The Silent Killing of America's Workforce: An Interview with Patrice Woeppel on the Deadly Inadequacies of the Workers' Compensation System
Frank Joseph Smecker: You begin your book "Depraved Indifference: the Workers' Compensation System" with a staggering fact: "Every eight minutes in the US, someone dies from an occupational illness or injury." That's incredible, in a really disconcerting sense -- that's more than 60,000 deaths per year ... Can you explain how this nightmare has become a reality for so many?
Patrice Woeppel: Worker deaths from toxic exposures and other work illnesses are conservatively estimated by NIOSH, Markowitz, Steenland and other researchers to be 50,000 to 60,000 deaths each year, or 10 times the number of fatalities recorded by the BLS (Bureau of Labor Statistics).1 It is a disaster of monumental proportions that goes largely unrecorded and unnoticed. The United States has no comprehensive occupational health data collection system.
Occupational illness and injury deaths are now considered the eighth leading cause of death in the US.
It's important to understand how these figures came about; BLS reported that 5,214 worker deaths occurred in 2008. OSHA (Occupational Safety and Health Administration) and the Bureau of Labor only log deaths that occur at the work site or promptly thereafter. Diseases such as cancers and asbestosis may not show up until decades after exposure. The long latency period, combined with the lack of sufficient disease data is a continuing problem. That number, 5,214, is not correct for workplace-related deaths because OSHA's and the Bureau of Labor's worker fatality data is not likely to include those who died from disease, primarily as a result of chemical exposure at the workplace.
Even the figure of 60,000 occupational disease deaths is a very conservative estimate. We won't know the actual numbers until we devise a proper way to track these incidents -- like a national comprehensive health database.
FJS: Which is something that does not exist at the moment.
PW: Right. We don't have a national comprehensive health database, and that is a major problem ... you see, the separate reporting and under-reporting of work-related diseases also severely hampers the epidemiological data-gathering so essential to diagnosis, treatment, prognosis, and ultimately, prevention of occupational diseases. Virtually no attention is being paid to occupational illnesses or the fatalities that result.
FJS: Ostensibly, the workers' compensation system was arranged to protect workers -- to assist them in time of medical need. But it doesn't necessarily operate this way these days, does it?
PW: Part of the problem goes back to its inception. Workers' compensation began in Germany in the 1880s. Bismarck was looking for a way to quell the anger over the large number of worker deaths after he outlawed the unions. In other words, it was a bone thrown to the people. It entitled workers/families to some compensation in exchange for which the employer could not be sued. Workers' compensation then went to other countries in Europe, and came to the US in the early 1900s. Other countries recognized that once you remove accountability from the employer, there isn't really an incentive for them to change their behavior. But here, in the US, the "no-fault" principle" has been enshrined. And that's the crux of the problem.
FJS: Define the "no-fault" principle.
PW: The "no-fault" principle basically disenfranchises workers from their Seventh Amendment rights to bring suit at common law for redress of grievances. Under workers' compensation, the worker cannot sue his/her employer for injury or death. The quid pro quo is supposed to be swift and deliver certain compensation and treatment in exchange for having given up the right to sue. What has happened over the years, though, is that the freedom from lawsuit prevails, while worker medical treatment and wage compensation have been delayed and denied away. Thus, there is no monetary disincentive for employers and insurers not to pay for the disease that cripples, or the corporate negligence that injures or kills. It's in the corporation's best monetary interest not to pay. Once you remove accountability from the employer, there's no incentive.
Workers' compensation laws, except for federal workers, which are under a separate system, are state laws, and are always much more heavily influenced by industry than by the concerns of workers or the families of those who died. It's important to understand that state insurance commissioners come out of the insurance industry, and will likely return to that industry after their tenure in office. Their allegiance is to the industry, not to workers.
Wage compensation under workers' compensation, last time I looked, was at 70% of the poverty level for a family of three in Mississippi; 170% in DC; and most states are at 120% of poverty -- this is the wage compensation that is supposed to sustain the injured worker and his/her family. Even that meager amount becomes a fight when a worker is seriously injured or made ill through their work.
PW: Really. So, clearly, we have a very long way to go. The delays, the denials -- all of this works to the benefit of the employer/insurer and against the injured worker. The phrase used in the insurance industry is "starvin' them out," referring to the workers.
Furthermore, OSHA penalties are insignificant in most cases.
