text:
Prepared for the
Commission on Health and Safety and Workers' Compensation
By the Labor Occupational Health Program
University of California at Berkeley
The Injured Worker's Experience
by Juliann Sum, Esq., M.S.
in consultation with Laura Stock, M.P.H.
July 1996
I. Executive Summary
II. Introduction
III. Study Methods
IV. Findings
V. Discussion
VI. Recommendations
Workers' Experiences with Other Aspects of the California Workers' Compensation System A-1
In theory, workers' compensation benefits are provided to injured workers quickly and easily.[1] Evidence in recent years, however, suggests that many occupationally injured workers have trouble obtaining the benefits that they are entitled to receive. Many of the workers' difficulties stem from problems in fully understanding their rights and knowing what steps to take to request and obtain workers' compensation benefits.
This project examines the problems injured workers face in learning about their rights and knowing how to proceed in the California workers' compensation system. Specifically, the project examines various governmental and private services designed to inform injured workers and to assist them with their claims. The project evaluates the effectiveness of those services, identifies areas needing improvement, and recommends ways to improve the information and help that injured workers receive to process their claims.
The methods that were used to evaluate services designed to inform and assist injured workers were as follows:
1. Focus groups of injured workers
2. Discussion groups of Information & Assistance (I & A) officers employed by the Division of Workers' Compensation (DWC)
3. Individual interviews with other participants in the system
4. Review of information and assistance programs in other states
The focus group findings revealed some positive experiences but also many negative experiences for injured workers seeking information and help to process their claims. Workers experienced problems in obtaining basic introductory information, answers to simple questions about their claims, instructions on basic steps to take to ensure delivery of proper benefits, advice on how to resolve problems, and assistance in analyzing and presenting to others the merits of their claims. The information and assistance services most frequently discussed in the focus groups were those provided by employers, claims administrators, I & A officers, and applicants' attorneys.
Many of the workers felt it was unfair that they were "kept in the dark" about what was happening with their claims, "shut out," and "pushed aside." Many also expressed a great deal of frustration, anger, and sadness in having been treated in an impersonal or condescending manner by various providers in the system. When asked to identify persons or organizations that they trusted for information and help in workers' compensation, the most common response was "myself," and the second most common response was "no one."
Discussions with participants in the system illuminated practical issues that help explain the problems reported in the focus groups. These discussions revealed the following barriers to the effective delivery of information and assistance to workers:
1. Insufficient resources within the I & A Unit to provide basic, standardized information and individual help to all workers who request information or assistance
2. Limitations on the types of assistance that I & A officers may provide
3. Insufficient resources to assist all workers who face problems that may be complex enough to require the expertise of an attorney
4. Lack of clear and direct incentives for employers to provide information to workers about workers' compensation due to an apparent lack of any program to enforce existing requirements
5. Lack of clear and direct incentives for claims administrators to inform and communicate effectively with injured workers.
6. Suspicious attitudes and impersonal styles of communication by some employers and claims administrators
7. Complexities in the California system that make the information provided to workers difficult to understand and consume resources that could otherwise be directed toward communicating personally with workers and helping them resolve their claims fairly and promptly.
In addition to discussing the information and help they received, workers in the focus groups raised concerns and complaints about other aspects of the workers' compensation system. These concerns and complaints (described in the Appendix to this report) involved delays and disputes with the workers' claims, low levels of benefits and settlements, potential discrimination in employment, and lack of adequate medical and vocational rehabilitation services.
This project provides some ideas for improving the information and assistance provided to workers. Because this project does not describe quantitatively the prevalence of the problems and needs experienced by injured workers in the California workers' compensation system,[2] nor does it identify and weigh all possible solutions, the options set forth in this report are meant to serve as guideposts for discussion and consideration of ways to ensure that workers receive the information and assistance they need. To allow such discussions to take place, it is recommended that a working group of policymakers be convened to explore and analyze all possible options in this area and to initiate and recommend improvements.
NOTE: The options discussed in this report address only information and assistance services for injured workers. This report does not address more fundamental issues of how the entire workers' compensation system is structured in terms of the incentives for defendants to pay or deny claims, the burdens placed on individual workers to contest denials of claims and resolve disputes, and the economic and personal costs absorbed by injured workers and their families.
Possible options for improving services are summarized below. These options and others are discussed more fully in the body of this report, under "Recommendations."[3]
I & A services could be improved, for example, by developing basic informational materials for the I & A Unit to distribute to workers (as required under the California Labor Code) and by training and otherwise enabling I & A officers to assist injured workers to the fullest extent allowed by law for nonattorneys.
Information and assistance services for workers could be improved, for example, by ensuring availability of applicants' attorneys' services for all workers dealing with issues that are sufficiently difficult or complex to require the expertise of an attorney and by offering training to applicants' attorneys on how to improve communications with injured workers.
Services by all providers could be improved, for example, by offering the providers training and other support, increasing incentives for employers and claims administrators to upgrade existing communication programs, improving agency coordination of activities to develop and enforce laws and regulations concerning information provided by employers and claims administrators to workers, and exploring ways to simplify the entire system to reduce confusion and allow providers to spend more time communicating with injured workers.
The information and assistance available to workers would be improved, for example, if community-based programs could develop and provide educational materials, conduct educational sessions, facilitate support meetings, and distribute resource lists of governmental and other services for injured workers.
A. Objectives
B. Advisory committee Involvement in Planning Activities
Workers' compensation laws, when first enacted in the early 1900s, envisioned that occupationally injured workers would receive workers' compensation benefits quickly, easily, and without formal litigation. This ideal model of workers' compensation replaced earlier legal systems that allowed employees to sue their employers for injuries caused by work and possibly receive large jury awards. Thus, workers gave up the right to sue for larger amounts of compensation in exchange for smaller but quicker and more predictable benefits under the workers' compensation system.
Evidence in recent years, however, indicates that many injured workers in California have not been able to get through the system quickly or easily. These workers' problems appear to be caused, in part, by tremendous difficulties in learning about their rights and obligations in the workers' compensation system and in getting sufficient help to process their claims. When faced with denials of their claims, long delays, or threats to their employment, these workers either forego their rights to medical treatment and benefits altogether or end up in protracted disputes and litigation.
Various programs within the California Department of Industrial Relations, Division of Workers' Compensation (DWC), were established to avoid these problems by informing and educating injured workers, helping parties resolve misunderstandings, and/or ensuring proper delivery of benefits. These include programs administered by the Information and Assistance (I & A) Unit, the Audit Unit, the Disability Evaluation Unit, the Vocational Rehabilitation Unit, and the Claims Adjudication Unit. In addition, employers, claims administrators,[4] applicants' attorneys, physicians, vocational rehabilitation counselors, and other participants in the system administer separate programs or offer services to inform and help injured workers.
Prior to this project, no comprehensive, systematic evaluation had been undertaken to determine whether injured workers were satisfied with these various information and assistance services or whether worker dissatisfaction with these services may be affecting how easily claims are eventually resolved.[5] In contrast, many studies had been performed to quantify and analyze the rising financial costs of workers' compensation. The Commission on Health and Safety and Workers' Compensation therefore commissioned the University of California at Berkeley's Labor Occupational Health Program (LOHP) to conduct this project for the purpose of understanding the problems injured workers face in learning about their rights and knowing how to proceed in the California workers' compensation system. Thus, this project aims to understand how well the ideal model of workers' compensation is functioning from the injured worker's perspective.
The objectives of this project are as follows:
1. To assess and describe qualitatively the effectiveness of current services that provide information and assistance to injured workers to help guide them through the workers' compensation system.
2. To analyze strengths and areas needing improvement in current information and assistance services.
3. To recommend possible ways to improve information and assistance services.
LOHP assisted the Commission in selecting and inviting key representatives in workers' compensation to participate on an advisory committee for this project. Designated representatives from the following organizations were invited to advise the Commission and LOHP in the design and planning of various data-gathering activities and the preparation of this written report:
At the first meeting of the Advisory Committee, held on April 19, 1995, participants discussed the overall scope of this project and key areas to be covered in injured worker focus group sessions (described below). Participants also commented on the design and sequencing of sample questions that could be used in the focus group sessions. At the second meeting, held on October 17, 1995, participants reviewed the status of this project, discussed possible areas of inquiry for individual interviews with representatives of major participants in the system (described below), and suggested possible candidates for those interviews. In June and July 1996, Advisory Committee members provided comments on a draft version of this report.
A. Focus Groups of Injured Workers
B. Discussion Groups of Information & Assistance (I & A) Officers
C. Interviews with Other Participants in the System
D. Review of Other States' Programs
The Labor Occupational Health Program (LOHP) employed a variety of qualitative data collection methods to achieve the objectives of this project.[6] The primary method was the convening of eight focus groups of injured workers, who discussed their experiences, feelings, and insights about the information and help they received to process their claims. Additional information regarding practical issues affecting the delivery of information and help to injured workers was then obtained in discussions with two groups of I & A officers and in interviews with other individuals representing major participants in the workers' compensation system. Finally, LOHP reviewed and investigated selected information and assistance programs in three other states to identify possible models for California. The various study methods are described below.
Researchers use focus groups to collect qualitative data that closely reflect the perceptions, feelings, and manner of thinking of users of services. Focus group research generates data that are based on the participants' direct knowledge and personal experiences rather than on the more conceptual point of view of the researcher. This contrasts with written questionnaires, which seek limited answers to specific, predetermined questions for quantitative analysis.[8]
In a focus group, the interactions in the group increase the participants' candor, probe the thinking behind participants' opinions, and uncover concerns below the surface that were not apparent to researchers beforehand. In other words, focus groups generate data that would be much less accessible without the interaction of the group. Therefore, rather than merely providing data on whether a user of services is satisfied with the services, focus groups also provide specific information on why the user is satisfied or dissatisfied and how the services can best meet the user's needs.[9]
The moderator of a focus group facilitates interaction between the participants by presenting questions in an unbiased way and by keeping the discussion focused when irrelevant topics are introduced. Focus groups place the moderator in more of a background role than does the traditional one-on-one interview. While the moderator facilitates the focus group discussion, the key to obtaining data effectively lies in the interaction of the group members with each other. The moderator's job is to keep the group on track and to encourage involvement by all participants. The moderator uses questions that are open-ended to allow flexibility in the group discussion. The questions and a discussion guide, however, are planned carefully in advance to achieve a proper balance between open discourse and focusing on relevant topics.
This project was undertaken to obtain information covering the fullest possible range of experiences of injured workers in the workers' compensation system. At this project's inception, it was commonly believed that workers' experiences with information and assistance probably differed significantly between southern California and northern California, between workers represented by attorneys and workers not represented by attorneys, and between English-speaking workers and workers not fluent in English. LOHP planned and organized the focus groups based on those differences as follows:
|English-Speaking Focus Groups
|Spanish-Speaking Focus Groups
|Northern California
|San Jose
|Southern California
|Universal City
|Universal City
Candidates for the focus groups were first selected from a database of claimants maintained by the Workers' Compensation Appeals Board (WCAB). This database contains all cases in which a document was filed with the Appeals Board; the first such document "opened" the case with the Board. The cases in the WCAB database fall within four categories: (1) cases where the opening document was an Application for Adjudication of Claim filed by the injured worker or the defendant,[11] (2) cases where the opening document was a proposed Compromise and Release filed by the parties to settle the case, (3) cases where the opening document was a proposed Stipulations with Request for Award filed by the parties to settle the case, and (4) cases where the opening document was a pre-Application lien filed by a party other than the injured worker. The fourth category, cases involving pre-Application liens, was not included in the selection of candidates for the focus groups. Thus, the group of workers from which candidates were selected did not include recently injured workers who would later file a document with the Appeals Board or injured workers who were not permanently disabled and whose cases resolved or would resolve without the worker filing a document with the Appeals Board.
The goals of selecting candidates for the focus groups were (1) to allow recruitment of people whose claims were recent enough to ensure good recall and (2) to select candidates who lived near the scheduled locations of the focus group sessions. In addition, candidates were to be recruited according to whether or not they were represented. Finally, telephone numbers listed in the database were needed to contact the workers. LOHP and Commission staff therefore developed the following criteria for selecting candidates from the WCAB database:
In addition, LOHP and Commission staff requested that the following characteristics be reported:
Based on these criteria, data-processing personnel from the Department of Industrial Relations performed the necessary programming and created 12 listings of injured workers-- segregated by the three geographic locations, whether the worker was represented by an attorney, and whether the worker had a telephone number in the database.
All personnel who conducted telephone screening and enrollment of candidates were instructed on necessary measures to maintain the confidentiality of the identities of the focus group participants. Screeners used a written guide that instructed them to explain the purpose of the project, how the University obtained the worker's phone number, and the fact that the participants' identities would be kept confidential. To encourage participation, each enrollee was offered a $45 stipend to participate in the focus group.
Screeners enrolled candidates according to the criteria described above regarding representation and spoken language. For the English-speaking focus groups, the screeners screened for fluency in English; for the Spanish-speaking focus groups, they screened for fluency in Spanish and limited ability to speak English. They also enrolled approximately equal numbers of men and women in each focus group, and they avoided enrolling in the same group people who either had the same home address, same employer address, or same attorney address. After the first focus group was convened, LOHP and Commission staff decided to exclude pre-window workers (i.e., workers with beginning dates of injury before 1990) to ensure sufficient recollection of experiences pertinent to this project.
Initially, screening personnel were instructed to recruit people in the order determined by sets of random numbers generated by data-processing personnel and to ensure that each group contained certain numbers of participants reflecting the overall population of workers in the WCAB database (excluding cases closed prior to 1993), according to the beginning date of injury, the type of opening document, and the listed type of injury ("specific" or "cumulative"). These particular procedures and criteria were eventually eliminated, however, as recruitment of participants ended up requiring much more time and resources than originally projected. Ultimately, the listed types of injury ("specific" or "cumulative") did not appear to correlate with the injured workers' descriptions of their own injuries. Also, despite efforts to recruit post-window workers, that is, workers with beginning dates of injury after 1993, none of the workers from that period actually participated in any of the focus groups. (Possible factors affecting participation by recently injured workers are discussed below under "Usefulness and Limitations of the Focus Group Results.")
An analysis of the recruiting activities showed that only 22 percent of workers with telephone numbers in the database were reachable by phone. However, two-thirds of these workers were interested in participating. The focus group participants were selected from among these workers.
Approximately ten days prior to each focus group session, LOHP mailed a letter to each enrollee confirming enrollment and explaining the purpose and nature of the focus group, a consent form which had been approved by the University's Committee for the Protection for Human Subjects, and a map with directions. The letters and consent forms for the Spanish-speaking focus groups were written in Spanish. One to three days prior to each session, screening personnel made follow-up telephone calls to encourage attendance, arrange for transportation if necessary, and answer any questions the workers might have. A total of 57 workers ultimately participated in the focus groups.
A model discussion guide, which contained introductory information about the project, basic ground rules regarding the confidential and voluntary nature of the discussions, and key questions to guide the focus group discussions, was carefully prepared and revised in consultation with the Advisory Committee for this project and a University of California researcher experienced in conducting focus groups. Here, the challenge was to balance the need to obtain information regarded as relevant to this project (i.e., making questions sufficiently specific) against the need to discover what issues were the most relevant to the participants (i.e., making the questions sufficiently open-ended).
LOHP then pilot tested the discussion guide with a small group of injured workers. Based on the results of the pilot test, LOHP revised the guide to increase flow, clarity, and focus in the discussions. LOHP made further revisions after conducting the first two of the eight focus groups. The final key questions were as follows:
Key Questions
Each focus group met for two hours. The sessions were tape recorded. Two moderators facilitated each focus group.
For each of the focus groups, the primary moderator was a member of the professional staff of LOHP, and the second moderator either held a position similar to the primary moderator or was a University of California graduate student. The role of the primary moderator was to present the introductory information and focus group questions and to ensure that the group remained focused on the topics being discussed. The role of the second moderator was to take notes regarding the content of the discussions and the emotions of the participants, welcome late arriving participants, collect signed consent forms, and operate recording equipment.
In almost all of the sessions, participants were eager to describe their experiences and express their opinions. The discussions became so intense and animated that the primary moderator was required to exert a great of control over the group to ensure that all of the key topics were covered and that the session ended on time.
Tapes of six of the focus group sessions were transcribed, and the transcripts of the two Spanish-speaking focus group sessions were translated into English.[12] An initial review of the content of all eight focus groups was undertaken to acquire an understanding of the full range of themes, issues, and concerns discussed in the sessions. Specific themes and issues were identified as important if raised frequently by the focus group participants and if raised with some degree of emotion or intensity. Based on this initial review, subject matter codes were developed to organize the data. All six transcripts were then coded according to these subject matter codes and rearranged physically for further analysis and organization of the data. The analysis was based on both a review of the rearranged transcript data and a review of the moderators' notes prepared during and after each of the eight sessions, regarding the content of the discussions and the emotions of the participants.
The results of the focus group sessions are useful for understanding qualitatively the range of injured workers' experiences and perspectives regarding the workers' compensation system and some of the factors that explain those experiences and perspectives. Efforts were made to recruit a diverse range of workers, according to geographic location, representation, language, and gender.
This project, however, does not purport to describe quantitatively the prevalence among injured workers in California of the themes, issues, and concerns expressed in the focus groups, nor does it describe from first-hand observation the services provided to injured workers. The extent that the participants' views represent those of all injured workers in California is necessarily limited by the types of cases that were entered into the WCAB database. For example, it is possible that the database contains proportionately more workers with earlier dates of injury and proportionately more workers with injuries serious enough to cause permanent disability than among all claimants whose cases were open as of January 1, 1993. (Workers with medical-only claims or temporary-disability-only claims are not in the database.) Also, with respect to window cases where the opening document was an Application, it is possible that the database contains proportionately more cases involving disputes between parties than the entire population of claimants who were occupationally injured in the window period. (This, however, may not be true with respect to pre-window or post-window cases, where the filing of an Application did not necessarily mean the worker was requesting a hearing over a disputed matter.)
On the other hand, injured workers who had received insufficient information to know they could file a workers' compensation claim or who had not filed a claim due to concerns for their jobs would not have had a document filed with the Appeals Board. These workers would never have been entered into the database.
The extent that the focus group participants' views represent injured workers' experiences in California is also limited by the selection criteria that were specified for this study, the ability to reach the selected workers by telephone, and the availability and willingness on the part of the workers who were contacted to attend and participate in the focus group sessions. The selection criteria excluded older injuries (i.e., pre-window cases) and older cases (i.e., closure prior to 1993) and limited enrollees to people living in or near Berkeley, San Jose, or Universal City. None of the workers who joined the sessions were injured in the post-window period (i.e., after 1993).[13] It is possible, for example, that the workers who could be reached by telephone were more stable geographically than other injured workers, and that the workers who were available, willing, and able to participate in the focus groups were more sociable, outspoken, confident, and organized than other injured workers.
Despite these limitations, the focus group sessions yielded rich, detailed, and diverse information about injured workers' experiences, feelings, opinions, and insights regarding the workers' compensation system. These qualitative results, coupled with analyses of the results of the discussion groups and interviews conducted for this project, are useful for understanding the causes of many of the problems in the California workers' compensation system and possible solutions to those problems.
To gather a broad range of information regarding the types of questions and problems that injured workers have faced and to better understand the activities of the Information & Assistance (I & A) Unit, LOHP convened two "discussion groups" of I & A officers. As distinguished from focus group research, where the researcher's focus is on the thought processes and feelings of the focus group participants, the purpose of these discussions with
I & A officers was to obtain specific facts regarding I & A services and the experiences of workers who use those services. The questions that LOHP staff posed to the I & A officers were more detailed and specific than generally posed in focus groups, and LOHP staff interacted in the group discussions more freely than typically occurs in focus groups. In addition, the participants were familiar with one another as professional colleagues, which probably in some cases encouraged, and possibly in other cases discouraged, the disclosure of information. The discussions were more akin to in-depth interviews (described in the next section of this report) than focus groups.
The first group, consisting of ten I & A officers from southern California, was convened in Long Beach on June 6, 1995, which was prior to the focus group sessions. The second group, consisting of eight I & A officers from northern California, was convened in San Francisco on November 15, 1995, which was toward the end of the data-gathering phase of this project. Both during and after the meetings, LOHP staff took detailed notes of the discussions.
In-depth interviewing is described as a "discourse between speakers" and a "joint enterprise between interviewer and interviewee."[14] The researcher begins with a loosely defined set of open-ended questions, that is, a semi-structured approach. By considering the interview as a conversation, the researcher is able to shape new questions from answers as the interview proceeds.
