Thursday, December 30, 2010
Workers Compensation Causing Desperate Acts
posted on 4/24/2010
David J. DePaolo is the president and CEO of WorkCompCentral.com, a web based subscription newsite that deals with eveything Workers Compensation in California. David is also an attorney, and has been a member of the California Bar since 1985. He is a graduate of the Pepperdine University School of Law.
Yesterday (May 20) was quite the trying day. First the news comes out that professional cyclist and dethroned Tour de France winner Floyd Landis not only admits to doping, but accuses everyone else in cycling, from American hero Lance Armstrong, to the world executives in charge of professional cycling, to either doping or knowingly turning a blind eye.
Just as I recovered from these dark revelations I get an urgent e-mail mid-afternoon from a close friend that an attorney had just been stabbed at the Los Angeles District Office of the Workers’ Compensation Appeals Board. Like the Landis news, I was disheartened by this news, but certainly not surprised.
As we later reported, allegedly 38 year-old Andre Torres stabbed 60 year-old attorney Joe Rippinger in the back with a 9-inch kitchen knife. Details at the time I write this are unknown, but reports are that Torres and Rippinger did not have any relationship at all – apparently Rippinger was at the wrong place at the wrong time as Torres was intent on taking out his rage on an attorney – any attorney.
We can only surmise, but my guess is that Torres if he is the culprit has deep emotional scars from getting lost in the jungle of Workers’ Compensation.
I see evidence of this all the time, as I’m sure many in the industry do – desperate people fed up with the “system” act out in different ways – many of these desperate people vent their anger and rage in our forums, sometimes they send me e-mails or letters documenting their frustration with the system and desperation to get better, and sometimes they just commit suicide because there no longer is any hope.
Workers’ Compensation has seen its share of violence from such folk – Santa Cruz attorney Jay Bloombecker murdered in 2006 by a client, SCIF attorney Louise Armstrong assaulted in a parking lot in Anaheim, defense attorney Erwin Nepomuceno beaten with a hammer by an upset applicant in front of a medical clinic.
It would be easy to blame the Division of Workers’ Compensation for not setting tighter security protocol such as metal detectors, but the issue is not just one of security.
And it would be easy to just blame the injured worker and assume that these are just crazy people who would act out in some manner regardless, and just happened to choose a workers’ compensation situation due to convenience.
But I don’t think that the blame is so easy to assign, and I think the blame goes to the heart of what is fundamentally wrong with workers’ compensation: the one person whom the system is to benefit, the one person who is in the system involuntarily, is the one person who has no control over his or her fate – people pushed to the brink of sanity and then acting out in a violent, desperate manner in an attempt to get some relief.
Think about that – once the injured worker ends up in litigation nearly all semblance of control over his or her destiny is taken away, from being told what doctor to see, what treatment can or can not be approved, the expiration of disability payments, whether he or she can go to work, etc. The injured worker has no say during the life of the litigated claim until it’s settlement time.
The litigation process in California Workers’ Compensation is designed to remove all responsibility from the injured worker, and ergo, remove all control from the injured worker. This may not be the intent of the process, but it is the result.
Medical control essentially rests with the employer. This modification to the system was necessary, as are most rules and regulations, because a few bad apples decided to abuse the right to medical to control so that they could unfairly profit from the system.
And not only has the right to medical control been usurped, the method of contesting medical decisions has been removed from the injured worker’s control – it’s in the hands of utilization reviewers with essentially no right of appeal.
If you’re lucky enough to get to a hearing about a disagreement or conflict with the case, it’s likely months before any decision is made (which again is out of the hands of the injured worker) and it is very likely that the claims administrator may still not abide by the ruling, further delaying the claim and the fate of the injured worker.
The injured worker cannot get back to work because the employer doesn’t want a broken employee. The physician will prescribe a permanent impairment assessment, but the injured worker has no understanding of what that fiction means, or what its ultimate relation to a settlement is.
While all of this professional activity is going on around the injured worker, months or years go by and the injured worker has been off work for so long that there isn’t any motivation as he or she spirals down into depression.
This is no excuse for acting out or the violence that has made recent headlines. It is an indictment of the “system” – a process that is so complex, so entrenched, so lacking of humanity, that it no longer does what it was supposed to do: provide protection for the injured worker so he or she can get back to work.
Somewhere, at some time, some one with political power and clout will figure out that the problem with Workers’ Compensation is Workers’ Compensation itself – the system no longer serves the only involuntary participant. When that happens the system will cease, an industry will shift to another profit source, and perhaps the injured worker will regain some control over his or her life. Until then, expect more desperate acts from desperate people.