We owe a hat tip to a reader who sent along an older, but still fascinating piece from ProPublica. The story details efforts around the country by companies to influence workers' compensation laws in favor of employers.
One of the more shocking aspects of the story is how it details efforts of companies to exploit the knowledge gap between their attorneys and their injured workers to get workers to sign away rights and accept the care that is offered by the company, irrespective of whether or not the care is adequate. A pattern emerges of companies controlling the work injury process from the commencement of treatment to the termination of benefits. In one company, injured workers saw a company nurse after an accident; their case was evaluated by a company auditor; they were then referred to company doctors for treatment.
It seems that some companies act as both judge and jury of their own liability in many work accident cases. This is a particular problem in states like Arkansas and Iowa where employers seem to have gained sway within the legislatures and workers' comp commissions, adding the imprimatur of state governments to how these companies treat their injured workers.
Perhaps the most disturbing part of the story wasn't the influence wielded by companies in state legislatures, but the tactics employed by companies towards their injured workers right here in Texas.
The Cautionary Tale of Billy Shawn Walkup
Deep within ProPublica's reporting is an account of a Tyson Foods Inc. employee, Billy Shawn Walkup. Mr. Walkup was an employee at a Tyson factory in Vernon, Texas back in 2011. While on the job, he slipped, fell and suffered disk protrusions in his back. This soft tissue injury can be incredibly debilitating, as the soft tissue that insulates the bones in our spinal column does not properly cushion the forces these bones exert on one another. In certain circumstances, disk protrusions can even put pressure on the spine itself, resulting in numbness, paralysis, and agonizing pain.
In the immediate aftermath of the accident, Tyson provided Mr. Walkup with emergency care and presumably some initial follow-up care. After two weeks, Mr. Walkup was approached by a representative of Tyson Foods and told that he had a decision to make. He could either sign a waiver, renouncing his rights to file suit against the company, while continuing to receive treatment and benefits, or he could not sign and his treatment and benefits would cease immediately.
With a wife and two small children at home, Mr. Walkup saw little choice but to sign the waiver. Mr. Walkup's treatment continued for awhile and the doctors, selected by the company, decided that he had recovered enough to return to light duty at work.
However, the company did not authorize surgery, which is often crucial to fixing these problems. As a result, Mr. Walkup's pain continued; he ended up missing too many days; and he was fired two months later. His medical benefits continued after his termination, but he was eventually referred to a company doctor who after a brief examination of both, Mr. Walkup and his extensive medical records, declared the injury to be little more than a strain, a strain so mild that Mr. Walkup subsequently qualified for social security disability benefits.
Due to the waiver he signed, a waiver that relinquished Mr. Walkup's rights to litigate his claim under Texas law, he never received full compensation for his injuries and the burden of paying for his treatment was shifted from his employer, Tyson Foods Inc., to the taxpayers.
If this were an isolated incident, our sympathies would go out to Mr. Walkup and his family, but there would be little more to say. However, Mr. Walkup's situation is part of a larger pattern of how Tyson operates, when it comes to workers injured in Texas. They follow the law to a T, but exert as much pressure on injured workers as possible to secure the outcomes the company desires.
Post Accident Injury Waivers and Texas Law
What makes Texas different from other states is that employers are afforded the right to opt out of the workers' compensation system. This is crucial for understanding Mr. Walkup's story. In other states, Tyson would have been required to participate in workers' comp and there would have been a set of defined benefits, akin to unemployment insurance for the injured. However, in Texas, Tyson is free to offer whatever benefits they deem appropriate.
On the surface, this system may appear to be more favorable to employers. Much of the reporting done by ProPublica and National Public Radio over the past year has focused on the deterioration of the workers' compensation system and its affects on workers. These organizations cite Texas' opt-out, or nonsubscriber, rules as further proof of this problem.
What this reporting misses is that under any workers' compensation system, workers are punished for being injured. Certainly, they are afforded badly needed medical treatment, but they receive only a portion of their pre-injury wages. Since most American live paycheck to paycheck, and this problem is more pronounced the less money people make, any reduction in income is often catastrophic for injured workers and their families. Cutting to the chase, any workers' compensation system forces injured workers to subsidize their treatment in the form of lost income.
What makes nonsubscriber work injury law more fair to injured workers than workers' compensation is the possibility that an injured worker can recover all of their lost wages, medical bills, and other damages. Furthermore, the state of Texas makes it so that workers injured by nonsubscribers have a much lower bar to clear legally than victims in other personal injury lawsuits. If a nonsubscriber contributes even 1% to the circumstances that led to a workplace injury, the employer is on the hook for 100% of the resulting damages.
Unless an injury is 100% the employee's fault, the ability to sue an employer for a workplace injury is potentially far more valuable to an injured worker than workers' compensation benefits.