After convening the focus groups and conducting a preliminary review of the major problems and issues discussed in the focus group sessions, LOHP staff scheduled a series of individual and small group interviews with representatives of some of the major participants in the workers' compensation system. Members of the Advisory Committee suggested candidates for these interviews. The purpose of these interviews was to help identify and explain logistical and programmatic barriers to the rendering of fully effective services that inform and help injured workers. In essence, the interviews were designed to help identify causes of problems in the system and to explore ways to resolve those problems. Each interview lasted one to three hours. Both during and after each interview, detailed notes were taken to record the content of the discussions.
The following individuals participated in these interviews on behalf of their organizations:
LOHP conducted a survey of information and assistance programs for injured workers that have been established in other states. The purpose of this survey was to describe the design of programs in other states that may provide useful models for California. Therefore, in selecting which programs to review and describe for this project, LOHP searched for programs, or aspects of programs, that were substantially different from programs in California. This project did not include an in-depth study of how effective those programs actually are in informing and assisting injured workers.
This survey relied on a review and analysis of archival texts[15] and personal interviews with state agency and labor representatives to obtain further information about the other states' programs (interview methodology described in the previous section of this report).
The first step was to review readily available literature, in the University of California at Berkeley's libraries and at selected offices of DWC, describing information and assistance programs in other states. Also, LOHP staff initiated informal discussions with staff from DWC's Research and Evaluation Unit and from the AFL-CIO's Department of Occupational Safety and Health regarding programs that may be employing novel and useful methods to provide information and assistance to injured workers.
After gathering the preliminary information described above, LOHP staff ruled out programs that did not appear substantially different from programs in California. The survey was narrowed to certain programs in the states of Connecticut, Texas, and Washington. (NOTE: LOHP's selection of these programs does not mean that other programs in other states do not also employ useful methods for providing information and assistance; this survey is confined to materials and information that were readily available during the period of this project.) LOHP staff then personally contacted and interviewed officials and personnel from these three states to obtain further information about the specific programs of interest and to determine the scope and status of those programs.
A. Information and Help Given to Workers in the California Workers' Compensation System
Improve Content
Improve Understandability
Provide a Mix of Oral and Written Information
Ensure Appropriate Timing of Information
Make Information Easy to Obtain--Consider Broadcast Media
Provide Sufficient Follow-Up Help on Specific Procedures and Problems
Treat Injured Workers with Respect
Clarify and Enforce Obligations of Employers and Insurers to Provide Information, Assistance, and Other Services
Preferred Sources of Further Information
B. Other States' Information and Assistance Programs
This project has examined workers' experiences in receiving the information and help they need to process and resolve their workers' compensation claims. The findings are organized into two major categories. The first category, "Information and Help Given to Workers in the California Workers' Compensation System," covers issues that are the main focus of this project. This category is further subdivided according to various providers of information and help that were most frequently discussed in the focus group sessions: (1) all sources, (2) employers, (3) claims administrators, (4) Information & Assistance (I & A) officers, and (5) applicants' attorneys. The second category, "Other States' Information & Assistance Programs," describes selected programs in Connecticut, Texas, and Washington.
The findings are described according to the frequency that various experiences, perceptions, opinions, feelings, and concerns were introduced in the focus groups, discussion groups, and individual interviews. Thus, in the presentation of findings, "a few" means two or three speakers, "several" means four or five speakers, "many" means six or more speakers, and "most" means more than half of the subject group or groups. These references to frequency are intended to convey to the reader the flavor and intensity of the topics discussed. They are not, however, intended to describe the prevalence quantitatively of these experiences, perceptions, opinions, feelings, and concerns among all injured workers in California.[16]
As described below, data gathered from injured workers and from representatives of some of the major participants in the workers' compensation system tend to confirm that many injured workers encounter a great deal of confusion, problems, and delays in getting their claims processed and resolved. These findings undermine the ideal model of workers' compensation, which assumes that workers are receiving benefits quickly, automatically, and with little or no dispute.
This subsection of the report, "Overall Experiences of Injured Workers with Information Services," provides a broad overview of the major themes that came up in the focus group sessions, the discussion group meetings with I & A officers, and the individual interviews with representatives of some of the major participants in the system. More detailed descriptions of injured workers' experiences with specific sources of information and help are provided in later subsections of this report.
Most of the participants were actively involved in the discussions and had a great deal to say. Frequently, the discussions became loud and animated. People were eager to share their experiences, laugh and complain together, and provide each other emotional support.
While a few of the focus group participants reported that they were completely satisfied with the information and help they got while in the workers' compensation system, the pervasive theme in most of the sessions was that information was inadequate. The main feelings expressed in the sessions were as follows:
The discussion that follows describes the participants' experiences regarding the availability of information that they needed, their efforts to obtain that information, the usefulness of the information that they did receive, attitudes of the people from whom they sought information, whom the participants trusted for information and help in workers' compensation, and recommendations for improving information services.
A few of the focus group participants reported that they received all the information they needed and that they encountered no problems in how their claims were processed and resolved. Those participants said that information about how to file a workers' compensation claim was provided right after the injury, the employer and the insurer were always available to answer specific questions, and the providers of information and other services treated the worker with respect:
"I got this package talking about my rights, and I was treated well, you could say."
In contrast, most of the participants reported numerous difficulties in obtaining even the most basic information from any source. One participant, for example, sought but could not find information from any source that would help her determine her potential permanent disability award based on her disability rating. That participant found information at law libraries, which appeared to be inaccurate and outdated. Others described their experiences generally:
"No one gives you the full story, only parts."
"When you want to go through the process, no one gives you a hand as to what to do . . . . [You're] completely on your own."
"I was ignorant of everything. I was in the dark. Everything I was doing was like, I was learning as I went along. And then I learned quickly that I'll have to do it myself."
Several participants said they resented having to make many phone calls and travel long distances to get the necessary information:
"I did everything to get it, I did it all, not them."
"You have to do everything, as if you were the doctor, as if you were the lawyer, as if you were the teacher, as if you were the owner of the company--everything."
Three of the Spanish-speaking participants felt that they were unfairly barred from attending and observing court hearings on their claims, apparently because they could not speak or understand English:
"They did give me an appointment. They said, 'We're going to go to court on such-and-such a day.' Right? So I went, but I was outside the whole time."
One participant, although completely satisfied with the medical treatment, the temporary disability benefits, and the settlement he received, was dissatisfied and angry that neither his (self-insured) employer nor his lawyer would explain to him what his rights were and what to expect in the course of his claim:
"I'm being taken care of. I get my check on time. I had one medical appointment after another medical appointment, so I didn't have a problem with that. I'm going to the doctor all of the time for therapy, or just to see how I'm doing, so I didn't have anything to complain about. But I don't know nothing. . . . You should be informed, you know? But anyplace that I worked I have yet to see anything really regarding workers' compensation. You may see a chart up on the board, with five or six steps if you got hurt, what to do, but that's the extent of it. As far as what rights and stuff that's yours, I still don't know . . . information. That's what I need. That's the most valuable thing. You need information."
As described later in this report, several of the participants felt that their employers did not provide information because the employer did not understand the workers' compensation system. Many of the participants reported that claims adjusters would not answer questions or even return phone calls. A few participants experienced high turnovers among the insurance people who handled their claims. Many of the participants felt that the other parties deliberately hid the necessary information for the purpose of limiting the amounts to be paid on the claim. Several of the represented participants reported that because they had an attorney, claims administrators and I & A officers would provide little or no information about their claims, but those same workers had difficulty reaching their attorneys.
A few of the participants reported that the information they received was understandable and useful. Those participants either had prior experience with the workers' compensation system (e.g., as a union representative or as an employer), or the information was provided in person by the employer or claims administrator. A few participants relied on detailed books to understand the system, such as the Nolo Press book for injured workers.[17]
Many of the participants felt that forms and letters they received were difficult to understand because they were too technical or legalistic:
"I didn't get any information from anybody. I had to call workman's comp myself. They sent some forms. From then on it was working through the dark. I had problems with filling out forms themselves because some of them were vague, and I didn't understand what they were, what the form meant. So I had to call them back, they called me back, and we just haggled all day through the phone."
Others felt that pamphlets they received were vague and confusing and that the pamphlets did not explain what concrete steps the injured worker should take:
"What is missing is technical support since if one just reads the brochure one may not know where to make a claim."
"I received a pamphlet and the pamphlet was talking to you as if you already know what this was about. I didn't quite, there were some vague areas and some that were too detailed. I just found them too detailed and redundant, and other areas too vague."
"There's just not anything centralized. The system has so many little bits and pieces to it that you never know what part is going to apply to you. And what you are going to miss out on. You're just out there floundering around."
In the Spanish-speaking focus groups, participants said they did not understand information in pamphlets that were written only in English:
"They give it to you there, but I didn't read it since it was in English, and I couldn't understand it."
One worker pointed out that the complexity of the system itself is what makes the process so difficult for workers:
"Somehow it's gotta be simplified. I don't know exactly how because it is a complex system, but it needs to be simplified to where you really don't need lawyers, because it tells you in the pamphlet that a lawyer is not required, but yet it's so complex, and there's so many forms to fill out, and so many deadlines you have to make for your appeals, and everything else that the average person I think would just give up."
The word "care" was used by many of the participants to describe both positive and negative experiences in the workers' compensation system. Participants with positive experiences reported that the employer or the insurer "took care of everything," such as filling out forms and sending forms to the right places. Some participants appreciated a provider, such as a claims adjuster or a nurse, showing care and concern with how the worker was doing after being injured. In contrast, participants with negative experiences felt that "nobody cared what happened to me":
"They only saw me as a number, they did not care about me as an individual."
Many of the participants felt degraded and even ridiculed by people who were supposed to provide information and other services in workers' compensation:
"Now I worked for 32 years. I paid into all these systems. I deserve this money. And I'm telling you, they treat you like dirt, they way they talk to you on the phone: 'Well, you're just going to have to get used to it.' I mean, they're just snotty, nasty, snotty people."
"I am not trying to screw anybody. I just want what's fair. And I was treated like some creepy-crawly thing that came out from under the rock: 'Don't give her anything. She's icky.'"
Many of the participants spoke about how people in the system treated them as if they injured themselves on purpose to obtain workers' compensation benefits or as if their claims were otherwise fraudulent:
"They catch some guy playing tennis on film. It's like 'Oh, all employees are lying.'"
"It's not like I purposefully went out to get myself hurt. Do you think I enjoy the pain? They make you feel like, 'Well, it's your fault for getting hurt. You're after the money.'"
These workers felt they had been unfairly blamed and ostracized for their injuries at a time in their lives when they needed understanding and compassion from those around them. They also pointed out that most workers would much rather work and be healthy than be injured and unemployed, particularly given the limited benefits available in the workers' compensation system:
"No compensation, none whatsoever, could cure my pain. Nobody can fix my back. I would rather not get anything, and just do my work, because I like to work and not have to depend on anybody."
"The idea of worker corruption--there's not that much [money] in the system."
Many of the participants complained bitterly about the roles of the various players in the workers' compensation system. They felt that insurers, doctors, and lawyers are against the injured worker. A few described the insurers as villains and enemies and felt that insurers are not held to the same standard as workers in terms of fraud. Several of the participants described the system as a "process like being in hell," "degrading," "dehumanizing," and "corrupt":
"Everyone wants a piece of the case, and he who least benefits is the worker."
"The attorneys participating in that, and the doctors participating in that with them . . . are making a lot of tar that's stopping the mechanism from grinding smoothly."
"It's incredible that once you're put in a category, you're given a status or you're given this label that you're just this old tennis ball. Just rolled around, kicked around, like you're nobody. You're a peon."
"It's really dehumanizing to have your fate decided by so many outside forces. Occasionally, they'll offer you the illusion of control, like a doctor who says, 'I work for you.'"
In all of the focus group sessions, moderators asked the participants to identify persons or organizations that they trusted for information and help in workers' compensation and what it was about the person or organization that instilled trust. The most common response was "myself." The participants who said they trusted only themselves described how they sought and obtained information from numerous sources and decided on their own which pieces of information they could use. They explained their response by saying they relied on "persistence," "self-education," "knowledge," and "a lot of book work":
"If it wasn't for me I probably would have been still fighting for the thing. I did everything myself. I learned a lot. And that's it."
"I trust myself, my instincts, and very few other people."
"You can only basically trust yourself. You can fall victim very easily to other people. You do yourself a disservice by opening yourself to people that are really not interested in you as an individual. They're interested in settling your claim and getting rid of you--getting you off the books, and that's it."
The second most common response was "no one":
"Absolutely no one whatsoever."
"I've lost total trust in the system."
"I found no one entity that I could turn to and trust."
Two participants from two different focus groups described how they could get only "little pieces of information and truth" from various sources, but not the "whole elephant" from anyone. One of these participants pointed out that no one in the system is really on the workers' side, and that therefore workers could trust everyone else to look out for their own interests.
The remaining participants named a variety of individuals whom they could trust for information and help. There was no obvious trend or pattern in the types of people named. It appeared that trust in certain individuals was based on supportive and respectful personal interactions and the time spent with the worker.
The individuals named in the focus group sessions included an employer who explained all the options and benefits, a workers' compensation judge's secretary who explained the information that the worker should prepare for a hearing, an insurance adjuster who explained all the options and gave the worker time to decide on settlement options, an
I & A officer who helped the worker numerous times, an I & A officer who helped increase the proposed amount for settlement, a relative who was a human resources director at another company, a spouse who asked questions and obtained information for the worker, a spouse who obtained books on workers' compensation laws, a physician who took the time to explain options and was interested in and concerned about the worker's well-being, an employer's human resources representative who answered all questions and told the worker whom to contact for further services, a union that had an extensive health and safety program, a librarian, an insurance adjuster who was open, receptive, and who called to see how things were going, a benevolent association of employees that provided guidance and research, a Rehabilitation Unit officer who listened to all parties and was honest, patient, and fair, a physician who walked the injured worker through her rights, a physician who "did everything she could do," and a vocational rehabilitation counselor.
The focus group participants provided many recommendations on how information and help for injured workers could be improved. These recommendations involved improvements in the content, form, and delivery of information, as follows:
Many of the participants described the types of information they believed should be included in information given to injured workers. A major theme in the focus group sessions was that the available information was too general. The most common recommendation made by the participants was that information be developed that clearly guided injured workers on specific steps they should take to process their claims. Participants said that information should tell the worker "where to go," "what to do," and the anticipated "time involved" for the various stages of a claim:
". . . information as to how to proceed. The procedures were the problem. And to get that to people in a manner that they're going to be aware of it, so when the need occurs, they have it on hand."
A few participants recommended that the information be provided in checklist form:
". . . a list of things that you're supposed to do. One of my main questions was, 'OK, now that I'm not working and I've filed for workers' comp, what do I live on?' I didn't know I was supposed to file for disability. I didn't know I could file for unemployment. I didn't know I could be retrained in rehab. I had no idea. So if they could at least give you a list where you check off things, 'OK, now I'm supposed to ________.'"
"If I had a checklist, just a checklist: 'OK, they didn't do that. Let me call back and find out.' That would help so much, instead of just the basic brochure, 'You Are an Injured Worker.'"
Another major theme in the focus group sessions was that existing information regarding an injured worker's legal rights was insufficient. Thus, the second most common recommendation made by participants was that injured workers be provided with more detailed information about their legal rights or where to obtain further legal information. This included information on workers' compensation laws and other laws, for example, the Americans with Disabilities Act:
"Because when something happens, we don't know who to turn to, and surely the company isn't going to help us because they don't agree with you that you hurt yourself."
Several participants recommended that more specific information be provided to help the injured worker determine the amounts of temporary disability and permanent disability benefits the worker should receive. Participants felt they needed this information both to plan how they were going to manage paying their bills and to decide on how to respond to an insurer's settlement offer:
"'You injured your back in this way, you have the right to receive so much.' Then people know how much they will receive because the insurance company is going to try to give you the least amount possible. That I already know."
Individual participants identified other pieces of information, relevant at specific stages of a claim, both before and after an occupational injury, which they believed should be provided to workers. This included information regarding the following: potential eligibility for workers' compensation in general, the right to predesignate the treating physician, the importance of reporting an injury right away to prove the injury occurred at work, available emergency medical services in case of an injury, more information generally regarding rights to medical treatment and vocational rehabilitation benefits, the right to dispute medical findings, and the pros and cons of various settlement options.
Many of the focus group participants felt that most of the other players in the system had interests that were opposed to the injured workers' interests. Therefore, a few participants recommended that injured workers be warned of this problem. These participants, for example, recommended warning injured workers that insurers may conduct surveillance of their physical activities and recommended explaining the role and incentives of each player in the system, that is, their function, how they get paid, who pays them, and the least amount of services they must provide to get paid because "you can trust people to look after their own interests." One worker urged that workers' compensation not be described as a no-fault system because it falsely implies that benefits are provided automatically and without dispute:
"Their claim of operating a no-fault program is bogus. Completely fraudulent."
A few participants recommended that information be included regarding the advantages and disadvantages of hiring an applicants' attorney. While some felt that an attorney is essential to getting a claim handled properly, others felt that attorneys are not worth the fees they are paid.
Several participants recommended that injured workers be informed of additional resources they can turn to for help, both within and outside the workers' compensation system.
Several participants recommended that information be simplified and provided in easy-to-understand language:
"I think the language should be third grade level. Because in America they don't teach us legal English."
"Legal English isn't English."
"Not written in Greek would be good."
"Yes, these things are posted. But I think it could be simplified. My thing is bolder letters, simplification, get right to the point. Between the booklet, then they give you these administrative pamphlets, and they give you all this other stuff smashed together in this envelope. And here you are, ill, flat on your back, and you're going 'Oh, gosh.' Where if a simplified form at least could be attached: 'These are the As, Bs, Cs, and Ds of this.'"
"I think [informational materials] should be approved by, say, 100 of us who have participated in a focus group. In other words, real people who have gone through the system, and we approve it: 'Yes this is clear English, this would have been helpful, yes this is what I learned, yes this reflects accurate experience.'"
Most of the recommendations described above regarding content and understandability of information pertained to written information. Several of the focus group participants recommended that information also be provided orally and in person, either by the employer or insurance representative:
"I wish, instead of sending that brochure out, if they could have a representative call and make an appointment with you. If you're unable to drive or you're handicapped, they could come to your house, or you can go to their office for one hour, and they can sit and give you a list of things of what you're supposed to do."
According to one participant, some people do not understand written information. Other participants recommended that for Spanish-speaking workers, the insurer representative should be able to speak Spanish and that information be provided in videotape form, like some companies have for safety procedures.
Several of the participants emphasized that employers should post or provide information when a worker is first hired. According to those participants, workers can sometimes better absorb information prior to an injury than afterwards, when the worker is in pain, on medication, and feeling desperate. One participant praised his employer's in-depth training sessions on workers' compensation, given twice a year as part of the employer's regular safety meetings. Two participants recommended that education regarding workers' compensation be provided as early as high school or college, as part of pre-employment training regarding occupational health and safety.
Several of the participants emphasized that basic information should be given immediately after the injury, not weeks or months later. These participants emphasized that injured workers are more interested in learning about workers' compensation after they have been injured rather than before the injury.
Several participants could not obtain needed information or obtained information only after expending considerable time and resources, and they emphasized that information should be provided automatically or be made readily available to injured workers. Participants recommended, for example, that written information should be free of charge, posted at work, distributed and available in the immediate work area, mailed to the injured worker, available at unemployment offices, and available in libraries. Some participants also recommended alternative methods for providing information, for example, by radio, by television, by newspaper, on the Internet, and through a computer software program.
Many of the participants felt that injured workers should be provided individual help in filling out forms and that workers should be able to obtain individual support and/or representation from someone like a counselor, social worker, paralegal, or Legal Aid attorney:
"Maybe they ought to have something like a paralegal, a knowledgeable person who could answer your questions, funded through the state."
"The average layperson doesn't know. It was just a nightmare for me because I didn't understand the system and how the system worked. I believe that workmans' comp should reform this, the forms, and assist the person to fill them out, or any questions they may have. Because a lot of people just don't know."
Many of the focus group participants felt that other stakeholders in the system were rude, insensitive, demeaning, cold, bureaucratic, and even threatening. Participants therefore recommended that employers, insurers, doctors, and vocational rehabilitation counselors learn to communicate better with injured workers, to be more responsive, to treat injured workers with respect as human beings, and not to assume that all injured workers are filing fraudulent claims:
"It starts with the human factor, first of all--train people or the counselors or people in insurance to treat you as a human being."
"I think you should get people who actually care about you as an individual instead of just a file number."
"I feel that there should be some sort of oversight, an independent agent or someone who looks over this to see how these companies and doctors are treating these people."
