Way to go Austin American Statesmen, it appears the editorial has been removed from their website.
An editorial appeared in the Austin American-Statesman that was troubling, to say the least. Law professors Thomas McGarity and Sid Shapiro opined on the need for Texas to strengthen its workers' compensation laws and among other things end the employer opt-out.
Any discussion of protections for injured workers and how to best compensate them after a work accident befalls them is almost always welcome. In our increasingly airy and disconnected politics, issues that affect thousands of workers' lives get lost in the shuffle. That being said, issues that generally fly under the radar offer the opportunity for those with an agenda to inflate their credentials and push an agenda, irrespective of the facts. In fact, the general ignorance of many in the public gives such opportunists more latitude to put forward ideologically driven solutions based upon either misunderstandings of the law, or flat-out lies.
Under the guise of advocating for greater worker protections, McGarity and Shapiro make rookie mistakes in relating Texas workers' compensation and non-subscriber law. While protecting injured workers is an issue of great public importance, like any public debate, it should be conducted in an open, honest, and informed manner. Instead, McGarity and Shapiro either misunderstand or blatantly misrepresent how Texas law treats injured workers. That such misunderstandings come from law professors, supposed experts, is even more disturbing.
Working at a non-subscriber work injury law firm, we get to see the devastating impact that workplace injuries have on the lives of Texans every single day. We also know that the biggest difference between those in the workers' compensation system and non-subscribers is that only those whose employers have workers' comp are guaranteed to lose money when they get injured at work, whereas non-subscribers have the ability to recover all of their damages.
McGarity and Shapiro Cross the Line From Academics to Advocates
If McGarity's and Shapiro's position was that our workers' comp system is in need of reform, I would certainly agree. The problem is the type of reform that McGarity and Shapiro advocate as well as their methods of advocacy.
The most egregious part of their opinion is when suggest,
Lawmakers should reaffirm the right of injured workers to seek compensation before juries and provide a level playing filed by eliminating the common defenses that employers can claim--most notably the "assumption of the risk" defense, which allows employers to escape liability by arguing that employees knew that the workplace was dangerous but continued to work anyway --as if they had a choice-- and the "fellow servant rule," which frees the employer from liability if it can blame another employee for the accident
What would it look like if McGarity and Shapiro got their way and the Texas legislature prohibited employers from arguing assumption of the risk or the fellow servant rule? It would look a little something like this:
- Texas Labor Code Section 406.033. Common-Law Defenses; Burden of Proof (a) In an action against an employer by or on behalf of an employee who is not covered by workers' compensation insurance obtained in the manner authorized by Section 406.003 to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:[emphasis added]
- The employee was guilty of contributory negligence;
- The employee assumed the risk of injury or death; or [a.k.a. assumption of the risk]
- The injury or death was caused by the negligence of a fellow employee [a.k.a. the fellow servant rule]
McGarity and Shapiro can queue up "I Will Always Love You" by Whitney Houston and party like it's 1993, because that's how long those defenses have been prohibited under Texas law.
It is academically dishonest for McGarity and Shapiro to invoke their teaching credentials at the end of the article. Sure, they're both law professors, but guess what? They don't practice or specialize in work injury law. The focus of McGarity's research and writing is centered around environmental law. According to Shapiro's biography he was an attorney for the Federal Trade Commission and specializes in administrative law. That may relate to workers' comp, but is has nothing to do with non-subscriber work injury law.
In short, McGarity and Shapiro are work injury law dilettantes flashing irrelevant credentials to lend more weight to their opinions. The only part of their credentials that is relevant is that they're both on the board of the Center for Progressive Reform, a left-wing think tank. If that was the credential they wanted to flash, more power to them. However, when they invoke their legal training, a reader has the expectation they know what the law says.
It would be charitable to say that their mistake in this article is something a first-year law student would make, because the truth is that even without formal legal training, anyone with a keyboard and a passing familiarity with Texas work injury law can track down for themselves that McGarity and Shapiro get Texas law wrong.
McGarity and Shapiro also mention in passing the issue of mandatory pre-employment binding arbitration. Many employers force prospective employees to sign papers that all future disputes will be resolved in arbitration. Essentially, employees are signing away rights in exchange for a job. While it is always more desirable to have a case heard before a jury than an arbitrator, arbitration by itself doesn't prevent employees from recovering the full amount of their damages. Grossman Law Offices has won millions of dollars in arbitration awards for our injured clients.
