ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Tuesday, March 4, 1997 TAG: 9703040039
SECTION: EDITORIAL PAGE: A-5 EDITION: METRO
SOURCE: ANITA B. LAWRENCE
THE VIRGINIA Workers' Compensation Act, originally enacted in 1918, was designed as a no-fault type of insurance. Recovery is not based on an employer's negligence, but on the employee's surrender of other recovery rights in exchange for the benefits provided by the act: wage replacement and medical benefits for a work-related injury. The monetary cost of these benefits is assumed by the employer as an operating expense, and shelters the employer from common-law liability for the worker's injury.
The workers-compensation system was designed to be user-friendly, and benefits are meant to be delivered in a timely manner. Theoretically, if you get hurt, you get help. For many injured workers, however, the reality is very different: They encounter a tangled web of endless litigation.
James Smith, a former heavy equipment operator and foreman for a large company that lays underground cable, is a prime example of how this "safety net" often fails to provide protection.
Smith (not his real name) worked for his employer for 20 years, and was considered an honest, dependable, hard-working employee. He had a home, two cars and an income that allowed him to support his family. On Feb. 12, 1992, while investigating an oil leak underneath a tractor, he struck the top of his head on the backhoe bucket. The impact jammed his spine, resulting in severe back pain.
On March 24, 1992, Smith - like 54,000 other Virginians that year - filed for workers' compensation. The insurance company immediately denied the claim, alleging that Smith did not sustain an injury by accident as defined by the Workers' Compensation Act of Virginia. His case was sent to an administrative law judge for an evidentiary hearing, along with more than 9,000 other contested claims. This began an endless process of litigation and, for Smith, a nightmare that is still going on.
Almost five years after his accident, and after five court proceedings decided in his favor, Smith has collected only six months of wage reimbursement, and has accumulated substantial unpaid medical bills. He has suffered through two surgeries, lost his job, has been determined to be totally and permanently disabled and approved for Social Security disability payments, and has continually battled for payment of medical bills and wages. The Smiths have lost their home and all its contents; one vehicle was repossessed; and they have had to rely on friends for a place to live.
Like most workers, James Smith assumed that there were built-in protections to take care of medical expenses and wage replacement if an injury occurred on the job.
"It is hard to believe that this could happen to a worker who did nothing but go to work to try to make a living, and had the misfortune to be injured on the job," Smith said recently. "I actually have been treated like a criminal. In fact, criminals have the right to a speedy trial and, if incarcerated, they get three meals a day and a place to live. That is more than I have gotten. This injury has devastated my life; I just exist now."
Although Smith's case is complex and has multiple issues, it exemplifies the many defects in the current law. According to a study from the Workers' Compensation Research Institute, the state of Virginia for years has maintained the lowest workers-compensation insurance cost in the United States for employers, and has paid fewer workers-compensation claims than any other state. In certain circumstances, workers-compensation benefits in Virginia may be unilaterally suspended until a hearing is held, and appeal of a hearing decision "stays" payment of benefits, with no penalty to the employer or insurance company.
The solution to this grossly inequitable system rests in the hands of legislators. Regulation of insurers is a necessary part of creating a sense of fairness with the workers' compensation system.
In contested cases, benefits should not be suspended prior to a decision from a hearing officer. A time frame needs to be established for payment of benefits to injured workers, and Virginia must include accountability and punitive measures for employers and insurance companies that engage in dilatory practices.
For James Smith and his family, workers' compensation has failed miserably. As of this writing, Smith is awaiting yet another court proceeding, to force the workers-compensation insurance company to comply with previous court orders. When will there be closure for Smith and others like him? Is not justice delayed, justice denied?
Anita B. Lawrence of Martinsville is director of Concerned Citizens to Improve Workers' Compensation Laws of Virginia.
- VIrginia Forum
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