Many of the focus group participants said that employers should be complying with basic requirements to inform injured workers and that employer representatives themselves should be sufficiently knowledgeable about the workers' compensation system. These participants recommended that the state regulate and enforce employers' obligations to understand the system themselves, inform injured workers of their rights (especially the right to predesignate one's treating physician), answer injured workers' questions, and hold safety meetings:
"If they keep up the safety meetings, then everybody can stay informed, and I think the state should really crack down on the safety meetings that lawfully you're supposed to have, and make sure you do have them, and have them documented."
"If the state mandates that all employers carry workers' comp, then they should make sure that there is somebody qualified to answer questions when someone gets injured."
"People are afraid of being fired. I think the employer should have to be compelled to tell employees what their rights are, because they don't."
"Employers are not mandated in any way, or if they're mandated, they are not complying with the mandates, that certain things happen."
"My employer and many others should first of all be informed how not to be in such a situation that they cause your injury. There should be instruction for all employers, but certainly an employer who's had somebody in the system."
"Your supervisors or whomever you report to should be knowledgeable enough to inform you. They should be at least a little helpful when it comes down to job injuries."
"I think the employers should be aware. They should be very strict to them, and there should be a fine involved because a lot of the hangups come from employers. They did not do their paperwork."
A few of the participants recommended that insurers communicate more with their insureds (the employers) and that claim adjusters be sufficiently trained for their jobs. Participants also felt that insurers should be held accountable under laws prohibiting fraud for bad faith actions and that injured workers should have a way to voice complaints against bad faith actions of insurers:
"There are fraudulent claims, but insurance companies aren't held to the same standard. In other words, if an insurance company does something that causes a delay in payment, or causes an injury to worsen, or a condition to go on, there might be some way to focus on that in terms of physical or emotional payments, in holding them responsible, of having them at risk for the decision they make. In other words, when they negotiate a substantially lower settlement for a case that they know they should pay more on, there should be some independent forum in which someone can voice that complaint."
Many of the focus group participants felt that any further information for injured workers should be provided by the employers:
"So that you aren't spending gas or telephone calling, they are the ones that have to give you the information in the same place where you work, without a hassle."
"The only ones that should give exact information are the company where you work at the time you're injured. They are the guilty ones."
"The workplace should be responsible for giving you the information because as an employee you don't know about these things. And the employers sometimes threaten you. They don't give you information."
One participant suggested that the state prepare a binder of information for employers so that employers can reproduce portions of the information for employees as the need arises.
A greater number of focus group participants felt that because they did not trust employers and insurers, further information for injured workers should be provided by "neutral" sources. These sources included Legal Aid, clubs or associations of workers, the
I & A Unit, LOHP, and a federal agency (for state, county, and city employees).
Several major themes arose in the discussion groups with Information & Assistance
(I & A) officers and the individual interviews with representatives of many of the major participants in the workers' compensation system.
Representatives of some of the major participants in the workers' compensation system described how legal complexities impede the delivery of understandable and useful information to injured workers. These complexities have resulted from the numerous legislative reforms that have been enacted since 1989. Each of the reforms has created additional sets of forms, notices, steps, deadlines, and legal presumptions.
For example, applicants' attorneys must use and file different sets of forms under different circumstances to preserve a worker's rights and to request action by a workers' compensation judge, depending on whether the worker was injured in the pre-window period (before 1990), in the window period (1990-1993), or in the post-window period (after 1993).[18] Medical-legal procedures are even more complicated. To resolve disputes over medical issues, claims administrators, applicants' attorneys, and injured workers must follow different sets of procedures and be subject to different sets of restrictions regarding permitted medical evaluations. These procedures and restrictions depend on the date of injury (whether the worker was injured before 1991, in the period 1991 to 1993, or after 1993), whether or not the worker is represented, and the subject of the dispute (whether the parties are disputing compensability of the entire claim, levels of permanent disability, needs for further medical treatment, or other medical issues).[19] Some applicants' attorney's law firms have developed 11 separate systems, or "tracks," to handle medical-legal procedures. Likewise, to comply with extremely complicated regulations governing benefit and vocational rehabilitation notices that claims administrators must send to injured workers (notices whose contents vary depending on the worker's date of injury and the legal event described by the notice),[20] some claims administrators have developed over 100 sample notice letters.
One interviewee described the purported reform of the system as "system deform." Another interviewee felt that the workers' compensation system is becoming as complicated as the civil court system.
Because of the numerous legal requirements, claims administrators and applicants' attorneys are required to handle much more paperwork than in the 1980s. Their work schedules are overloaded with tasks in creating, sending, reviewing, analyzing, and responding to documents and maintaining records of their activities involving those documents. Several of the representatives interviewed for this project said that claims administrators and applicants' attorneys are "overworked," "harried," and "bogged down with paper." Therefore, they have proportionately much less time to speak personally with injured workers than in the past. In the meantime, injured workers receive an "avalanche of information" from claims administrators, that is, the workers are "inundated with mountains of paper," which are "legalistic," "bureaucratic," "convoluted," "repetitious," and "depersonalized." Many or most injured workers cannot understand these notices, and they cannot find anyone who has sufficient time to fully explain to them what is happening with their claims.
The discussions and interviews revealed strong feelings of disharmony and distrust between various participants in the system. Applicants' attorneys were a major target of criticism; some of the employer and claims administrator representatives felt that applicants' attorneys amplify disputes, arrange for unnecessary additional medical evaluations, assert unnecessary new allegations, and drag out cases for personal gain. The criticisms of applicants' attorneys reflected differing perspectives among interviewees as to whether certain disputes are "necessary" or "unnecessary." One perspective was that attorney actions tend to increase the number of adversarial transactions and hearings in a case. These additional transactions and hearings can be viewed as "unnecessary" to the resolution of a case. A contrasting perspective is that attorney actions protect their client's rights and maximize the benefits that the client will recover. These actions are generally regarded as "necessary" from the injured worker's viewpoint.
There were also complaints about other participants in the system. Employers as a group were criticized for deliberately cultivating a perception in the workplace that injured workers are fraudulent; they were also criticized for harassing and threatening workers who file workers' compensation claims. Insurers as a group were criticized by an employer representative for settling cases prematurely and then transferring those losses onto employer policyholders by raising insurance premiums. Insurers were also criticized for deliberately withholding or underpaying on temporary disability benefits. I & A officers were criticized for being biased against employers and insurers, on the one hand, and for not being accessible to injured workers, on the other.
The discussions and interviews confirmed reports from represented workers in the focus groups that I & A officers and claims administrators tend not to provide as much information to them as they do to unrepresented workers. Some of the I & A officers explained that their job is primarily to help unrepresented workers because the applicants' attorneys are paid to help their clients. Some of the I & A officers and claims administrator representatives also explained that it would be improper for them to interfere with the attorney-client relationship. However, represented workers who cannot reach their attorneys then end up in a situation where information is much less available to them than it is to unrepresented workers. They may be unfairly penalized for exercising their right to representation.
Certain laws and regulations require employers to provide written information on workers' rights and obligations in workers' compensation at the time of hire, through information posted in the workplace, and immediately after being notified of an occupational injury. The information required to be posted in the workplace and given in written form to new employees includes the name of the carrier, the right to predesignate one's treating physician, the benefits provided in workers' compensation, and where to report injuries.[21] In theory, failure to post the required information in a conspicuous location can be charged as a misdemeanor[22] and can result in a civil penalty of $7,000.[23] When a worker becomes injured, the employer must provide a claim form and a notice that explains the procedure for requesting benefits.[24]
Participants in the focus groups described a wide range of experiences with receiving information and help from their employers, both before and after they were injured.
Many (but far less than half) of the focus group participants reported that their employers provided all the information and help they needed to process their claims. Those workers said that the employer "took care of everything" and that the information was provided "right from the beginning." They described their employers as knowledgeable, coordinated, organized, and prompt in making sure the worker was treated by a physician and in filing all the necessary documents:
"My employer was pretty good. They handled pretty much everything. Any problems I had, they took care of. If I had any questions about anything, they'd get the answers for me, so I hardly even bothered with the state."
"I was fortunate in that the organization provided for workers' comp and made sure that notifications and explanations were done, so it was rather smooth sailing for me because they had a professional there who took care of it."
"As far as getting everything, the paperwork done, informing me of what should be done and all, what I needed to do and all that, that part of it went slick as a whistle."
"The human resources representative was there for the injured employee, and she would direct us to whoever and answer all the questions."
"I hurt my back, it was my lower back. And I told my supervisor that. And he said, 'OK, well let's go to the clinic.'"
"If an employer is a really good employer, he'll take care of you right then and there. That I found out."
Most of the focus group participants reported that their employers gave them little or no information to help them process their claims. There were angry and frustrated with that lack of adequate information:
"No one told me anything."
"I wasn't handed anything that told me my rights."
"Having reported it to them, the company never said, 'You know, you better have that checked out. You better go to the hospital.'"
"I was given no information and that's why I didn't file a claim."
"In terms of my employer, he was pretty much useless because my manager, when I told him I was injured, he's talking, 'Oh yeah, well whatever,' type of thing."
Most of the participants said they never received information about the right to predesignate the treating physician, and most did not realize they had this right. Many of these participants were angry at their employers for not providing this particular piece of information:
"When you are first employed, you want to make a good impression. You don't want to ask about your right to go to your doctor in case of injury. But the employer doesn't care, doesn't give you any information."
Several of the workers felt that their employers were not sufficiently knowledgeable about the workers' compensation system. One participant, for example, said that her employer did not know the identity of the carrier or how to file a claim, had "no involvement in the claim," and "had no idea what was going on." Another described her experience as follows:
"First of all, my employer had no idea what to tell me to do. They just gave me a form they had. So they were uneducated from the beginning in assisting you."
Many of the workers felt that the employer deliberately hid necessary information and that employers do not provide information because they do not want claims to be filed and paid, which increases their insurance rates:
"They've been avoiding me. They keep giving me the runaround."
"I believe that the employers themselves know, but they just don't want to give the information to the employees. Because if you know too much, you're just nothing but trouble for them. And what they do is keep you in the dark as much as possible, and give you enough information as possible just to drag you along, as they can. As they feel fit, they will do anything to you. They'll railroad you, meaning getting you out of your job, or displace you because of your injury. You're out the door."
"I think in this system a lot of bosses don't inform the employee. One hundred percent cover this up. This was the case for me. Nobody told me anything, and the only information that I got was from the lawyer."
"They're just trying not to pay out claims. And of course the employer doesn't want that either, so therefore they're not going to be forthcoming with a lot of information."
"I'm wondering if employers don't think that if they did give out this information, that they would actually be encouraging people. If you tell somebody to file a claim when they're injured, they're thinking, 'Oh, if we tell them that, then they're gonna do it whether they're injured or not.' So you know I think they're looking out for their own interests. And the fact is their insurance and their rates increase when there's an injury, and sometimes they can actually lose insurance. There's penalties in it for the employers, so therefore they're not going to be real willing to help you out with injuries."
Several of the focus group participants reported situations where the employer delayed responding to the worker's report of injury:
"Initially, when I got hurt on the job, the supervisor took no notes, did nothing, and progressively I was getting lame."
"When I was first injured, I had reported it to my supervisor. He said, 'Thank you for telling me, but keep it on our mat.' And so it was only when I started to get really severe symptoms and my hands were going numb and I was also getting tingling in my fingers that they finally decided it would be a fine time to provide me with a claim form."
"I didn't report it for the first six months because as I said, they wouldn't let me."
Several reported that their employers were uncaring, hurtful, threatening, and only cared about production. For example, one participant described the accident at work that broke all his ribs and said the supervisors yelled at him, "Well, get up! Let's see what happened." A few said that after the injury, the company separated itself from the worker and told the worker to deal directly with the insurer:
"They don't want anything to do with you anymore. They say, 'We pay our premiums to this guy, we'll let you deal with them. Don't deal with us, we have nothing to do with you.'"
One participant shared with the group her sadness at being ignored and discarded by her employer after devoting 23 years at that place of employment:
"I was lost when I was in the hospital, like nobody cared. My employer was, it was like, 'You didn't really get hurt here,' and they knew I did, and they weren't going to take responsibility for it, and I was just lost. You know, I've wiped that whole thing out of my mind because I just didn't want to even think about it any more because my experience was bad. . . . I was very downhearted, and nobody cared, nobody came to see me. You know, I had 23 years at the company. . . . I think a person feels at the mercy of the company. And if they never had experience with injury, they're going to keep as much away from you as they possibly can. Which they do. Then, after you've gone through your operation, and then you've been treated, and perhaps you're ready to go to work, and the doctor says you cannot do this particular job, then the company says, 'We don't want you anymore.' And as many years as I had in the company, they did not help me. The supervisors were all for the company. Nobody helped me at all. . . . I was 23 years there, you see? Now I'm out on the street. No job, no money, no nothing. And nobody cared. That's the worst part."
Others described their experiences and perspectives as follows:
"My boss had made me do three times the work on the machine, putting labels on and packing. And she made fun of me when I left work saying, 'Look at the poor thing with her tongue hanging out.' I was very humiliated."
"I injured both my hamstrings, and I couldn't even walk. Nobody ever told me, 'You have the right to compensation,' or 'You can get this.' What they kept telling me was, 'If you can't go to work, then quit.'"
"I was never given any information at all. In fact, I was told by my employers, 'You know if you have a claim or anything that you file on workers' comp, then it goes on your record for the rest of your life and nobody will ever hire you again.' That was all the information I got."
"There are companies out there that don't really care. You're just making their product. It's pure slavery in the 1990s, is how I look at it."
"I don't trust any employer anymore because there is no loyalty anymore in the 1990s. They're out just to make a buck. I don't trust them. When it comes to money, they want to hold on to it as much as possible."
"They don't tell you anything because what they stress most is what time you have to go to work and your responsibility, more than anything else."
"It's cheaper for them to pay everybody in this room for their injuries than it is to change the machines. So if you're hurt on the job or something, they don't care because it's easier to pay you off. If you die, it's easier for them to pay for your death on the job than it is to pay for your injuries. So they'd rather see you dead on the job than change the system. I just speak on this personally on the job I worked on. I watched a machine that was cited a $50,000 fine several times, you know. And OSHA come out and told them they either needed to update it or close it. So they continued to operate the machinery. I watched people get killed."
Many of the represented workers in the focus groups said that the main reason they hired an attorney was because of conduct by their employers. Several could not obtain any information from their employers on how to proceed with their claim. One of these workers said she hired an attorney because of the "apathy of the company." Several others said that the main reason they hired an attorney was to protect their jobs because they believed that the employer would discriminate against them for getting injured or for filing a workers' compensation claim:
"I did it to protect my job. I had a [supervisor] who was really perturbed with me over this whole thing and seemed to think that I was going to retire from the department and take a cruise to the Caribbean and make a lot of money on this whole thing. And I tried to explain to him that I wasn't and that I was doing the best I could, and he said, 'Well, your best is not good enough.'"
Many of the focus group participants felt that employers should be required to provide information regarding workers' compensation benefits procedures at the time of hire and soon after a worker is injured. (Most of these participants were not aware of existing laws and regulations that impose these requirements.) Participants also felt that state agencies should be ensuring that employers comply with requirements to inform workers and assist in the processing of workers' compensation claims. Many of the participants also felt that some employers should learn how to better communicate with their employees and treat the employees with respect:
"I think the most important thing would be communication. Not only for the employer to have a good rapport established with the employees, but also on how to maintain a safe working environment."
In the group discussions and individual interviews, representatives of employers, claims administrators, DWC, applicants' attorneys, and unions discussed issues regarding the adequacy of information and help provided by employers to their employees in workers' compensation. The discussions centered around compliance with the laws and regulations that require employment to inform their employees about rights and obligations in workers' compensation.[25]
The discussions confirmed that management philosophies vary widely in administering workers' compensation programs and in communicating with injured employees. The differences between employers depend in part on the size and resources of the employer. Also revealed was the fact that there is no statewide program, or even a system of regulatory penalties or other incentives, to enforce the laws and regulations in California that require employers to provide information to employees about workers' compensation.
The interviewees perceived that conscientious employers with sufficient resources develop and implement programs and policies to inform employees about rights, obligations, and procedures in workers' compensation as part of their overall training and education to prevent work-related injuries and illnesses. When an employee gets injured, these employers give time and attention to the employee and establish full and open communication with the employee about the course of medical treatment, the employee's recovery, and plans for the employee to return to work. The approach here is to show respect, interest, and concern for the injured employee and to treat the employee as a valuable asset to the company. This builds trust with that employee and with the employee's co-workers. In the long run, the employer benefits financially because disputes and litigation in workers' compensation are avoided, injured employees return to work sooner, employees cooperate more in illness and injury prevention programs, and the costs of workers' compensation, through experience-rated premiums, are kept low.
According to some interviewees, other employers are not actively informing and helping their employees in workers' compensation. Because the workers' compensation system is so complicated, these employers may not understand the system very well. They do not fully comply with the various laws and regulations that require them to give information to employees about workers' compensation because they are not familiar with those requirements and because they may be assuming that the workers' compensation carrier will tell them what information to provide. They also rely on the carrier to handle the employees' workers' compensation claims while they themselves do not become involved in the claims. The worst employers harass and threaten employees who file workers' compensation claims, treating them as second-class citizens or scoundrels. Some interviewees believed that some employers are purposefully cultivating a perception in the workplace that workers' compensation claimants are liars. Some of these employers may be small companies that are constrained financially in establishing necessary programs, while others may simply not be analyzing the long-term impact of their actions. These employers may suffer financially in the long run due to increased litigation, prolongation of the injured employee's time off from work, distrust and reduced cooperation by other employees, and increased workers' compensation insurance premiums.
At the time the interviews were conducted (in 1995), representatives of the Audit Unit and the Legal Unit of the Division of Workers' Compensation (DWC) reported that no proactive program existed within the DWC to enforce the various laws and regulations cited above. There did not even exist a set of regulatory penalties that would provide legal remedies for enforcement actions.[26] The Assistant State Labor Commissioner likewise indicated that the Division of Labor Standards Enforcement did not enforce these laws and regulations.
Employer representatives recommended that state agencies develop and provide training and informational guides for employers regarding programs to prevent injuries and illnesses and to administer worker' compensation services. This would be most beneficial for small employers, many of whom have insufficient resources to understand the applicable laws and regulations. One representative suggested that information and guidelines on injury prevention and workers' compensation be provided by Cal/OSHA Consultation. One I & A officer recommended that workers' compensation insurers provide more information to their policyholders about employers' obligations in the system.
Another interviewee perceived that many problems in workers' compensation stem from poor communications, that is, poor judgment in the manner and style in which information is provided to injured workers. The interviewee recommended that all providers in the system, including employers, be offered training to sensitize them to the experiences and needs of injured workers and additional training on how deal with workers who are angry and upset, that is, training to develop crisis counseling skills.
Claims administrators are required to provide written notices to injured workers about their claims (e.g., the duration and schedule of financial benefits, reasons for delays, reasons for denial of a claim, and determinations regarding permanent disability).[27]
Like the experiences with information and help from employers, the participants' experiences in receiving information and help from claims administrators varied widely.
Many (but far less than most) of the focus group participants reported that the insurer sent information right away, treated the worker well, and made sure the benefits were sent. One of the participants, for example, was satisfied with the information she received explaining settlement options and said that the insurer gave her plenty of time to decide. Satisfied workers described their claims administrators as "kind and thoughtful," "caring," "nice," "open," and "receptive":
"The insurance company, the lawyer who has my case was from insurance, and speaks Spanish. And she told me everything. . . . Always, the insurance company took care of me."
"They came right to work. They made an appointment to meet me at my office so they could interview me, and they interviewed the personnel person to make sure the information on my wages and things were correct. It all goes back to the insurance company and how much they want to work for you."
"As far as with paperwork coming, as far as communication from the insurance company, which really blew my mind how they took care of that and handled it and made sure that everything came, my checks, everything."
"Well, oddly enough, I rather have a lot of faith in the adjuster that's working on my workers' comp case, this time . . . her openness, her receptiveness. I have quite a bit of faith in her . . . things like calling me after my surgery and checking to see how things are going when she hadn't heard from me. She's truly a very nice lady."
"The company took care of everything, the insurance people, the carrier. And you could not ask for a nicer carrier. They would call you once a month to see how you felt, and if there was anything you needed, and everything on both my knee injury and my back injury were great because they'd call you, keep you informed, even though you had a lawyer, it didn't bother them. They wanted to make sure you were OK."
Most of the focus group participants were frustrated and angry because they could not obtain adequate information and help from their claims administrators. Individual participants, for example, said that their claims administrator did not explain why temporary disability payments stopped, did not explain that advances would be deducted from the final settlement, and did not tell the worker about the potential availability of vocational rehabilitation. Others said that the claims administrator would not help the worker fill out forms that the worker could not understand and would not explain why there were no benefits being sent after the worker was rated (i.e., assigned a permanent disability rating).