PW: The federal Occupational Safety and Health Administration (OSHA) has the responsibility for setting safety and health standards, monitoring and ensuring the safety and health of the workplaces. OSHA fines for citations (violations) have been so watered down that it's cheaper for the corporation to pay the fines than it is to provide a safe workplace.
If a worker is killed through the repeated and willful negligence of the employer, it's a mere a misdemeanor. One has to prove the act to be "willful."
Even in those few cases when OSHA deems a citation "willful" and allows it to go to the Department of Justice (DOJ) for prosecution, the crime carries a maximum penalty of not more than six months in prison and a fine of not more than $70,000 or both. Compare that with the criminal fraud and conspiracy charges against Jeffrey Skilling and Kenneth Lay in the Enron case that resulted in penalties of 24 years in prison. The criminal penalties for the depraved indifference that kills workers are miniscule compared to those for accounting fraud.
And the DOJ has so much on its plate it's just not interested in pursuing a misdemeanor. In its nearly 40 years of existence, less than 200 OSHA cases have been prosecuted, and only a handful have received prison time.
OSHA removes approximately 14,000 violations every year, making it more difficult to prove that a violation was repeated, one of the requirements to prove a violation willful, in order to prosecute. The average OSHA fine for a serious violation is less than $1,000; the average fine for a worker death after negotiation is $3,700. Is that how much a human life is valued these days?
Sadly, there are fewer inspectors now than there were in 1975. With this paucity of inspectors, it would take 133 years to inspect every workplace in the country just once.
FJS: That's incredible ...
PW: This is so inadequate. I only half facetiously say we would fare better if worker health and safety were under the Department of Fish and Wildlife. What all this adds up to -- is that there is no tort liability and virtually no criminal liability.
According to the research of Leigh, et al., workers' compensation, on average, only pays 27% of costs of worker illness and injury. It's important to note that one can't use one's health insurance for a work-related illness or injury. Social Security Disability, Medicare and Medicaid may be the major payers of workers' injury and illness costs, primarily occurring with occupational illness because of the long latency period between time of exposure and the time the illness manifests.
FJS: I've been wondering, now that the Supreme Court has ruled in favor of the whole capital-donations-being-the-same-as-free-speech and corporations-having-no-restrictions-w/r/t-campaign-contribution malarkey, do you feel that this will worsen existing setbacks, or could it potentially alter the current arrangements of the workers' compensation quid pro quo?
PW: In a recent case: Brown v. Cassens Transport, US Court of Appeals for the Sixth Circuit, the plaintiffs, Brown, et al., brought an action under the RICO (Racketeer Influenced and Corrupt Organizations) Act. The plaintiffs (Brown, et al.) claimed that the defendants (Cassens Transport and their insurance carrier -- Crawford) allegedly colluded to hire medical practitioners who were willing to offer faulty medical opinions that would ultimately deny Brown et al. workers' compensation claims based on work-related injuries. The plaintiffs charged that both Cassens and Crawford intentionally commissioned "unqualified" doctors to provide dishonest and inaccurate medical opinions that would result in the denial of workers' compensation benefits. The case alleged mail fraud, wire fraud and violations of the RICO act. When Cassens appealed, the court sent it back and the decision was ruled in favor of indicting the employer, insurer and medical practitioners under RICO.
FJS: So the plaintiffs won ... they found a way around the quid pro quo?
PW: In a sense, yes. They brought their suit in federal court, using the RICO act. This opens one door in some cases, but that's not enough.
FJS: Tell me about insurer fraud, premium fraud, provider fraud ... What's going on?
PW: Workers' compensation insurers and their very powerful lobbyists, supported by employers, regularly lobby state legislators who are generally ignorant about the workers' comp system and more concerned about the profits of businesses, acquiesce to the demands of the insurers. It is particularly at these times that one will hear about worker/claimant fraud, especially when the workers' comp insurance lobby is trying to pass legislation to further reduce the benefits to injured workers, or to restrict access or compensation to attorneys representing the worker, but not to restrict the attorneys representing the corporations, of course. But study after study shows that claimant fraud is actually less than one percent. What doesn't get mentioned is the insurer fraud, the provider fraud and the premium fraud.
When California state auditors looked at seven years of claims that showed insurance companies' violations of workers' rights, the average fine was $126, not much of a deterrent for a large insurance company ... For most insurance companies, it's cheaper to pay the fine than to meet its obligations to the injured worker or the family of the deceased worker.
