Council Seldom Grants An Exception
The most recent issue of the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR), which is not available online, has an article prepared by Social Security’s Office of Appellate Operations Staff on the exception process at the Appeals Council. Generally, a claimant may not file a new claim for disability benefits while an old claim is pending at the Appeals Council. However, there is an exception process where there is evidence of a new critical or disabling condition. Here’s a table from the article showing just how infrequently the agency finds grounds for an exception:
Does it seem outrageous to you that any claimant could file a new claim while an old one is pending at the Appeals Council? What do you think about the fact that the Appeals Council sits on most cases for well over a year and often over a year and a half yet denies review something like 80% of the time? It almost seems like the delay is intentional, just to make taking a case to the United States District Court less appealing. Whether it’s intentional or not, that’s the effect. I don’t think that’s appropriate.
Exclusions, barriers, bans and hurdles describe many injured workers’ experiences with workers’ compensation. A system that was supposed to assist them and provide streamlined procedures to recoup medical costs and lost wages has become a nightmare for individuals who’ve been injured on-the-job. A new policy brief by the National Economic & Social Rights Initiative (NESRI) describes seven destructive trends in workers’ compensation laws which reflect the attitude of many in state legislatures who “see workers’ comp as an unnecessary cost for business rather than a critical health care and social insurance program.” NESRI’s list them as the following:
More workers’ health conditions are excluded from coverage (e.g., some state laws explicitly disallow claims for hearing loss, repetitive motion injuries and back disease.)
Increased procedural barriers to workers claims (i.e., originally designed to be a “no fault” system, most workers have to retain lawyers and their own medical experts to support their claims.)
Reduced income support for disabled workers (e.g., a fixed number of weeks of pay for disabled workers, regardless of the individual’s condition or advice from a physician.)
More employer control over workers’ medical treatment (e.g., workers are forced to use physicians selected by the employer or insurer who have a vested interest in saving money.)
End to universal mandates that employers carry workers’ compensation insurance (e.g., in 2013, Oklahoma joined Texas in allowing employers to “opt out” of carrying work comp insurance.)
Bans on workers suing insurers for dishonest and misleading practices by insurers.
Reduced access to attorneys (e.g., cutting the fees that an attorney can charge for handling a worker’s case.)
None of this is new to public health researchers and organizations who’ve studied workers’ experiences with the workers’ compensation system (e.g., here, here, here, here, here, here.) As Les Boden, PhD wrote in a 2012 article in the American Journal of Industrial Medicine:
“The sorry and declining state of workers’ compensation in the U.S. is largely the consequence of the political power of employers and insurers, bolstered by their ability to frame the political debate. Employer costs per $100 of covered wages declined from $2.18 in 1989 to $1.33 in 2009, reflecting both legal restrictions on workers’ compensation and declining reported injury rates. Yet even today the debate in the states is about excessive employer costs and employers’ threats to move to states (or countries) with lower workers’ compensation costs. The simplest way to reduce costs is to reduce the amount of benefits paid to workers, through raising barriers to approval of claims or reducing the benefits in claims that are approved.”
The impact of the destructive trends described in NESRI’s brief are made real through the voices of injured workers. Robert Hudson, 61, was working for the school district in Addison, New York when he was exposed to muriatic acid while cleaning a swimming pool. He’d never cleaned a pool before and wasn’t trained on how to do it safely. “I was a company man and I wanted to get the job done,” explained Hudson.
Injuries to his respiratory system were severe. Hudson wanted to continue working, but could no longer climb ladders or the other physical work required by the job. His doctor says he is permanently disabled. He used his paid sick leave and personal leave for three months while waiting for the workers compensation system to make a decision about his case. It was seven months later when he received his first payment from work comp for lost wages. His weekly payment was $202.36 compared to the $400 he used to earn. In a report prepared by the New York Committee for Occupational Safety and Health (NYCOSH), Hudson describes his frustration with the workers’ comp system:
“They keep sending me to independent medical examiners to prove my condition is not what my doctors are saying it is. I am being badgered. The procedures are flawed. My life as it was is ended now. I can never work again. I am tired of being screwed by all these people. They don’t have to live with the constant worry, and coughing their brains out all night long…”
In 2009, the American Public Health Association (APHA) adopted a policy statement calling for reforms to the workers’ compensation system. Not the pro-business “reforms” that create hurdles for injured workers, but improvements to create a safety net for workers and their families. Among others, APHA proposes a national system with
uniform coverage of health care and adequate loss-of-earnings benefits for all occupational injuries and illnesses;
health care for injured workers provided by providers independent of employer involvement and insurance industry control;
health care providers removed from the responsibility of determining eligibility for benefits;
an emphasis on prevention of injury and illness, and rehabilitation of those unable to return to work, and
mandatory root cause investigation requirements for all occupational injuries and illnesses.
The US workers’ compensation system—dating back to Wisconsin’s law in 1911—stems from a bargain between workers and employers. Workers who are injured or made ill from hazards at work would receive medical care and payment of lost wages while they recover. In exchange, employers could not be sued by workers for the harm the employer caused. The destructive trends profiled by NESRI, however, illustrate that decades of “reforms” make the bargain no longer a good deal for injured workers.