Many of the participants said that they could not reach the claims administrator by telephone or that it required many phone calls and days of waiting to reach the claims administrator. At least two of the participants said that because of high turnover in those insurance companies, the people handling their claims were not familiar with the facts of the case. One of the Spanish-speaking participants said that information from the claims administrator that was written in English was not useful. Several participants described their claims administrators as "a little bureaucratic," "hostile," "rude," "annoyed," "cold as ice," and "uncaring":
"I didn't have a lawyer. I was calling workers' comp. 'What's happening?' 'Well, he has many cases and so we don't have the information here.' Nothing more, and time went by and more time passed, and me with nothing--no work, no money. Do you think that I didn't want to settle? Of course I wanted to settle! Doctor? They didn't offer me a doctor."
"All this time that I've gone through, I was kept in the dark. Also, the insurer of the employer always kept me in the dark, too. They only gave you just enough information to say, answer a question with a question. I always asked when was my next payment coming or why was it stopped. They said, 'Well, just because you didn't sign this, we weren't going to give you this, so you're entitled to lose out,' and that's not fair."
"You can ask a question. They give you the phone number for questions. But in order to contact the person you're calling, you leave a message. They never answer your message. You call again. The person is in a meeting: 'He isn't in now, he's in a meeting. Leave your telephone number and we'll return your call.' They never do."
"I had to talk to them. They weren't real. They didn't give me any information at all. Matter of fact, they just said, 'You're on your own. Just fill them out the best you can, and we'll document them so you can get workers' comp.' That was it."
"I'd get a tape recording machine with this insurance guy. He would call me back, I wasn't there, and then I'd call, or he wouldn't call me back until about two days later, and I would always try to get him like 8:00 in the morning."
"They never called me. They never explained any changes that have taken place if I get a check for a different amount. I have to figure it out for myself because when I tried to call them up, it usually takes me two or three days to get past the voice mail, you know, and find a real person."
"That lady was cold as ice. She was an iceberg. She basically said, 'Look, you're young. Deal with that type of thing. You don't have any bones sticking out. You don't have any arms falling off.'"
"I was basically treated like a puppet with strings. It's just like, do this, do that. And it's like, what about me? What do I feel? Because I know what I feel in my shoulder. I know the thing I'm going through."
"I had a representative from the second insurance company that I dealt with who was very rude, called me trying to get me to settle over the phone for $1,500. She said, 'Well, you know, you're not going to get any more if you take this to a hearing. This is the best you can get.'"
"The insurance companies, when you ask a question, they just send this form. What am I supposed to do with it? They said, 'Fill it out.' Click. I mean, what am I filling out? What is the purpose of this form? What am I signing? Am I signing away any future claim I may have, or am I signing something that's gonna get me in trouble in the long run? It's like you're completely in the dark. And then when you ask for help, they're annoyed by it. It's like, 'How dare you bother me and waste my time and I have other things to do.'"
Two of the focus group participants discussed the effect of hiring or not hiring an attorney. One participant who was represented said that the claims administrator refused to speak with the worker after the worker hired an attorney:
"Once you are injured and you get a lawyer, then you're virtually cut out from getting workmans' compensation information. You get a check, but you call up the [claims administrator]. They say, 'Oh no, you have an attorney. You have to talk with him. I'm not even allowed to talk with you.'"
In contrast, the other participant, who was not represented, said that the claims administrator was hostile to her when he thought she planned to hire an attorney but then became less hostile after he found out she decided not to hire an attorney.
In most of the focus group sessions, participants expressed a great deal of anger at insurance companies and the insurance industry in general. Many of the participants perceived that insurers are only interested in making money, that they are getting "filthy rich" by not paying on claims that they should be paying, and that they "prefer to fight everything tooth and nail." Thus, they are "the villains, enemies." Participants believed that insurers "control the whole system" and that the insurers are "manipulating the whole thing":
"I think they control the whole system, including the judges, including the lawyers. I think the insurance company, with lobbies in Sacramento, control the whole system. They control the judges that are appointed, and the system itself, the way the machinery operates, is all heavily biased in favor of insurance companies. And the insurance companies control not only the benefits and the claims; they control what kind of claims, and they choose how the system runs."
"You see all these advertisements on television, 'You're in good hands with ______,' or ' ______ is going to help you.' It's a bunch of bull. They are companies in business to make money. And if they pay all of everybody's claims, they're not going to make any money."
"The insurance companies to me are almost the villains in this whole thing. I've known a couple of people that had fairly good experiences; it depends on the insurance company. But the ones I dealt with became my enemies. Basically, they were the ones that I had to play all these games with."
"It's the same no matter what kind of insurance you're dealing with. It's a claim. They don't like to pay out claims. They think, 'Why should we have to pay this money?' but that's what they're there for. Any time a system is run by insurance companies, and especially private ones."
Information Services
A few of the focus group participants, having dealt with claims administrators who did not seem to understand certain of the laws, recommended that claims administrators be better trained in the law. Several participants also recommended that claims administrators be trained to not assume that workers are fraudulent:
"If there is somebody in the system that's fraudulent and trying to abuse the system, then friggin' do something. Crucify the guy, but don't crucify everyone else that's going into the system."
Representatives of claims administrators, DWC, applicants' attorneys, and unions discussed issues regarding the information and help provided by claims administrators to claimants in the workers' compensation system. The discussions centered around compliance with the laws and regulations that require claims administrators to provide benefit notices and vocational rehabilitation notices.[28]
Like many of the focus group participants, interviewees acknowledged that generally notice letters from claims administrators are complicated, bureaucratic, and legalistic. Confronted with numerous deadlines and large case loads, claims administrators do not have sufficient time to prepare individual, personalized, and easy-to-understand notice letters. DWC, in consultation with a benefit notice simplification committee consisting of participants in the system, recently prepared 18 model notices and two fact sheets for claims administrators to send to injured workers. These model notices allow the claims administrator to mark checks in boxes to show which statements apply to the claimant. The model notices are intended to simplify the notice process for claims administrators and improve communications to injured workers.
Interviewees also described work pressures on claims administrators to document activities and decisions in a case and to adhere to numerous deadlines to send benefit payments and notice letters to workers and payments to medical providers. The DWC Audit Unit conducts audits of randomly and nonrandomly selected claims offices every
year. Nonrandom selection is based on compilations, weightings, and investigations of complaints about claims administrators' handling of claims. In the audit process, claims offices are penalized for inaccurate notice to workers, failure to meet deadlines, and inadequate documentation in files.[29] Some of the interviewees reported that for many large insurers, the audit penalties alone do not deter the improper handling of claims. However, the Audit Unit publishes an annual report summarizing the results of its audits, which insurers use to compete for policyholders. Therefore, many claims administrators are motivated to comply with the requirements enforced by the Audit Unit to avoid being listed as a problematic company in the annual report. Interviewees reported that claims administrators also wish to avoid being listed in the annual report out of a sense of pride.
Despite these incentives to comply with paperwork requirements, claims administrators have no obvious legal or financial incentives to respond promptly to injured workers' telephone calls (or even respond at all) or to be friendly or courteous to injured workers. According to some of the interviewees representing claims administrators, workers' compensation insurers tend to focus on the needs of their employer policyholders rather than the needs of the injured worker claimants. Those interviewees said that this is particularly true now under the new open rating system, which has led to reduced premiums and increased competition for policyholder accounts. Thus, although the Audit Unit can enforce a requirement, applicable in some cases, that benefit notices list the claims administrator's telephone number, it cannot require the claims administrator to answer the calls. Claims administrators who are responsive and helpful to injured workers are therefore operating beyond the technical legal requirements.
Compounding these barriers to personal communication with injured workers is the fact that most claims administrators have encountered situations where individual claimants were angry or threatening. While most claims administrators have been trained to handle legal and technical aspects of claims management, most have not been trained to deal with the emotional aspects of an injured worker's situation. Interviewees also believed that some claims administrators are not sufficiently trained or lack sufficient work experience, particularly in understanding and applying the complicated laws and regulations of workers' compensation. Therefore, to protect themselves, some claims administrators take a distant or aloof approach to claimants. They are intimidated and "afraid to open up a can of worms."
It was reported that most claims administrators have heard about or encountered instances of fraud or lying. Therefore, some claims administrators tend to be suspicious of all claimants. Well-publicized stories about fraud mills in southern California in recent years have tended to perpetuate this attitude.
Interviewees confirmed that claims administrators avoid providing very much information to represented claimants. They do not want to interfere with the attorney-client relationship. Also, it was reported that some claims administrators prefer to deal with the applicant's attorney instead of the injured worker, and some applicants' attorneys ask the claims administrators not to communicate directly with the injured worker.
Interviewees, particularly representatives of claims administrators and applicants' attorneys, recommended that the entire system be simplified to reduce the required tasks involved in the creation, filing, and maintenance of numerous documents under multiple procedural tracks. Interviewees also recommended that comprehensive training and written guidelines be developed for claims administrators and that claims administrators be offered sensitivity training and training to develop crisis counseling skills to enable them to communicate better with injured workers.
The Information & Assistance (I & A) Unit is required to develop and distribute informational written materials for injured workers regarding their rights, obligations, and procedures in the workers' compensation system. The I & A Unit is also required to assist workers in resolving disputes with other parties.[30] Approximately 55 I & A officers work in 26 offices throughout California. Each office has a local telephone number that workers may use to request information and help. Workers may also visit I & A offices in person. The I & A Unit also has a toll-free 800 number that workers may use to request general, recorded information.
In the focus group sessions, participants were asked whether they used the services of I & A officers. It appeared that most participants had not heard of I & A. Of the workers who tried to use I & A services, many said they had trouble reaching an I & A officer by telephone, including one participant who said he spent six weeks trying to reach I & A. They either were put on hold or they got a busy signal:
"Sometimes I got through right away. Occasionally, it would take several days for them to call back, and then if I wasn't home, we'd start the process again."
"I've written letters to them. It's taken them months and month to write back, if they even bother. I've tried calling multiple times. The line would be busy constantly."
"They were very good, except for the fact that you had to wait, and wait, and wait on the phone."
"I think that Information & Assistance is good, but they need more staff or something, so that when people call up, they're not constantly getting busy lines or that it doesn't take several months to get a response from them."
Of the participants who contacted an I & A officer, many enthusiastically praised the services provided by the I & A officer and support staff:
"When I got through to I & A, I found it overall very helpful."
"I found that the person that works in that office will bend over backwards to make sure you get your paperwork. . . . Basically, the information officer gave me the wherewithal to stop the proceedings at that point so that I could get some more time and some more information."
". . . a gem of an individual. He's been the most helpful to me. He's helped me innumerable times, and he has time for me: 'Anything I can do to help you, I'm here to help you.' And he has, many times."
"Once it became an adversarial situation, I couldn't find anyone I could trust for information until I actually went to the workers' comp court and talked to the information person who was there, who had no stake in the outcome, and just gave me the information, or told me where you could get the information. So again, I think an important person to trust, well just for the fact of getting information--they can't give you help, they can't give you legal advice--so they can point you in the right direction. And that's the information officer."
"There's a receptionist, and she had all the information. She said, 'We'll mail all the information that you need.' The receptionist took care of me. She was so wonderful."
"They were very courteous. It's like they almost go rote with the book, but then you ask your own questions, and I found that they were very good about answering questions. You know, I was waiting for that government agency pat thing: 'No, call extension 250 and don't call between 3:00 and 5:00 because we won't answer.' No, no, it wasn't like that."
Several participants who contacted an I & A officer felt there were limitations to the services that the officer could provide:
"The I & A people were good, but they only had a certain jurisdiction, and they had impossible caseloads in terms of their time."
One participant, for example, said that an I & A officer could not help the injured worker when the insurance company said that it never received the claim form. Another participant said an I & A officer could deal only with problems involving unpaid temporary disability benefits and could not help the worker in disputes over adequacy of medical treatment and return to work. Another was frustrated that an I & A officer could not help the worker find an appropriate vocational rehabilitation school.
One of the represented workers in the focus groups reported that he could not obtain much help from I & A:
"I tried. They told me, they said, 'Work through your attorney.'"
Two groups of I & A officers, the manager of the I & A Unit, and other interviewees discussed resources and practical issues that affect services provided to injured workers. Overall, the I & A officers who participated in the discussion groups were enthusiastic about their jobs. They liked having direct, daily contact with people and enjoyed helping workers with their claims, which in some cases means the officer can have a significant, positive impact on the future of the worker and his or her family.
Injured workers request information and help from I & A officers continually--by telephone and in person. To control the numbers of telephone requests, some I & A officers take the phone off the hook when working on a case (although call forwarding is available for them to forward calls to I & A headquarters in San Francisco). To accommodate work demands, some I & A officers work after hours and on weekends.[31] Several of the interviewees outside of I & A believed that additional staffing would definitely improve available I & A services for injured workers.
At the time of the discussions with the I & A officers, there did not exist an official basic pamphlet or other publication reflecting current law that I & A officers could provide to injured workers. The latest pamphlet, "The Injured Worker," reflected laws effective as of 1991. The officers use informally assembled packets of forms and instructions to help workers deal with various procedures in the workers' compensation system. Some of the officers assemble additional packets on an ad hoc basis.
I & A officers are not given legal reference materials to help them in their jobs. Some of them purchase these materials with their own money. They do not have online access to basic data that could help them provide better information to injured workers, for example, Disability Evaluation Unit records, Rehabilitation Unit records, interim orders, or Workers' Compensation Rating Bureau records. At the time of the group discussions, some of the
I & A officers did not have electronic ("e-") mail.
The manager of the I & A Unit explained that the assistance provided to injured workers is limited by the amount of time that an I & A officer can devote to a case. For example, in reviewing the amounts paid to a worker for temporary disability (TD), I & A officers generally rely on information supplied by the claims administrator regarding the worker's prior weekly wages, and the officers usually do not investigate whether the worker was paid for overtime work, paid by a second job, or paid certain additional benefits that could affect the bases for calculating proper TD benefits. Also, I & A officers do not review case files in minute detail to substantiate penalties for every delay by a claim administrator. Furthermore, they do not control the choices of evaluating physicians or depose evaluating physicians to increase disability ratings, they generally do not request supplemental medical reports, and they generally do not pursue penalties for serious or willful misconduct or for discrimination by an employer.
I & A officers in the discussion groups recommended that more informational resources be made available, both for injured workers and for the I & A officers themselves. For example, they recommended that both an updated pamphlet and a more detailed book be developed and made available for injured workers. Some of the officers also recommended that informational kits be developed for other participants in the system. The officers said they needed basic legal reference books, and they would like to be updated continually on developments in case law. They recommended that they be provided e-mail capabilities and online access to basic DWC data, including information and help provided by previous I & A officers (to better handle cases where the worker seeks information and help from multiple
I & A officers) and access to a computer software program for rating disabilities.
Many of the I & A officers also recommended that they be given formal training in counseling and/or mediation skills, and one of the interviewees outside of I & A recommended that I & A officers be given sensitivity training and training to develop crisis counseling skills. Some of the I & A officers, particularly those in northern California, would like to meet with each other more often as a means of sharing ideas and resources, such as informally assembled information packets for workers, to perform their jobs better.
Some of the I & A officers expressed frustration with the slowness of the Disability Evaluation Unit (DEU) summary rating process. In the past, I & A officers were required to rate cases that were backlogged with DEU.
I & A officers refer cases involving egregious mishandling of claims to the Audit Unit. Some of the I & A officers expressed frustration with the Audit Unit process, in that it cannot respond directly to individual complaints or inform complainants regarding the status of investigations or audits.
I & A officers expressed dissatisfaction with a lack of uniformity in policies, procedures, and I & A duties between the various offices. Most of them also expressed a desire to be given greater latitude and authority to help resolve disputes and claims. Depending on the judge or judges at each office, an I & A officer may or may not be permitted to help workers in informal conferences, help workers in mandatory settlement conferences, review proposed settlements for adequacy, and help workers at trials. Offices also vary in the work that is or can be delegated to clerical staff, for example, answering phones and providing basic information. The I & A officers recommended that their job functions be more specifically defined and made consistent between offices and that workers' compensation judges develop and follow uniform policies and procedures for working with
I & A officers. Also, at least one I & A officer felt that I & A should become more involved in administering claims filed with the Uninsured Employers Fund.
I & A officers generally consider it their job to help unrepresented workers because represented workers should be receiving information and help from their attorneys. The manager of the I & A Unit confirmed that this differentiation in services is by design. Some of the I & A officers also raised concerns about advice they give that might constitute the unauthorized practice of law. Therefore, I & A officers will usually give only general information to represented workers.
Some of the representatives of employers and claims administrators felt it was inappropriate for I & A officers to recommend particular attorneys or physicians to injured workers. One employer representative, for example, felt that because I & A officers are supposed to help resolve disputes, I & A officers telling workers about their right to hire an attorney or encouraging them to do so tends to increase disputes. On the other hand, other interviewees felt that if an I & A officer cannot resolve a genuine problem for a worker with the tools available to the I & A Unit, the worker should be provided information regarding the worker's right to hire an attorney and assistance in deciding which attorney to contact. Furthermore, under Labor Code section 4060 (involving denied claims for post-1993 injuries), I & A officers are required to help unrepresented workers select qualified medical evaluators to prepare comprehensive medical-legal evaluations.
The manager of the I & A Unit reported that as a matter of policy, their role is not to advocate that injured workers receive the greatest possible levels of benefits. As a "neutral body," their role is only to make recommendations to help ensure that settlements are "adequate" or "reasonable."
Represented workers who participated in the focus groups described a wide range of experiences and differing levels of satisfaction with their attorneys' services.
A few of the represented workers in the focus groups praised their attorneys and felt that the attorneys' services were essential to getting their claims paid. A Spanish-speaking worker said that the only information he received in the system was from his attorney. Another Spanish-speaking worker reported that the attorney's secretary was helpful, and the attorney and secretary both spoke Spanish. Some of the workers' experiences were described as follows:
"Nobody told me anything, and the only information I got was from the lawyer."
"My attorney happened to be excellent. That's how I got all of my workers' comp information."
"I didn't get any results until I retained counsel. I didn't get any information. It was minimal as far as going to the doctor. I used my own insurance, . . . and it was very difficult. Once I retained counsel, all that changed."
Many of the represented workers in the focus groups were dissatisfied with attorney services; some were angry with their attorneys. Several of the participants described how the attorney provided insufficient or inaccurate information. One participant, for example, said the attorney told him that payments would be sent to the worker within a week, but no payments arrived for three or four months. Another participant was angry that the attorney predicted he could settle the claim for a certain amount, but the ultimate settlement was much less than predicted and also less than the amount that the defense had offered before the worker hired the attorney. Others described their experiences and perceptions as follows:
"When you open up a case, the lawyers never tell you the truth. The lawyer always takes the lion's share."
"As far as medical examiners, even though I had an attorney at the time, she did not explain the purpose of the exams. I didn't know the purpose of the exams, so I didn't think it was quite as accurate as it should have been."
"Some lawyers have the sensitivity to say to their client, 'Look, this is your case. I'm going to do this. These are your rights, these are not your rights.' Other lawyers say, 'Oh yes, I'll take your case. Come see me in a month.' They take everything. If you don't ask your lawyer, 'Hey, what happened?" the lawyer doesn't tell you anything."
"Actually I got no support whatsoever. I called them about, regarding any kind of stuff. I never hear from them for weeks. And I keep calling. And I end up giving up on them. I said, 'I want to settle this and get it over with.' That's how bad it was."
"What he said to me was, 'Look, you have to understand that I told you that all your medical expenses for the doctors that I sent you to would be covered, but this doesn't include the hospital doctors. That's your responsibility.' I asked, 'So what do you mean that it's my responsibility? How can you tell me that they are my bills?' You know what he told me? That I should have gotten sick at home."
Several participants described rude or uncaring treatment by their attorneys. One participant, when meeting an attorney for the first time, felt the attorney was condescending in explaining workers' compensation benefits, and other participants felt that the attorneys just see the workers as impersonal files or paperwork:
"It's like my lawyer told me, 'Listen to me. I'm going to tell you something. I'm going to help you with your workers' compensation, but don't go thinking that you're going to get rich off of it.'"
"Once my lawyer said, well I'm not worth much because I was only like 12 percent, 13 percent rating. I was like, 'Oh, I'm only worth 12 percent. Well thank you very much!' I'm 12 percent of a regular human being or something? How does this work?"
Many of the participants felt that applicants' attorneys' interests are not aligned with the injured workers. "They only care about money" and "the attorney was mostly interested in his fee" were common statements. One participant called applicants' attorneys "crooks and liars," and a few of the participants felt that applicants' attorneys are not worth the fee they are paid:
"When I started my case with her, she was very responsive and she was very attentive to my case. The moment she got the information from the QME [qualified medical evaluator], a rating, I never got my calls returned. I felt like I was just a piece of dirt because my dollar value had been brought down."
