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Injured Workers, Facing Stigma, Are Denied Access to Workers' Compensation

by Joe LaDou

There are over 24 million Americans underemployed or out of work. This includes a growing number of people often referred to as “no longer looking for work”. The title suggests that these folks have made a conscious decision to remain underemployed, or have found means of survival other than work. This group includes millions of workers who have been stigmatized by former injuries, illnesses, and claims for workers’ compensation benefits. Many of them have been denied benefits by the state workers’ compensation system, and few of them can meet the criteria for “total disability” imposed by the federal government. They receive no vocational rehabilitation or job training.

Worst of all, job applicants suspect but cannot prove that they are discriminated against if they have any history of filing claims for workers’ compensation. They have good reason to suspect this.

In the early 1970s, credit and background checking companies advertised that the information they could provide at nominal cost would save future expenses in health care and worker injury. Equifax stated that there was no better predictor of future workers’ compensation claims than the past history of a workers’ injury or illness experience. The clear message was that a company could save money and hassle by looking at a job applicant’s claims history. The applicant would not know what information had been obtained, and would not be told the reason he did not get the job.

With the emergence of Americans with Disabilities Act (ADA) regulation in the 1990s, some states began to limit publication and distribution of workers’ compensation information. Most states did nothing, and of those that did develop restrictions, there have been no examples of enforcement anywhere in the country. Moreover, state agencies have no way of knowing if potential employers are accessing a different, private industry database. Workers’ compensation data are the least protected sources of medical information in the country.

An employer may now access digital information on workers’ compensation claims history, use the data to company advantage, and leave no paper trail. The job applicant never knows a thing about it. The following website advertisements are examples of many companies that provide information to employers with  “a wink and a nod” approach to ADA restrictions:

PreHire Screening Services

Worker’s Compensation Records

Turnaround Time: Same Day

Worker’s Compensation records searches are recommended when any physical activity, including typing, and lifting, is part of the job requirement. It can help determine if the applicant is physically capable of performing the job and enables employers to avoid placing employees in positions that may pose risk of re-injury and identify habitual claim filers. The release of workers' compensation records is based on state-specific privacy laws and will be obtained where available. It is very important to not discriminate against a worker solely because of a previous injury, in accordance with the Americans with Disabilities Act (ADA). (1)

Risk Solutions Inc.

Workers' Compensation Background Checks

It is legal to perform these checks on pre-employment post-offer employees. It helps the employer in two ways:

  1. The prospective employee fills out a release form indicating if he/she has had a prior industrial injury. If they deny that they have a prior injury and the report comes back with evidence to the contrary, they have falsified a document.
  2. If they have had a prior injury, the employer can provide the data to the Industrial Clinic providing the pre-employment post-offer physical along with a job description of the physical requirements of the job. This allows the physician to have valuable information before the examination that may lead to identifying factors that may result in injury to the prospective employee. (2)
Equifax spinoff ChoicePoint

intends to: (i) pursue growth opportunities in pre-employment services by leveraging its technology, background screening and drug testing capabilities to offer a total hiring solution to customers;(ii) pursue additional applications in the government and health care markets, including assisting agencies in developing solutions to reduce fraudulent healthcare claims; (iii) expand public record information applications to both organization and individual risk assessment and management; and (iv) pursue international expansion of the Company's risk management services.

ChoicePoint was purchased in 2008 by Reed Elsevier for $3.6 billion. The company was rebranded as LexisNexis Risk Solutions. ChoicePoint combined personal data sourced from multiple public and private databases for sale to the government and the private sector. The firm maintained more than 17 billion records of individuals and businesses, which it sold to an estimated 100,000 clients, including 7,000 federal, state and local law enforcement agencies. (3)

The number of workers permanently removed from the workforce has dramatically increased over the past 30 years. The failure of the workers' compensation system to provide effective health care to treat workplace injuries is a principal source of permanent disability and corresponding reduced labor force participation. (4)

It is generally assumed that workers who sustain work-related injuries and illnesses file claims for workers’ compensation benefits. In fact, most workers do not file claims. Even if they did, increasingly restrictive rules for compensability in many state workers' compensation programs present obstacles to receiving compensation. (5)

Less often discussed is the way in which company personnel assigned to health and safety misuse their roles to the advantage of the employer. Company health and safety personnel may encourage workers not to file for workers’ compensation benefits. Workers are seldom aware of their rights under the workers’ compensation system and can be easily misled.

