Prepared for the
Commission on Health and Safety and Workers' Compensation
By the Labor Occupational Health Program
University of California at Berkeley
The Injured Worker's Experience
by Juliann Sum, Esq., M.S.
in consultation with Laura Stock, M.P.H.
July 1996
Page
Workers' Experiences with Other Aspects of the California Workers' Compensation System A-1
In theory, workers' compensation benefits are provided to injured workers quickly and easily.[1] Evidence in recent years, however, suggests that many occupationally injured workers have trouble obtaining the benefits that they are entitled to receive. Many of the workers' difficulties stem from problems in fully understanding their rights and knowing what steps to take to request and obtain workers' compensation benefits.
This project examines the problems injured workers face in learning about their rights and knowing how to proceed in the California workers' compensation system. Specifically, the project examines various governmental and private services designed to inform injured workers and to assist them with their claims. The project evaluates the effectiveness of those services, identifies areas needing improvement, and recommends ways to improve the information and help that injured workers receive to process their claims.
The methods that were used to evaluate services designed to inform and assist injured workers were as follows:
1. Focus groups of injured workers
2. Discussion groups of Information & Assistance (I & A) officers employed by the Division of Workers' Compensation (DWC)
3. Individual interviews with other participants in the system
4. Review of information and assistance programs in other states
The focus group findings revealed some positive experiences but also many negative experiences for injured workers seeking information and help to process their claims. Workers experienced problems in obtaining basic introductory information, answers to simple questions about their claims, instructions on basic steps to take to ensure delivery of proper benefits, advice on how to resolve problems, and assistance in analyzing and presenting to others the merits of their claims. The information and assistance services most frequently discussed in the focus groups were those provided by employers, claims administrators, I & A officers, and applicants' attorneys.
Many of the workers felt it was unfair that they were "kept in the dark" about what was happening with their claims, "shut out," and "pushed aside." Many also expressed a great deal of frustration, anger, and sadness in having been treated in an impersonal or condescending manner by various providers in the system. When asked to identify persons or organizations that they trusted for information and help in workers' compensation, the most common response was "myself," and the second most common response was "no one."
Discussions with participants in the system illuminated practical issues that help explain the problems reported in the focus groups. These discussions revealed the following barriers to the effective delivery of information and assistance to workers:
1. Insufficient resources within the I & A Unit to provide basic, standardized information and individual help to all workers who request information or assistance
2. Limitations on the types of assistance that I & A officers may provide
3. Insufficient resources to assist all workers who face problems that may be complex enough to require the expertise of an attorney
4. Lack of clear and direct incentives for employers to provide information to workers about workers' compensation due to an apparent lack of any program to enforce existing requirements
5. Lack of clear and direct incentives for claims administrators to inform and communicate effectively with injured workers.
6. Suspicious attitudes and impersonal styles of communication by some employers and claims administrators
7. Complexities in the California system that make the information provided to workers difficult to understand and consume resources that could otherwise be directed toward communicating personally with workers and helping them resolve their claims fairly and promptly.
In addition to discussing the information and help they received, workers in the focus groups raised concerns and complaints about other aspects of the workers' compensation system. These concerns and complaints (described in the Appendix to this report) involved delays and disputes with the workers' claims, low levels of benefits and settlements, potential discrimination in employment, and lack of adequate medical and vocational rehabilitation services.
This project provides some ideas for improving the information and assistance provided to workers. Because this project does not describe quantitatively the prevalence of the problems and needs experienced by injured workers in the California workers' compensation system,[2] nor does it identify and weigh all possible solutions, the options set forth in this report are meant to serve as guideposts for discussion and consideration of ways to ensure that workers receive the information and assistance they need. To allow such discussions to take place, it is recommended that a working group of policymakers be convened to explore and analyze all possible options in this area and to initiate and recommend improvements.
NOTE: The options discussed in this report address only information and assistance services for injured workers. This report does not address more fundamental issues of how the entire workers' compensation system is structured in terms of the incentives for defendants to pay or deny claims, the burdens placed on individual workers to contest denials of claims and resolve disputes, and the economic and personal costs absorbed by injured workers and their families.
Possible options for improving services are summarized below. These options and others are discussed more fully in the body of this report, under "Recommendations."[3]
I & A services could be improved, for example, by developing basic informational materials for the I & A Unit to distribute to workers (as required under the California Labor Code) and by training and otherwise enabling I & A officers to assist injured workers to the fullest extent allowed by law for nonattorneys.
Information and assistance services for workers could be improved, for example, by ensuring availability of applicants' attorneys' services for all workers dealing with issues that are sufficiently difficult or complex to require the expertise of an attorney and by offering training to applicants' attorneys on how to improve communications with injured workers.
Services by all providers could be improved, for example, by offering the providers training and other support, increasing incentives for employers and claims administrators to upgrade existing communication programs, improving agency coordination of activities to develop and enforce laws and regulations concerning information provided by employers and claims administrators to workers, and exploring ways to simplify the entire system to reduce confusion and allow providers to spend more time communicating with injured workers.
The information and assistance available to workers would be improved, for example, if community-based programs could develop and provide educational materials, conduct educational sessions, facilitate support meetings, and distribute resource lists of governmental and other services for injured workers.
B. Advisory committee Involvement in Planning Activities
Workers' compensation laws, when first enacted in the early 1900s, envisioned that occupationally injured workers would receive workers' compensation benefits quickly, easily, and without formal litigation. This ideal model of workers' compensation replaced earlier legal systems that allowed employees to sue their employers for injuries caused by work and possibly receive large jury awards. Thus, workers gave up the right to sue for larger amounts of compensation in exchange for smaller but quicker and more predictable benefits under the workers' compensation system.
Evidence in recent years, however, indicates that many injured workers in California have not been able to get through the system quickly or easily. These workers' problems appear to be caused, in part, by tremendous difficulties in learning about their rights and obligations in the workers' compensation system and in getting sufficient help to process their claims. When faced with denials of their claims, long delays, or threats to their employment, these workers either forego their rights to medical treatment and benefits altogether or end up in protracted disputes and litigation.
Various programs within the California Department of Industrial Relations, Division of Workers' Compensation (DWC), were established to avoid these problems by informing and educating injured workers, helping parties resolve misunderstandings, and/or ensuring proper delivery of benefits. These include programs administered by the Information and Assistance (I & A) Unit, the Audit Unit, the Disability Evaluation Unit, the Vocational Rehabilitation Unit, and the Claims Adjudication Unit. In addition, employers, claims administrators,[4] applicants' attorneys, physicians, vocational rehabilitation counselors, and other participants in the system administer separate programs or offer services to inform and help injured workers.
Prior to this project, no comprehensive, systematic evaluation had been undertaken to determine whether injured workers were satisfied with these various information and assistance services or whether worker dissatisfaction with these services may be affecting how easily claims are eventually resolved.[5] In contrast, many studies had been performed to quantify and analyze the rising financial costs of workers' compensation. The Commission on Health and Safety and Workers' Compensation therefore commissioned the University of California at Berkeley's Labor Occupational Health Program (LOHP) to conduct this project for the purpose of understanding the problems injured workers face in learning about their rights and knowing how to proceed in the California workers' compensation system. Thus, this project aims to understand how well the ideal model of workers' compensation is functioning from the injured worker's perspective.
The objectives of this project are as follows:
1. To assess and describe qualitatively the effectiveness of current services that provide information and assistance to injured workers to help guide them through the workers' compensation system.
2. To analyze strengths and areas needing improvement in current information and assistance services.
3. To recommend possible ways to improve information and assistance services.
LOHP assisted the Commission in selecting and inviting key representatives in workers' compensation to participate on an advisory committee for this project. Designated representatives from the following organizations were invited to advise the Commission and LOHP in the design and planning of various data-gathering activities and the preparation of this written report:
At the first meeting of the Advisory Committee, held on April 19, 1995, participants discussed the overall scope of this project and key areas to be covered in injured worker focus group sessions (described below). Participants also commented on the design and sequencing of sample questions that could be used in the focus group sessions. At the second meeting, held on October 17, 1995, participants reviewed the status of this project, discussed possible areas of inquiry for individual interviews with representatives of major participants in the system (described below), and suggested possible candidates for those interviews. In June and July 1996, Advisory Committee members provided comments on a draft version of this report.