Insurer fraud is legion: Workers' compensation insurers are widely known to go to any lengths to avoid paying the costs they should be paying. And provider fraud includes billing for treatment and/or services that were not provided, or miscoding.
In the end, no one is listening to the workers, or the families of deceased workers. The employers and insurers are lobbying legislators, claiming that costs are going up and pressing for a reduction in the benefits. In one extensive study over 15 years, workers' compensation costs per $100 of wages went down by 19% over its high in the early 1990s, while benefits per $100 of wages decreased by almost double that amount, or 33%, for the same period.2
FJS: Can you explain premium fraud?
PW: With premium fraud, employers will not pay what they should be paying for workers' compensation insurance. They'll misclassify positions, e.g., an employer might list an ironworker as a secretary, and then, of course, their rate will be far less than an actual ironworker's. Many times though, they will either fail to list some or all workers altogether, or they engage contract workers, who presumably will pay their own workers' compensation, all to circumvent costs.
FJS: OK, let's talk a bit about chemical exposure in the workplace. There are hundreds of thousands of chemicals used in industry. Out of all those hundreds of thousands of chemicals, OSHA is supposed to create PELs (permissible exposure limits) for the really hazardous ones, correct?
PW: Yes, there are hundreds of thousands of chemicals, some say as little as 80,000, some say as high as 650,000, used in the US workplaces. However, here in the States, there are only a small number of PELs established by OSHA, and many of those are decades old, and outdated based on more recent scientific evidence.
FJS: Like, how small are we talking?
PW: There are less than 500 PELs approved here in the US.
FJS: Is that good ... bad ... ?
PW: The EU regulates about 30,000 chemicals. You tell me who's doing a better job with regulating deadly chemicals. In fact, OSHA never got a single PEL approved during the Bush administration, and many, as I mentioned, are 40 years out of date. According to REACH [Registration, Evaluation, Authorization, and Restriction of Chemicals: the EU's regulatory agency for the production and use of chemical substances] the cost of regulation is minimal to the cost of saving lives. The cost has been estimated to be less than one euro per year per person over the entire 11-year phase-in period.3 It would be in our best interest to start adopting regulatory practices similar to those of the EU.
FJS: You wrote in your book that NaOH (sodium hydroxide, a highly toxic alkaline compound) is used in the feed processing, as well as the poultry slaughtering and processing industries. Owing to the fact that NaOH is fatally toxic, can you explain how, exactly, this substance is used in these industries, legally and technically? And what are the health implications that are involved?
PW: First of all, NaOH is just one example of the toxic chemicals of which we speak. The allowance of industrial use of sodium hydroxide goes back to the fact that OSHA can't get PELs through that are meaningful.
Sodium hydroxide gets used in a variety of ways in the poultry industry, e.g., as a food additive in the chicken feed, to remove the feathers on chickens, as well as a general disinfectant. It is also used throughout the meatpacking industry as well as in hospital laundry rooms, beauty shops -- a lot of cleaning products use sodium hydroxide, too ... But it's not just sodium hydroxide. Many times when I talk about this, people will say to me that the toxic chemicals are really not such a problem any more, because manufacturing has left this country. Let me be clear: Chemicals in manufacturing are a problem, but there are many other chemicals in production and use out there: in hospitals, construction, restaurants, hotels, dry cleaners, air conditioning/refrigeration and repair, auto repair, farming, to name a few -- chemicals are everywhere. In 2002, California alone used 172 million pounds of pesticides. Methyl bromide is widely used in the farming industry. According to the EPA, we use 42 million pounds of methyl bromide per year in this country; of which 80-95% goes into the atmosphere, and it may even be the heaviest ozone-depleting substance around. Anyone who thinks that these worker toxic chemical exposures and deaths have no relationship to the environment and the health of fetuses, infants and young children, in particular, better look again.
In relation to farm workers exposed: The families are also exposed. When workers come home, they hug their children, they wash their clothes with the family clothes, exposing the whole family to the chemicals they have used.
In the chapter in my book where I talk about this, an elementary school was right next to the field where methyl bromide was being spread. No one warned that school, those children, about the dangers to which they were being exposed, while the methyl bromide was being spread on those fields and going into the air, and draining off into the soil and the water.
The problem, here in the US, is that we put the responsibility on OSHA to prove that a particular chemical, at a specific amount, is a proven danger. So the onus of proof goes on OSHA. What happens in other advanced countries is that the responsibility goes on the manufacturer, the industry, to prove that a chemical is safe, before it is allowed to be used. We have it backwards.
