The system that’s supposed to insure you for injuries on the job too often falls short.
Twelve years ago this spring, Patrice Woeppel was heading to her office in the Florida hospital where she worked as clinical director when she slipped on a dirty floor and fell to the ground.
“I landed on my hands, then onto my left hip,” Woeppel writes in an account of the accident. “Almost immediately, I experienced pain in my hands, arms, shoulders, and numbness in my left arm.”
Woeppel’s accident turned out to be the beginning of the end of her career in healthcare administration; faced with ongoing health problems including chronic pain and limited mobility, she retired. It was also the beginning of her frustrating journey through the workers’ compensation system—and, eventually, the path to a second career, as a passionate advocate for reforming that system and rethinking the way we address worker safety in the U.S.
Ironically, as historians, labor groups and the media recently marked the 100th anniversary of New York’s Triangle Shirtwaist Factory fire—which killed 146 workers, mostly young immigrant women, and sparked movements for stronger labor and workplace safety laws—American workers still don’t enjoy all the protections they deserve, Woeppel says.
“Every eight minutes in this country, someone dies from an occupational illness or injury,” Woeppel, who now lives in Williamsburg, writes in her 2008 book, Depraved Indifference: The Workers’ Compensation System. “All across America, in every state, across industries and occupations, workers are being injured or killed on the job or exposed to toxic chemicals from which they are dying.”
Making it worse: the very systems that are supposed to lessen the risks posed to workers, or support them when they do become injured or ill, too often fail them. The federal Occupational Safety and Health Administration, or OSHA, lacks both the funds and the power to be as effective as it should be, Woeppel says. And when workers do get injured or sick, the mechanism created to help them—the workers’ compensation system—too often lets them down, favoring deep-pocketed corporations over the best interests of their employees, she charges.
“Most of us, myself included, thought workers’ compensation was there for us if we needed it,” Woeppel writes. “How wrong we were! Year after year, with the benign neglect or active collusion of state insurance departments, workers’ compensation allows the continuation of a system that kills and maims with impunity.”
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In a recent interview, Woeppel expressed reluctance to focus too much on her own story. Compared to many of the cases she writes about in her book, she got off relatively easy, she says: while she endured years of pain, her book tells the stories of workers who suffered grisly workplace deaths. And although her injuries resulted in her retiring earlier than she’d planned, she was 60 at the time, nearing the end of her career anyway. For younger people with families to support and years to go before retirement, a workplace injury can have much graver effects.
Still, Woeppel’s account of her personal experience provides a fascinating window into how workplace injuries are addressed in the U.S. For the majority of American workers, a workplace injury or illness is covered not through their own insurance, but rather through the workers’ compensation insurance system. (Non-military federal employees are covered under a separate program, and some states exempt certain categories of workers from coverage under workers’ comp, such as farm or domestic workers or independent contractors.)
Workers’ comp insurance, which is paid for by the employer, pays for both medical costs and lost wages connected to on-the-job injuries or illnesses. But those benefits come with a significant tradeoff: the system requires that workers waive their right to sue their employers over their illness or injury.
In theory, this “no-fault” arrangement is supposed to provide deserving workers the support and care they need while protecting employers from costly litigation. “The no-fault principle disenfranchises workers from their Seventh Amendment rights to bring suit at common law for redress of grievances,” Woeppel writes. “The quid pro quo is supposed to be swift and certain compensation and treatment in exchange for having given up the right to sue.”
That’s not all workers may give up. Workers’ comp systems are administered on the state level, so certain specifics, such as the percentage of lost wages a worker is entitled to, can vary from one state to the next. (See sidebar for information about workers’ comp in Massachusetts.) In almost half the states, the employer, rather than the injured worker, gets to choose the doctor he or she can see, according to a comparison of state policies compiled by the AFL-CIO. “The best medical interests of the injured worker are thus compromised by the physician’s allegiance to the corporate employer or the workers’ comp insurer,” Woeppel writes.
