-has a profit margin of only 2.2 percent.
Viewed in terms of Worker’s Compensation, the insurer is the middleman connecting the employer with a sector of the economy that routinely demands a 20 percent profit margin, and has the wherewithal to resist any real form of bargaining. As health care costs accelerate-by one estimate2, doubling between 2002 and 2011-employers are seeing premium rates rise as well. For example, in 2011, a typical MRI performed at a large Houston, TX hospital would cost approximately two dollars per second. If the insurance carrier complains about the cost, the hospital may remind them that CAT scans are cheaper, but can expose the patient to radiation equivalent to 200 chest x-rays.3 So, to even learn the extent of the injury involves a significant expenditure.
One Accident – One Injury
In the guise of increased efficiency, procedural changes and expense limits have served to reduce characterization of the accident event to the simplest terms possible. As a result, Worker’s Compensation has become effectively, “one accident – one injury,” a protocol that leaves no room for symptoms of the original injury that may appear months or years later.
By contrast, exposure to high levels of chemicals under real world conditions may result in asthma-like symptoms at first, and then later progress to symptoms associated with liver or kidney damage. Similarly, if the exposure is to a chemical mixture, the employee can be damaged by each chemical in the mixture, which would result in a wide variety of symptoms that seem to have no common cause. As a result, everyone associated with the case-even the worker herself– may assume the different causes are unrelated to either the accident or even the work environment.
Poor Investigations Lead to Poor Conclusions
It gets worse. Many employers consider it against their best interests to thoroughly investigate an employee injury event. Some employers mistakenly believe that OSHA is automatically is aware of every accident, and that a CSHO will eventually appear to perform an investigation. Other employers may decide to leave it to their insurance carrier’s safety professional to perform the investigation. Those employers who do organize an investigation often include foremen and supervisors who may have a stake in the outcome. Often, no one remembers to take notes. As a result, the report may be a brief summation of the accident that casts the employer in the best possible light.
If the injury involved rotating machinery, there may be no information about whether guards were available. If the injury involved a chemical exposure, the substance listed may be the wrong one, the exposure event may be mischaracterized, and the all-important duration of exposure may be unknown.
Given this dearth of knowledge, the Insurance adjustor may see a skewed version of the exposure event, and based on that perception, may hesitate to recommend the proper (but costly) medical evaluation. As time goes by, all parties-the Insurer, the employer-and even the employee-will picture the accidental exposure as something less serious than it really was. Even if a Worker’s Compensation lawyer enters the picture, the original simplified version of the event is often assumed to be the correct one, mostly because there is no formal disagreement regarding how the accident occurred.
Where Worker’s Compensation is not involved, and where determining liability is important, plaintiff attorneys are usually willing to spend time and expense to determine what really happened. One or more experts are called in to analyze the event and then give their impressions of how the accident occurred-and what consequences can reasonably be expected as a result of the accident. Under these circumstances, the attorney is interested in determining liability, and thus the experts focus on the events leading to the accident or exposure itself. At some point, the cause and likely consequences becomes clearer.
Built-In Disincentives to Investigate the Accidents
That meticulous analysis usually is not available to the Worker’s Compensation lawyer, however, for the simple reason that he or she is limited in the amount that can be spent investigating the true cause. Even when causation, liability and punitive damages are excluded, an attorney is still limited in the amount of time and expense that can be used to evaluate the accident or exposure event.
As a result, the case may come and go with the injured employee receiving a fraction of the true compensation due. Symptoms may appear years later that are the result of the exposure, but, unless the worker or his physician knows what took place during the initial exposure, any subsequent episodes may be considered just bad luck.
Worker’s Compensation attorneys limited to 25 percent of the award usually cannot afford the expense of a specialist who could help determine what really happened. This is one more reason that the insurance carrier, employer, employee and even the Workers Compensation attorney start out with the basic assumption that the facts about the event are true, even if the source of the facts is the employer. This leads to a situation where the primary argument is about degree of injury based on the original simplified and filtered version of events. At some point, the expense cap is met, agreements are reached and the case is concluded, often without any substantial discussion about additional compensable injuries.
That situation is not likely to change. States appear to have little interest in increasing the award caps for Worker’s Compensation lawyers; health care costs are accelerating; and the states’ accepted means of coping with the problem is to place further restrictions and requirements on the injured employees.