There are more than 20,000 occupational health nurses in the United States. An even larger number of safety professionals are employed by industry. In the absence of a nurse or a trained safety officer, health and safety in small companies is assigned to various managers, often with little interest or background in the position, or it falls on the employer when an accident occurs.

The nurse, when present, acts as the “gate-keeper” to workers’ compensation benefits. Nurses work directly for the employer in an atmosphere designed to control employer costs and employee benefits. (6) The role of a health care provider should never be conflated with the administrative task of controlling workers’ compensation benefits and costs. But industry has few rules and regulations for the management of a company workers’ compensation program.

Some workers may feel it is a sign of weakness or disloyalty if they report an injury. They may also believe that they will be denied a promotion or laid off if they file for workers’ compensation. Many injured workers experience a second occupational injury or illness, which is a very serious event in workers’ compensation. These workers pose a greater economic burden than those with single claims, and also experience a substantially greater cumulative period of work loss. (7)

Workers appear to know that filing a claim for workers’ compensation benefits creates a black mark on their employment records. They fear that the stigma of workers’ compensation claims is potentially used as a form of employment black-listing with current and future employers. All that a nurse or safety officer has to do is suggest to the injured worker that taking the injury to a personal physician after the shift is completed will keep the employment record free of a history of workers’ compensation claims. Enough said.

Private practice physicians—because of ignorance, a desire to avoid the administrative hassles of the workers’ compensation system, or loyalty to an employer or insurer—may shift cases into the general health care system by failing to recognize the relationship of the injury to work. (8) In so doing, the treating physician is almost always assisted by an occupational health nurse or safety officer representing the interests of the employer.

Occupational illnesses are nearly as common as occupational injuries, but only a trivial number of the most serious illnesses receive workers’ compensation benefits. The chronic nature of many occupational diseases such as heart attack, stroke, and cancer, alert the employer to the possibility of costly claims for long-term disability benefits. Health and safety personnel here again exercise the same methods at their disposal to discourage claims for injuries.  

Workers with occupational injuries or illnesses are not likely to receive workers’ compensation benefits. They are fearful of being stigmatized simply by exercising their legal rights to the workers’ compensation system. If they cooperate with employer efforts to shift the costs to other insurance systems, their eventual loss of work will provide future employers with the same warning signs of troublesome or costly employees. These millions of workers have every reason to resent being considered “no longer looking for work”.

References
  1. PreHire Screening Services. Pre-Employment Background Screening - https://www.prehirescreening.com/
  2. Risk Solutions Inc. Workers’ Compensation Background Checks. http://risksolutions-inc.com/employers/risk-mgt-employers.php
  3. ChoicePoint. http://en.wikipedia.org/wiki/ChoicePoint, http://www.lexisnexis.com/risk/
  4. Franklin GM, Wickizer TM, Coe NB, Fulton-Kehoe D. Workers' compensation: Poor quality health care and the growing disability problem in the United States. Am J Ind Med. 2014 Oct 20. doi: 10.1002/ajim.22399. [Epub ahead of print]
  5. Spieler EA, Burton JF Jr. The lack of correspondence between work-related disability and receipt of workers' compensation benefits. Am J Ind Med. 2012;55(6):487-505.
  6. Draper E, LaDou J, Tennenhouse D. Occupational Health Nursing and the Quest for Professional Authority. New Solutions. 2011;21(1):51-88.
  7. Ruseckaite R, Collie A. Repeat workers' compensation claims: risk factors, costs and work disability. BMC Public Health. 2011;11:492.
  8. Kosny A, MacEachen E, Ferrier S, Chambers L. The role of health care providers in long term and complicated workers' compensation claims. J Occup Rehabil. 2011;21(4):582-90.

 

Joe LaDou is currently working on the fifth edition of his textbook on occupational and environmental health.