Certainly, in her own case, she believes her care was compromised by workers’ comp restrictions.
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After Woeppel fell on the hospital floor, it was a few minutes before she could get back on her feet. Finally, she was able to get up and return to her office. But before long, the pain had spread to her neck, head and left side.
So Woeppel headed to the hospital’s emergency room. But when staff there saw her employee ID badge, they sent her instead to the employee health department where, she writes, a nurse gave her anti-inflammatory medicine “and told me I’d probably feel worse tomorrow, and if I felt I needed physical therapy … to come back.”
A few days later, Woeppel took the referral for a physical therapy appointment, where, she writes, “I was pulled, pushed, and probed in the cervical spine (neck) area.” Her pain got worse and, she writes, “What was clear to me was that the hospital was dangerously putting the treatment before the diagnosis, and there was no physician oversight of the treatment, a violation of hospital regulations and standards.”
Thus began Woeppel’s long and frustrating fight to get proper care for her injury. The hospital, she says, initially denied her request for an X-ray and failed to offer an MRI, then denied her request to see a neurologist recommended by her personal physician, saying the appointment would be too costly—despite the fact that the doctor accepted workers’ comp insurance. Instead, she was given a list of approved neurologists she could see, only one of whom was still in practice and would take workers’ comp cases, but who couldn’t fit her in for an appointment for a month.
Two months after her fall, Woeppel stopped working, “unable to commute and get through a day without extreme pain.” She spent years battling to get adequate treatment and to get workers’ comp to cover the costs. Eventually, she was diagnosed with cervical disc displacement—something missed by the doctors the hospital sent her to, who diagnosed her with a sprain. “Had I been diagnosed and treated appropriately and completely in the beginning, would I have a permanent impairment now?” she wonders. “I don’t know the answer.”
It took five years for Woeppel’s workers’ comp case to be settled. She did not receive wage compensation for that time, and while the agreement forbids her to divulge just how much she did receive, she writes, “I can say that the amount of the settlement was only a minute percentage of my occupational injury,” the cost of which she estimates to total $700,000, including lost wages, health care expenses and other related costs.
The settlement also forbids Woeppel to name the hospital where her injury took place; instead, she refers to it as “Egregious General Hospital.”
“Had I been anyone who just walked into Egregious General Hospital and slipped on that dirty floor, both the outcome and the events along the way would have been quite different,” Woeppel writes. “I would have had the leverage of a potential civil suit. But as an injured employee, all I had was workers’ compensation, in which the scales of justice are heavily weighed against the injured worker.”
Inspired by her own experience, Woeppel began researching other workers’ comp cases, an enterprise that eventually led to her book. What she found, she writes, were some similar, and shameful, patterns: “The abuses in medical treatment under workers’ compensation are legion and varied. Themes that run throughout the experience of injured workers are the delays; denial of treatment; the inadequate, inappropriate and cursory medical treatment; inhumane treatment; and the shunting of costs that should be paid by workers’ compensation to others, including the injured workers and their families.”
Depraved Indifference tells a number of horrifying and heartbreaking stories of American workers who faced the double whammy of unsafe workplaces and inadequate opportunities for redress when things went wrong.
These case studies include the story—told, in large part, through quotes from his personal journal—of Dale Alan Goldstein, a middle-aged father of four who, in 1998, took a job through a Florida staffing agency doing maintenance on large air conditioning units. According to his journal, when Goldstein raised concerns about the safety of the chemical he’d be using—sodium hydroxide—the staffing company’s director of safety brushed them off, reassuring Goldstein that he “might feel a little tingle” if any got on him, and that he should “just rinse it off.”
Sodium hydroxide, better known as lye or caustic soda, is found in many industrial cleaners and solvents, as well as certain household products, such as oven cleaners. According to the Centers for Disease Control and Prevention, if it is inhaled, ingested or brought into contact with the skin or the eyes, it can cause serious health problems, including difficulty in breathing, skin and internal burns, blurred vision, vomiting and shock. OSHA calls for workers using the chemical to fully cover their skin and eyes and wear full-face respirators.