One example: asbestos
OSHA spent 10 years in research, published thousands of pages of research, spent millions of dollars -- only to have it fought vehemently by the asbestos industry -- the same industry that knew over 30 years earlier that asbestos killed workers because their own studies, which were forced to be released in the 1970s, showed that asbestos damaged the lungs of workers. Those studies were kept secret from the workers and from the public for all those years. When the industry was finally forced to make them public, then OSHA tried to remove asbestos. It was fought by the industry. So, thousands of pages, millions of dollars, and 10 years later, the case was thrown out by the court on a technicality. And asbestos is still with us today. We need to put these substances through the process that other countries put them through, if we care about our health and the environment.
FJS: That's a really good point.
PW: Oh, indeed. You know, there's this focus on what people can do to improve their own health, e.g., we are told to eat right and stop smoking, and supposedly this will keep us healthy. Eating right and stopping smoking is good, but it puts the focus on your personal responsibility and takes the focus away from the monumental problems caused by toxic exposures. Let me give just one example: One out of 10 smokers will develop cancer; 10 out of 10 workers exposed to synthetic dyes over the course of 20 years will develop bladder cancer.4
FJS: These are all tremendous issues, each one seemingly compounding a towering problem here. What's your solution, if any, to all of this?
PW: I have several recommendations for reform:
Recommendation One: The separate system of health care for occupational injuries and illnesses must be eliminated.
The abuses in medical treatment under workers' compensation are legion and varied. Themes that run throughout the experience of injured workers are the delays; the denial of treatment; the inadequate, inappropriate and cursory medical treatment; inhumane treatment; and the shunting of costs that should be paid by workers' compensation to others, including injured workers and their families.
Study after study in states across the country found significant under-reporting of worker injuries and occupational diseases requiring medical treatment. The very fact that, in medical treatment under workers' compensation, one has extremely limited, if any, choice of medical providers; that change of physician is made difficult and lengthy; that the patient is not the customer; that the patient must rely on what the physician reports, accurate or not, for the treatment s/he so desperately needs; and that insurers often put pressure on physicians to give them what they want to hear, through various means of persuasion and arm-twisting; all contribute to the potential for abuse.
One must ask why a system of medical treatment is based on the payer's needs, rather than the diagnostic and treatment needs of the patient. The major purpose of this duplicative, and duplicitous, medical system has been to save money for the employer and the insurer. What has been created in workers' compensation in most states is a separate system of health care, one that defies the most basic tenet of the medical profession to do no harm. The separate system of health care for occupational injuries, illnesses must be eliminated.
Additionally, a universal health care system would create the incentives for prevention, as well as proper care for the injured, ill.
Recommendation Two: Tort Liability
Safety should be a no-brainer. It saves lives and costs. But if employers and workers' compensation insurers are not paying the preponderance of the costs of the worker injuries and occupational illnesses that employers cause, there's no incentive for them to improve workplace health and safety. That's why we must have tort liability. There is a model for this in the Jones Act, which covers work-injured or ill maritime workers, and also gives workers the right to sue.
To continue with workers' compensation as the exclusive remedy is to protect employers and insurers from accountability for the disease that cripples, or the corporate negligence that injures or kills.
Recommendation Three: Criminal Liability:
Tort liability by itself is not sufficient. We must also have viable criminal liability. The proposed HR 5663 would establish mandatory minimum penalties for violations that result in worker deaths, allows felony prosecutions against employers who commit willful violations that result in death or serious bodily injury, and extends such penalties to responsible corporate officers.
There are also lessons to be learned from the language in the Canadian corporate manslaughter law (An Act to Amend the Criminal Code, C-45, 2004), which makes it possible to convict the organization on the basis of the actions (or failure to act) of any employee and a "relevant senior officer;" the definition of the latter to include "members of management with operational, as well as policy-making, authority."
For crimes of criminal negligence causing bodily harm or death, the organization will be guilty where the senior officer responsible, or senior officers of the organization in the aggregate, "show a marked departure from the reasonably expected standard of care in failing to prevent a representative (of the organization) from being a party to the offence."
The Canadian law (Section 732.1 (3.1)) also allows probation orders to be served upon corporations following conviction, with additional conditions, such as making restitution to the injured party for any loss or damage suffered resulting from the offense, establishing policies and procedures to remedy any potential hazard, communicating the new policies and procedures, reporting to the court, requiring the corporation to inform the public of the offence of which the corporation was convicted and the measures taken to reduce the likelihood of its committing further offences. There are no limits on the fines that can be imposed.