"I never got to see a judge because they all got involved and negotiated the case, whether I accepted it or not, so finally I said, 'OK, I accept it.'"
"Insurance companies work in the following way: They say, 'Look, we're going to offer your client $7,500. If you convince him to sign for that amount, we'll cut you a check. And if you don't convince him, the insurance will be less.' So that's why it is said that the insurance companies and the lawyers are in cahoots. But not so much in agreement as to help out the employee, but rather to work at cross-purposes with the employee."
"I don't think he deserved 75 bucks, really. And that's just for pushing the paperwork; that's all they do."
"The lawyer I got didn't serve my interests. She disserved my interests. She represented me poorly. She would take positions without consulting me. She didn't speak up for me at the deposition. She didn't return phone calls, and ultimately I had to fire her and pay her some anyway, but it was completely unhelpful. There just wasn't enough money in the circuit for most lawyers."
Experiences and insights provided by applicants' attorneys and other participants in the system further illuminated issues regarding applicants' attorney services.
Applicants' attorneys can be paid only if their fees are approved by a workers' compensation judge. Fees are normally 9 to 15 percent of the permanent disability award or settlement, if any, obtained by the worker; they are not usually based on the number of hours spent handling the case.
Recent legislative reforms have limited the number of medical-legal evaluations that can be performed to ensure maximum permanent disability (PD) awards and the types of psychiatric injury claims that are compensable. Interviewees perceived that these reforms have reduced the numbers of claims filed and the levels of PD benefits awarded, and that therefore, fees paid to attorneys have been reduced. In addition, as discussed earlier in this report, the reforms have made the processing of claims more complicated and time-consuming than in the 1980s. At the same time, reforms have created additional responsibilities for which there is or may be no way to award attorneys' fees, for example, expedited hearings to determine the need for medical treatment where the injured worker does not later become permanently disabled. Furthermore, applicants' attorneys are finding that defendants litigate longer and settle later than in the 1980s.
Interviewees reported that as a result of these changes, applicants' attorneys now work longer hours for less money, and they are experiencing difficulties in earning sufficient income to stay in the field of workers' compensation. Many applicants' attorneys have, in fact, left the field. It was pointed out that these pressures may help explain why workers are experiencing difficulties obtaining complete information from their attorneys and why the workers feel that they are being treated rudely or in an impersonal manner. Interviewees reported that many injured workers (particularly workers with "medical only" claims) cannot even find an attorney who will represent them because there may be no payable attorney fees, or the fees may not be worth the work involved in representing the worker.
The interviews revealed a perception among some participants in the system that applicants' attorneys create unnecessary disputes and prolong cases for their own gain--to the worker's detriment. In response, the applicants' attorneys interviewed for this project pointed out that it is in their interest to minimize unnecessary disputes and delays because the attorney's fee is based on the amount the attorney can ultimately recover for the worker, not on the transactions and time required to obtain that result. The two workers' compensation judges who participated in interviews for this project supported this view. In their experience, most applicants' attorneys assert claims and file motions that are meritorious, and they should not be faulted for properly representing their clients and protecting their clients' rights.
Some participants in the system believe that in many or most cases, applicants' attorneys are unnecessary to resolve cases. Some of the representatives of claims administrators, for example, believed that in many cases (particularly with simple cases), the injured worker should not hire an attorney because the claims administrator will work with the worker. One representative said that some claims administrators are even hurt or offended when in trying to work with the injured worker, the worker hires an attorney. Also, the I & A Unit encourages claims administrators to work with I & A to settle cases that do not involve complicated legal issues for the express purpose of avoiding disagreements and conflicts that cause injured workers to hire attorneys.
In response, the applicants' attorneys interviewed for this project pointed out that there are numerous steps in evaluating a disability and processing a claim that injured workers will not be able to fully understand or pursue on their own, even with the assistance of an I & A officer. These include reviewing the bases for calculating temporary disability (TD) benefits;[32] generating medical and other evidence to establish the appropriate levels of permanent disability payments and/or settlement;[33] presenting testimony before a workers' compensation judge; and documenting the bases for penalties for delays by claims administrators,[34] for serious and willful misconduct by employers,[35] and for discrimination by employers.[36] (In addition, applicants' attorneys may notify workers of applicable rights and deadlines involving claims against third parties, rights and deadlines under the Americans with Disabilities Act, available governmental benefits, and additional benefits, if any, administered by employer or employee organizations.) Indeed, representatives of the I & A Unit acknowledged that their job is to make sure claims are resolved within reasonable bounds, not to advocate for the injured worker against the interests of the other parties or to try to maximize the worker's recovery.
In response to some workers' complaints that applicants' attorneys are not worth their fees the attorneys said that in most cases, their services increase the worker's ultimate recovery by more than the amount paid to the attorney. The extent that I & A officers can influence the outcome of settlements is limited by the evidence that was obtained in the case prior to settlement, particularly the medical reports prepared by the evaluating physicians. The two workers' compensation judges agreed that in most cases, applicants' attorneys do protect their clients' rights and increase or maximize awards by at least the amount of the fee.
Interviewees recommended that the system be simplified to reduce the paperwork that is required under multiple procedural tracks, that applicants' attorneys and their staff be offered sensitivity training, training to develop crisis counseling skills, and training to deliver more effective information services.
A brief survey of information and assistance programs for injured workers in other states was conducted as part of this project. Selected programs in the states of Connecticut, Texas, and Washington are described below in terms of their stated purpose and design.
This project did not include an in-depth study of the actual effectiveness of these other states' programs in informing, assisting, and otherwise serving injured workers. Therefore, any consideration of the models described here would require a careful evaluation of the practical effects of such programs on injured workers' rights and benefits in California. In particular, while dispute resolution programs in Texas and Washington may provide useful models for reducing delays, the reduction or elimination of worker access to legal representation may be a problem. Therefore, this project recommends that any new programs to resolve disputes in California be instituted only after careful consideration and adoption of effective mechanisms to protect injured workers' rights.
The state of Connecticut has provided basic information to workers through a variety of media, including videotapes, a computer software program, and television shows. This report describes that information; it does not describe additional programs in Connecticut that are designed to provide case-specific information and individual help in resolving disputes. Currently, the Education Services office of the Connecticut Workers' Compensation Commission provides the basic information to injured workers. Formerly, the information services for injured workers were administered by the Division of Worker Education within the Workers' Compensation Commission.
"An Employee's Pocket Guide to Connecticut Workers' Compensation": The Commission provides an easy-to-carry pocket guide, printed on colored, folded, 14-inch paper. It contains basic information for injured workers regarding rights, procedures, and terminology, and it lists Commission telephone numbers that can be used to request more information. The pocket guide is available in both English and Spanish. (The most recent version sent to LOHP is dated August 1995.)
"Workers' Compensation Information Packet": For more detailed information beyond the pocket guide, a 34-page information packet is available. It contains an easy-to-read table of contents and an order form to obtain additional educational materials. The packet also contains telephone numbers, definitions, flowcharts, instructions for completing forms, and headings and graphics that aid the reader. (The most recent version sent to LOHP is dated September 1995.)
"Issues" Newsletter: The Commission publishes a bimonthly newsletter for all participants in workers' compensation, entitled "Issues." It replaces a previous newsletter called "Worker Education Update" and two other previous newsletters.
Law Summaries: Handouts are available that summarize the 1993 workers' compensation law changes and the 1995 workers' compensation reform legislation in Connecticut.
The Commission provides information to injured workers in videotape form. The following videotapes are available upon request:
"CompComp" is an IBM-compatible informational computer software program available on a high-density floppy diskette. The program provides basic information on workers' compensation laws and procedures. The information is provided in a form that requires fairly advanced literacy skills. (The most recent version of this program sent to LOHP was current as of July 1, 1994.) Written instructions and a user's guide come with the program.
All parties can call a toll-free telephone number, 24 hours a day, 7 days a week, to obtain recorded informational messages, order educational materials, or leave a message to receive personal assistance.
The Commission conducts periodic training sessions and conferences for the public and provides guest speakers for meetings of 20 people or more.
In the past, the Commission produced a weekly educational television show called "Staying Alive." It was aired on the public access channels of Connecticut's cable stations.
Under extensive reform legislation that went into effect January 1, 1991, the state of Texas administers a proactive information and assistance program for injured workers in the workers' compensation system. The reforms were intended to reduce disputes, delays, and unnecessary costs in the processing of claims. To accomplish these goals, the system allows significant penalties to be assessed against employers who fail to provide the required notices to workers and to the state, employs field staff who provide introductory information to injured workers and answer questions soon after an injury occurs, and employs additional personnel to help resolve problems and disputes through a variety of communications and administrative proceedings. (To control costs, the system also limits the injured worker's right to change physicians; this report does not describe those provisions.)
Texas law does not require employers to obtain workers' compensation insurance. Employers who are not insured are potentially liable to injured employees in the tort system. This report discusses the information and assistance program for employees of covered (i.e., insured or self-insured) employers.
This report also describes requirements on workers' compensation claims adjustors in Texas to obtain and maintain professional licenses.
The workers' compensation claims monitoring and workplace health and safety programs in Texas are administered by the Texas Workers' Compensation Commission (TWCC). TWCC employs staff at over 20 field offices throughout the state to help injured workers and other stakeholders in workers' compensation.
From each field office, customer assistance representatives are required to initiate personal contact with injured workers early in the process by telephoning every injured worker filing a claim involving income replacement benefits within 72 hours of receiving notice of the worker's injury.[37] The representatives are required to provide general information on the claim, briefly describe the worker's rights and responsibilities, and give telephone numbers of TWCC offices. If an injured worker cannot be reached by telephone, a representative is required to send a personal letter to the worker. Customer assistance representatives also respond to questions from injured workers who telephone or visit field offices. TWCC administrators perceive that early communications with injured workers help ensure their comfort in participating in the system.[38]
To discourage unnecessary delays in the processing of claims, TWCC is authorized to investigate and enforce administrative and criminal violations of workers' compensation law. TWCC may assess significant penalties against the parties. For example, an employer who fails to post certain basic informational notices in the workplace may be fined $500 or $1,000, depending on the notice, and an employer who fails to file a report of injury with TWCC may be fined $500. Administrative penalties for patterns of violations can range up to $10,000, and criminal cases can be referred to local prosecutors.
If an injured worker has a problem or disagreement involving his or her claim, the worker should be able to obtain more information from a TWCC customer assistance representative or further assistance from a TWCC disability determination officer. The disability determination officer's job description is to review claim files, obtain additional necessary evidence to ensure that proper benefits are paid, and attempt to resolve problems by speaking informally with the parties involved. Apparently, in some cases, the officer functions like a mediator.[39]
If, after using the services of a disability determination officer, the injured worker still cannot resolve the problem, the worker is permitted to initiate administrative proceedings. The first administrative proceeding is the benefit review conference, where the involved parties meet to resolve the dispute informally. The worker may request that a TWCC ombudsman help him or her prepare for this meeting and attend the meeting with the worker. The ombudsman is required to have more training than the disability determination officer or customer assistance representative; he or she operates at a technical level approaching a licensed claims adjuster.[40] The ombudsman, however, is not permitted to represent the injured worker at the benefit review conference.
If the problem still cannot be resolved at the benefit review conference, the next stage is either a contested case hearing, which is a formal proceeding involving presentation of evidence, or arbitration. Again, the worker may request that a TWCC ombudsman help him or her prepare for the contested case hearing or the arbitration and attend the hearing or arbitration with the worker, but the ombudsman may not actually represent the injured worker.
At later stages, disputes may be heard by the TWCC Appeals Panel, and then in civil court if necessary. The ombudsman may help the injured worker request TWCC Appeals Panel review. The ombudsman, however, is not authorized to help the worker prepare for civil court proceedings.
The program to resolve disputes in the Texas system is highly controversial. Legislative reforms eliminated lump sum settlements and attorneys' fees derived from these settlements. Instead, attorneys are paid on an hourly basis, subject to rate and time limitations. It appears that these reforms have greatly reduced incentives for attorneys to represent injured workers in the various stages of dispute resolution. Many claimants' attorneys have left the field of workers' compensation. The Texas AFL-CIO has expressed criticism that in cases involving highly technical calculations and complex legal analysis and argumentation, the unrepresented worker is greatly disadvantaged compared with the insurer in the administrative proceedings. Often in these cases, the insurer retains counsel.
TWCC has developed and distributed informational written materials for injured workers in both Spanish and English. The materials contain headings (some in color), flowcharts, other graphic design, and TWCC telephone numbers to aid the reader. Listed below are some of the TWCC pamphlets:
TWCC has also developed a detailed book, entitled Guide to Workers' Compensation for the Employees and Employers of Texas, revised edition September 1993. This 36-page book contains a useful table of contents, headings, flowcharts, other graphic design, TWCC phone numbers, and order forms. In the book, the information for employees is written in both Spanish and English.
For notices to workers that employers must post in workplaces, TWCC requires exact wording. The titles must be printed in at least 30-point bold type, subject headings in at least 20-point bold type, and text in at least 19-point normal type. The notices must be written in both Spanish and English. The notices describe the type of insurance coverage that the employer has, services available from TWCC, and a TWCC safety hotline number.
In Texas, all persons who sell or adjust insurance must meet certain professional standards through a licensing system. One purpose of these requirements is to protect policyholders and claimants from substandard performance by insurance companies. Persons who adjust workers' compensation claims must pass an initial examination or complete a certified course to obtain a license or be licensed by a state that has entered into a reciprocity agreement with Texas. Afterwards, to maintain their licenses, workers' compensation adjusters must spend 30 hours every two years in continuing education.
The state of Washington, which has an exclusive State Fund, has funded the Washington State Labor Council, AFL-CIO, to administer an intensive education and dispute resolution program. This program, called "Project Help," is separate from the broader-based, less intensive information and assistance program administered directly by Washington state. Project Help's activities are conducted in cooperation with the employer community. This report describes Project Help.
Under the Washington State Labor Council's contract with Washington State's Department of Labor and Industries ("Labor & Industries"), Project Help must provide counseling for injured workers and employers on general rights and responsibilities and counseling for injured workers on specific issues or problems. To accomplish these tasks, the following methods are used:
Toll-Free Number for Workers, Unions, and Employers: Injured workers and other interested parties may use a toll-free telephone line to ask questions and obtain information from Project Help staff. The 800 number is listed on a brochure distributed by Project Help.
Online Claim Information: Project Help has online access to Labor & Industries' computer records of all claims filed with the State Fund. This enables Project Help staff to tell an injured worker about the specific status of his or her claim and to advise the worker of the worker's rights and responsibilities at that particular stage. In accessing Labor & Industries' claim records, Project Help must maintain confidentiality over certain information that might hinder Labor & Industries' investigation or defense of the claim.
Injured Workers' Emotional Issues Are Addressed: To discourage delays and disputes, Project Help staff strive to be patient, understanding, and supportive of injured workers who call in for information and help. They believe that extra time spent in listening to a worker's concerns and validating the worker's feelings of anger, fear, and confusion is time well spent in avoiding future confrontations and disputes between the parties.
The contract between the Washington State Labor Council and Labor & Industries also requires Project Help to provide free educational workshops for anyone who is interested. The workshops provide broad, basic information on workers' compensation. They are geared for rank-and-file workers, shop stewards, union business representatives, and employer representatives.
Project Help has facilitated a year-long pilot partnership program for certain building trade unions and self-insured employers in the construction industry, effective January 1, 1996. Typically, injured workers in construction face serious problems in returning to their usual occupation and, in some cases, problems establishing which employer should pay for their workers' compensation benefits. The stated intent of the pilot program is to improve access to medical care and to reduce delays and disputes that commonly occur for these workers when they get injured.
Voluntary Mediation: Addressing questions and disputes early on is a major goal of this pilot program. To accomplish this, the program offers voluntary mediation services, paid for by the employer, to allow the informal resolution of disputes prior to the initiation of the formal protest and appeal process of the Washington State workers' compensation system. Project Help's director, Vicky Smith, serves as mediator.
Authorized Medical Care Program: Under the terms of the pilot program, all health care providers are to be negotiated and agreed upon by the participating employers and unions. Project Help staff envision that participating physicians will be open to resolving questions and issues through informal, nonadversarial discussion with other evaluating physicians and with the parties.
No Attorneys Permitted to Represent the Parties: The pilot program prohibits attorneys from formally representing any party during the voluntary mediation process. This applies to both the injured worker and the employer. This prohibition is intended to encourage parties to speak directly to each other rather than through their attorneys. It is believed that direct, oral discussions encourage resolution of disputes whereas communications mainly in writing and through the parties' attorneys tend to delay the process and make the relationships more adversarial. Workers, however, are not prohibited from consulting with an attorney during the mediation process.
Project Help has prepared a packet of materials that is distributed at educational workshops and given to individuals who have questions or problems with their claims. The packet contains the following:
Evaluations consisting of injured workers' answers to a set of questions regarding the services provided by Project Help, Labor & Industries, and various employers have been compiled. It appears that injured workers have rated Project Help very highly in these evaluations.
A. Information and Help That Many Workers Need But Cannot Obtain
B. Apparent Barriers to the Effective Delivery of Information and Assistance to Workers
This project has examined various governmental and private services designed to inform workers about their rights in the California workers' compensation system and to assist injured workers with their workers' compensation claims. The findings revealed that workers need a continuum of information services, ranging from introductory information about the system to advocacy and representation in complicated situations. Many workers, however, have faced numerous hurdles in trying to obtain these services. Described below are the types of information services many workers need but cannot obtain and apparent barriers to the effective delivery of those services.
The California Labor Code requires employers to provide basic introductory information about workers' compensation benefits and procedures when an employee is hired,[41] through continuous posting of information in the workplace,[42] and immediately after being notified of an employee's occupational injury.[43] Many workers in the focus groups received none or only a portion of this information from their employers. Much of the information that was provided was vague or difficult to understand. Interviews confirmed the lack of a statewide program to enforce the information requirements applicable to employers.
The Labor Code requires the Information & Assistance (I & A) Unit to develop and distribute written guides for workers on their rights and obligations, procedures for obtaining benefits, and methods to resolve disputes.[44] It also requires the I & A Unit to develop and distribute pamphlets for workers, in both English and Spanish, regarding their rights under workers' compensation law, under the Americans with Disabilities Act, and under the Fair Employment and Housing Act.[45] Interviews revealed that such written materials for workers, describing currently applicable law, have not been published or distributed.
Without this basic information, many workers in the focus groups did not know about the availability of workers' compensation (until some time after their injuries occurred) or the steps they should take to obtain workers' compensation benefits, such as predesignating the treating physician or filing a claim form. Many also were unaware of specific rights they had, such as rights to protection against discrimination for filing a claim and rights to change their treating physicians.
When workers in the focus groups became injured, some of them received forms and other documents in the mail. Many of these forms and documents were technical, legalistic, and difficult to understand.
Workers sought information from their employers and claims administrators on how to fill out the forms to process their claims. Some of the workers also said they inquired about simple matters, such as when they could expect to receive their temporary disability payments, how much those payments would be, or the significance of deadlines to accept vocational rehabilitation services. Many could find no one to answer these simple questions. Some of the employers did not know the answers and deferred to the insurer, but some of the claims administrators could not be reached. Although the workers' compensation regulations require claims administrators to give their phone numbers to claimants, there is no requirement that the claims administrator answer the telephone or return phone messages.
Workers who contacted the I & A Unit were able to obtain answers to simple questions. However, most of the focus group participants had not heard of the I & A Unit, and many who did had difficulty getting through by telephone.
Several workers who had attorneys also could not obtain answers to simple questions from their attorneys about what was happening with their claims, for example, the timing of benefits or the purpose of an upcoming medical examination, because the attorneys did not return their phone calls. Some workers decided to drop their attorneys because they felt the attorneys were not paying attention to them.
Unable to obtain answers to simple questions and explanations about their claims, many workers in the focus groups could not prepare for important medical or legal procedures, could not make informed decisions about which types of benefits or services to select, and could not plan their personal and family finances.
Many of the focus group participants facing problems with their claims had difficulty obtaining advice on how to get the problems resolved. Some of the workers felt that I & A officers were limited in their ability or authority to help resolve disputes with the other parties or to correct problems involving medical or vocational rehabilitation services. Also, interviewees reported that many workers cannot find attorneys to advise them on their claims because applicants' attorneys are normally paid based on a percentage of a claimant's permanent disability award or settlement, if any, which discourages handling of claims that will involve little or no permanent disability.
Meanwhile, workers who were represented by attorneys experienced greater difficulties in obtaining advice from I & A officers than unrepresented workers because I & A officers believe that it is improper to interfere with the attorney-client relationship, and I & A officers are instructed to focus most of their energies on unrepresented workers. Often, however, represented workers cannot reach their attorneys, according to some of the participants in this project.