Goldstein, Woeppel writes, was not provided with any of the necessary safety equipment. Instead, dressed in a paper face mask, ill-fitting goggles and gloves, he found himself on rooftops, spraying liquid sodium hydroxide into large AC units. The wind blew much of the chemical back onto him, where it seeped through the gaps in his goggles and mask. The chemical also landed on his equipment and truck.
Goldstein worked with the chemical for two weeks. Not along after, he began experiencing health problems that started with dryness of the throat, then escalated to pneumonia, conjunctivitis and arthritis and, eventually, systematic lupus erythematosus, an autoimmune disease. He died in September, 1999—less than a year after his two-week work assignment—spending the last months of his life in the intensive care unit on a respirator and feeding tube, unable to speak, Woeppel reports. His family eventually received $5,000 through workers’ compensation insurance.
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Woeppel’s book highlights certain categories of workers that are especially vulnerable to workplace injuries and illness—among them, perhaps unexpectedly, nurses. According to the U.S. Bureau of Labor Statistics, the most common on-the-job injuries for nurses involve musculoskeletal disorders. These injuries, Woeppel notes, are largely caused by overexertion, including lifting heavy patients.
Hospitals and nursing homes could avoid such injuries by investing in mechanical lifting equipment, Woeppel writes; instead, too many try to avoid that expense and instead expect nurses to take on physical loads beyond their ability. “It is a dreadful irony that healthcare facilities disregard the health and safety of their own workers. This arrogance and reckless disregard comes at a high price in dollars, worker lives and patient outcomes,” Woeppel writes. “From a practical standpoint, it makes no sense to lose nurses, or other healthcare staff, due to disabling injuries, thus compounding an already crucial nurse shortage.”
Also, and less surprisingly, on the list of high-risk jobs: farm work. According to a 2009 report from the BLS, the agricultural, forestry, fishing and hunting sectors had a combined 26 workplace fatalities per 100,000 workers, higher than the rate in any other industry, including mining, transportation and warehousing, and construction. The health and safety risks faced by farm workers are caused by chemical exposure, heavy machinery and hand tools, livestock, toxic gases, and weather conditions such as extreme cold and heat, according to OSHA. In California alone, a reported 13 farm workers have died from heat-related causes since 2005, despite heat safety regulations introduced that year.
The risks inherent in farm work are heightened by several factors, Woeppel writes, starting with high-pressure quota systems on large farm operations. In the rush to meet those quotas, field workers may be denied rest or water breaks, or may cut corners when working with machinery. In addition, she writes, while farm workers have a legal right to information about toxic substances they are working with, that notification often falls by the wayside. (Woeppel cites a 2001 study from the American Journal of Industrial Medicine that found that fewer than half of workers surveyed had been notified by their employer about the risks of a pesticide they were using.)
Adding to the vulnerability of many farm workers in the U.S. is the fact that they are often migrant workers from other countries. Some lack the English skills to communicate with their bosses about the products they’re exposed to or the safety precautions they should take. Some lack legal documentation to work in the U.S. and fear drawing attention to themselves by complaining about work conditions. Farm workers also often live in cramped, substandard housing, without adequate bathing facilities or washing machines to clean off the chemicals they’ve been exposed to at the end of the day, Woeppel notes.
When a farm worker does file a workers’ comp claim, Woeppel writes, it can be an uphill battle: “In a disputed claim, the burden of proof falls on the injured worker. So farm workers, with limited language, often poor historians, are placed in the position where they have to prove their medical diagnosis, what they were exposed to, and that the exposure caused the disease.”