A. Focus Groups of Injured Workers
B. Discussion Groups of Information & Assistance (I & A) Officers
C. Interviews with Other Participants in the System
D. Review of Other States' Programs
The Labor Occupational Health Program (LOHP) employed a variety of qualitative data collection methods to achieve the objectives of this project.[6] The primary method was the convening of eight focus groups of injured workers, who discussed their experiences, feelings, and insights about the information and help they received to process their claims. Additional information regarding practical issues affecting the delivery of information and help to injured workers was then obtained in discussions with two groups of I & A officers and in interviews with other individuals representing major participants in the workers' compensation system. Finally, LOHP reviewed and investigated selected information and assistance programs in three other states to identify possible models for California. The various study methods are described below.
Researchers use focus groups to collect qualitative data that closely reflect the perceptions, feelings, and manner of thinking of users of services. Focus group research generates data that are based on the participants' direct knowledge and personal experiences rather than on the more conceptual point of view of the researcher. This contrasts with written questionnaires, which seek limited answers to specific, predetermined questions for quantitative analysis.[8]
In a focus group, the interactions in the group increase the participants' candor, probe the thinking behind participants' opinions, and uncover concerns below the surface that were not apparent to researchers beforehand. In other words, focus groups generate data that would be much less accessible without the interaction of the group. Therefore, rather than merely providing data on whether a user of services is satisfied with the services, focus groups also provide specific information on why the user is satisfied or dissatisfied and how the services can best meet the user's needs.[9]
The moderator of a focus group facilitates interaction between the participants by presenting questions in an unbiased way and by keeping the discussion focused when irrelevant topics are introduced. Focus groups place the moderator in more of a background role than does the traditional one-on-one interview. While the moderator facilitates the focus group discussion, the key to obtaining data effectively lies in the interaction of the group members with each other. The moderator's job is to keep the group on track and to encourage involvement by all participants. The moderator uses questions that are open-ended to allow flexibility in the group discussion. The questions and a discussion guide, however, are planned carefully in advance to achieve a proper balance between open discourse and focusing on relevant topics.
This project was undertaken to obtain information covering the fullest possible range of experiences of injured workers in the workers' compensation system. At this project's inception, it was commonly believed that workers' experiences with information and assistance probably differed significantly between southern California and northern California, between workers represented by attorneys and workers not represented by attorneys, and between English-speaking workers and workers not fluent in English. LOHP planned and organized the focus groups based on those differences as follows:
| English-Speaking Focus Groups | Spanish-Speaking Focus Groups | |
| Northern California | Berkeley
|
San Jose
|
| Southern California | Universal City
|
Universal City
|
Candidates for the focus groups were first selected from a database of claimants maintained by the Workers' Compensation Appeals Board (WCAB). This database contains all cases in which a document was filed with the Appeals Board; the first such document "opened" the case with the Board. The cases in the WCAB database fall within four categories: (1) cases where the opening document was an Application for Adjudication of Claim filed by the injured worker or the defendant,[11] (2) cases where the opening document was a proposed Compromise and Release filed by the parties to settle the case, (3) cases where the opening document was a proposed Stipulations with Request for Award filed by the parties to settle the case, and (4) cases where the opening document was a pre-Application lien filed by a party other than the injured worker. The fourth category, cases involving pre-Application liens, was not included in the selection of candidates for the focus groups. Thus, the group of workers from which candidates were selected did not include recently injured workers who would later file a document with the Appeals Board or injured workers who were not permanently disabled and whose cases resolved or would resolve without the worker filing a document with the Appeals Board.
The goals of selecting candidates for the focus groups were (1) to allow recruitment of people whose claims were recent enough to ensure good recall and (2) to select candidates who lived near the scheduled locations of the focus group sessions. In addition, candidates were to be recruited according to whether or not they were represented. Finally, telephone numbers listed in the database were needed to contact the workers. LOHP and Commission staff therefore developed the following criteria for selecting candidates from the WCAB database:
In addition, LOHP and Commission staff requested that the following characteristics be reported:
Based on these criteria, data-processing personnel from the Department of Industrial Relations performed the necessary programming and created 12 listings of injured workers-- segregated by the three geographic locations, whether the worker was represented by an attorney, and whether the worker had a telephone number in the database.
All personnel who conducted telephone screening and enrollment of candidates were instructed on necessary measures to maintain the confidentiality of the identities of the focus group participants. Screeners used a written guide that instructed them to explain the purpose of the project, how the University obtained the worker's phone number, and the fact that the participants' identities would be kept confidential. To encourage participation, each enrollee was offered a $45 stipend to participate in the focus group.
Screeners enrolled candidates according to the criteria described above regarding representation and spoken language. For the English-speaking focus groups, the screeners screened for fluency in English; for the Spanish-speaking focus groups, they screened for fluency in Spanish and limited ability to speak English. They also enrolled approximately equal numbers of men and women in each focus group, and they avoided enrolling in the same group people who either had the same home address, same employer address, or same attorney address. After the first focus group was convened, LOHP and Commission staff decided to exclude pre-window workers (i.e., workers with beginning dates of injury before 1990) to ensure sufficient recollection of experiences pertinent to this project.
Initially, screening personnel were instructed to recruit people in the order determined by sets of random numbers generated by data-processing personnel and to ensure that each group contained certain numbers of participants reflecting the overall population of workers in the WCAB database (excluding cases closed prior to 1993), according to the beginning date of injury, the type of opening document, and the listed type of injury ("specific" or "cumulative"). These particular procedures and criteria were eventually eliminated, however, as recruitment of participants ended up requiring much more time and resources than originally projected. Ultimately, the listed types of injury ("specific" or "cumulative") did not appear to correlate with the injured workers' descriptions of their own injuries. Also, despite efforts to recruit post-window workers, that is, workers with beginning dates of injury after 1993, none of the workers from that period actually participated in any of the focus groups. (Possible factors affecting participation by recently injured workers are discussed below under "Usefulness and Limitations of the Focus Group Results.")
An analysis of the recruiting activities showed that only 22 percent of workers with telephone numbers in the database were reachable by phone. However, two-thirds of these workers were interested in participating. The focus group participants were selected from among these workers.
Approximately ten days prior to each focus group session, LOHP mailed a letter to each enrollee confirming enrollment and explaining the purpose and nature of the focus group, a consent form which had been approved by the University's Committee for the Protection for Human Subjects, and a map with directions. The letters and consent forms for the Spanish-speaking focus groups were written in Spanish. One to three days prior to each session, screening personnel made follow-up telephone calls to encourage attendance, arrange for transportation if necessary, and answer any questions the workers might have. A total of 57 workers ultimately participated in the focus groups.
A model discussion guide, which contained introductory information about the project, basic ground rules regarding the confidential and voluntary nature of the discussions, and key questions to guide the focus group discussions, was carefully prepared and revised in consultation with the Advisory Committee for this project and a University of California researcher experienced in conducting focus groups. Here, the challenge was to balance the need to obtain information regarded as relevant to this project (i.e., making questions sufficiently specific) against the need to discover what issues were the most relevant to the participants (i.e., making the questions sufficiently open-ended).
LOHP then pilot tested the discussion guide with a small group of injured workers. Based on the results of the pilot test, LOHP revised the guide to increase flow, clarity, and focus in the discussions. LOHP made further revisions after conducting the first two of the eight focus groups. The final key questions were as follows:
Key Questions
|
Each focus group met for two hours. The sessions were tape recorded. Two moderators facilitated each focus group.
For each of the focus groups, the primary moderator was a member of the professional staff of LOHP, and the second moderator either held a position similar to the primary moderator or was a University of California graduate student. The role of the primary moderator was to present the introductory information and focus group questions and to ensure that the group remained focused on the topics being discussed. The role of the second moderator was to take notes regarding the content of the discussions and the emotions of the participants, welcome late arriving participants, collect signed consent forms, and operate recording equipment.
In almost all of the sessions, participants were eager to describe their experiences and express their opinions. The discussions became so intense and animated that the primary moderator was required to exert a great of control over the group to ensure that all of the key topics were covered and that the session ended on time.
Tapes of six of the focus group sessions were transcribed, and the transcripts of the two Spanish-speaking focus group sessions were translated into English.[12] An initial review of the content of all eight focus groups was undertaken to acquire an understanding of the full range of themes, issues, and concerns discussed in the sessions. Specific themes and issues were identified as important if raised frequently by the focus group participants and if raised with some degree of emotion or intensity. Based on this initial review, subject matter codes were developed to organize the data. All six transcripts were then coded according to these subject matter codes and rearranged physically for further analysis and organization of the data. The analysis was based on both a review of the rearranged transcript data and a review of the moderators' notes prepared during and after each of the eight sessions, regarding the content of the discussions and the emotions of the participants.