Lacking adequate advice on how to resolve problems and protect their rights, many workers in the focus groups either pulled out of the system early, which they believed resulted in lost benefits, or entered into protracted disputes with various parties and providers in the system. Some also lost their jobs.
Workers in the focus groups had varied experiences in finding someone to help them prepare evidence, analyze and explain to others the merits of their claims, and/or represent them in potentially adversarial situations. These situations included telephone calls to other parties, depositions, conferences, pre-trial hearings, and trial.
As reported by interviewees and discussed earlier in this report, many workers, particularly those who will not be found permanently disabled, cannot hire attorneys because of limitations on payable attorneys' fees. These workers could request and obtain the services of an I & A officer to help them in conferences and hearings. However, it appears that many workers either are unaware of the availability of I & A services or have difficulty reaching an I & A officer. Furthermore, I & A officers, who are not attorneys, are not permitted to provide services in complicated legal situations that require the expertise of an attorney. Finally, as discussed earlier in this report, the I & A Unit does not provide advocacy services to injured workers as a matter of agency policy.
Some of the focus group participants represented by attorneys faced different problems. If their attorneys had too large a caseload, they might not have been able to provide services that fully reflected the worker's individual needs and preferences. Some represented workers in the focus groups, for example, felt that their attorneys settled cases more to benefit the attorney than the worker.
Without adequate advocacy and representation, many workers in the system probably cannot exercise their rights fully. Some of the focus group participants and interviewees perceived that many such cases are resolved in favor of defendants (i.e., for low amounts) because unrepresented injured workers are not aware of all the evidence that needs to be discovered, legally analyzed, and presented in support of their claims. In some cases, this could include evidence to support claims for penalties, which were intended by the legislature to deter delays by claims administrators. If this is actually happening, it is possible that many of the laws on the books to protect injured workers are not being put into effect.
It appears that many barriers block the effective delivery of the information and assistance that injured workers need. Some of these barriers involve a lack of adequate services to inform and assist workers caused by insufficient resources, inadequate incentives, insufficient coordination among administrative agencies, and negative interpersonal interactions with injured workers. Other barriers are created by complexities in the system, which intensify workers' needs for information and help, yet consume time and resources of applicants' attorneys and claims administrators who might otherwise be spending that time communicating with injured workers.
The I & A Unit lacks some of the most basic resources necessary to inform and assist injured workers. There are no guidelines or pamphlets to explain current laws and procedures to injured workers. I & A officers must therefore spend time explaining the basics to individual workers who contact them. Many injured workers are unaware of I & A services, and those who are aware encounter difficulties obtaining those services due to heavy workloads of most I & A officers. Also, the amount of assistance provided in ensuring that proper benefits are paid is limited by the amount of time an I & A officer can devote to a case. The I & A Unit does not have sufficient resources (and does not receive notifications of most injuries) to implement a proactive program to contact workers soon after they are injured. I & A officers are not provided ongoing information on developments in case law or online access to DWC records regarding individual claims, both of which the officers need to fully inform workers about their rights and the appropriate steps to take. I & A officers limit the advice they give to workers because as nonattorneys they cannot practice law, but there are no specific guidelines for I & A officers regarding the advice they may provide. Also, the I & A Unit has chosen to devote its limited resources to helping unrepresented workers, but according to some of the participants in this project, many represented workers cannot reach their attorneys to obtain information.
The system for paying applicants' attorneys, based on a small percentage of the final permanent disability award or settlement for that case, requires applicants' attorneys to maintain large caseloads in order to stay in business, according to some of the interviewees. It therefore appears that applicants' attorneys lack sufficient resources to spend time fully educating injured workers about the system and explaining strategies to advance the workers' claims. In addition, applicants' attorneys cannot be paid for representing workers with injuries that will not result in permanent disabilities; these workers therefore have a difficult time obtaining the services of an attorney.
Under the Labor Code, employers are required to provide basic workers' compensation information to workers upon hire, through information posted in the workplace, and immediately after a worker is injured,[46] but there are no direct, immediate repercussions for failing to comply with these requirements. Unlike other requirements in the Labor Code, there is no administrative agency program, either within the Division of Workers' Compensation or the Division of Labor Standards Enforcement, that directly and systematically enforces these requirements, utilizing penalties written in the law[47] that may be imposed for failure to comply.
Because of the possibility of an investigation by the Audit Unit (housed within the Division of Workers' Compensation, Department of Industrial Relations), claims administrators are subject to greater incentives than employers to comply with requirements to provide timely notices to workers regarding benefits and vocational rehabilitation. However, as reported in the interviews, for some claims administrators the audit penalties are too low to provide an incentive to send notices to workers on time. Also, claims administrators are required to follow only the literal requirements in the regulations, which are technical and legalistic.[48] There are no direct incentives to spend extra time improving the readability and understandability of existing notice letters. In addition, although they must list their phone numbers in the notices, claims administrators are not required to answer workers' questions over the telephone or in person.
The Department of Insurance enforces Insurance Code section 790.03(h), which prohibits the unfair handling and settlement of insurance claims by claims administrators, including inadequate communications to claimants who request information about their claims. However, the regulations adopted to implement this statute expressly exempt the handling or settlement of workers' compensation claims, except for an insurer's failure to pay in a timely fashion a final award of workers' compensation benefits granted by the Workers' Compensation Appeals Board.[49] Therefore, because of the language of the implementing regulations, Insurance Code section 790.03(h) does not provide any direct incentive for workers' compensation claims administrators to inform and assist injured workers prior to a final award of benefits.
Workers' compensation rights and obligations are regulated and enforced by numerous agencies in California. These include, within the Division of Workers' Compensation (DWC), the I & A Unit, the Audit Unit, the Disability Evaluation Unit, the Vocational Rehabilitation Unit, and the Claims Adjudication Unit. Other agencies include the Industrial Medical Council, the Division of Labor Standards Enforcement (DLSE), the Department of Insurance, and district attorneys (who are authorized to prosecute workers' compensation fraud by any party). Most of the agencies, however, do not appear to be well coordinated with each other in serving injured workers. Some of the agencies defer to other agencies with respect to services for injured workers. For example, the DLSE defers to the DWC with respect to enforcement of obligations of employers to inform employees regarding workers' compensation, but the DWC has no program to enforce those requirements. Also, the Department of Insurance appears to defer to the DWC with respect to the monitoring of claims handling practices of workers' compensation administrators, but the DWC does not require that claims administrators respond to questions from injured workers. Insufficient coordination results in gaps in services to injured workers and in the enforcement of workers' rights to be informed about workers' compensation.
Many of the workers experienced rude or threatening treatment by employers and rude or impersonal treatment by claims administrators. Interviews revealed that some of this negative treatment may be caused by generalized assumptions that workers are not truthful or that they will be threatening or intimidating. These negative attitudes and interactions exacerbate the adversarial nature of claims, causing the parties in some cases to become hostile. This impedes the transmittal of necessary information and help to the worker.
Some of the interviewees pointed out that the information provided to injured workers is difficult to understand because the system itself is inherently complicated. Interviewees also reported that much more time is required of claims administrators and applicants' attorneys now than in the 1980s to interpret new medical-legal procedural rules, process paperwork, and keep track of numerous deadlines in the multiple procedural tracks that were created by the reforms. The time spent meeting these legal requirements diverts time that was formerly spent communicating with injured workers about their claims.
Some interviewees also perceived that the determinations of proper payments for permanent disability, through medical evaluations and ratings of a worker's disability, involve substantial subjectivity and discretion on the part of medical evaluators and raters. This causes parties to expend significant resources challenging medical reports and disputing the bases for ratings, rather than spending time communicating with injured workers and resolving claims in a timely manner.
A. Convene a Working Group to Explore Options and Initiate and RecommendImprovements
B. Explore Options for Improving I & A Services to Workers
C. Explore Options for Improving Access to and Quality of Information and Assistance from Applicants' Attorneys
D. Explore Options to Ensure That All Providers in the Workers' Compensation System Provide Appropriate Information Services to Workers
E. Explore Options to Enable Community-Based Programs to Inform and Assist Workers
The California Constitution requires that state agencies administering workers' compensation programs "accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character."[50] This reflects the original goals of workers' compensation laws that injured workers be treated and compensated promptly and adequately. Given the enormous problems that many workers face in this system, what changes can be made so that the process of obtaining benefits is fair and just for these workers? In other words, how can essential information and help be provided to injured workers so that they will be able to obtain proper benefits promptly and easily?
As described in the "Discussion" section of this report, the findings of this project suggest that many workers have not been provided introductory information about the workers' compensation system. The findings also suggest that many injured workers have not been able to obtain services that provide answers to simple questions and explanations about their claims, instructions on basic steps to take to ensure adequate benefits, advice on how to resolve problems, assistance in analyzing and presenting to others the merits of their claims, and/or representation in depositions, hearings, conferences, and other situations. The recommendations discussed below provide ideas for addressing these problems and ensuring that workers' needs for information and assistance are met.[51]
Because this project does not describe quantitatively the prevalence of the problems and needs cited above,[52] nor does it identify and weigh all possible solutions, the options set forth in this report are meant to serve as guideposts for discussion and consideration of ways to ensure that workers receive the information and assistance they need in the basic categories described above. To allow such discussions to take place, this project recommends that a working group of policymakers be convened to explore and analyze all possible options in this area and to initiate and recommend improvements.
NOTE: The options discussed in this report address only information and assistance services for injured workers. They do not address more fundamental issues of how the entire workers' compensation system is structured in terms of the incentives for defendants to pay or deny claims, the burdens placed on individual workers to contest denials of claims and resolve disputes, and the economic and personal costs absorbed by injured workers and their families.
This project recommends that options for improving information and assistance to injured workers be evaluated based in part on the following goals:
Answers and explanations should be readily available.
The answers and explanations should be applicable to the worker's situation, accurate, and understandable.
The worker should be treated respectfully by the provider of information.
The focus groups, discussion groups, and interviews revealed a lack of adequate information for workers regarding rights and benefits in workers' compensation.[53] There is a need for basic materials reflecting current laws and procedures in the California system, written in both English and Spanish, and distributed by the I & A Unit (as required under Labor Code section 139.6) and others. Ideally, the writing style and choice of words should incorporate literacy concepts to ensure clarity and readability by persons with limited reading and writing skills, pilot tested to maximize usability by injured workers, graphically designed, and translated into other languages to accommodate the needs of workers in California.
Currently on an informal basis, I & A officers assemble and distribute packets of instructions and forms to help workers take specific legal actions. In addition to the basic materials expressly required under the Labor Code (described in the previous paragraph), the
I & A Unit could standardize these specific instructional packets for all officers to distribute, and the packets could incorporate the literacy concepts described above.
In the states of Connecticut, Texas, and Washington, extensive educational materials are available for injured workers. These materials, described earlier in this report, may provide useful models for materials that could be developed for I & A officers to distribute in California.
A proactive approach to informing injured workers about their rights and obligations is utilized in at least two other workers' compensation systems. In the Texas state system, customer assistance personnel are required to initiate contact with every injured worker filing a claim involving income replacements benefits. Contact is attempted by telephone within 72 hours of receiving notice of the worker's injury or by mail if telephone contact is not possible. Similarly, under the Longshore and Harbor Workers' Compensation Act, claims examiners working in federal district offices are required to send informational materials to injured workers within ten days of receiving notice of the worker's injury. In both of these systems, the administrative agency is notified whenever certain classes of injuries occur (unlike in the California system). A proactive approach similar to the approaches utilized in these other systems might significantly improve the information services currently available to injured workers in California. Because such a program like this would require additional staffing, allocation of information and assistance resources in the other systems could be reviewed as possible models for California.[54]
Findings from the focus groups, discussion groups, and interviews suggested that many workers have difficulty obtaining adequate services to advise them on steps they can take to ensure delivery of proper benefits. The findings also suggested that many workers have difficulty obtaining services to help them prepare necessary evidence and to analyze and explain to others the bases for full payment of benefits.
Labor Code sections 5450 and 5451 require I & A officers to provide "advice" to injured workers and other parties, and Labor Code sections 5501 and 5700 authorize nonattorneys to represent injured workers in workers' compensation proceedings.[55] I & A officers are also required to "assist in the prompt resolution of misunderstanding [sic], disputes, and controversies . . . without formal proceedings, in order that full and timely compensation benefits shall be furnished."[56]
Controversies arise from these dual roles, that is, advising workers and ensuring payment of "full and timely" benefits, on the one hand, and helping resolve disputes without formal proceedings, on the other. One perspective is that I & A officers are supposed to help workers obtain "full" benefits, that is, the full amount to which they are entitled. This envisions that I & A officers fully assist injured workers, functioning as their advocate in the processing of claims and settlement. This view of I & A officers as assisters means that I & A officers cannot function as impartial mediators between parties. The contrasting perspective is that I & A officers are supposed to help "resolve disputes promptly" by getting the parties to agree on how claims should be settled and that they should only ensure that settlements are within "reasonable" bounds. This envisions that I & A officers function like mediators, not taking one side or the other, and that I & A officers should not be helping injured workers to do things that might work against the interests of the other parties, such as telling workers about their rights to hire attorneys or recommending particular physicians or attorneys.
Currently, it appears from the discussions with I & A officers that the officers wear both hats to some extent, depending on what the officer feels is fair. However, as described earlier under "Findings," the I & A officer's role as an assister is limited by the amount of time that the officer can devote to a case. In addition, I & A officers expressed uncertainty regarding the extent to which they, as nonattorneys, may provide "legal" advice to injured workers. Their concerns appear to stem from statutes prohibiting the unauthorized practice of law, which were enacted to protect the public from persons who are not qualified to provide legal services.[57] Finally, the manager of the I & A Unit explained that as a matter of policy, their role is not to advocate that injured workers receive the greatest possible levels of benefits, but only to make recommendations to help ensure that settlements are "adequate" or "reasonable." Thus, currently, I & A officers cannot fully assist injured workers because of (1) limited time, (2) rules prohibiting the unauthorized practice of law, and (3) agency policy.
Possible options for addressing each of these limitations are as follows:
Some of the focus group participants represented by attorneys could not obtain assistance from I & A officers, yet they could not reach their attorneys. It may be beneficial for representatives of the I & A Unit and applicants' attorneys to collaborate and assist in developing guidelines that would help I & A officers provide services for all injured workers, regardless of whether the worker is represented by an attorney.
To improve the quality of services they provide, I & A officers may need to be provided basic texts on workers' compensation law, ongoing updates regarding case law, and more frequent opportunities to meet and exchange materials and ideas. I & A services may also need to be improved by establishing online access to other DWC records showing the status of individual claims.[58] Online access might greatly improve the services that the I & A Unit can provide to injured workers. It could, for example, reduce the time I & A officers spend learning about the particulars of a claim and help officers coordinate their services when workers contact multiple I & A offices.
I & A officers expressed frustration with inconsistencies between their offices in the role they play to help resolve cases. Their job functions depend on what the judge or judges at each office allow them to do. To improve the overall quality of I & A services, procedures and policies may need to be standardized between offices, and the job functions of I & A officers and workers' compensation judges may need to be coordinated systemwide.
There are only 55 Information & Assistance officers, compared to more than 1,000,000 new claims filed every year in California.[59] It appears from the results of the focus group sessions, group discussions, and individual interviews that workers seeking I & A services must wait long periods on the telephone or days for a telephone message to be returned. To address this problem, state resources may need to be adjusted or increased to ensure sufficient staffing within the I & A Unit to answer all incoming requests for information and assistance from injured workers.[60] (To evaluate needs for increased staffing, the I & A Unit is currently surveying the extent to which injured workers try unsuccessfully to get through to an I & A officer by telephone.) In addition, to make the best use of available resources, support staff in all offices, rather than just I & A officers, could be trained and authorized to answer questions about simple matters and supply basic written information.
Because of the complexity of the California workers' compensation system, many injured workers find themselves in situations that require the assistance of an applicants' attorney. However, according to some of the participants in this project, many workers cannot obtain adequate services, or any services at all, from an applicants' attorney. Some of the participants stated that because the system is intended to be simple and straightforward, attorneys should not be involved. Most of the participants in this project, however, recognized that some claims are sufficiently complex to require the services of an applicants' attorney. This project therefore offers the following ideas to improve access to and quality of information and assistance services provided by applicants' attorneys.
As reported in some of the interviews for this project, the injured worker pays the applicants' attorney a small percentage of the worker's permanent disability award or settlement, if any, which is usually 9 to 15 percent. Interviewees explained that this low percentage requires applicants' attorneys to maintain large caseloads in order to stay in business and discourages applicants' attorneys from representing workers who will have little or no permanent disability.[61] Other systems allow attorneys to be paid in other ways. For example, under the Longshore and Harbor Workers' Compensation Act, the defendant, rather than the injured worker, must pay the applicants' attorney reasonable fees on an hourly basis if the defendant denies liability and the applicants' attorney successfully prosecutes the claim.[62] The current fee system in the California system could be examined to determine whether changes should and can be made that would enable all workers to obtain services of an attorney when needed.
Community legal clinics provide free legal services to people who cannot afford a private attorney. Most or all of these clinics, however, do not represent workers' compensation claimants. The possibility of augmenting existing legal services programs or administering a separate, nonprofit program that would provide attorney services to injured workers in the workers' compensation system should be examined.
An additional method for ensuring availability of attorney services, when needed, would be to employ applicants' attorneys within the I & A Unit. In-house attorneys could consult with nonattorney I & A officers and assist injured workers dealing with complicated legal issues. Currently, workers' compensation judges in the Claims Adjudication Unit may only provide neutral information on legal issues to I & A officers, not advice on how to advance a particular claim. The "legal aid" program within the Division of Labor Standards Enforcement, which employs attorneys to represent workers pursuing wage claims in certain situations,[63] might serve as a useful model for a legal assistance program staffed by attorneys within the DWC.
Some of the represented workers in the focus groups were dissatisfied with communications from their attorneys. Training could be offered to applicants' attorneys and their staff on ways to deliver meaningful information to injured workers to help them participate in medical examinations, depositions, hearings, and conferences, and to help them decide how to proceed at key points in their claims. Such training could be offered, for example, as part of mandatory continuing legal education of attorneys in the field of law practice management, or it could be included in the certification of attorneys as workers' compensation specialists.
Unlike the Cal/OSHA system, in the workers' compensation system there is no agency that workers can call to report violations of the laws requiring employers to inform their employees about workers' compensation. Although Labor Code section 6431 authorizes a civil penalty of $7,000 for failure to post basic information about workers' compensation in the workplace, it appears that no agency employs this penalty provision. The Audit Unit monitors only the activities of claims administrators, and no other program within the DWC is authorized or funded to enforce the employer requirements. Also, the Division of Labor Standards Enforcement is apparently inactive in this area.
The findings from the focus groups and interviews revealed a need for a program to respond to workers' complaints and inspect workplaces for posting and other information requirements. The appropriate agency to enforce these requirements needs to be identified, and a regulatory penalty system may need to be established that provides legal remedies for enforcement actions. The existence of such a program could then be publicized extensively. The enforcement program suggested here could collect penalty monies to finance improved information and assistance services for workers, such as those recommended in this report.
Enforcement mechanisms in Texas may provide useful models. For example, as discussed earlier in this report, failure to post certain basic information regarding workers' compensation may result in fines of up to $500 or $1,000. Patterns of violations of posting or other requirements can range up to $10,000. Unlike California, the Texas enforcement system has the programmatic capability to assess these fines, that is, a specific agency that is authorized and able to assess fines if necessary.
Many injured workers in the focus groups reported that they could not get claims administrators to return their phone calls or treat the worker reasonably and respectfully. Currently, the Audit Unit reviews performance only under technical criteria such as meeting payment deadlines and including certain statements on notice letters. As reported, the current audit penalty amounts do not deter many large claims offices from violating these requirements. Furthermore, the Audit Unit is not required to respond to every complaint regarding the conduct of a claims administrator or to review the quality of communications or personal treatment of injured workers by claims administrators. Likewise, insurance law that prohibits bad faith handling of insurance claims, including inadequate or inappropriate communications to claimants, does not cover the handling of workers' compensation claims prior to a final award of benefits by the Workers' Compensation Appeals Board.
Therefore, a program is needed to respond directly to individual workers' complaints regarding problems with communications from claims administrators. Design of such a program should consider the following:
The appropriate agency to enforce such a program, either within the Department of Industrial Relations, the Department of Insurance, or another department, would need to be identified, and a penalty system may need to be established. The existence of this program could then be publicized extensively.