The best defense that nonsubscribers have is to exploit a knowledge gap between the company and an injured worker concerning nonsubscriber work injury law. This is exactly what happened in Mr. Walkup's case.
Since it is very likely that Tyson Foods Inc, or any employer, did something that contributed at least 1% to any workplace accident, the only sure-fire defense that most employers have is to get an injured worker to sign away their rights to sue. Before a 2001 law outlawed the practice, many nonsubscribers required their employees to sign pre-accident injury waivers as a condition of employment. The bargain was, "If you want the job, you have to sign away some legal rights."
Legislators realized that such waivers pretty much gave employers carte blanche to operate in an unsafe manner, since there were few real consequences to employers for failing to provide their employees with a safe work environment. In essence, the law placed the duty on employers to provide safe working conditions, but the waivers shielded them from any liability for failing to do so. This created a right for workers, but no remedy when that right was violated.
While the 2001 law outlawed pre-injury waivers, it offered no guidance about post-injury waivers. This led to stories, like one from a story in the Houston Chronicle from 2003, about employers, like Tyson, forcing injured employees to sign waivers as a condition for receiving treatment. In one particularly grizzly incident, an employee injured their writing hand and, so as not to render the waiver illegible from a still bleeding hand, they were instructed to sign the waiver with their other hand before they would receive treatment.
Again recognizing a problem, the legislature moved to enact a waiting period before such waivers could be considered valid. While many lawmakers wanted a 30 or 60 day cooling off period, nonsubscribers vigorously opposed any restrictions. The result was a compromise of 10 business days. This means that one of the conditions that must be met in order for a waiver to be valid is for 10 business days to have passed once an injury occurs. This is why you may notice that in the ProPublica article, the Tyson representative shows up with the waiver after two weeks, the minimum amount of time that 10 business days could have elapsed.
The problem with the waiting period is that 10 business days is usually too short of a time for most injured workers to assess their situation, get a realistic prognosis, seek out legal counsel, and make a decision that is in their best interests. Since nonsubscribers are usually very familiar with work injury law this gives them a huge advantage when dealing with injured workers. Over the years, at Grossman Law Offices we have seen numerous worth work injury claims go uncompensated, because workers have signed valid post-injury waivers. At the same time, we've seen quite a few instance where workers thought they had no claim, due to a post-injury waiver, but were relieved to find out that the waiver did no meet all of the criteria required by law in order to be considered valid.
The conditions for a valid post-accident injury waiver are found in Section 406.33 of the Texas Labor Code:
- (e) A cause of action described in Subsection (a) may not be waived by an employee before the employee's injury or death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee's injury or death is void and unenforceable.
- (f) A cause of action described by Subsection (a) may not be waived by an employee after the employee's injury unless:
- (1) the employee voluntarily enters into the waiver with knowledge of the waiver's effect;
- (2) the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury;
- (3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and
- (4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document.
- (g) The waiver provisions required under Subsection (f) must be conspicuous and appear on the face of the agreement. To be conspicuous, the waiver provisions must appear in a type larger than the type contained in the body of the agreement or in contrasting colors.
Companies such as Tyson are increasingly sophisticated in their use of post-injury waivers. This means that counting on them to make a mistake in obtaining a waiver is usually a losing strategy. For a company the size of Tyson Foods Inc., avoiding lawsuits saves the company tens of millions of dollars a year, just in Texas. This means that they employ people who know exactly what they're doing and how to get what is in the company's best interest. Now I certainly have nothing against Tyson trying to save as much money as it can by cutting down lawsuits, but it seems the better way to go about that would be to improve work safety, not pressure injured workers into signing away their rights.
Combating Post-Injury Waivers: What Injured Workers Need to Know
If there was a word for something that went beyond a cliche, it would apply to the old line that goes, "Never sign anything without a lawyer looking it over." That might be fantastic advice for the country club crowd who have family attorneys on retainer, but for most people, who have never hired an attorney in their lives, it sounds like how people in gated communities live, not them.
What most people are unaware of is that dedicated personal injury attorneys, like those at Grossman Law Offices, only charge for their services in the event that they collect money on behalf of clients. For over 25 years, we have had numerous workers call us immediately after an accident to ask what their options are. We always warn them about post-injury waivers, because if you look through the waiver requirements, there is nothing in them that requires a company to allow an injured worker to seek an attorney's opinion about the waiver.
As a result, companies like Tyson can say and do all the right things for 10 business days, then spring the waiver on a desperate, injured employee. Our attorneys have seen this tactic time and time again, usually the result is that the employee ends up being short-changed in their treatment or compensation.
To further complicate matters, the law in Texas permits employers to fire employees who retain legal counsel or sue their employers for negligence (Technically, Texas law permits employees to be fired for any reason that isn't based on the employee being part of a protected class or "unconscionable" grounds). This often places injured workers in the position of choosing between the possibility of keeping their job and the chance of getting properly compensated for their work-related injuries. I certainly don't envy anyone who is injured and put in this very difficult situation. It can often feel like a no win situation for an injured worker.