The results of the focus group sessions are useful for understanding qualitatively the range of injured workers' experiences and perspectives regarding the workers' compensation system and some of the factors that explain those experiences and perspectives. Efforts were made to recruit a diverse range of workers, according to geographic location, representation, language, and gender.
This project, however, does not purport to describe quantitatively the prevalence among injured workers in California of the themes, issues, and concerns expressed in the focus groups, nor does it describe from first-hand observation the services provided to injured workers. The extent that the participants' views represent those of all injured workers in California is necessarily limited by the types of cases that were entered into the WCAB database. For example, it is possible that the database contains proportionately more workers with earlier dates of injury and proportionately more workers with injuries serious enough to cause permanent disability than among all claimants whose cases were open as of January 1, 1993. (Workers with medical-only claims or temporary-disability-only claims are not in the database.) Also, with respect to window cases where the opening document was an Application, it is possible that the database contains proportionately more cases involving disputes between parties than the entire population of claimants who were occupationally injured in the window period. (This, however, may not be true with respect to pre-window or post-window cases, where the filing of an Application did not necessarily mean the worker was requesting a hearing over a disputed matter.)
On the other hand, injured workers who had received insufficient information to know they could file a workers' compensation claim or who had not filed a claim due to concerns for their jobs would not have had a document filed with the Appeals Board. These workers would never have been entered into the database.
The extent that the focus group participants' views represent injured workers' experiences in California is also limited by the selection criteria that were specified for this study, the ability to reach the selected workers by telephone, and the availability and willingness on the part of the workers who were contacted to attend and participate in the focus group sessions. The selection criteria excluded older injuries (i.e., pre-window cases) and older cases (i.e., closure prior to 1993) and limited enrollees to people living in or near Berkeley, San Jose, or Universal City. None of the workers who joined the sessions were injured in the post-window period (i.e., after 1993).[13] It is possible, for example, that the workers who could be reached by telephone were more stable geographically than other injured workers, and that the workers who were available, willing, and able to participate in the focus groups were more sociable, outspoken, confident, and organized than other injured workers.
Despite these limitations, the focus group sessions yielded rich, detailed, and diverse information about injured workers' experiences, feelings, opinions, and insights regarding the workers' compensation system. These qualitative results, coupled with analyses of the results of the discussion groups and interviews conducted for this project, are useful for understanding the causes of many of the problems in the California workers' compensation system and possible solutions to those problems.
To gather a broad range of information regarding the types of questions and problems that injured workers have faced and to better understand the activities of the Information & Assistance (I & A) Unit, LOHP convened two "discussion groups" of I & A officers. As distinguished from focus group research, where the researcher's focus is on the thought processes and feelings of the focus group participants, the purpose of these discussions with
I & A officers was to obtain specific facts regarding I & A services and the experiences of workers who use those services. The questions that LOHP staff posed to the I & A officers were more detailed and specific than generally posed in focus groups, and LOHP staff interacted in the group discussions more freely than typically occurs in focus groups. In addition, the participants were familiar with one another as professional colleagues, which probably in some cases encouraged, and possibly in other cases discouraged, the disclosure of information. The discussions were more akin to in-depth interviews (described in the next section of this report) than focus groups.
The first group, consisting of ten I & A officers from southern California, was convened in Long Beach on June 6, 1995, which was prior to the focus group sessions. The second group, consisting of eight I & A officers from northern California, was convened in San Francisco on November 15, 1995, which was toward the end of the data-gathering phase of this project. Both during and after the meetings, LOHP staff took detailed notes of the discussions.
In-depth interviewing is described as a "discourse between speakers" and a "joint enterprise between interviewer and interviewee."[14] The researcher begins with a loosely defined set of open-ended questions, that is, a semi-structured approach. By considering the interview as a conversation, the researcher is able to shape new questions from answers as the interview proceeds.
After convening the focus groups and conducting a preliminary review of the major problems and issues discussed in the focus group sessions, LOHP staff scheduled a series of individual and small group interviews with representatives of some of the major participants in the workers' compensation system. Members of the Advisory Committee suggested candidates for these interviews. The purpose of these interviews was to help identify and explain logistical and programmatic barriers to the rendering of fully effective services that inform and help injured workers. In essence, the interviews were designed to help identify causes of problems in the system and to explore ways to resolve those problems. Each interview lasted one to three hours. Both during and after each interview, detailed notes were taken to record the content of the discussions.
The following individuals participated in these interviews on behalf of their organizations:
LOHP conducted a survey of information and assistance programs for injured workers that have been established in other states. The purpose of this survey was to describe the design of programs in other states that may provide useful models for California. Therefore, in selecting which programs to review and describe for this project, LOHP searched for programs, or aspects of programs, that were substantially different from programs in California. This project did not include an in-depth study of how effective those programs actually are in informing and assisting injured workers.
This survey relied on a review and analysis of archival texts[15] and personal interviews with state agency and labor representatives to obtain further information about the other states' programs (interview methodology described in the previous section of this report).
The first step was to review readily available literature, in the University of California at Berkeley's libraries and at selected offices of DWC, describing information and assistance programs in other states. Also, LOHP staff initiated informal discussions with staff from DWC's Research and Evaluation Unit and from the AFL-CIO's Department of Occupational Safety and Health regarding programs that may be employing novel and useful methods to provide information and assistance to injured workers.
After gathering the preliminary information described above, LOHP staff ruled out programs that did not appear substantially different from programs in California. The survey was narrowed to certain programs in the states of Connecticut, Texas, and Washington. (NOTE: LOHP's selection of these programs does not mean that other programs in other states do not also employ useful methods for providing information and assistance; this survey is confined to materials and information that were readily available during the period of this project.) LOHP staff then personally contacted and interviewed officials and personnel from these three states to obtain further information about the specific programs of interest and to determine the scope and status of those programs.
A. Information and Help Given to Workers in the California Workers' Compensation System
Improve Content
Improve Understandability
Provide a Mix of Oral and Written Information
Ensure Appropriate Timing of Information
Make Information Easy to Obtain--Consider Broadcast Media
Provide Sufficient Follow-Up Help on Specific Procedures and Problems
Treat Injured Workers with Respect
Clarify and Enforce Obligations of Employers and Insurers to Provide Information, Assistance, and Other Services
Preferred Sources of Further Information
B. Other States' Information and Assistance Programs
This project has examined workers' experiences in receiving the information and help they need to process and resolve their workers' compensation claims. The findings are organized into two major categories. The first category, "Information and Help Given to Workers in the California Workers' Compensation System," covers issues that are the main focus of this project. This category is further subdivided according to various providers of information and help that were most frequently discussed in the focus group sessions: (1) all sources, (2) employers, (3) claims administrators, (4) Information & Assistance (I & A) officers, and (5) applicants' attorneys. The second category, "Other States' Information & Assistance Programs," describes selected programs in Connecticut, Texas, and Washington.
The findings are described according to the frequency that various experiences, perceptions, opinions, feelings, and concerns were introduced in the focus groups, discussion groups, and individual interviews. Thus, in the presentation of findings, "a few" means two or three speakers, "several" means four or five speakers, "many" means six or more speakers, and "most" means more than half of the subject group or groups. These references to frequency are intended to convey to the reader the flavor and intensity of the topics discussed. They are not, however, intended to describe the prevalence quantitatively of these experiences, perceptions, opinions, feelings, and concerns among all injured workers in California.[16]
As described below, data gathered from injured workers and from representatives of some of the major participants in the workers' compensation system tend to confirm that many injured workers encounter a great deal of confusion, problems, and delays in getting their claims processed and resolved. These findings undermine the ideal model of workers' compensation, which assumes that workers are receiving benefits quickly, automatically, and with little or no dispute.
This subsection of the report, "Overall Experiences of Injured Workers with Information Services," provides a broad overview of the major themes that came up in the focus group sessions, the discussion group meetings with I & A officers, and the individual interviews with representatives of some of the major participants in the system. More detailed descriptions of injured workers' experiences with specific sources of information and help are provided in later subsections of this report.
Most of the participants were actively involved in the discussions and had a great deal to say. Frequently, the discussions became loud and animated. People were eager to share their experiences, laugh and complain together, and provide each other emotional support.