Many professions have licensing or certification requirements to protect the public from substandard performance by those professionals. Requirements include continuing education to maintain knowledge and skills necessary to practice in that field. In California, persons who adjust workers' compensation claims on behalf of self-insured employers must meet certain examination and certification requirements.[64] Certain other states, such as Texas, license and require continuing education of all persons who adjust workers' compensation claims. An evaluation could help determine whether the current system for certifying persons adjusting claims on behalf of self-insured employers is effective and whether such a program should be extended to all persons who adjust compensation claims.
Under open rating, insurers are under more pressure than before because of fierce competition for policyholder accounts at reduced prices, that is, insurance premiums. Some interviewees perceived that open rating has caused insurers to reduce resources for activities that are not absolutely required. This includes resources invested in time and personnel to provide information and help to injured worker claimants. The impact of open rating on the quality of services to workers needs to be examined further to determine whether minimum premium rates should be reinstituted so that more time and personnel can be allocated to informing injured workers and to helping them resolve their claims fairly and expeditiously.
To ease notification tasks for claims administrators, DWC personnel recently developed 18 model notices and two fact sheets for claims administrators to send to injured workers. To maximize readability and understandability for injured workers, including persons with limited literacy skills or limited fluency in English, the model notices and fact sheets could be pilot tested, graphically designed, and translated into the multiple languages commonly spoken in California.
To remedy the gaps in information services for injured workers and in the enforcement of workers' rights to receive information, coordination of agency activities in workers' compensation could be improved. These agencies include various units within the DWC (e.g., the I & A Unit, Audit Unit, Disability Evaluation Unit, Vocational Rehabilitation Unit, and Claims Adjudication Unit), the Industrial Medical Council, the Division of Labor Standards Enforcement, the Department of Insurance, and prosecuting attorneys. Coordinated efforts would aim to clarify responsibilities and ensure that workers are properly informed, treated fairly and respectfully, provided mechanisms for resolving any problems quickly, and provided legal advice and assistance if needed. Coordination would also allow each agency to provide more useful information to injured workers regarding the services that can be obtained from the other agencies.
A number of interviewees recommended that training and educational materials be developed for employers. Small employers, in particular, may need help in understanding and carrying out their obligations in this complex system. The training and materials could be based on the knowledge and experience of the conscientious, often larger employers that administer effective injury and illness prevention programs and effective workers' compensation programs. The materials and training could cover the business consequences of not complying with employer information requirements in workers' compensation[65] and of not monitoring how the insurer is handling employees' claims. This project also supports recommendations offered by interviewees that training and educational materials be developed for claims administrators to help them better understand their legal obligations and the complexities of the system. Training could be required through a professional licensing system, discussed above.
Workers in the focus groups and interviewees reported that claims administrators tend to provide much less information to a represented worker than to an unrepresented worker. The reasoning given is that the worker should be working through the attorney. Also, some claims administrators believe that speaking directly with a represented worker might lead to adversarial actions by the worker's attorney. However, some represented workers have difficulty reaching their attorneys, according to some of the participants in this project. Therefore an evaluation may be needed to determine criteria as to the appropriate nature and extent of communications between claims administrators and represented workers.
Feelings of anger and despair were pervasive in most of the focus group sessions. All providers in the system, including employers, claims administrators, I & A officers, and applicants' attorneys, may benefit from training to sensitize them to the experiences and needs of injured workers and training to develop crisis counseling skills. In addition, effective methods to conduct outreach and provide incentives for participating in such trainings could be explored.
It appeared from the focus group discussions and interviews that some of the tensions between injured workers, on the one hand, and employers and claims administrators, on the other, were attributed to the belief by some employers and claims administrators that all claimants exaggerated their injuries, were not entirely truthful, or were fraudulent. Along with sensitivity training and the development of crisis counseling skills, employers and claims administrators should be trained not to assume that an injured worker is filing a fraudulent claim. Training could be bolstered or augmented by clear guidance from upper management that encourages changes in organizational culture regarding worker fraud.
To help claims administrators, applicants' attorneys, and injured workers function more efficiently and effectively in the system, an evaluation may be necessary to determine whether certain procedural requirements in the system can be simplified. Representatives of the organizations that handle workers' compensation claims and that deal with the system daily should be invited to participate in any evaluation or modification of this system. Simplification may allow claims administrators and applicants' attorneys to spend less time processing paperwork and interpreting law and more time providing information and assistance to workers.
Research has shown that parties in states with unclear or discretionary methods for determining proper workers' compensation benefits tend to initiate more litigation to resolve claims.[66] The Commission on Health and Safety and Workers' Compensation is currently studying alternative methods to rate disabilities in order to evaluate options for reducing disputes and litigation over permanent disability ratings. These evaluation activities may benefit workers by reducing the litigation that is required to resolve claims, that is, "necessary" litigation. Efforts would be needed, however, to ensure that any policies that are developed as a result of these evaluation activities do not diminish injured workers' current rights and benefits in workers' compensation.
The main message from the focus group sessions was that injured workers need much more and much better information about workers' compensation than is available. Focus group participants also expressed a need for information regarding other rights and benefits outside the workers' compensation system. Many of the focus group participants felt that information should be developed by organizations that are independent, that is, not affiliated with injured workers' employers or workers' compensation insurers.
Educational materials and educational sessions regarding workers' compensation could be developed and provided to workers throughout California, including distribution on the Internet. Various materials provided in the states of Connecticut, Texas, and Washington, described earlier in this report, may provide useful models for materials that can be developed for workers in the California workers' compensation system. Materials could also describe rights involving claims against third parties, rights under the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA), and other possible benefits, such as those under state disability insurance (SDI), the Social Security Act, and the Employee Retirement Income Security Act (ERISA). Educational sessions should incorporate principles of adult education, using techniques that encourage inquiry, personal discovery of answers, and active decision making. Techniques should also take into account the different ways people receive and process information, for example, through diagrams, checklists, group discussions, hypothetical problem solving, and role-playing demonstrations.
Many people trust and rely on resources in the community other than employers and state workers' compensation agencies. For example, Legal Aid, public libraries, law libraries, unions, a benevolent association of co-workers, a repetitive stress injury (RSI) support group, and state unemployment offices were trusted or relied upon by many of the workers in the focus groups. Other resources include support groups that have been formed for injured workers, central labor councils, adult schools, English as a second language (ESL) schools, high schools, community health clinics, and churches. Training and informational materials regarding the basics of the workers' compensation could be developed and provided to these organizations to help them better serve their constituents and clientele. Training of these providers should incorporate the adult education concepts described above.
Many of the workers in the focus groups expressed feelings of despair and isolation. A few of the participants recommended that clubs or associations of injured workers be formed to allow injured workers to help each other. Existing groups, such as repetitive stress injury (RSI) support groups throughout northern California and Compensation Alert in Santa Rosa, have been formed for that purpose. Resources could be provided for existing groups and for people who would organize additional support groups for injured workers.
Many injured workers are extremely upset because of being injured, possible threats to job security and fears that they can no longer support themselves and their families, and/or conflicts with other parties involved in their claims for workers' compensation. Some workers might benefit from individual counseling services with a licensed therapist. This could be a workers' compensation benefit that is required to be offered or a service offered by outside resources.
Injured workers face other problems related to their injuries besides problems experienced in the processing of their claims. These can include financial concerns, employment problems, physical pain, disability, and social and emotional stresses. Comprehensive lists of resources could be developed for injured workers to help them deal with the full range of problems they face.
A. Findings
B. Preliminary Recommendations
While discussing the information and help they received to process their claims, the focus group participants raised additional concerns and complaints about the workers' compensation system. The most common concerns and complaints involved: (1) disputes and delays in the system, (2) fear of loss of employment, (3) lack of adequate medical services, and (4) lack of adequate vocational rehabilitation services. Although these concerns and complaints were not the main focus of this project, they are described below (under "Findings") to further our understanding of workers' overall experiences in the California workers' compensation system. Immediately following the descriptions of these workers' concerns, this Appendix lists certain areas where further investigation may prove useful (see "Preliminary Recommendations," below).
Many of the participants in the focus groups described problems that challenge the basic assumption that injured workers receive fair compensation benefits quickly and easily. The participants described numerous types of delays in getting their benefits paid and their cases closed. Some of these delays were caused by protracted disputes between the parties. Participants also described the hardships associated with limited benefits.
Some of the delays experienced by the workers were related to delays in actions by agencies, for example, a long wait to receive a summary rating from the Disability Evaluation Unit and long waiting times for hearings. Several of the participants were puzzled and unhappy with delays between the date the parties submitted a proposed settlement and the date the workers' compensation judge approved and signed the proposed settlement.
Other delays were related to apparent inactivity by the employer or the claims adjuster. A few of the participants felt that the 90-day waiting period between the date the worker filed the claim and the date the claims administrator responded to the claim was too long[67]:
"The lawyer told me, 'Well, you know, they're going to drag this out for 90 days, and we won't know for 90 days, because the law allows them 90 days to sit on it.' Which is baloney--pure baloney."
Many participants experienced delays in receiving monetary or vocational rehabilitation benefits:
"Unless [the insurer] authorizes my rehabilitation, then you'll never get any of it. So basically I've been kicked to the curb for four years."
A theme that occurred in most of the focus groups was that insurers delay payments deliberately to earn interest and to create financial desperation for workers so that workers will be forced to settle for very low amounts. Several participants said that in fact they did this:
"One of the tactics, and 99 times out of 100 it works for them, is simply waiting the guy out. All these delays hoping that you'll go away."
"When it comes time to settle, you're broke. I had to take $1,200 offered to give up future medical treatment. I took it."
"I think that the delays are built in to control the negotiation procedure. If they take as much time as they can making payments, they cause desperation, and anyone who negotiates from a desperate point of view is going to give up things they might not otherwise."
"I wanted to go and continue on with my life instead of participate like a hamster on a treadmill. I called workers' comp, and I told them, 'I am finished. I want this thing settled. This is over. I don't want to know anything further. I would like you to settle with me now.' . . . It's like being stuck in a bog of quicksand. I chose to just finish it and go on with my life because it seems to me in retrospect that somehow all of these delays, misinformation, and confusion that look almost manufactured could be designed to get people so fed up that they'll just stop. That's been my experience."
Many of the participants described disputes in their claims that caused delays. Some disputes involved the extent of the worker's injury, whether the worker should be given more time to recover before returning to work, and the type of job the worker could return to. Some of the disputes resulted in the worker seeing multiple physicians. Disputes regarding compensability or the proper level of benefits caused some of the participants to hire attorneys.
Several of the participants described how low benefit levels and the low amounts of settlement caused hardships in their lives. They said that the money they received was all used up on rent or was not even enough to pay rent:
"I don't have enough money to even survive."
Several participants compared the gravity of being injured with the low levels of available compensation:
"The small amount they give you when the injury is severe just doesn't compensate, because the money runs out soon, and you will always be hurt."
"No compensation, none whatsoever, could cure my pain. There could be a whole room like one of these filled with money that I just go jump in. Nobody can fix my back. We have to be very clear about this, because however bad your pain, your pain will continue. I would rather not get anything and just do my work."
"No amount of money can compensate you for your injury. You don't want money. What you want is to have them make sure that it won't happen again."
"The money that they give you doesn't compensate for the injury, with the harm that's caused."
Like the focus group participants, representatives from applicants' attorneys, unions, and support groups perceived that injured workers experience many unnecessary and unfair delays in payments and decisions by claims administrators. They believed that delays by insurers are deliberate to earn interest on monies withheld and to pressure the worker to settle for low amounts.
The interviews revealed that no mechanism exists to enable workers to trigger direct enforcement of laws and regulations that prohibit delays and improper conduct by other parties, either because the laws and regulations do not exist or because they are not enforced. With respect to claims administrators, under current laws governing the responsibilities of the DWC Audit Unit,[68] filing a complaint with the Audit Unit will not necessarily trigger an audit of that particular claims administrator's office, and any audit that is conducted as a result of complaints will usually occur months later--after numerous complaints about that claims administrator are tracked, weighted, and investigated. Requesting that a workers' compensation judge award penalties for delays by a claims administrator is a complicated process for most people who are not attorneys, requiring preparation and filing of documents and legal analysis and presentation of evidence.[69] With respect to employers, there is no statewide program, either within the DWC or within the Division of Labor Standards Enforcement, to enforce the laws and regulations requiring employers to inform workers about their rights and obligations in workers' compensation and to help injured workers process their claims.[70]
I & A officers and representatives of the major participants in the system expressed various views regarding "unnecessary" disputes. It was not clear whether there was consensus on what constitutes an unnecessary dispute. Some of the representatives of employers and claims administrators, on the one hand, believed that in most cases parties should work together cooperatively to determine the benefits that a claimant should receive. This assumes a situation where proper benefits are determined objectively and in a straightforward manner. Therefore, the process of determining those benefits need not be adversarial. In other words, workers do not need advocates to protect their rights against opposing parties. According to this view, when applicants' attorneys become involved, they create disputes and initiate litigation that would not have occurred if the applicants' attorney had not entered the picture. These disputes and litigation activities are "unnecessary," and applicants' attorneys are regarded as major contributors to delays, disputes, and problems in the system.
The applicants' attorneys interviewed for this project, on the other hand, pointed out that because the system is so complex, workers are often not aware of all their options. According to this view, proper benefits are determined subjectively, and the process of determining proper benefits is complicated. The outcome of a claim can fall within a wide range, depending on medical evaluations of the worker's condition, the gathering and interpretation of other relevant facts, and the application of statutes, regulations, and case law. A worker without an advocate will not necessarily be best served by following the instructions of the "other side," whose incentive is to minimize the amounts paid. Also, workers are often unaware of other rights they have that are associated with their injuries, such as rights against discrimination in employment, claims against third parties, rights to governmental benefits (e.g., state disability insurance, unemployment compensation, and Social Security) and employment-related benefits (under the Employee Retirement Income Act, or ERISA), and deadlines to exercise those rights. In many cases, hiring an attorney merely serves to protect rights of which a worker might otherwise be unaware.
The two workers' compensation judges interviewed for this project believed that, generally, injured workers benefit substantially from the services of attorneys and that attorneys' fees are probably less than the gains the attorneys achieve for their clients. In their experience, claims asserted by applicants' attorneys are usually meritorious and protective of the workers' interests; they are not "unnecessary." In fact, the judges believed that most litigation is "necessary" to resolve uncertain areas of law or fact. In contrast, poor communications, misunderstandings, and unreasonable behavior by defendants sometimes force applicants' attorneys to initiate premature, so-called "unnecessary" litigation.
Many of the participants in this project believed that disputes and litigation occur much more frequently in southern California than in northern California. (If this is true, it may be worth examining the reasons for such a discrepancy.)
Interviewees for this project offered the following recommendations to help reduce delays and disputes:
Many of the focus group participants discussed concerns that they might be fired for filing a workers' compensation claim, or they believed that they were in fact fired or otherwise discriminated against for that reason:
"They suddenly let me go."
"They tell you, 'Look, if you want compensation, I'll fire you.'"
"When I finally got to the point where I couldn't work anymore, the employer didn't want to acknowledge it. They wanted to fire me."
One participant, for example, said that her employer pressured her to leave by increasing her workload, holding back her profit-sharing check, and hiring a replacement whom she had to train. Two participants said they were "treated like criminals" and fired.
Many of the participants described situations where their employers were unwilling or unable to offer modified or different work to accommodate the worker's injury. One participant said the employer would not train her to operate computers at her former workplace and instead sent her to vocational rehabilitation. Now, unable to find a job, she is "out on the street." Another participant said her employer refused to honor the modified work restrictions prescribed by her physician. One participant explained that he could no longer work at his previous job because he could not meet the employer's requirement that he be able to lift 90 pounds.
Many of the participants believed that future employers will discriminate against them in hiring because of their injuries or because they filed workers' compensation claims. A few said that it is commonly known that you should not mention the vocational rehabilitation school on your resume. A few of the participants believed that future employers have access to all claimants' workers' compensation histories:
"It's really hard to find work afterwards. It's the black flag."
Union representatives reported that they know many workers who will not file workers' compensation claims because the workers have seen co-workers terminated for filing claims. Communications from those employers to their employees regarding workers' compensation were threatening and intimidating. One union representative has observed "tons of discrimination," but the discrimination is "insidious," that is, nearly impossible to prove.
The applicants' attorneys and workers' compensation judges interviewed for this project stated that it is difficult to enforce Labor Code section 132a, which prohibits discrimination against an employee for filing a workers' compensation claim, because an employer can assert that a different, valid reason was the cause of the employment action. Therefore, administrative claims under section 132a are infrequent, and there have been few or no cases involving enforcement of the criminal misdemeanor provisions of section 132a.
In addition, under section 132a, the maximum penalty for violating section 132a is $10,000 (not including reimbursement for lost wages and benefits), and the maximum amount that is reimbursable for the costs and expenses (for discovery, i.e., the collection of evidence) to bring a claim under section 132a is $250. Because of these limits, bringing a claim under section 132a is not worthwhile in many cases. One interviewee recommended that the maximum penalty and the limit on reimbursable costs and expenses under section 132a be increased.
Interviewees reported that the Americans with Disabilities Act (ADA) is expensive and difficult to enforce. There are no clear, easy-to-apply rules defining the "reasonable accommodations" that employers must make for employees who are "disabled," as defined under the ADA, but who are otherwise able to perform the "essential functions" of the job. The law in this area is complex. Cases alleging violation of the ADA therefore require a great deal of preparation of evidence and analysis of law.
Under the ADA, employers are prohibited, during the pre-offer stage of the hiring process, from asking a job applicant about the applicant's prior workers' compensation history.[72] However, interview discussions revealed that anyone from the public can obtain a person's worker's compensation history because it is public record. Services to obtain this data for prospective employers are in fact available at low cost. A private service called CompData, for example, allows users to electronically access claimants' records by Social Security number. Union, support group, and applicants' attorney representatives therefore recommended that access to workers' compensation records of individual claimants be limited or prohibited.
Many of the focus group participants were satisfied with communications from their treating physicians. Some felt that the physician truly cared about them as individuals. A few of the participants reported that the physician or the physician's support staff explained the workers' compensation system to them and helped them process paperwork for their claims.
Other participants reported negative experiences with communications from physicians or other medical personnel in the workers' compensation system regarding the workers' symptoms, diagnosis, treatment, prognosis, and method of payment. A few of the participants said that their physicians did not discuss with them their symptoms, reasons for treatment, prognosis, or side effects of drugs:
"The clinic took x-rays of me. The doctor did not tell me, 'You're injured,' or 'You've sprained it'--nothing. He only touched me, he sat me in a chair, 'Wait here.' I laid down on a table. They put hot water compresses on me. Afterwards he told me, 'You need to go to therapy.' That was all the information that I had."
"I went to the doctor. The doctor examines me, he greets me [formally]. He turns his back. He gives you medicine. He gives you pills. Within 15 days he reports that I can't go to work for two weeks until he sees me again."
Two participants were outraged that their treating physicians did not give them any information regarding the nature of their injuries or results of tests, yet wanted to begin surgery right away:
"After two weeks I went back to the doctor, and he didn't even say, 'I have your results.' And he didn't ask me, 'How do you feel?' I said to him, 'I feel the same.' He called the nurse and said, 'Schedule an operation for Mr. _________.'"
Some company doctors were described as "nasty" and "rude." One worker said the company doctor would not believe his reports of pain. Another worker felt violated when emergency treatment personnel stuck their hands in his pockets for his identification to ensure payment for treatment.
Several of the participants in the focus groups discussed the quality of the medical treatment they received. About half of these participants felt the physician was the worker's "salvation," "dedicated," and "the greatest doctor in the whole wide world." The remaining participants were dissatisfied, perceiving, for example, that the treating physician caused further injury to the worker, that the physician did not understand the particular injury, or that the physician did not understand the nature of the worker's job:
"The company doctor was a quack. We winded up having to sue him because he had people working under medication that says, 'Do not operate a vehicle.' And that's what we do, we drive for a living. 'Take this, but you can go to work.' But if anything happens, he was not responsible because you should have had enough common sense not to drive the bus and take the medicine at the same time."
Several of the participants complained that physicians take advantage of the system by padding bills and inflating fees.
Several of the participants discussed the medical evaluations performed for their claims. These comments were negative. For example, one medical report did not match the worker's description of pain; one did not agree with the worker's statement of facts. Several participants perceived that qualified medical evaluators (QMEs) are more qualified on the basis of paperwork than anything else because they know how to use certain phrases, and that other physicians who are medically qualified cannot or will not do workers' compensation cases because of the paperwork involved.
A few of the participants stated that the role of the evaluating physician in the system is key because the medical reports determine benefit levels. Several participants, however, perceived that evaluating physicians operate "mills," are "unprofessional," and are "pro-insurance [company]."
Several of the focus group participants were upset because they felt they had been misled into believing vocational rehabilitation would enable them to find a good job at their same pay rate:
"They made a comment to me that when they put me through the voc rehab process, I could anticipate making at least what I currently was
. . . . That is not the case at all."