And that’s if they even have the legal right to file a claim. In many states, farm workers are not eligible for workers’ compensation coverage. According to the non-profit Farmworker Justice, based in Washington, D.C., only 13 states (including Massachusetts) offer seasonal or migrant farm workers the same coverage as other workers. Another 13 states exempt small farm owners from covering seasonal workers. Sixteen states don’t require employers to provide any coverage for seasonal farm workers; others only require that full-time farm workers be covered.
Similarly, in some states, employers are not required to provide workers’ comp insurance for workers classified as “independent contractors.” That exemption has particularly negative consequences for the high-risk construction trades, where, Woeppel and organized labor groups point out, some unscrupulous employers falsely classify workers as independent contractors to avoid paying for their insurance coverage—leaving the worker exposed if an accident does occur.
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There is a government agency charged with protecting workers from job-related risks: the federal Occupational Safety and Health Administration, or OSHA, established 40 years ago this month to set and enforce workplace safety standards. (The law encourages states to develop their own health and safety programs, which are monitored and partly funded by the federal agency. Twenty-two states—Massachusetts not among them—have their own programs covering private and local and state government workers, according to OSHA. Another five, including Connecticut, have state plans that cover public employees only.)
Among its more notable regulations, OSHA has required that workers handling hazardous materials be informed about the associated risks and receive adequate protective gear; developed standards to protect healthcare workers from blood-borne diseases; and established regulations regarding asbestos exposure in the workplace. OSHA also sets “permissible exposure limits,” or PELS, for certain chemicals used in the workplace.
In January, at a speech before the consumer advocacy group Public Citizen, OSHA head David Michaels spoke of the progress made over the past four decades, thanks to the agency: worker deaths have dropped from an estimated 14,000 in 1970 to 4,400 in 2009. Workplace injuries have also dropped, from 10.9 incidents per 100 workers in 1972 to fewer than four per 100 in 2009. New safety standards have been created, addressing everything from chemical exposure to safety equipment on construction sites.
But OSHA’s protections don’t go far enough, according to Woeppel and other critics, in large part due to a combination of understaffing, underfunding and a lack of legal strength. For instance, according to OSHA itself, the agency has established “permissible exposure limits,” or PELS, for only about 500 chemicals—a fraction of the substances that are used by American workers. And many of those permissible levels were set years ago, and don’t necessarily reflect the latest scientific evidence.
Meanwhile, Woeppel notes, rather than require that manufacturers prove that the chemicals they use are safe before they can be introduced into the workplace, the onus is on OSHA to prove that any given chemical poses a health problem, and to show the specific level of exposure that must take place for workers to be at risk.
One of OSHA’s most significant responsibilities is to investigate workplace accidents and impose penalties when warranted. But again, its effectiveness is undercut by limited resources and significant pressures. Because OSHA cannot force a company to make safety improvements or engage in other mitigation efforts until its investigation is closed, “the pressure is on OSHA to come to conclusions,” Woeppel says. Meanwhile, she adds, “It’s in the best monetary interest of the corporation to delay.”
Even in the most serious cases—those that result in a worker’s death—the penalties can be shockingly minor. Fines for safety violations that result in a death range from a maximum of $7,000 for a “serious violation” (meaning the employer knew about, or should have known about, a hazard that could result in serious injury or death) to $5,000 to $70,000 for a “willful violation” (one intentionally or knowingly committed by an employer who knew the violation existed and made no reasonable effort to eliminate it). Those penalties have been increased only one time over the 40 years since the agency’s creation.
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In Depraved Indifference, Woeppel describes several cases where employers faced low fines for safety violations that resulted in worker fatalities—among them, a series of deaths in the late 1990s at a Florida distribution center for the Publix supermarket chain, where, in one 19-month period, three workers died after being trapped in machinery. After the first two deaths, no citations were issued; after the third, OSHA imposed a $7,000 fine on the company.
In another case, a worker at a Missouri wheel plant was crushed in an industrial machine that had been malfunctioning on a regular basis. Rather than fix the problem, Woeppel writes, the company had rigged the machine, deactivating an automatic safety shutdown so that it would continue to run. An OSHA investigation found five safety violations, four “serious” and one “willful,” but later reduced the latter finding, which spared the company criminal prosecution. In the end, the employer was fined $55,200.
