Mark my words, Scott Walker will use his attempts to revamp and revise Wisconsin’s workers’ compensation system in his national campaign for the presidency in 2016.
He will tout attempts at “increased efficiency” and cost cutting when, in fact, these efforts are patently false. His recent assault on workers’ compensation prompted me to revisit a review I wrote of the Center for Justice and Democracy Study “Workers’ Compensation: A Cautionary Tale,” now a decade old. When objective observers corroborate your own instincts, it is gratifying. The study on workers’ compensation, undertaken by the Center for Justice and Democracy, concluded that since workers struck their bargain with employers early in the 20th Century, legislators and administrators have cut benefits and ushered many injured workers completely out of the system.
Particularly insidious has been the workers’ compensation insurance carrier’s malicious, relentless campaign to advance the notion of employee fraud. In Wisconsin, the aggressive insurance media blitz prompts a response (when I say that I represent injured workers) at every social gathering, wedding, birthday, or cocktail party, about employees “ripping off” the workers’ compensation system. This, in the face of irrefutable statistical evidence that employee fraud is infinitesimally small is a boil on the butt of the workers’ compensation system.
On the other hand, employer fraud dwarfs employee fraud. Under-representing payroll, mischaracterizing heavy-lifting laborers as clerical workers or independent contractors, and forcing injured workers to claim work injuries against their health insurance is fraud, but not as “media-sexy” as filming an alleged injured worker bowling or rock climbing.
This media barrage of employee fraud has created a milieu in which some workers, legitimately injured, do not even report injuries. For immigrants with an already tenuous status in America, the Center’s study reports that just six in ten workers hurt on the job report their injuries for fear or retaliation. The Center’s study reports alarming national trends that I see in my practice daily, resulting in denials and delays of legitimate claims. These include stricter criteria for proving a workplace injury and insurance company efforts terminating benefits at age 65 (despite increasing evidence that the retirement age is increasing).
Lastly, ubiquitous adverse medical examiners’ reports assigning causation to some pre-existing condition corresponds to an alarming alteration in the standard for causation. Legislation requiring “substantial” or “major contributing” cause or replacing “contributing” with “prevailing” factor makes workers jump over higher hurdles to obtain compensation more than ever before. Those of us who represent injured workers will continue to try to give injured workers a boost, despite Governor Walker and Republican legislators’ efforts to the contrary.