While a few of the focus group participants reported that they were completely satisfied with the information and help they got while in the workers' compensation system, the pervasive theme in most of the sessions was that information was inadequate. The main feelings expressed in the sessions were as follows:
The discussion that follows describes the participants' experiences regarding the availability of information that they needed, their efforts to obtain that information, the usefulness of the information that they did receive, attitudes of the people from whom they sought information, whom the participants trusted for information and help in workers' compensation, and recommendations for improving information services.
A few of the focus group participants reported that they received all the information they needed and that they encountered no problems in how their claims were processed and resolved. Those participants said that information about how to file a workers' compensation claim was provided right after the injury, the employer and the insurer were always available to answer specific questions, and the providers of information and other services treated the worker with respect:
"I got this package talking about my rights, and I was treated well, you could say."
In contrast, most of the participants reported numerous difficulties in obtaining even the most basic information from any source. One participant, for example, sought but could not find information from any source that would help her determine her potential permanent disability award based on her disability rating. That participant found information at law libraries, which appeared to be inaccurate and outdated. Others described their experiences generally:
"No one gives you the full story, only parts."
"When you want to go through the process, no one gives you a hand as to what to do . . . . [You're] completely on your own."
"I was ignorant of everything. I was in the dark. Everything I was doing was like, I was learning as I went along. And then I learned quickly that I'll have to do it myself."
Several participants said they resented having to make many phone calls and travel long distances to get the necessary information:
"I did everything to get it, I did it all, not them."
"You have to do everything, as if you were the doctor, as if you were the lawyer, as if you were the teacher, as if you were the owner of the company--everything."
Three of the Spanish-speaking participants felt that they were unfairly barred from attending and observing court hearings on their claims, apparently because they could not speak or understand English:
"They did give me an appointment. They said, 'We're going to go to court on such-and-such a day.' Right? So I went, but I was outside the whole time."
One participant, although completely satisfied with the medical treatment, the temporary disability benefits, and the settlement he received, was dissatisfied and angry that neither his (self-insured) employer nor his lawyer would explain to him what his rights were and what to expect in the course of his claim:
"I'm being taken care of. I get my check on time. I had one medical appointment after another medical appointment, so I didn't have a problem with that. I'm going to the doctor all of the time for therapy, or just to see how I'm doing, so I didn't have anything to complain about. But I don't know nothing. . . . You should be informed, you know? But anyplace that I worked I have yet to see anything really regarding workers' compensation. You may see a chart up on the board, with five or six steps if you got hurt, what to do, but that's the extent of it. As far as what rights and stuff that's yours, I still don't know . . . information. That's what I need. That's the most valuable thing. You need information."
As described later in this report, several of the participants felt that their employers did not provide information because the employer did not understand the workers' compensation system. Many of the participants reported that claims adjusters would not answer questions or even return phone calls. A few participants experienced high turnovers among the insurance people who handled their claims. Many of the participants felt that the other parties deliberately hid the necessary information for the purpose of limiting the amounts to be paid on the claim. Several of the represented participants reported that because they had an attorney, claims administrators and I & A officers would provide little or no information about their claims, but those same workers had difficulty reaching their attorneys.
A few of the participants reported that the information they received was understandable and useful. Those participants either had prior experience with the workers' compensation system (e.g., as a union representative or as an employer), or the information was provided in person by the employer or claims administrator. A few participants relied on detailed books to understand the system, such as the Nolo Press book for injured workers.[17]
Many of the participants felt that forms and letters they received were difficult to understand because they were too technical or legalistic:
"I didn't get any information from anybody. I had to call workman's comp myself. They sent some forms. From then on it was working through the dark. I had problems with filling out forms themselves because some of them were vague, and I didn't understand what they were, what the form meant. So I had to call them back, they called me back, and we just haggled all day through the phone."
Others felt that pamphlets they received were vague and confusing and that the pamphlets did not explain what concrete steps the injured worker should take:
"What is missing is technical support since if one just reads the brochure one may not know where to make a claim."
"I received a pamphlet and the pamphlet was talking to you as if you already know what this was about. I didn't quite, there were some vague areas and some that were too detailed. I just found them too detailed and redundant, and other areas too vague."
"There's just not anything centralized. The system has so many little bits and pieces to it that you never know what part is going to apply to you. And what you are going to miss out on. You're just out there floundering around."
In the Spanish-speaking focus groups, participants said they did not understand information in pamphlets that were written only in English:
"They give it to you there, but I didn't read it since it was in English, and I couldn't understand it."
One worker pointed out that the complexity of the system itself is what makes the process so difficult for workers:
"Somehow it's gotta be simplified. I don't know exactly how because it is a complex system, but it needs to be simplified to where you really don't need lawyers, because it tells you in the pamphlet that a lawyer is not required, but yet it's so complex, and there's so many forms to fill out, and so many deadlines you have to make for your appeals, and everything else that the average person I think would just give up."
The word "care" was used by many of the participants to describe both positive and negative experiences in the workers' compensation system. Participants with positive experiences reported that the employer or the insurer "took care of everything," such as filling out forms and sending forms to the right places. Some participants appreciated a provider, such as a claims adjuster or a nurse, showing care and concern with how the worker was doing after being injured. In contrast, participants with negative experiences felt that "nobody cared what happened to me":
"They only saw me as a number, they did not care about me as an individual."
Many of the participants felt degraded and even ridiculed by people who were supposed to provide information and other services in workers' compensation:
"Now I worked for 32 years. I paid into all these systems. I deserve this money. And I'm telling you, they treat you like dirt, they way they talk to you on the phone: 'Well, you're just going to have to get used to it.' I mean, they're just snotty, nasty, snotty people."
"I am not trying to screw anybody. I just want what's fair. And I was treated like some creepy-crawly thing that came out from under the rock: 'Don't give her anything. She's icky.'"
Many of the participants spoke about how people in the system treated them as if they injured themselves on purpose to obtain workers' compensation benefits or as if their claims were otherwise fraudulent:
"They catch some guy playing tennis on film. It's like 'Oh, all employees are lying.'"
"It's not like I purposefully went out to get myself hurt. Do you think I enjoy the pain? They make you feel like, 'Well, it's your fault for getting hurt. You're after the money.'"
These workers felt they had been unfairly blamed and ostracized for their injuries at a time in their lives when they needed understanding and compassion from those around them. They also pointed out that most workers would much rather work and be healthy than be injured and unemployed, particularly given the limited benefits available in the workers' compensation system:
"No compensation, none whatsoever, could cure my pain. Nobody can fix my back. I would rather not get anything, and just do my work, because I like to work and not have to depend on anybody."
"The idea of worker corruption--there's not that much [money] in the system."
Many of the participants complained bitterly about the roles of the various players in the workers' compensation system. They felt that insurers, doctors, and lawyers are against the injured worker. A few described the insurers as villains and enemies and felt that insurers are not held to the same standard as workers in terms of fraud. Several of the participants described the system as a "process like being in hell," "degrading," "dehumanizing," and "corrupt":
"Everyone wants a piece of the case, and he who least benefits is the worker."
"The attorneys participating in that, and the doctors participating in that with them . . . are making a lot of tar that's stopping the mechanism from grinding smoothly."
"It's incredible that once you're put in a category, you're given a status or you're given this label that you're just this old tennis ball. Just rolled around, kicked around, like you're nobody. You're a peon."
"It's really dehumanizing to have your fate decided by so many outside forces. Occasionally, they'll offer you the illusion of control, like a doctor who says, 'I work for you.'"
In all of the focus group sessions, moderators asked the participants to identify persons or organizations that they trusted for information and help in workers' compensation and what it was about the person or organization that instilled trust. The most common response was "myself." The participants who said they trusted only themselves described how they sought and obtained information from numerous sources and decided on their own which pieces of information they could use. They explained their response by saying they relied on "persistence," "self-education," "knowledge," and "a lot of book work":
"If it wasn't for me I probably would have been still fighting for the thing. I did everything myself. I learned a lot. And that's it."
"I trust myself, my instincts, and very few other people."
"You can only basically trust yourself. You can fall victim very easily to other people. You do yourself a disservice by opening yourself to people that are really not interested in you as an individual. They're interested in settling your claim and getting rid of you--getting you off the books, and that's it."
The second most common response was "no one":
"Zilch."
"Absolutely no one whatsoever."
"I've lost total trust in the system."