Would it be better if Texas outlawed pre-employment arbitration agreements? Probably, but in light of recent United States Supreme Court decisions, it is unlikely such a state level prohibition would even be constitutional. The state of California tried to do it a few years back with certain financial services agreements and their laws in the matter were deemed unconstitutional. For that to be an option, Congress would have to modify the Federal Arbitration Act (1926). Of course, if we're in the business of scoring cheap political points, it doesn't really matter whether a solution is feasible, or even legal.
Another area where McGarity and Shapiro mischaracterize the plight of Texas workers is by bandying about Texas leading the nation in workplace deaths. While we view this as a very serious problem, without proper context, it can be misleading. First, many folks in Texas work in dangerous jobs. The four most dangerous industries are construction, mineral extraction, manufacturing, and transportation. Despite having only 3/4s of the population of California, these industries in Texas produce twice the total value of goods and services of the Golden State. It stands to reason that far more Texans have dangerous jobs than people in other states. This doesn't excuse lax safety processes, but it does stand to reason that if more people are engaged in dangerous work, more people will be hurt, regardless of what laws are in place.
In Texas, we long ago made the decision that a dangerous job is better than no job at all. Does this excuse employers from the responsibility of making sure that their work site is as safe as possible? It does not. That's why firms like ours sue dangerous employers who don't subscribe to workers' compensation.
In addition, half of all work-related deaths are due to transportation accidents. This is where Texas has the dubious distinction of having far more highway fatalities than any comparably-sized states. The reasons for this are many. It's the largest of the lower 48 states, which means Texas commercial drivers are driving further than those in any other state. Just the sheer size of Texas means that if you're driving across the country and you're going to be injured, it's more likely to happen in Texas than other states.
Texas also has the worst drunk driving problem of any large state. This accounts for a fair portion of the deaths and injuries commercial drivers sustain on the road. For these circumstances to serve as a basis to declare that our workers' comp and non-subscriber system doesn't work it akin to going to a dentist for an achy knee. You're looking for a solution in the wrong area. When are arguments are cherry-picked to elicit an emotional response, one can't help but suspect that someone's politics is doing the talking, not their knowledge of the law.
That McGarity are dealing in politics and not the law is driven home by their conclusion:
A century ago, a social bargain was struck that substituted a no-fault workers' compensation system for common law remedies--that is, lawsuits. Since then, state legislatures have allowed employers to avoid much of their end of that social bargain. It's time for Texas lawmakers and employers to stop eroding these programs and hold up the intended purpose of the original bargain
While acknowledging the seriousness of the subject, it has to be pointed out how silly this call to action is. Generally, it is conservatives who are parodied for longing for halcyon days when things were simpler and institutions stronger. The same people who insist on a "living Constitution," that evolves with the times can't abide a work injury system that evolves with the times.
30 years ago, the Texas legislature amended the social bargain in a way that allows employers to decide if they really need protection from lawsuits, or if they'd prefer to take their chances. While it has certainly hurt some workers, the opt-out has also allowed thousands of other workers to receive better treatment and more compensation than was available under the workers' compensation system. Additionally, our increasingly technologically based work force means that it is silly to require many companies to carry workers' compensation insurance.
While working in a law firm may seem like being in a metaphorical jungle sometimes, the fact is that it is a very safe environment. Making low-risk, white collar businesses, where there is next to no chance of a work injury, subsidize more dangerous occupations doesn't discourage unsafe work environments, rather it uses safe businesses to subsidize their more dangerous counterparts. In these instances, it is better for both the business and the occasional injured worker to settle matters in court.
While pining for the old social contract, McGarity and Shapiro neglect to mention that the work injury landscape has changed dramatically over the past 100 years. The chance of success in most work-injury lawsuits a century ago was doubtful. Since that time, laws designed to protect injured workers have tilted the process in favor of injured workers. As a result, while not having to go to court may have been an incentive for workers to support the creation of the workers' comp system a century ago, but today for the vast majority of Texas employers, the immunity from lawsuits that participating in workers' compensation gives them is far more valuable than the cost of premiums.
In addition, the workforce of 100 years ago was barely literate, possessing only the most rudimentary education. Even if the law had been stacked in their favor, it would have been unlikely that they could have understood the process or taken advantage of it. That is not the case today. Both workers and the personal injury law field are far more sohpisticated. This gives injured workers the chance to maximize their compensation, while minimizing the risk that they receive nothing. It also directly punishes companies who do not provide safe work environments.