According to OSHA, when the agency conducts an investigation, “The proposed penalties are based on the statutory factors of employer size, gravity of the violation, good faith of the employer and the history of previous violations.
“An important consideration for the agency is to get hazardous conditions corrected as soon as possible so that no further injuries or deaths occur and the workplace complies with all applicable safety and health standards,” it continues. “Therefore, the agency often settles citations and penalties when this will speed abatement. This may lead to reduced penalties in exchange for prompt correction of hazards and other measures that help reduce risk to other workers and provide a safer workplace.”
Perhaps the most powerful tool OSHA has its disposal: if the agency determines that an employer has committed a willful violation of safety regulations that resulted in a death, it can refer a case to the U.S. Department of Justice for possible criminal prosecution.
But, Woeppel notes, only a very small number of violations ever make it to the DOJ. A 2003 investigation by the New York Times found that, over a 20-year period, OSHA investigated 1,242 cases where it concluded that a worker had died as the result of a “willful violation.” But OSHA pursued criminal prosecution in just 7 percent of those cases.
“What is more, having avoided prosecution once, at least 70 employers willfully violated safety laws again, resulting in scores of additional deaths,” the Times reported. “Even these repeat violators were rarely prosecuted.”
According to OSHA: “[M]any cases in which willful citations are issued as a result of fatality investigations do not merit criminal prosecution. The basic reason is that each element of a criminal violation, including willfulness, must be proven to a jury beyond a reasonable doubt. By contrast, to have a civil citation upheld, OSHA may meet a lesser standard of proof—preponderance of the evidence.”
In those rare cases when an employer does face criminal prosecution, the potential penalties are minor. The defendants can only charged with misdemeanors; if convicted, they face a maximum sentence of six months behind bars.
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At his speech before Private Citizen earlier this year, Michaels, the OSHA head, talked about the serious limitations that hamper his agency’s effectiveness.
Topping the list: OSHA has fewer than 2,500 inspectors in a nation of 130 million workers in 7.5 million workplaces. “This means that OSHA must carefully target its efforts and leverage its resources,” Michaels said. “One way we do that is through targeted inspections and penalties. Even there, we are hobbled.”
The $7,000 maximum fine for a “serious violation,” Michaels said, is “a small fraction of those imposed by other federal agencies.” The maximum six-month prison sentence for a “willful violation” of an OSHA standard, he noted, is half the maximum sentence for “harassing a wild burro on federal land”—and that crime is a felony, compared to the misdemeanor faced under OSHA.
In addition, Michaels added, “Our vitally important whistleblower program is hobbled by a weak law and lack of resources.”
OSHA has been a target of political pressures for decades. Its work has been criticized by conservatives as overly restrictive of business, and undercut by political measures during the Reagan and Bush administrations that have weakened its authority. The Protecting America’s Workers Act, filed in 2009, attempted to strengthen OSHA by, among other reforms, increasing certain civil and criminal penalties and employee protections, including protections for whistleblowers. The bill would also have covered public employees under OSHA. (Government workers are not covered under the federal OSHA, although some state OSHA programs do cover them.)
But despite the strong backing of organized labor (and the fact that, at the time, Democrats controlled both the House and Senate), the act died in committee. This January, U.S. Rep. Lynn Woolsey, a California Democrat, introduced a new version of the bill, which has been referred to a subcommittee of the House Committee on Education and the Workforce. The new bill’s chances do not appear encouraging, however, given that Republicans now control the House.
In fact, while the Obama administration has proposed that OSHA receive $583 million in fiscal 2012—that’s a slight increase over last year’s budget, and includes about $6 million for whistleblower protections—Republicans are pushing for a 20 percent cut.