"I found no one entity that I could turn to and trust."
Two participants from two different focus groups described how they could get only "little pieces of information and truth" from various sources, but not the "whole elephant" from anyone. One of these participants pointed out that no one in the system is really on the workers' side, and that therefore workers could trust everyone else to look out for their own interests.
The remaining participants named a variety of individuals whom they could trust for information and help. There was no obvious trend or pattern in the types of people named. It appeared that trust in certain individuals was based on supportive and respectful personal interactions and the time spent with the worker.
The individuals named in the focus group sessions included an employer who explained all the options and benefits, a workers' compensation judge's secretary who explained the information that the worker should prepare for a hearing, an insurance adjuster who explained all the options and gave the worker time to decide on settlement options, an
I & A officer who helped the worker numerous times, an I & A officer who helped increase the proposed amount for settlement, a relative who was a human resources director at another company, a spouse who asked questions and obtained information for the worker, a spouse who obtained books on workers' compensation laws, a physician who took the time to explain options and was interested in and concerned about the worker's well-being, an employer's human resources representative who answered all questions and told the worker whom to contact for further services, a union that had an extensive health and safety program, a librarian, an insurance adjuster who was open, receptive, and who called to see how things were going, a benevolent association of employees that provided guidance and research, a Rehabilitation Unit officer who listened to all parties and was honest, patient, and fair, a physician who walked the injured worker through her rights, a physician who "did everything she could do," and a vocational rehabilitation counselor.
The focus group participants provided many recommendations on how information and help for injured workers could be improved. These recommendations involved improvements in the content, form, and delivery of information, as follows:
Many of the participants described the types of information they believed should be included in information given to injured workers. A major theme in the focus group sessions was that the available information was too general. The most common recommendation made by the participants was that information be developed that clearly guided injured workers on specific steps they should take to process their claims. Participants said that information should tell the worker "where to go," "what to do," and the anticipated "time involved" for the various stages of a claim:
". . . information as to how to proceed. The procedures were the problem. And to get that to people in a manner that they're going to be aware of it, so when the need occurs, they have it on hand."
A few participants recommended that the information be provided in checklist form:
". . . a list of things that you're supposed to do. One of my main questions was, 'OK, now that I'm not working and I've filed for workers' comp, what do I live on?' I didn't know I was supposed to file for disability. I didn't know I could file for unemployment. I didn't know I could be retrained in rehab. I had no idea. So if they could at least give you a list where you check off things, 'OK, now I'm supposed to ________.'"
"If I had a checklist, just a checklist: 'OK, they didn't do that. Let me call back and find out.' That would help so much, instead of just the basic brochure, 'You Are an Injured Worker.'"
Another major theme in the focus group sessions was that existing information regarding an injured worker's legal rights was insufficient. Thus, the second most common recommendation made by participants was that injured workers be provided with more detailed information about their legal rights or where to obtain further legal information. This included information on workers' compensation laws and other laws, for example, the Americans with Disabilities Act:
"Because when something happens, we don't know who to turn to, and surely the company isn't going to help us because they don't agree with you that you hurt yourself."
Several participants recommended that more specific information be provided to help the injured worker determine the amounts of temporary disability and permanent disability benefits the worker should receive. Participants felt they needed this information both to plan how they were going to manage paying their bills and to decide on how to respond to an insurer's settlement offer:
"'You injured your back in this way, you have the right to receive so much.' Then people know how much they will receive because the insurance company is going to try to give you the least amount possible. That I already know."
Individual participants identified other pieces of information, relevant at specific stages of a claim, both before and after an occupational injury, which they believed should be provided to workers. This included information regarding the following: potential eligibility for workers' compensation in general, the right to predesignate the treating physician, the importance of reporting an injury right away to prove the injury occurred at work, available emergency medical services in case of an injury, more information generally regarding rights to medical treatment and vocational rehabilitation benefits, the right to dispute medical findings, and the pros and cons of various settlement options.
Many of the focus group participants felt that most of the other players in the system had interests that were opposed to the injured workers' interests. Therefore, a few participants recommended that injured workers be warned of this problem. These participants, for example, recommended warning injured workers that insurers may conduct surveillance of their physical activities and recommended explaining the role and incentives of each player in the system, that is, their function, how they get paid, who pays them, and the least amount of services they must provide to get paid because "you can trust people to look after their own interests." One worker urged that workers' compensation not be described as a no-fault system because it falsely implies that benefits are provided automatically and without dispute:
"Their claim of operating a no-fault program is bogus. Completely fraudulent."
A few participants recommended that information be included regarding the advantages and disadvantages of hiring an applicants' attorney. While some felt that an attorney is essential to getting a claim handled properly, others felt that attorneys are not worth the fees they are paid.
Several participants recommended that injured workers be informed of additional resources they can turn to for help, both within and outside the workers' compensation system.
Several participants recommended that information be simplified and provided in easy-to-understand language:
"I think the language should be third grade level. Because in America they don't teach us legal English."
"Legal English isn't English."
"Not written in Greek would be good."
"Yes, these things are posted. But I think it could be simplified. My thing is bolder letters, simplification, get right to the point. Between the booklet, then they give you these administrative pamphlets, and they give you all this other stuff smashed together in this envelope. And here you are, ill, flat on your back, and you're going 'Oh, gosh.' Where if a simplified form at least could be attached: 'These are the As, Bs, Cs, and Ds of this.'"
"I think [informational materials] should be approved by, say, 100 of us who have participated in a focus group. In other words, real people who have gone through the system, and we approve it: 'Yes this is clear English, this would have been helpful, yes this is what I learned, yes this reflects accurate experience.'"
Most of the recommendations described above regarding content and understandability of information pertained to written information. Several of the focus group participants recommended that information also be provided orally and in person, either by the employer or insurance representative:
"I wish, instead of sending that brochure out, if they could have a representative call and make an appointment with you. If you're unable to drive or you're handicapped, they could come to your house, or you can go to their office for one hour, and they can sit and give you a list of things of what you're supposed to do."
According to one participant, some people do not understand written information. Other participants recommended that for Spanish-speaking workers, the insurer representative should be able to speak Spanish and that information be provided in videotape form, like some companies have for safety procedures.
Several of the participants emphasized that employers should post or provide information when a worker is first hired. According to those participants, workers can sometimes better absorb information prior to an injury than afterwards, when the worker is in pain, on medication, and feeling desperate. One participant praised his employer's in-depth training sessions on workers' compensation, given twice a year as part of the employer's regular safety meetings. Two participants recommended that education regarding workers' compensation be provided as early as high school or college, as part of pre-employment training regarding occupational health and safety.
Several of the participants emphasized that basic information should be given immediately after the injury, not weeks or months later. These participants emphasized that injured workers are more interested in learning about workers' compensation after they have been injured rather than before the injury.
Several participants could not obtain needed information or obtained information only after expending considerable time and resources, and they emphasized that information should be provided automatically or be made readily available to injured workers. Participants recommended, for example, that written information should be free of charge, posted at work, distributed and available in the immediate work area, mailed to the injured worker, available at unemployment offices, and available in libraries. Some participants also recommended alternative methods for providing information, for example, by radio, by television, by newspaper, on the Internet, and through a computer software program.
Many of the participants felt that injured workers should be provided individual help in filling out forms and that workers should be able to obtain individual support and/or representation from someone like a counselor, social worker, paralegal, or Legal Aid attorney:
"Maybe they ought to have something like a paralegal, a knowledgeable person who could answer your questions, funded through the state."
"The average layperson doesn't know. It was just a nightmare for me because I didn't understand the system and how the system worked. I believe that workmans' comp should reform this, the forms, and assist the person to fill them out, or any questions they may have. Because a lot of people just don't know."
Many of the focus group participants felt that other stakeholders in the system were rude, insensitive, demeaning, cold, bureaucratic, and even threatening. Participants therefore recommended that employers, insurers, doctors, and vocational rehabilitation counselors learn to communicate better with injured workers, to be more responsive, to treat injured workers with respect as human beings, and not to assume that all injured workers are filing fraudulent claims:
"It starts with the human factor, first of all--train people or the counselors or people in insurance to treat you as a human being."
"I think you should get people who actually care about you as an individual instead of just a file number."
"I feel that there should be some sort of oversight, an independent agent or someone who looks over this to see how these companies and doctors are treating these people."
