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(c) 2019 Jon L Gelman, All Rights Reserved.

Wednesday, October 23, 2019

The problem with workers’ compensation award ceremonies

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

Recently three injured workers were honored at the Comp Laude Gala put on by trade publication Workers’ Compensation Central. The event included a panel with the catastrophically injured workers who overcame their injuries.


Individually the stories of these workers are all inspiring. The Comp Laude Gala should also be credited for giving these workers a place to voice their stories. Too often workers’ compensation lawyers and the insurance industry either talk to or talk about injured workers. It is good to hear their perspective.

But the idea of an event dominated by the workers’ compensation insurance industry giving awards to injured workers bothers me for two reasons — the types of injured workers recognized are atypical and focusing on individuals ignores legal and political issues that impact injured workers and workers’ compensation laws.

Award winners aren’t representative of injured workers as a whole

The Comp Laude Awards recognized workers who were catastrophically injured. Catastrophic injuries and death claims are different than your typical workers’ compensation claim in that it is less likely compensability and nature and extent of injury will be disputed by the insurer. These workers and their families are less likely to have a bad experience with a workers’ compensation insurer or claims administrator.

Catastrophic injury and death claims are more likely to involve third-party liability cases. Injured workers with a viable third-party case have a better chance of being compensated adequately than an injured worker stuck with just workers’ compensation.

In his post about the Comp Laude injured worker awards, blogger Bob Wilson classified the award winners as advocates. Other types of injured workers were either adversaries or addled types who are less likely to accept their new condition and less motivated to improve their conditions. There is some validity to these classifications. But as other observers have pointed out everyone deals with trauma differently. Heroism should not be the standard that injured workers are held to when it comes to recovery from an injury.

Maybe the industry doesn’t believe that heroism should be the standard for injured workers. But the Comp Laude awards seem to signal that workers with more mundane injuries workers’ compensation injuries that they don’t have it so bad and they should suck it up.

Ignoring the social and political context of work injuries.

Wilson pointed to two police officers who were back to work after catastrophic injuries. It takes time, usually a lot longer than the 12 weeks allotted by FMLA, to recover from a serious work injury. But police officers are usually represented by unions and union workers usually have more generous leave policies that allows them the time to recover from work injuries and return to work. Union contracts also give employees more leverage in accommodating a disability beyond what they have under the Americans with Disabilities Act. But the role of organized labor in injury recovery seems to be ignored in stories that focus on individual heroism.

Focusing on individual tales of “resilience” also diminishes the importance of injured workers and their families taking actions to change laws to improve workplace safety and workers’ compensation laws. At least for the Comp Laude awardees, workers’ compensation laws seemed to work fairly well. But for no amount of money can replace the life of a family member killed in a work injury. The families of workers killed on the job have started organizing and advocating for workplace safety through United Support and Memorial for Workplace Fatalities (USMNF)

In the Canadian province of Ontario there is an injured workers group active in advocating for injured workers to improve workers’ compensation laws. Injured workers have also taken to protesting that provinces workers’ compensation board through the Occupy Wall Street-inspired organization Occupy WSIB. Sure Occupy Workers’ Compensation would be considered radical by Comp Laude Gala attendees and even by some plaintiff’s attorneys. But the spirit of Occupy speaks to the anger and disaffection felt by many injured workers — the so-called adversaries and addled.

Injured workers who fight for themselves and others in the political arena are advocates in the true sense. Workers’ compensation professionals, whether they represent employees or employers deal with the anger of injured workers on a regular basis. These workers don’t need lectures about mindfulness or acceptance. They need a way to channel their legitimate anger in a productive way to change workers’ compensation laws. Injured workers and their families are starting to do this across North America. Merely celebrating resilience among a select set of injured workers will not improve workplace safety or workers compensation laws.
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