While it varies from case to case, the only way to ensure a chance at getting fully compensated is to retain an attorney. Most personal injury attorneys are aware that employers can terminate an employee at any time and for this reason will keep their involvement as quiet as possible until it is absolutely necessary to inform the employer. This allows the attorney to gather evidence in the case, discreetly and quietly, without alerting the employer.
While it may seem ridiculous to most people that you should contact an attorney as soon as possible after a nonsubscriber accident, it gives the attorney precious time to gather information about the accident and the likelihood of success in litigation. This information allows injured workers to make better, more informed decisions, when a company like Tyson comes knocking two weeks after the accident with a post-injury waiver. In some instances, signing the waiver and getting what the company offers is the smart decision. In many other instances, it ends up costing employees, both physically and financially.
The dirty little secret that companies like Tyson Foods don't want to have get out is that their is absolutely no reason why continued treatment for a work injury should be contingent on a signed waiver. The single biggest damages component in most work-related injury cases is the medical bills. All of the bills that an employer picks up before a lawsuit means that they cannot be considered damages when a lawsuit rolls around. This means that if an employer pays all of the medical bills for an injured worker before the settlement is reached, or a trial occurs, the company will not have to pay those damages in either the settlement or the judgment. The only reason to threaten to deny medical care is to create leverage against the injured worker to get what they want, which is control over their treatment, the ability to tell a worker that the company feels that they've recovered enough.
One of the benefits for workers who retain an attorney is that it takes away a lot of a company's leverage. For instance, most personal injury attorneys have arrangements with physicians who see injured clients under what are known as a letter of protection. This means that injured workers get access to the medical care they need with no out of pocket expenses. Doctors agree to take on these patients in exchange for being paid after a settlement is reached.
If the case falls apart, or if the worker never gets compensation in the case, they are not on the hook for a single dime for their medical care. In addition, they get care from a physician with no interest other than ensuring an injured worker's recovery. As a result, there is no doctor on the employer's dime diagnosing severe, legitimate injuries as mere strains.
In the short term, attorneys cannot replace lost income, which is certainly a disadvantage. However, this disadvantage has to be weighed against the possibility that a treatable, short-term injury, has the possibility to transform into a long-term chronic condition if left untreated. While the short-term gain of the benefits offered by a company like Tyson can seem crucial to an injured worker will bills piling up, it has to be considered in the context of hundreds of thousands of dollars of lost income for those who never fully recover from their injuries due to inadequate treatment.
Letting Injured Workers Control Their Own Future
Absolutely everything that I have come across in the media shows that Tyson abides by the law. While their behavior may not be in the best interest of their workers, I want to be clear that I haven't seen a thing that suggests they have behaved illegally.
Of course, legality and morality are two completely different matters. There are plenty of companies and individuals, who while complying with the law, do not behave in a manner that most of us would consider right. This importance of this distinction is that it allows those who have been injured working at companies like Tyson to carefully assess their situation. After all, if the company did nothing wrong, why would they need a waiver from an injured employee that says they surrender their rights to legal remedies?
A company who has successfully lobbied state governments to change their workers' compensation systems, going so far in some instances as to get "their people" appointed to oversight boards is not one to be trifled with. I may disagree with their tactics and goals, but they pursue them legally and tenaciously.
If you're an injured worker, that's who you are up against. While it is never easy to get justice against such an adversary, it is possible with the right help. While many in our culture portray those who pursue lawsuits as a bad people, they never consider the legion of attorneys that companies like Tyson Foods Inc. keep on staff to protect their interests. So thinking goes that it's okay for those of means to retain attorneys to make sure their rights aren't violated, but when an ordinary Joe, who gets hurt just doing their job, seeks compensation for their injuries, they're greedy or "just looking to strike it rich?"
Certainly, a lawsuit is not appropriate after every nonsubscriber work injury, but some people would have you believe that its never an appropriate remedy.
Over the last 40 years, our country has placed more and more burdens on individuals to safeguard their own rights, from retirement to work injuries. The advantage of this approach is that those, assisted by qualified professionals, who learn how to navigate the system often have far better outcomes than they would have before. An example of this is that injured workers can often get better care and receive full compensation for their injuries if their employer is a nonsubscriber than if they are part of the workers' comp system. The downside is that absent professional assistance, large companies can prey upon the knowledge gap that exists between them and their workers to tilt the scales in their favor.
While may sounds like an overreaction to some, the need of injured workers, whether they work for Tyson Foods Inc. or another nonsubscriber to contact an attorney after a work-related accident is very real and difficult to overstate. Tyson has attorneys on staff looking out for their interests, shouldn't injured workers have one looking out for theirs?