By arguing against the employer opt-out, McGarity's and Shapiro's proposals would force all workers into the substandard workers' compensation system that they argue is in need of reform.
How Workers' Compensation Vs. Employers Who Opt-Out In Texas
Unlike every other state in the country, Texas permits employers to opt-out of the workers' compensation system. This has made is the target of those who believe that the workers' compensation system is one of the pillars of the social contract in the United States. These folks believe that guaranteed compensation, without recourse to courts is a fundamental right of every injured worker.
Like many defenders of ineffective programs, the defenders of the workers' compensation system seem to value the abstract idea of the system, far more than the flesh and blood people it is designed to protect. With puffed-out chests, these social justice warriors shout from the hilltops about inadequate protections for injured workers, but rarely look into the problems with the program they're defending. This is a common theme throughout numerous pieces in the New York Time, a large National Public Radio expose from last year, and McGarity's and Shapiro's recent editorial.
The facts of the matter are that injured workers in the workers' compensation system are guaranteed to lose money after an injury and often receive sub-standard care. Workers' compensation benefits are never as much as a worker made before the injury. In a country where 2 in 3 people don't have $1000 in the bank, any loss of income is a financial catastrophe.
Workers' compensation in Texas caps workers' income benefits at 70% of what they were making before they were injured. Normally, this would be fine, but for a serious catch. If a worker is making more than the average state weekly income, then their benefits are capped at the average weekly wage. Since many of the most dangerous jobs pay about the average wage, the workers most likely to be injured are often the ones who experience the most financial devastation.
A quick illustration of how this works:
- I work in mineral extraction making $1500 a week at the time of my injury.
- The state average weekly wage is $895 for Texas in 2016, the most I can get in workers comp.
- Instead of getting 70% of my pre-injury wage, I'm actually getting just under 60%
In addition, workers' comp insurers have sole discretion when it comes to non-emergency medical treatment for injured workers. As these insurers are paid by employer premiums, they have every incentive to keep costs as low as possible. In most cases this means that doctors are chosen not by their skill, but their ability to minimize the apparent severity of a worker's injury. Making things even more unfair to workers, if they miss a single appointment, their benefits can be cancelled.
It may seem like this is an awful system in need of reform. If that's what McGarity and Shapiro were arguing for, I would stand with them. However, the worst of their ire is reserved for the ability of employers to opt-out of workers' comp. At one point they go so far as to argue, "Sadly, employees have little choice but to accept the meager compensation available from employers who opt-out." This is patently untrue.
Our legislature has stacked the deck in favor of non-subscriber employees. If their employer opts out, they are barred from using many common defenses. In addition, unlike every other type of litigation in Texas, an employee only has to show that an employer was even 1% responsible for a work injury and the employer is on the hook for 100% of the damages.
With the legal cards in their favor, employees don't have to accept whatever an employer offers. Instead they have a very powerful tool available to get proper compensation, a lawsuit. Certainly, a lawsuit is not without risks. It is perfectly legal for Texas employers to fire an injured worker who files a lawsuit. However, injured workers who get proper legal counsel can mitigate the risks involved.
One unsavory aspect of the non-subscriber system is that employers can promise injured workers the resources they need to get back on their feet and back to work, but absent something in writing, it won't hold up in court. These are the workers who end up signing away their right to file suit, but then never receive the care they need to get back to work. The solution to this isn't to force these same workers into an awful workers' compensation system, but to educate workers more thoroughly about their rights.
Grossman Law Offices handles inquiries from injured workers all the time. Knowing that workers can be fired if employers even get wind that they're considering a lawsuit means that attorneys in this field will handle initial inquiries on a discreet basis, so at not to alert employers. Handled correctly, injured workers have the ability to get better medical care and recover far more compensation through a lawsuit than they can in the workers' comp system.
The examples McGarity and Shapiro cite are of McDonald's not covering carpel tunnel injuries, Sears refusing benefits for injuries that aren't reported by the end of the shift, and a senior living center refusing to pay for bacterial infections. Each of these problems can be solved to some degree through lawsuits and the problems in each of the scenarios would be present in the workers' comp system.
