Discrimination in Medical Care Among Injured Workers (WC Laws)

January 10th, 2004

Dear Representative:

I am writing to you about the tragic deprivation of injured workers of competent medical care. Existing laws often prevent their obtaining the services of their preferred physicians or consultation services with experts in relevant speciality areas. Also caught in the crossfire are physicians themselves, who may not openly choose to treat persons with injuries and ailments originating in the workplace because of regulations prohibiting the billing of patients or their traditional medical insurance policies. Injured workers are greatly discriminated against and constitute a minority in this country that has no legal recourse in the court system. The Worker’s Compensation (WC) system varies somewhat from state to state but inequities in medical care appear to be a constant.

In New York, those suddenly ill and unemployed from workplace accidents/conditions must find the money to pay for COBRA policies (if insured at all), which are not supposed to be paying for medical care of this nature. The WC system has no “front” pay to cover such costs and few doctors accept assignment by WC. To do so will mean years of waiting for payment while debts accumulate for a given patient. The WC system also assumes the patient is committing fraud and sends them on a series of Independent Medical Evaluations (IMEs), in which the doctor is paid by those representing employers interests. The IME physician also has no legal responsibility for the accuracy of his conclusions under malpractice laws and is free to muddy the waters with statements based upon the most cursory interview/assessment in the absence of testing or even certification in relevant aspects of the case at hand (e.g. toxicology, ergonomics).

The injured worker cannot seek the most qualified medical care providers on their own due to limits on ability to pay for such services. Yet, such consultations might yield the definitive information which documents the injuring event or leads to an appropriate course of treatment.

Doctors are left with a host of unsatisfactory choices causing great harm to their patients, their own practices and to the very nature of physician training in our society. Current options are:

  1. To accept WC assignment and go years without reimbursement while risking ultimate refusal to pay. The patient is usually unable to assume the burden of accumulated bills by that time.
  2. To accept assignment by other insurers. If WC is awarded however, these insurers will demand return of all monies collected by doctors from work related injuries (likely all fees paid). Doctors must then return those monies and again hope for WC payments (frequently not forthcoming) or demand monies from patients who signed agreements to pay whatever was not covered by assignment to medical insurance. That again puts the physician in the position of violating law and the patient is the loser. Doctors also risk prosecution for misconduct under such scenarios.
  3. To compromise the quality of medical services and record keeping with respect to the injured worker. Doctors may omit significant aspects of etiological information or even lie in medical records about the nature of patient’s illnesses if they originate at work. They may fail to adequately research presenting problems. Skirting the issue of a frank diagnosis of an occupational disease permits them to bill COBRA policies held by patients or medicare if the worker was declared disabled by the Social Security Administration (SSA). At the same time, documentation needed to prove WC claims will be missing and treatment strategies may be inadequate.

    As a result, the social security administration and medicare become the default sources of compensation and medical care for injured workers. It saves the State Insurance Fund huge outlays and further insulates negligent employers from investigation and clean up of unsafe conditions. Of course, the injured worker cannot sue for even the most egregious of injuries in uncontested WC cases.

  4. As the State Insurance Fund is allowed to continually review WC awards already given, a doctor who has finally received some payments stands to risk past and future fees based upon alterations in awards. Patients are often reviewed through the flawed IME process and then find their benefits reduced or eradicated on the flimsiest of excuses. By this time, legal representation (always at the expense of the worker), cannot be obtained since there are no financial incentives to WC lawyers to fight threatened reductions (e.g. percentages of back pay etc.).

The discrimination in obtaining medical care goes on forever. I have seen victims of this abusive process become so depressed that all quality of life is eradicated. An investigation of rates for suicide among WC applicants is definitely in order. It is also a strong factor in motivating physicians to eschew continuing education in such specialty areas as toxicology, ergonomics and other aspects of occupational diseases which diminishes their ability to offer all patients quality services. In the case of occupational medicine, the economic penalties of involving oneself has inhibited the progress of medical science in general.

Please review these issues and make them a priority for correction. I strongly suggest that the following remedies be considered to correct this terrible injustice:

  1. Any ailment presented by a patient should be covered by their existing health care coverage. Illness does not wait upon definition of responsible parties for payment and physicians cannot go without fees indefinitely while patients’ debts mount without any assurances of ultimate ability to pay.
  2. Upon award of WC benefits, the state insurance fund should be responsible for contacting the insurer who made all payments for conditions related to work injuries and reimburse them. After all, the injured worker is the victim and the employer or representative of the employer (State Insurance Fund) ought to be the responsible party taking care of the sequela for negligence or occupational risks to workers.
  3. Many workers are uninsured and the WC process is extremely lengthy. There must be a provision which permits medical care to be obtained throughout this period. Upon refutation of claims by WC, the State Insurance fund can then seek reimbursement by the patient if no disability exists or retroactively by medicare if a disability does exist but is not considered work related.

The Social Security Adminstration tells us three of every ten workers will be disabled prior to retirement years. Many others will work with lessened productivity and quality of life due to impaired health. We know that a significant amount of these ailments cannot be attributed to the fragility of the human species but are related to working conditions. WC covers some of the greatest “at risk” groups in America while acting in the role of attorney for employers at no cost to them.

Economics must not be permitted to bar provision of appropriate medical care to a large segment of society and to inhibit the progress of an entire branch of medical science.

Barbara Rubin

Categories: Letters

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