Recommendation Four: Establish a national medical and statistical database on worker injuries, worker toxic exposures, and occupational diseases.
As previously mentioned, the US has no national comprehensive medical data-collection system for occupational injuries, occupational illnesses, nor the diseases and deaths whose etiology was occupational toxic exposure. The partial and fragmentary systems that do exist grossly underestimate incidence, are unreliable, and inconsistent.
Markowitz in Leigh, et al.(2000) had to research hundreds of primary and secondary data sources in order to arrive at a very conservative estimate of the attributable proportion of occupational diseases, and the deaths that they had caused.
As already noted, estimated deaths from occupational diseases are more than deaths from most diseases. The costs of occupational illnesses are also higher, commensurate with their numbers and severity. But because the magnitude of occupational injuries and diseases is not generally known, it tends to get ignored.
As we lag behind in a national database, we have also lagged behind in research, often attributing cancer causation to smoking, but not to toxins in the workplace.
Data gathering, aggregation, and surveillance are essential to assist in diagnosis, treatment, improved prognosis and prevention; and are severely hindered by the lack of a single, comprehensive, national surveillance system. As we have seen, the provision of appropriate diagnosis and treatment suffers from the lack of medical knowledge about toxic exposures, occupational illnesses, and attendant disease processes.5 On average, medical students, at those medical schools that include it in the curriculum at all, receive a grand total of six hours of training on occupational diseases.
A national comprehensive occupational disease surveillance database would lay the groundwork for health care and academic institutions' continued research into the causes and consequences of occupational illnesses and injuries.
Recommendation Five: A National System of Uniform Workers' Coverage
The fact that workers' compensation is state-by-state is absurd; there needs to be a national system with uniform coverage and benefits managed under a national program6, possibly integrated into the Social Security Disability Program.2
We need to hold the corporations and insurers accountable, which could be done through an industry-specific tax, or preferably, a general business occupational injury and illness tax. As mentioned previously, the preponderance of occupational illness costs now fall on the federal government, primarily Social Security Disability, Medicare, and Medicaid.6
Recommendation Six: OSHA: A System in need of overhaul.
For all the reasons outlined earlier, OSHA must be overhauled. The proposed HR5663: Miner Safety and Health Act of 2010 would address some of the failures extant in both the Mine Safety and Health (MSHA) Act and the OSHA act. As previously mentioned, it would raise civil and criminal penalties. It would also require abatement of a violation immediately upon identification, rather than having to await the end of the negotiation process; include victims, family members in the negotiation process; and improve whistleblower protections.
The sheer magnitude of occupational illnesses and injuries cries out for our attention and resolution, and would dramatically improve the health of our nation. Justice demands that we right this system that now looks the other way when corporations ignore the safety, the health, the very life of workers: all in service to profit.
1. Markowitz, in Leigh, J. Paul; Markowitz, Steven; Fahs, Marianne; Landrigan, Philip. Costs of Occupational Injuries and Illnesses. University of Michigan Press, 2000.
U.S. House of Representatives. Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses. A Majority Staff Report by the Committee on Education and Labor. Honorable George Miller, Chairman, June 2008.
Steenland, Kyle; Burnett, Carol; Lalich, Nina; et al.Dying for Work: The Magnitude of US Mortality From Selected Causes of Death Associated With Occupation, American Journal of Industrial Medicine, Vol 43, pp 461-482, 2000.
2. Welch, Edward M. What should be driving Workers' Compensation Reform. Journal of the International Association of Industrial Accident Boards and Commissions. Fall, 2007.
3. Ackerman, Frank. The Unbearable Lightness of Regulatory Costs. Tufts University, 2006.
4. Hueper, cited in Davis, Devra. The Secret History of the War on Cancer. Basic Books, New York, 2007, pp.104-105.
5. Azaroff, Lenore; Levenstein, Charles; Wegman, David. Occupational Injury and Illness Surveillance: Conceptual Filters Explain Underreporting. American Journal of Public Health, September 2002, Vol 92, No.9, p. 1421-1429.
6. LaDou, Joseph. Occupational Medicine in the United States: A Proposal to Abolish Workers" Compensation and Reestablish the Public Health Model. International Journal of Occupational and Environmental Health. Vol 12, No. 2, 2006. 12(2):154-168.