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Depraved Indifference ends with the author’s recommendations for creating a just and effective way of keeping workers safe, and helping them when they become injured or ill. Those recommendations include major revisions to the workers’ comp system, such as doing away with the provision that prevents workers from suing employers over health and safety violations—a change that should make companies take their responsibilities for workplace safety more seriously. “Workers would stand a far better chance of being in a safe working environment if they could sue, just like any other injured party,” Woeppel writes.
Woeppel isn’t calling for litigation in all cases; rather, she argues, the workers’ comp system should be kept in place, to be used as long as the injured employer is treated fairly.
Among the ways Woeppel suggests to make that system more equitable: setting a standard for fair wage compensation for injured workers or their survivors. Right now, wage compensation is set on the state level, where, Woeppel writes, it’s vulnerable to lobbying both from corporations and from the insurance industry, who are eager to keep the rate low. In 16 states, the author reports, the wage compensation rate falls below the poverty line.
In addition, Woeppel would like to do away with the separate healthcare system for workers’ comp cases—a system where, in many states, the injured worker does not have the right to see his or her own doctor, but rather is restricted to those selected by the employer or insurance provider. “One must ask why a system of medical treatment is based on the payer’s needs, rather than the diagnostic and treatment needs of the patient,” Woeppel writes.
Woeppel also calls for a major restructuring of OSHA, which, in its current state, is “woefully inadequate to the task” of ensuring the safety and health of American workers and has, in fact, become “the toady of the corporations,” she writes. Woeppel advocates changes like those proposed in the unsuccessful 2009 Protecting America’s Workers Act: tougher penalties for safety violations, including increased criminal liability for cases that result in death (something, she reports, that several states have done on their own); increased funding for OSHA; expansion of the program to cover workers currently not covered, such as government employees.
“Limited budget and resources, difficult battles for tougher regulatory standards, ridiculously low fines, low probability of inspection, miniscule possibility of prosecution and conviction, negotiated agreements for reductions of ‘willful’ to ‘unclassified’ violations, and agreements to no admission of wrongdoing: all this adds up to no incentive for employers to provide a safe and healthy workplace in compliance with standards, no deterrent to flagrant violations,” Woeppel writes. “It is tantamount to a license to kill workers with impunity.”
Another shortcoming in our worker-safety system, Woeppel says, is the lack of a national data base to track worker illnesses connected to toxic exposure. Occupational diseases, she says, are “the elephant in the room,” a major problem that isn’t being addressed. OSHA’s regulations on chemical exposure on the job—the “permissible exposure limits,” or PELS—are limited and dated.
Meanwhile, she notes, the long latency periods of many diseases caused by toxic exposure make it hard for workers to prove that their illnesses stem from something they were exposed to on the job, sometimes years earlier. An epidemiological data base tracking those kinds of health issues would help make those connections, and would provide researchers with valuable data for further investigation.
We also need to improve our system for assessing the safety of the chemicals used by workers, Woeppel says, rather than relying on outdated OSHA data and research conducted, in many cases, by the industry itself. A valuable resource for such information already exists, she adds: the Registration, Evaluation, Authorisation and Restriction of Chemicals, or REACH, regulations, established by the European Union in 2006 to address the effects of chemicals on both people and the environment. The law requires EU industries that use chemicals to register with the European Chemicals Agency; in some cases, chemicals identified as posing high risks can be used only with permission from the agency, and manufacturers need to submit plans for finding safer alternatives for those substances.
Right now, Woeppel says, the U.S. has a system that favors corporations over people—with dire, and long-term, consequences. “We’re subsidizing the industries that are hurting our workers, our environment,” she says.
So many of the anti-worker sentiments that have crept into our political discourse these days—seen most clearly in government attacks on collective bargaining—are cast as fiscal necessities. But when workers’ rights are chipped away, Woeppel says, public health and safety are also at risk. Critics of programs like OSHA complain that government regulations are “job killers,” she notes
“What we need to talk about,” Woeppel counters, “are worker killers.”
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