"The biggest problem is that they weren't straight with me . . . they told me that they were going to look for a good job, and they didn't find one . . . they weren't sincere. . . . 'We'll look for a job for you and you'll earn the same.'"
Another participant described a book used by his vocational rehabilitation counselor indicating an abundance of jobs in the occupation that he chose to pursue, but the information later turned out to be wrong. In fact, many of the participants found that they could not find good jobs after receiving vocational rehabilitation services, in part because of a tight job market:
"My career went up in smoke."
"From making 25 bucks to 30 bucks an hour, I'm making six bucks an hour. From here to crash, boom, burn, and die. You know that's where I'm at right now."
Many of these workers, especially older workers, found that they could not get a job without experience in the new field:
"You have to have experience. When you go to apply for a job, if you do not have two years of experience, 'Well, we can't use you.' I just got through learning what I was doing. And nobody wanted me because I didn't have two or three years of experience. And then nobody came after me to find out, 'How are you doing?' Where was I supposed to go?"
"For people like me, over the hill, it's a little too late. I tried, I gave it my 100 percent."
Several of the focus group participants felt that they were provided insufficient time and help to find and enroll in a vocational rehabilitation school. Within a short period, they had to drive long distances to many places alone while injured:
"Just after your operation, how can you be driving? And you have to do it, otherwise they don't like the idea. So what can you do? The whole thing was a crock."
These workers felt angry that the burden was placed on them to select a program, with no assurance that a suitable program would be available. One worker, for example, described rushing around to find and enroll in a program, but when the school later canceled the second part of the training, vocational rehabilitation ended abruptly for the worker.
Many of the focus group participants were dissatisfied with the help provided by vocational rehabilitation counselors and the training given in the schools. Several of the participants felt that their counselors did not provide adequate job placement services because they relied only on telephone books or newspapers to find jobs, which the worker could have done without the counselor. A few participants said their counselors were impersonal or rude:
"What the guy said was, 'I'm not going to give you rehabilitation that will suddenly turn you into a lawyer or a doctor.' It got to the point where it seemed ridiculous that he should be talking to me that way since he was a professional . . . what he is trying to do is to put you down."
"To vocational rehabilitation counselors, you are just a number, another client that comes in. They want to get you out as soon as possible."
Several participants felt that the training provided in schools was inadequate, with outdated equipment, useless instruction, and teachers who were rude.
Several of the focus group participants who accepted vocational rehabilitation services were surprised later to learn that there is a stigma in the job market associated with vocational rehabilitation school training. A few participants were advised to omit from their resumes any mention of the training they had received.
A few of the participants felt that available services were too short-lived. (Because all of the focus group participants were injured before 1994, these sentiments reflected experiences not affected by the $16,000 cap on vocational rehabilitation benefits for post-1993 injuries.) A few recommended that the state should monitor or regulate all vocational rehabilitation services.
Workers in the focus groups said they experienced delays that were apparently caused by backlogs in the Disability Evaluation Unit and the Claims Adjudication Unit (workers' compensation judges). There is a need to investigate options for ensuring appropriate staffing in all workers' compensation agencies in order to minimize delays caused by backlogs.
The main body of this report recommends that options be explored for enforcing employers' requirements to inform and assist workers and for responding to workers' complaints regarding communications from claims administrators, and that agency activities be coordinated in those areas. There is a need to consider similar programs to monitor unreasonable delays by employers and claims administrators.
The main body of this report also suggests sensitivity training and professional development of crisis counseling skills for all providers of services and benefits in the system in order to help improve communications with injured workers. Such training would also help reduce disputes between parties that are caused by ineffective listening and communication skills.
To help reduce "unnecessary" disputes and litigation, that is, disputes and litigation caused by ineffective communication and misunderstandings, it might be beneficial to provide more services that encourage the resolution of problems through open, respectful, nonformal meetings between the parties and their representatives. (Such services could be provided, for example, by expanding the resources of the I & A Unit and the Claims Adjudication Unit to enable I & A officers and workers' compensation judges to hold informal conferences more frequently.) However, the effectiveness of informal methods to resolve disputes should be carefully evaluated in terms of actual reductions in delays, actual reductions in resources to process cases, and preservation or diminution, if any, of injured workers' rights to benefits. Caution: Any such program must not discourage or prevent an injured worker from obtaining help from an attorney, especially when the situation involves complicated legal issues. Although many participants in the workers' compensation system feel applicant attorneys create unnecessary disputes, it would be problematic to exclude them from any dispute resolution program because doing so might result in injured workers foregoing rights and benefits of which they are unaware.
To address problems involving delays and disputes, this project recommends that research be undertaken to identify the nature and extent of "necessary" and "unnecessary" disputes and litigation in the California workers' compensation system, analyze factors that cause disputes and litigation, recommend possible further methods to avoid "unnecessary" disputes and litigation, and identify areas in workers' compensation law where changes could reduce the need for "necessary" disputes and litigation. For example, perceptions by some participants in the system that applicants' attorneys create unnecessary disputes (described in this Appendix under "Findings") may, in some cases, be caused by the fact that because of their legal training and experience, attorneys are accustomed to using formal methods and styles of communication to resolve disputes,[73] such as communicating through legal documents or in formal proceedings, rather than communicating informally and in person. [NOTE: The term "litigation" has different meanings to different participants in the workers' compensation system. In this report, "litigation" means a formal contest before an adjudicative body, such as a workers' compensation judge, requiring the formal gathering and presentation of evidence. It is not equated in this report with the hiring of an attorney because a party may litigate without an attorney, and an attorney may provide services without litigating. Litigation can be "necessary" to resolve good faith disagreements over unclear areas of law or fact, or it can be "unnecessary" when caused by unreasonable conduct or bad faith tactics of a party.]
Findings from the focus groups and interviews suggest that methods are needed to increase compliance with the statutory prohibition against discrimination in workers' compensation, Labor Code section 132a. Possible methods to increase compliance might be to revise legal presumptions and burdens of proof and to increase the maximum penalty and the limit on reimbursable costs. In addition, workers' rights under section 132a may need to be publicized to workers and employers.
Under the Americans with Disabilities Act, prospective employers are prohibited, during the pre-offer stage of the hiring process, from asking a job applicant about the applicant's prior workers' compensation history.[74] It was reported, however, that employers can access such information electronically through public records. To prevent discrimination against injured workers by prospective employers, methods to control access to workers' compensation records need to be developed, including exemption of the records of individual claimants from the disclosure requirements of the Public Records Act, and there should be consequences for unauthorized access. Access should be allowed only for purposes unrelated to decisions in the hiring and retention of employees.
Workers in the focus groups who had negative experiences with physicians tended to change their treating physicians or obtain additional medical evaluations. There is a need for an evaluation to determine the extent to which the quality of physicians' communications to workers and their conduct during and after examinations affects delays, disputes, and additional costs in the delivery of medical treatment and the processing of claims.
Some of the workers in the focus groups encountered treating physicians who appeared to them not qualified to write medical reports for the workers' compensation system. The Industrial Medical Council of the Department of Industrial Relations was created to train and regulate the conduct of qualified medical evaluators (QMEs) in the workers' compensation system.[75] Although new laws were adopted that elevated the importance of treating physicians' findings,[76] training and regulation were not extended to treating physicians. Potential problems arising out of these new laws involving treating physicians should be examined further.
Numerous complaints were voiced in the focus group sessions about vocational rehabilitation. It was also reported in the interview process that for workers who have been severely disabled by their injuries, the $16,000 cap on vocational rehabilitation services (for workers injured after 1993)[77] is grossly inadequate. This project therefore recommends that comprehensive evaluations be undertaken to study the following:
(a) The appropriateness and effectiveness of introductory information regarding vocational rehabilitation
(b) The quality of rehabilitation counseling services
(c) The quality of training programs
(d) Success rates in ultimately placing workers in jobs for which they were newly trained
(e) The effect of the $16,000 cap on the quality of vocational rehabilitation services and on ultimate job placement.
[1]Available benefits include appropriate medical treatment and may also include income replacement monies and vocational rehabilitation services. Survivor benefits may be available if the injury causes death.
[2]The usefulness and limitations of the focus group results are discussed in the body of this report, under "Study Methods."
[3]Preliminary recommendations to address workers' concerns and complaints about delays, disputes, and certain other aspects of the workers' compensation system are provided in the Appendix.
[4]In California, a claims administrator may be employed by an insurer of an insured employer, by a third-party administrator of a self-insured employer, or by a self-administered, self-insured employer.
[5]Research regarding the psychology of procedural justice has shown that even when people end up recovering adequate amounts of money in a legal proceeding, they care more about whether the disputes were resolved fairly. In particular, they care about whether they had an opportunity to participate in the process and whether they were treated politely and with respect for their rights and for themselves as people (T. Tyler, "Client Perceptions of Litigation," Trial [July 1988]).
[6]Qualitative research relies on multiple methods to study people and events in their natural settings. Methods include focus groups, interviews, case studies, and review of archival texts to describe people's subjective experiences. The purpose of utilizing multiple methods is to permit maximal, in-depth understanding of the subject being examined.
[7]The use of focus groups began in the 1930s. Researchers interested in improving methods of individual interviewing looked for a strategy that would overcome some limitations inherent in that research mode. In particular, they wished to lessen the effect of the interviewer on the results by using a more nondirective, open-ended, and less structured approach (R.A. Krueger, Focus Groups: A Practical Guide for Applied Research, 2nd ed., Sage, Thousand Oaks, CA [1994], p. 7). Since the 1980s, the number of citations for focus groups has increased exponentially in academic journals (R.A. Krueger, "The Future of Focus Groups," Qualitative Health Research, Vol. 5 [1995], pp. 524-26). Initially, focus groups were primarily used in market research to determine consumer preferences. Soon, however, they were considered tools of qualitative research in many areas of the social sciences. In particular, they are considered especially applicable for evaluating social programs. By capturing the feelings and attitudes of clients, focus groups are called to assist in planning, needs assessment, and program evaluation (Krueger [1994], p. 9).
[8]R.A. Krueger, Focus Groups: A Practical Guide for Applied Research, 1st ed., Sage, Newbury Park, CA (1988), p. 19.
[9]Krueger (1988), pp. 23, 38, 40, 44-45.
[10]Instead of one group of unrepresented workers from the Berkeley area, there were three groups. The second group was convened because of difficulties in achieving full attendance at the first session, and the third group was convened to accommodate the higher than expected turnout for the second group.
[11]As a result of the various reforms since 1989, the significance of a claimant filing an Application for Adjudication varied, depending on date of injury. For workers whose dates of injury were in the period 1990-1993 (i.e., "window" cases), the filing of an Application meant that the worker was requesting a hearing over a disputed matter. For workers whose dates of injury were prior to 1990 ("pre-window" cases) or after 1993 ("post-window" cases), the filing of an Application did not necessarily mean the worker was requesting a hearing over a disputed matter. Furthermore, those workers had a greater incentive to file Applications than workers from the window period, both to invoke Board jurisdiction if necessary and to meet applicable statutes of limitation (i.e., to meet certain deadlines for filing in order to preserve rights to benefits).
[12]Funding was not available to transcribe all eight sessions. The two sessions that were not transcribed were chosen because they shared the same characteristics with a session that was transcribed (i.e., held in Berkeley and consisting of English-speaking, unrepresented workers).
[13]Of the cases in the WCAB database (excluding cases closed prior to 1993), only 10 percent were post-window cases. Also, screening personnel experienced difficulties in contacting workers who were injured after 1993. It is possible that workers with post-window cases were difficult to recruit because of a combination of factors: their low numbers in the database, difficulty in reaching them because they were dealing with new injuries, and reluctance of workers with new, open cases to disclose information due to concerns that it might affect the outcomes of their cases.
[14]C.K. Riessman, ed., Qualitative Studies in Social Work Research, Sage, Thousand Oaks, CA (1994), p. 99.
[15]N.K. Denzin, and Y.S. Lincoln, "Introduction: Entering the Field of Qualitative Research," in N.K. Denzin, and Y.S. Lincoln, eds., Handbook of Qualitative Research, Sage, Thousand Oaks, CA (1994), p. 2.
[16]The usefulness and limitations of the focus group results are discussed previously in this report, under "Study Methods."
[17]Ball, Christopher, How To Handle Your Workers' Compensation Claim, Nolo Press, Berkeley, CA (1995).
[18]Labor Code SSSS 5401, 5402, 5412.
[19]Labor Code SSSS 4060, 4061, 4062, 4062.9.
[20]8 Cal. Code Regs. SSSS 9812, 9813, 9814, 9815.
[21]Labor Code SSSS 3550, 3551, 3552; 8 Cal. Code Regs. SSSS 9880, 9881.
[22]Labor Code SS 3550(b).
[23]Labor Code SS 6431.
[24]Labor Code SS 5401; 8 Cal. Code Regs. SS 9882.
[25]Labor Code SSSS 3550, 3551, 3552, 5401; 8 Cal. Code Regs. SSSS9880, 9881, 9882.
[26]Employers who fail to properly inform employees may lose certain rights in the defense of a workers' compensation claim. For example, under Labor Code section 3550(e), when an employer fails to inform a worker about the worker's right to predesignate the treating physician, the worker is permitted to control the choice of physician immediately after the injury, rather than having to wait 30 days to control the choice of physician. Most workers, however, are not aware of this right. Similarly, case law provides that an employer's failure to inform a worker about rights in workers' compensation can postpone the deadline for a worker to file a claim (i.e., failure to inform the worker tolls the statute of limitations). This, however, provides only an indirect incentive for employers to provide information, and this defense must be asserted by the injured worker.
[27]Labor Code SS 138.4; 8 Cal. Code Regs. SSSS 9812, 9813, 9814.
[28]Labor Code SS 138.4; 8 Cal. Code Regs. SSSS 9812, 9813, 9814.
[29]Labor Code SSSS 129, 129.5; 8 Cal. Code Regs. SSSS 10105-10115.3.
[30]Labor Code SS 139.6.
[31]In 1996, the I & A Unit began holding one-hour workshops for injured workers throughout the state.
[32]The bases for calculating proper TD benefits include many factors, e.g., fluctuations in the worker's previous hourly wages, previous overtime earnings, certain previous nonmonetary benefits (under Labor Code section 4454), previous earnings from second jobs, increases in the rate of TD benefits if those benefits continue beyond two years after the date of injury (under Labor Code section 4661.5), and the applicable "date of injury" for cumulative trauma claims.
[33]Preparing the medical evidence for a case can involve selection of an appropriate evaluating physician, review and interpretation of medical reports, and deposition of the evaluating physician selected by the defendant. Other activities of an attorney to assist an injured worker can include advocating that a particular occupational code be assigned to the injured worker in the permanent disability rating process.
[34]Penalties for delays include automatic penalties (under Labor Code section 4650) that are added to individual late payments and penalties for unreasonable delay (under Labor Code section 5814) that are added to a judge's award of a whole class of benefits.
[35]Penalties for serious or willful misconduct (under Labor Code section 4553), if the employer intentionally did something seriously wrong that caused the injury, can be added to a judge's award of benefits.
[36]Penalties for discrimination against an employee (under Labor Code section 132a), for having been occupationally injured or for filing a workers' compensation claim, can be added to a judge's award of benefits.
[37]The representative are required to attempt contact when the claim involves income benefits or death benefits. (Death benefits are paid to a beneficiary of the deceased worker.) In 1995, 84,814 claims were filed involving income or death benefits. (Memorandum from Linda McKee, Director of Executive Communication, TWCC [July 15, 1996]).
[38]In 1995, there were 47 customer service representatives employed by TWCC.
[39]In 1995, there were 54 disability determination officers employed by TWCC.
[40]In 1995, there were 51 ombudsmen employed by TWCC.
[41]Labor Code SSSS 3551, 3552; 8 Cal. Code Regs. SS 9880.
[42]Labor Code SS 3550; 8 Cal. Code Regs. SS 9881.
[43]Labor Code SS 5401; 8 Cal. Code Regs. SS 9882.
[44]Labor Code SS 139.6(a)(1).
[45]Labor Code SS 139.6(a)(2).
[46]Labor Code SSSS 3550, 3551, 3552, 5401; 8 Cal. Code Regs. SSSS 9880, 9881, 9882.
[47]Labor Code SSSS 3550(b), 6431.
[48]Labor Code SSSS 129, 129.5; 8 Cal. Code Regs. SSSS 9812, 9813, 9814.
[49]10 Cal. Code Regs. SSSS 2695.1(d), 2695.13.
[50]Cal. Const. SS 4.
[51]Preliminary recommendations intended to address workers' concerns and complaints about delays, disputes, and certain other aspects of the workers' compensation system are provided in the Appendix.
[52]The usefulness and limitations of the focus group results are discussed earlier in this report, under "Study Methods."
[53]Research has shown that parties in states that inform injured workers about the workers' compensation benefits they should receive tend to engage in fewer disputes than states that do not provide this information. (L.I. Boden, "Workers' Compensation in the United States: High Costs, Low Benefits," Annual Rev. Public Health, Vol. 16 [1995], pp. 206-208.)
[54]As discussed earlier in this report, in 1995 the Texas state system employed 47 customer service representatives whose job is to call and send introductory information to newly injured workers and answer questions from workers calling or visiting state field offices. These 47 representatives initiated contact with 84,814 indemnity claimants in 1995. (Further services to help resolve disagreements between parties and assist injured workers in dispute resolution proceedings were provided by other state employees.)
[55]The California Court of Appeal in Bland v. Reed, 261 Cal. App. 2d 445, 449 (1968), recognized that nonattorneys were permitted to represent injured workers in workers' compensation proceedings because benefits were often small and claimants often indigent (although nonattorneys would not be held accountable for certain types of attorney malpractice).
[56]Labor Code SS 139.6(c).
[57]Bus. & Prof. Code SSSS 6125 et seq.
[58]The State of Washington Department of Labor & Industries coordinates with the Washington State AFL-CIO by providing online access to claims administrators' records to allow the State AFL-CIO to assist individual claimants regarding the specifics and status of their claims.
[59] Approximately 1,150,000 claims were filed from July 1994 through June 1995 (State Workers' Compensation Administration Profiles, U.S. Dept. of Labor [Oct. 1995]).
[60]As discussed earlier in this report, the Texas state system employed 47 customer assistance representatives, 54 disability determination officers, and 51 ombudsmen in 1995, and 84,814 indemnity claims were filed in the Texas system in that year (Memorandum from Linda McKee, Director of Executive Communication, Texas Workers' Compensation Commission [July 15, 1996]). In contrast, 350,000 indemnity claims were filed in the California state system during fiscal year 1994-95 (State Workers' Compensation Administration Profiles, U.S. Dept. of Labor [Oct. 1995]).
[61]The current system also has a built-in incentive for applicants' attorneys to negotiate compromise and release settlements, where the worker receives money instead of future medical treatment, rather than lower monetary settlements (stipulations with request for award) that allow the worker to retain the right to receive medical treatment later if needed.
[62]33 U.S.C. SS 928(a).
[63]Labor Code SS 98.4.
[64]Labor Code SS 3702.1(b).
[65]Intracorp, a company providing managed care services in workers' compensation to employers and insurers, recently conducted a study that showed that more and clearer information provided by employers to workers regarding workers' compensation reduces the likelihood of disputes and litigation.
[66]Boden, pp. 206-208.
[67]An employer has 90 days to deny a claim before the injury is presumed compensable (Labor Code SS 5402).
[68]Labor Code SSSS 129, 129.5.
[69]Labor Code SSSS 4650, 5814.
[70]Labor Code SSSS 3550, 3551, 3552, 6431.
[71]Ins. Code SS 1871.4; Labor Code SS 3820.
[72]"EEOC Enforcement Guidelines on Pre-Employment Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities Act of 1990-EEOC Notice 915.002, Dated 5/19/94," pp. iii, 19-20, 27 (reproduced as an appendix in Employer EEOC Responsibilities, U.S. Equal Employment Opportunity Commission, Technical Assistance Program, May 1995); 29 Code Fed. Regs. SS 1630.13 (a).
[73]E. Welch, On Workers' Compensation, Vol. 6, Issue 3 (1996), p. 57.
[74]"EEOC Enforcement Guidelines on Pre-Employment Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities Act of 1990-EEOC Notice 915.002, Dated 5/19/94," pp. iii, 19-20, 27 (reproduced as an appendix in Employer EEOC Responsibilities, U.S. Equal Employment Opportunity Commission, Technical Assistance Program, May 1995); 29 Code Fed. Regs. SS 1630.13 (a).
[75]Labor Code SSSS 139, 139.1, 139.2.
[76]Labor Code SSSS 4061.5, 4062.9.
[77]Labor Code SS 139.5.