For example, it is difficult to recovery any damages for carpel tunnel injuries, not because McDonald's is a non-subscriber, but as a matter of Texas law, employers can raise what is known as the routine job defense. This doctrine precludes recovering compensation for many long-term occupational injuries on the grounds that since they pop up in the normal course of work, there is no way for an employer to foresee that they'll occur in a given situation. Is this defense silly? Of course. Might it be archaic? Certainly. However, it is the kind of low-hanging fruit that could easily be done away with were advocates for safer work conditions about more than a vastly expanded, mandatory workers' compensation system.
Taking their second example, Sears can deny benefits to workers who don't report injuries by the end of the shift, because as non-subscribers they can set the conditions for receiving benefits. What they cannot do is deny an employee's right to file suit. It doesn't matter if an employee discovers an injury the next day or a week after an incident, their legal rights are intact.
As for problems recovering proper compensation from a senior living center, it is possible that an injured worker is worse off in a medical facility that doesn't subscribe to workers' comp than they would be in the system. The reason for this isn't anything that workers' comp does well, but that in its wisdom, the Texas Supreme Court ruled that on the job injuries at medical facilities have to be pursued as medical malpractice claims. This greatly limits the non-economic damages that an injured worker can cover in a lawsuit, but even in this disadvantageous legal climate, it is still possible for injured workers to recover all of their lost wages and medical expenses in a lawsuit. The same cannot be said of workers's comp.
In short, many of the problems that McGarity and Shapiro correctly identify are the result of some other area of the law.
Protecting Texas Workers
I get it. Texas workers' compensation is a pretty awful deal for injured workers. In addition to being guaranteed to lose income after a work injury, they are placed in a system where they get substandard health care, which is incentivized to save insurers money. The problem with most calls for reform, including McGarity and Shapiro's is that while they pine for a program that worked well for 70 years, they fail to consider that medical costs have skyrocketed since that time.
For a good portion of the last century, there was very little medical care that could actual be provided for injured workers. Both pharmacological and surgical remedies were far fewer, meaning that the maximum amount that had to be paid in medical bills was also lower. This lack of medical services exerted a downward pressure on costs. Quite simply, medical treatment doesn't cost much when doctors can't do much for you. However, the proliferation of treatments and consequent rise in medical costs put a tremendous strain on this system. Resulting in reforms in many states.
A specific area where we can see this phenomenon is in the area of brain injuries. Texas workers' compensation doctors use an outdated diagnostic manual that was written more than 20 years ago. Anyone who has paid the least bit of attention to the concussion scandal that has rocked the National Football League knows that in this time, the attitude of medical professionals regarding concussions has undergone a profound change. What used to be simply a matter of "having your bell rung" and treated with aspirin is now regarded as a serious medical event, requiring more expensive diagnostic tests, and monitoring.
This all costs far more money. It may be one reason that Texas is reluctant to update the diagnostic manual. Work-related concussions in Texas are still treated as they have been for the last hundred years under the current system. The only group of Texas workers who can get proper treatment for work-injury concussions is those who work for employers that have opted out of that system.
In light of this and many other examples, any call to restore the system to what it was 30 plus year ago neglects the realities of skyrocketing medical costs. Such a system would be financially ruinous and unworkable.
As long as we maintain a workers' compensation system, it will begin becoming obsolete from the moment rules are passed. This is one area where government has lost the ability to keep up. Instead of trying to shoehorn everyone into an unworkable system as McGarity and Shapiro propose, wouldn't it make more sense to find a way to get more people into the part of the system, the opt-out portion, that works best?
The easiest way to accomplish this goal is to allow employees the same opt-out that employers have. Under current Texas law, employees theoretically have this right, but when they choose to exercise it, employers are free to fire them. Rights don't exist in any meaningful sense if their free exercise depends on someone else's consent. This may not be the easiest legislative fix, but it is an option. Further, if employees have this right, employers will be forced to discuss work injuries before they happen. Greater awareness can't help but bring down the number of work injuries.
Similarly, I agree with McGarity and Shapiro that pre-employment binding arbitration agreements are unconscionable. The price of a job shouldn't be signing away a portion of your constitutional rights. Of course, even in agreement with a portion of their ideas, I cannot condone there misrepresentation of both Texas law and their own credentials. If they want to advocate as members of a left-wing think tank, God bless them. When they incorrectly present the law and do so behind the shield of their irrelevant legal experience, then I have a problem with that.
Dealing with injured Texans everyday as we do, we understand they don't need McGarity's and Shapiro's grandstanding, they need thought leaders who discuss issues honestly and knowledgeably.