Many of the focus group participants said that employers should be complying with basic requirements to inform injured workers and that employer representatives themselves should be sufficiently knowledgeable about the workers' compensation system. These participants recommended that the state regulate and enforce employers' obligations to understand the system themselves, inform injured workers of their rights (especially the right to predesignate one's treating physician), answer injured workers' questions, and hold safety meetings:
"If they keep up the safety meetings, then everybody can stay informed, and I think the state should really crack down on the safety meetings that lawfully you're supposed to have, and make sure you do have them, and have them documented."
"If the state mandates that all employers carry workers' comp, then they should make sure that there is somebody qualified to answer questions when someone gets injured."
"People are afraid of being fired. I think the employer should have to be compelled to tell employees what their rights are, because they don't."
"Employers are not mandated in any way, or if they're mandated, they are not complying with the mandates, that certain things happen."
"My employer and many others should first of all be informed how not to be in such a situation that they cause your injury. There should be instruction for all employers, but certainly an employer who's had somebody in the system."
"Your supervisors or whomever you report to should be knowledgeable enough to inform you. They should be at least a little helpful when it comes down to job injuries."
"I think the employers should be aware. They should be very strict to them, and there should be a fine involved because a lot of the hangups come from employers. They did not do their paperwork."
A few of the participants recommended that insurers communicate more with their insureds (the employers) and that claim adjusters be sufficiently trained for their jobs. Participants also felt that insurers should be held accountable under laws prohibiting fraud for bad faith actions and that injured workers should have a way to voice complaints against bad faith actions of insurers:
"There are fraudulent claims, but insurance companies aren't held to the same standard. In other words, if an insurance company does something that causes a delay in payment, or causes an injury to worsen, or a condition to go on, there might be some way to focus on that in terms of physical or emotional payments, in holding them responsible, of having them at risk for the decision they make. In other words, when they negotiate a substantially lower settlement for a case that they know they should pay more on, there should be some independent forum in which someone can voice that complaint."
Many of the focus group participants felt that any further information for injured workers should be provided by the employers:
"So that you aren't spending gas or telephone calling, they are the ones that have to give you the information in the same place where you work, without a hassle."
"The only ones that should give exact information are the company where you work at the time you're injured. They are the guilty ones."
"The workplace should be responsible for giving you the information because as an employee you don't know about these things. And the employers sometimes threaten you. They don't give you information."
One participant suggested that the state prepare a binder of information for employers so that employers can reproduce portions of the information for employees as the need arises.
A greater number of focus group participants felt that because they did not trust employers and insurers, further information for injured workers should be provided by "neutral" sources. These sources included Legal Aid, clubs or associations of workers, the
I & A Unit, LOHP, and a federal agency (for state, county, and city employees).
Several major themes arose in the discussion groups with Information & Assistance
(I & A) officers and the individual interviews with representatives of many of the major participants in the workers' compensation system.
Representatives of some of the major participants in the workers' compensation system described how legal complexities impede the delivery of understandable and useful information to injured workers. These complexities have resulted from the numerous legislative reforms that have been enacted since 1989. Each of the reforms has created additional sets of forms, notices, steps, deadlines, and legal presumptions.
For example, applicants' attorneys must use and file different sets of forms under different circumstances to preserve a worker's rights and to request action by a workers' compensation judge, depending on whether the worker was injured in the pre-window period (before 1990), in the window period (1990-1993), or in the post-window period (after 1993).[18] Medical-legal procedures are even more complicated. To resolve disputes over medical issues, claims administrators, applicants' attorneys, and injured workers must follow different sets of procedures and be subject to different sets of restrictions regarding permitted medical evaluations. These procedures and restrictions depend on the date of injury (whether the worker was injured before 1991, in the period 1991 to 1993, or after 1993), whether or not the worker is represented, and the subject of the dispute (whether the parties are disputing compensability of the entire claim, levels of permanent disability, needs for further medical treatment, or other medical issues).[19] Some applicants' attorney's law firms have developed 11 separate systems, or "tracks," to handle medical-legal procedures. Likewise, to comply with extremely complicated regulations governing benefit and vocational rehabilitation notices that claims administrators must send to injured workers (notices whose contents vary depending on the worker's date of injury and the legal event described by the notice),[20] some claims administrators have developed over 100 sample notice letters.
One interviewee described the purported reform of the system as "system deform." Another interviewee felt that the workers' compensation system is becoming as complicated as the civil court system.
Because of the numerous legal requirements, claims administrators and applicants' attorneys are required to handle much more paperwork than in the 1980s. Their work schedules are overloaded with tasks in creating, sending, reviewing, analyzing, and responding to documents and maintaining records of their activities involving those documents. Several of the representatives interviewed for this project said that claims administrators and applicants' attorneys are "overworked," "harried," and "bogged down with paper." Therefore, they have proportionately much less time to speak personally with injured workers than in the past. In the meantime, injured workers receive an "avalanche of information" from claims administrators, that is, the workers are "inundated with mountains of paper," which are "legalistic," "bureaucratic," "convoluted," "repetitious," and "depersonalized." Many or most injured workers cannot understand these notices, and they cannot find anyone who has sufficient time to fully explain to them what is happening with their claims.
The discussions and interviews revealed strong feelings of disharmony and distrust between various participants in the system. Applicants' attorneys were a major target of criticism; some of the employer and claims administrator representatives felt that applicants' attorneys amplify disputes, arrange for unnecessary additional medical evaluations, assert unnecessary new allegations, and drag out cases for personal gain. The criticisms of applicants' attorneys reflected differing perspectives among interviewees as to whether certain disputes are "necessary" or "unnecessary." One perspective was that attorney actions tend to increase the number of adversarial transactions and hearings in a case. These additional transactions and hearings can be viewed as "unnecessary" to the resolution of a case. A contrasting perspective is that attorney actions protect their client's rights and maximize the benefits that the client will recover. These actions are generally regarded as "necessary" from the injured worker's viewpoint.
There were also complaints about other participants in the system. Employers as a group were criticized for deliberately cultivating a perception in the workplace that injured workers are fraudulent; they were also criticized for harassing and threatening workers who file workers' compensation claims. Insurers as a group were criticized by an employer representative for settling cases prematurely and then transferring those losses onto employer policyholders by raising insurance premiums. Insurers were also criticized for deliberately withholding or underpaying on temporary disability benefits. I & A officers were criticized for being biased against employers and insurers, on the one hand, and for not being accessible to injured workers, on the other.
The discussions and interviews confirmed reports from represented workers in the focus groups that I & A officers and claims administrators tend not to provide as much information to them as they do to unrepresented workers. Some of the I & A officers explained that their job is primarily to help unrepresented workers because the applicants' attorneys are paid to help their clients. Some of the I & A officers and claims administrator representatives also explained that it would be improper for them to interfere with the attorney-client relationship. However, represented workers who cannot reach their attorneys then end up in a situation where information is much less available to them than it is to unrepresented workers. They may be unfairly penalized for exercising their right to representation.
Certain laws and regulations require employers to provide written information on workers' rights and obligations in workers' compensation at the time of hire, through information posted in the workplace, and immediately after being notified of an occupational injury. The information required to be posted in the workplace and given in written form to new employees includes the name of the carrier, the right to predesignate one's treating physician, the benefits provided in workers' compensation, and where to report injuries.[21] In theory, failure to post the required information in a conspicuous location can be charged as a misdemeanor[22] and can result in a civil penalty of $7,000.[23] When a worker becomes injured, the employer must provide a claim form and a notice that explains the procedure for requesting benefits.[24]
Participants in the focus groups described a wide range of experiences with receiving information and help from their employers, both before and after they were injured.
Many (but far less than half) of the focus group participants reported that their employers provided all the information and help they needed to process their claims. Those workers said that the employer "took care of everything" and that the information was provided "right from the beginning." They described their employers as knowledgeable, coordinated, organized, and prompt in making sure the worker was treated by a physician and in filing all the necessary documents:
"My employer was pretty good. They handled pretty much everything. Any problems I had, they took care of. If I had any questions about anything, they'd get the answers for me, so I hardly even bothered with the state."
"I was fortunate in that the organization provided for workers' comp and made sure that notifications and explanations were done, so it was rather smooth sailing for me because they had a professional there who took care of it."
"As far as getting everything, the paperwork done, informing me of what should be done and all, what I needed to do and all that, that part of it went slick as a whistle."
"The human resources representative was there for the injured employee, and she would direct us to whoever and answer all the questions."