Indeed, over the long term, the problem is likely to get worse, as evidenced by the fact that fewer and fewer attorneys are taking Worker’s Compensation cases. In Texas, many lawyers who formerly took these cases now turn them away because the eventual rewards often do not justify the time and expense involved.
How Experts Can Help
Experts-particularly those familiar with industrial accidents, safety and exposure-can offer critical assistance to the Worker’s Compensation attorney by focusing on the events made the basis for the claim. A seasoned safety or exposure specialist can review the facts of the event, compare them against similar events, and determine whether there is more to the incident than what is described in the employer-prepared accident report. An expert can answer one of the most important questions in the Worker’s Compensation case: Did the event happen the way the employer said it did? In other words, are the assumptions justified?
If chemicals were involved, for example, do the facts and medical records suggest a significant exposure-either through inhalation or by skin contact? Did the employee splash chemicals onto his clothing where skin absorption could persist for hours? Was the employee wearing a respirator, and was it one designed to filter out the chemicals involved? If the answer is no, then there is a strong probability that the exposure could be chronic in nature.
While liability and punitive damages are generally not a part of the Worker’s Compensation equation, a careful evaluation of the accident or exposure event can open up the possibility of multiple sequelae-secondary and possibly hidden consequences of the accident or exposure that may not show up for years. If, for example, the accident involved a concussion, then it may be worthwhile to consider a neurological assessment for the worker. Careful expert analysis of the original event-even when there is scant information– can provide a more complete determination of the potential consequences of the accident.
There are, of course, some Workers’ Compensation lawyers who feel that experts are unnecessary, that a solid knowledge of the procedure and protocol is all that is required. That may be true in some circumstances, but even before the physician signs the letter attesting to the injuries, someone has to understand what happened during and immediately after the accident or exposure itself. Unfortunately, there are literally thousands of ways to be injured at an industrial or construction site- and there are thousands of dangerous chemicals potentially in the workplace that have yet to have an OSHA exposure limit. It is a rare Worker’s Compensation lawyer who is both an advocate for his or her client as well as an experienced safety or exposure expert.
Should Experts Consider Worker’s Compensation Cases?
There are compelling reasons for experts to consider taking Worker’s Compensation cases. Given the underlying assumptions, the issues are generally clear-cut, and the paperwork is relatively minimal. The clients are generally interested in a clarification of the event and better identification of the primary factors associated with the event.
In fact, Worker’s Compensation cases involve less time and frequently result in brief reports-and are, theoretically, much less complicated than the standard case requiring proof of negligence. And most are resolved comparatively quickly. While each case would be different, a clear, concise evaluation of what can be expected as a result of certain types of accident may be all that is necessary to even the playing field for an injured worker.
A Fairer Outcome for the Worker
Should Worker’s Compensation lawyers consider hiring safety and industrial exposure experts to evaluate the cases? The authors believe they should, if the attorney and expert can come to an understanding regarding the experts’ compensation, and if the use of the expert can ensure a fairer outcome for the worker.
In the final analysis, using experts in Worker’s Compensation cases will probably not solve all the problems associated with this special field of law, but can go a long way toward leveling the playing field for the worker. And in the final analysis, that would be a very good thing for everyone.
1Klein, Ezra. Washington Post. March 15, 2013. http://www.foxbusiness.com/personal-finance/2011/05/12/health-care-costs-increasing-americans/
2Willis, Gerri; The Willis Report. May 12, 2011. Fox Business.
About the Author:
Certified Industrial Hygienist OSHA Expert Witness No. 1133 is a Technical Specialist with more than 20 years of experience and proven accomplishments in technical consultation, litigation support, onsite health, safety and environmental evaluation, building micro-climate surveys, commercial site assessments, and toxic substance research. He is a Certified Industrial Hygienist and expert in OSHA Administration, Industrial Accidents, Industrial Machinery, Safety and Worker’s Compensation.
Frank Weedon is a Texas attorney certified in workers’ compensation law and is also a licensed insurance adjuster and OSHA certified in general industry safety. He is uniquely qualified to represent victims of oilfield, industrial and other work related industries and is a well known expert in workers’ compensation claims and handling practices.