THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Tuesday, February 11, 1997 TAG: 9702110010
SECTION: FRONT PAGE: A14 EDITION: FINAL
TYPE: Opinion
SOURCE: By ANITA LAWRENCE
LENGTH: 78 lines
Don't get hurt in Virginia you may be in for the surprise of your life!
The Virginia Worker's Compensation Act, 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 Worker's 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, hardworking 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 Worker's Compensation. The insurance company immediately denied the claim, alleging that Smith did not sustain an injury by accident as defined by the Worker's 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 was recently approved for Social Security disability payments, and has continually battled for payment of medical bills and wages. The Smith family has lost its home and all of 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 any 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 devistated my life; I just exist now.''
Although Smith's case is complex and has multiple issues, it exemplifies the many defects in our current law that continue to plague injured workers. According to a study from the Worker's Compensation Research Institute, the state of Virginia for many years has maintained the lowest Worker's Compensation insurance cost in the United States for employers, and has paid fewer Worker's Compensation claims than any other state. In certain circumstances, Worker's 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 the grossly inequitable system rests in the hands of legislators. Regulation of insurers is a necessary part of creating a sense of fairness within the Worker's Compensation system. In contested cases, benefits should not be suspended prior to a decision from a hearing office. 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 who engage in dilatory practices.
For James Smith and his family, Worker's Compensation has failed miserably. As of this writing, Smith is awaiting yet another court proceeding, to force the Worker's Compensation insurance company to comply with previous court orders. When will there be closure for Smith and others like him? And is not ``justice delayed, justice denied?''
KEYWORDS: ANOTHER VIEW