"I hurt my back, it was my lower back. And I told my supervisor that. And he said, 'OK, well let's go to the clinic.'"
"If an employer is a really good employer, he'll take care of you right then and there. That I found out."
Most of the focus group participants reported that their employers gave them little or no information to help them process their claims. There were angry and frustrated with that lack of adequate information:
"No one told me anything."
"I wasn't handed anything that told me my rights."
"Having reported it to them, the company never said, 'You know, you better have that checked out. You better go to the hospital.'"
"I was given no information and that's why I didn't file a claim."
"In terms of my employer, he was pretty much useless because my manager, when I told him I was injured, he's talking, 'Oh yeah, well whatever,' type of thing."
Most of the participants said they never received information about the right to predesignate the treating physician, and most did not realize they had this right. Many of these participants were angry at their employers for not providing this particular piece of information:
"When you are first employed, you want to make a good impression. You don't want to ask about your right to go to your doctor in case of injury. But the employer doesn't care, doesn't give you any information."
Several of the workers felt that their employers were not sufficiently knowledgeable about the workers' compensation system. One participant, for example, said that her employer did not know the identity of the carrier or how to file a claim, had "no involvement in the claim," and "had no idea what was going on." Another described her experience as follows:
"First of all, my employer had no idea what to tell me to do. They just gave me a form they had. So they were uneducated from the beginning in assisting you."
Many of the workers felt that the employer deliberately hid necessary information and that employers do not provide information because they do not want claims to be filed and paid, which increases their insurance rates:
"They've been avoiding me. They keep giving me the runaround."
"I believe that the employers themselves know, but they just don't want to give the information to the employees. Because if you know too much, you're just nothing but trouble for them. And what they do is keep you in the dark as much as possible, and give you enough information as possible just to drag you along, as they can. As they feel fit, they will do anything to you. They'll railroad you, meaning getting you out of your job, or displace you because of your injury. You're out the door."
"I think in this system a lot of bosses don't inform the employee. One hundred percent cover this up. This was the case for me. Nobody told me anything, and the only information that I got was from the lawyer."
"They're just trying not to pay out claims. And of course the employer doesn't want that either, so therefore they're not going to be forthcoming with a lot of information."
"I'm wondering if employers don't think that if they did give out this information, that they would actually be encouraging people. If you tell somebody to file a claim when they're injured, they're thinking, 'Oh, if we tell them that, then they're gonna do it whether they're injured or not.' So you know I think they're looking out for their own interests. And the fact is their insurance and their rates increase when there's an injury, and sometimes they can actually lose insurance. There's penalties in it for the employers, so therefore they're not going to be real willing to help you out with injuries."
Several of the focus group participants reported situations where the employer delayed responding to the worker's report of injury:
"Initially, when I got hurt on the job, the supervisor took no notes, did nothing, and progressively I was getting lame."
"When I was first injured, I had reported it to my supervisor. He said, 'Thank you for telling me, but keep it on our mat.' And so it was only when I started to get really severe symptoms and my hands were going numb and I was also getting tingling in my fingers that they finally decided it would be a fine time to provide me with a claim form."
"I didn't report it for the first six months because as I said, they wouldn't let me."
Several reported that their employers were uncaring, hurtful, threatening, and only cared about production. For example, one participant described the accident at work that broke all his ribs and said the supervisors yelled at him, "Well, get up! Let's see what happened." A few said that after the injury, the company separated itself from the worker and told the worker to deal directly with the insurer:
"They don't want anything to do with you anymore. They say, 'We pay our premiums to this guy, we'll let you deal with them. Don't deal with us, we have nothing to do with you.'"
One participant shared with the group her sadness at being ignored and discarded by her employer after devoting 23 years at that place of employment:
"I was lost when I was in the hospital, like nobody cared. My employer was, it was like, 'You didn't really get hurt here,' and they knew I did, and they weren't going to take responsibility for it, and I was just lost. You know, I've wiped that whole thing out of my mind because I just didn't want to even think about it any more because my experience was bad. . . . I was very downhearted, and nobody cared, nobody came to see me. You know, I had 23 years at the company. . . . I think a person feels at the mercy of the company. And if they never had experience with injury, they're going to keep as much away from you as they possibly can. Which they do. Then, after you've gone through your operation, and then you've been treated, and perhaps you're ready to go to work, and the doctor says you cannot do this particular job, then the company says, 'We don't want you anymore.' And as many years as I had in the company, they did not help me. The supervisors were all for the company. Nobody helped me at all. . . . I was 23 years there, you see? Now I'm out on the street. No job, no money, no nothing. And nobody cared. That's the worst part."
Others described their experiences and perspectives as follows:
"My boss had made me do three times the work on the machine, putting labels on and packing. And she made fun of me when I left work saying, 'Look at the poor thing with her tongue hanging out.' I was very humiliated."
"I injured both my hamstrings, and I couldn't even walk. Nobody ever told me, 'You have the right to compensation,' or 'You can get this.' What they kept telling me was, 'If you can't go to work, then quit.'"
"I was never given any information at all. In fact, I was told by my employers, 'You know if you have a claim or anything that you file on workers' comp, then it goes on your record for the rest of your life and nobody will ever hire you again.' That was all the information I got."
"There are companies out there that don't really care. You're just making their product. It's pure slavery in the 1990s, is how I look at it."
"I don't trust any employer anymore because there is no loyalty anymore in the 1990s. They're out just to make a buck. I don't trust them. When it comes to money, they want to hold on to it as much as possible."
"They don't tell you anything because what they stress most is what time you have to go to work and your responsibility, more than anything else."
"It's cheaper for them to pay everybody in this room for their injuries than it is to change the machines. So if you're hurt on the job or something, they don't care because it's easier to pay you off. If you die, it's easier for them to pay for your death on the job than it is to pay for your injuries. So they'd rather see you dead on the job than change the system. I just speak on this personally on the job I worked on. I watched a machine that was cited a $50,000 fine several times, you know. And OSHA come out and told them they either needed to update it or close it. So they continued to operate the machinery. I watched people get killed."
Many of the represented workers in the focus groups said that the main reason they hired an attorney was because of conduct by their employers. Several could not obtain any information from their employers on how to proceed with their claim. One of these workers said she hired an attorney because of the "apathy of the company." Several others said that the main reason they hired an attorney was to protect their jobs because they believed that the employer would discriminate against them for getting injured or for filing a workers' compensation claim:
"I did it to protect my job. I had a [supervisor] who was really perturbed with me over this whole thing and seemed to think that I was going to retire from the department and take a cruise to the Caribbean and make a lot of money on this whole thing. And I tried to explain to him that I wasn't and that I was doing the best I could, and he said, 'Well, your best is not good enough.'"
Many of the focus group participants felt that employers should be required to provide information regarding workers' compensation benefits procedures at the time of hire and soon after a worker is injured. (Most of these participants were not aware of existing laws and regulations that impose these requirements.) Participants also felt that state agencies should be ensuring that employers comply with requirements to inform workers and assist in the processing of workers' compensation claims. Many of the participants also felt that some employers should learn how to better communicate with their employees and treat the employees with respect:
"I think the most important thing would be communication. Not only for the employer to have a good rapport established with the employees, but also on how to maintain a safe working environment."
In the group discussions and individual interviews, representatives of employers, claims administrators, DWC, applicants' attorneys, and unions discussed issues regarding the adequacy of information and help provided by employers to their employees in workers' compensation. The discussions centered around compliance with the laws and regulations that require employment to inform their employees about rights and obligations in workers' compensation.[25]
The discussions confirmed that management philosophies vary widely in administering workers' compensation programs and in communicating with injured employees. The differences between employers depend in part on the size and resources of the employer. Also revealed was the fact that there is no statewide program, or even a system of regulatory penalties or other incentives, to enforce the laws and regulations in California that require employers to provide information to employees about workers' compensation.
The interviewees perceived that conscientious employers with sufficient resources develop and implement programs and policies to inform employees about rights, obligations, and procedures in workers' compensation as part of their overall training and education to prevent work-related injuries and illnesses. When an employee gets injured, these employers give time and attention to the employee and establish full and open communication with the employee about the course of medical treatment, the employee's recovery, and plans for the employee to return to work. The approach here is to show respect, interest, and concern for the injured employee and to treat the employee as a valuable asset to the company. This builds trust with that employee and with the employee's co-workers. In the long run, the employer benefits financially because disputes and litigation in workers' compensation are avoided, injured employees return to work sooner, employees cooperate more in illness and injury prevention programs, and the costs of workers' compensation, through experience-rated premiums, are kept low.
According to some interviewees, other employers are not actively informing and helping their employees in workers' compensation. Because the workers' compensation system is so complicated, these employers may not understand the system very well. They do not fully comply with the various laws and regulations that require them to give information to employees about workers' compensation because they are not familiar with those requirements and because they may be assuming that the workers' compensation carrier will tell them what information to provide. They also rely on the carrier to handle the employees' workers' compensation claims while they themselves do not become involved in the claims. The worst employers harass and threaten employees who file workers' compensation claims, treating them as second-class citizens or scoundrels. Some interviewees believed that some employers are purposefully cultivating a perception in the workplace that workers' compensation claimants are liars. Some of these employers may be small companies that are constrained financially in establishing necessary programs, while others may simply not be analyzing the long-term impact of their actions. These employers may suffer financially in the long run due to increased litigation, prolongation of the injured employee's time off from work, distrust and reduced cooperation by other employees, and increased workers' compensation insurance premiums.
At the time the interviews were conducted (in 1995), representatives of the Audit Unit and the Legal Unit of the Division of Workers' Compensation (DWC) reported that no proactive program existed within the DWC to enforce the various laws and regulations cited above. There did not even exist a set of regulatory penalties that would provide legal remedies for enforcement actions.[26] The Assistant State Labor Commissioner likewise indicated that the Division of Labor Standards Enforcement did not enforce these laws and regulations.
Employer representatives recommended that state agencies develop and provide training and informational guides for employers regarding programs to prevent injuries and illnesses and to administer worker' compensation services. This would be most beneficial for small employers, many of whom have insufficient resources to understand the applicable laws and regulations. One representative suggested that information and guidelines on injury prevention and workers' compensation be provided by Cal/OSHA Consultation. One I & A officer recommended that workers' compensation insurers provide more information to their policyholders about employers' obligations in the system.
Another interviewee perceived that many problems in workers' compensation stem from poor communications, that is, poor judgment in the manner and style in which information is provided to injured workers. The interviewee recommended that all providers in the system, including employers, be offered training to sensitize them to the experiences and needs of injured workers and additional training on how deal with workers who are angry and upset, that is, training to develop crisis counseling skills.
Claims administrators are required to provide written notices to injured workers about their claims (e.g., the duration and schedule of financial benefits, reasons for delays, reasons for denial of a claim, and determinations regarding permanent disability).[27]
Like the experiences with information and help from employers, the participants' experiences in receiving information and help from claims administrators varied widely.
Many (but far less than most) of the focus group participants reported that the insurer sent information right away, treated the worker well, and made sure the benefits were sent. One of the participants, for example, was satisfied with the information she received explaining settlement options and said that the insurer gave her plenty of time to decide. Satisfied workers described their claims administrators as "kind and thoughtful," "caring," "nice," "open," and "receptive":
"The insurance company, the lawyer who has my case was from insurance, and speaks Spanish. And she told me everything. . . . Always, the insurance company took care of me."
"They came right to work. They made an appointment to meet me at my office so they could interview me, and they interviewed the personnel person to make sure the information on my wages and things were correct. It all goes back to the insurance company and how much they want to work for you."
"As far as with paperwork coming, as far as communication from the insurance company, which really blew my mind how they took care of that and handled it and made sure that everything came, my checks, everything."
"Well, oddly enough, I rather have a lot of faith in the adjuster that's working on my workers' comp case, this time . . . her openness, her receptiveness. I have quite a bit of faith in her . . . things like calling me after my surgery and checking to see how things are going when she hadn't heard from me. She's truly a very nice lady."
"The company took care of everything, the insurance people, the carrier. And you could not ask for a nicer carrier. They would call you once a month to see how you felt, and if there was anything you needed, and everything on both my knee injury and my back injury were great because they'd call you, keep you informed, even though you had a lawyer, it didn't bother them. They wanted to make sure you were OK."
Most of the focus group participants were frustrated and angry because they could not obtain adequate information and help from their claims administrators. Individual participants, for example, said that their claims administrator did not explain why temporary disability payments stopped, did not explain that advances would be deducted from the final settlement, and did not tell the worker about the potential availability of vocational rehabilitation. Others said that the claims administrator would not help the worker fill out forms that the worker could not understand and would not explain why there were no benefits being sent after the worker was rated (i.e., assigned a permanent disability rating).
Many of the participants said that they could not reach the claims administrator by telephone or that it required many phone calls and days of waiting to reach the claims administrator. At least two of the participants said that because of high turnover in those insurance companies, the people handling their claims were not familiar with the facts of the case. One of the Spanish-speaking participants said that information from the claims administrator that was written in English was not useful. Several participants described their claims administrators as "a little bureaucratic," "hostile," "rude," "annoyed," "cold as ice," and "uncaring":
"I didn't have a lawyer. I was calling workers' comp. 'What's happening?' 'Well, he has many cases and so we don't have the information here.' Nothing more, and time went by and more time passed, and me with nothing--no work, no money. Do you think that I didn't want to settle? Of course I wanted to settle! Doctor? They didn't offer me a doctor."
"All this time that I've gone through, I was kept in the dark. Also, the insurer of the employer always kept me in the dark, too. They only gave you just enough information to say, answer a question with a question. I always asked when was my next payment coming or why was it stopped. They said, 'Well, just because you didn't sign this, we weren't going to give you this, so you're entitled to lose out,' and that's not fair."
"You can ask a question. They give you the phone number for questions. But in order to contact the person you're calling, you leave a message. They never answer your message. You call again. The person is in a meeting: 'He isn't in now, he's in a meeting. Leave your telephone number and we'll return your call.' They never do."
"I had to talk to them. They weren't real. They didn't give me any information at all. Matter of fact, they just said, 'You're on your own. Just fill them out the best you can, and we'll document them so you can get workers' comp.' That was it."
"I'd get a tape recording machine with this insurance guy. He would call me back, I wasn't there, and then I'd call, or he wouldn't call me back until about two days later, and I would always try to get him like 8:00 in the morning."
"They never called me. They never explained any changes that have taken place if I get a check for a different amount. I have to figure it out for myself because when I tried to call them up, it usually takes me two or three days to get past the voice mail, you know, and find a real person."
"That lady was cold as ice. She was an iceberg. She basically said, 'Look, you're young. Deal with that type of thing. You don't have any bones sticking out. You don't have any arms falling off.'"
"I was basically treated like a puppet with strings. It's just like, do this, do that. And it's like, what about me? What do I feel? Because I know what I feel in my shoulder. I know the thing I'm going through."
"I had a representative from the second insurance company that I dealt with who was very rude, called me trying to get me to settle over the phone for $1,500. She said, 'Well, you know, you're not going to get any more if you take this to a hearing. This is the best you can get.'"
"The insurance companies, when you ask a question, they just send this form. What am I supposed to do with it? They said, 'Fill it out.' Click. I mean, what am I filling out? What is the purpose of this form? What am I signing? Am I signing away any future claim I may have, or am I signing something that's gonna get me in trouble in the long run? It's like you're completely in the dark. And then when you ask for help, they're annoyed by it. It's like, 'How dare you bother me and waste my time and I have other things to do.'"
Two of the focus group participants discussed the effect of hiring or not hiring an attorney. One participant who was represented said that the claims administrator refused to speak with the worker after the worker hired an attorney:
"Once you are injured and you get a lawyer, then you're virtually cut out from getting workmans' compensation information. You get a check, but you call up the [claims administrator]. They say, 'Oh no, you have an attorney. You have to talk with him. I'm not even allowed to talk with you.'"
In contrast, the other participant, who was not represented, said that the claims administrator was hostile to her when he thought she planned to hire an attorney but then became less hostile after he found out she decided not to hire an attorney.
In most of the focus group sessions, participants expressed a great deal of anger at insurance companies and the insurance industry in general. Many of the participants perceived that insurers are only interested in making money, that they are getting "filthy rich" by not paying on claims that they should be paying, and that they "prefer to fight everything tooth and nail." Thus, they are "the villains, enemies." Participants believed that insurers "control the whole system" and that the insurers are "manipulating the whole thing":
"I think they control the whole system, including the judges, including the lawyers. I think the insurance company, with lobbies in Sacramento, control the whole system. They control the judges that are appointed, and the system itself, the way the machinery operates, is all heavily biased in fa