Images of the Worker
in Workers' Compensation
Jay Causey - January
Let's start this section off by discussing my biggest peeve about
representing you folks. It might surprise you to learn it's not
about the injustice of the system or what the other side has done,
which are certainly issues we deal with daily. It concerns absolutely
the worst thing a potential client can - and does with distressing
frequency- say to us in the initial interview: "I know they're
lots of cheats, liars and frauds out there trying to get workers'
compensation, but my case is legitimate!"
Please! Knock this ---- off! You don't "know" this
- you only think you do, and for reasons that are the subject
of this column. When you say these words, it doesn't impress us.
It just irritates and frustrates us on the one hand, and disheartens
us on the other. It's irritating and frustrating because it suggests
that all we do here - and what I've done for 25 years - is enable
a whole lot of folks with non-meritorious cases to game the workers'
comp system. It disheartens us because it reveals the true impact
of more than a decade of business association and insurance industry
propaganda that has been given the appearance of credibility by
mainstream media and then further echoed in venom-spewing "talk
radio" type programs.
This relentless "disinformation" program has finally
convinced a large percentage of the working population of this
country they should be suspicious that their colleagues with workers'
comp claims are cheats or malingerers, and are costing the system,
and them, huge sums of money. In effect, this well-financed and
coordinated barrage has been successful in pitting workers against
each other in the workers' compensation system when, instead,
there should be solidarity.
Well sure, Causey, you say, but what about those TV shows with
surveillance video that depicts the guy on workers' comp having
fun outdoors and "living large" despite his supposed
injuries. (These are sometimes called the "Joe Jet-ski"
cases you may have seen - the guy with the bad back or leg skiing
down the river.) That has to be fraud! And it sometimes is, just
like corporate executives who "cook the books" and defraud
thousands of shareholders, and employers who illegally keep employees
off their records to avoid paying workers' comp insurance premiums.
Worker fraud, just like employer fraud, exists, just as certainly
as there will always be elements of fraud and cheating in other
areas of our lives. But what are the real facts, as opposed to
the propaganda, about how much of this really goes on in workers'
compensation and how much it costs? The simple "fact"
is that worker or claimant fraud has never been widespread or
a significant cost driver to the system. Starting in the late
80's and early 90's, various national insurance industry organizations
repeatedly publicized estimates that the cost of fraud in the
system was billions of dollars - anywhere from 10 to 30 percent
of the cost of all claims. Responding to these charges of massive
fraud that were then perpetuated by the media, many states enacted
anti-fraud legislation in the 1990s to investigate and pursue
these cases. In view of the fraud "statistics" being
bandied about, and the media's complicity in creating an image
of American workers as workers' comp frauds and cheaters, what
the states actually found in their investigations was stunning,
and should have ended the story.
In state after state, the real statistics showed that the incidence
of worker/claimant fraud was typically less than one percent -
that's right, less than 1%. (In Washington State the Director
of the Department of Labor & Industries is on record as acknowledging
the figure of less than one percent.) But the more important revelation
of the investigation was that, by far, the more significant element
of fraud - often four to five times the rate of claimant fraud
-was employer fraud. What is that, you ask. It's not just being
tough or unfair on your claim. It's big time theft: underreporting
payroll to reduce insurance premiums, illegally declaring some
employees to be "independent contractors," misclassifying
workers to put them in less hazardous occupational categories,
and misrepresenting claims experience, to name a few instances.
The real damage to workers' compensation from this decade-long
media spotlight on the "Joe Jet-ski" cases is that it
has created an atmosphere of fear and intimidation for workers
with legitimate claims. Because of the assumption of rampant fraud,
folks who file claims are insulted, treated as cheats and malingerers,
endlessly investigated, subjected to repeated and unnecessary
medical evaluations, and retaliated against by their employers.
No wonder that we hear many of our clients say, "I don't
want to fight it anymore, I just want out of the system."
In fact, rather than there being too many people filing questionable
claims, there are too few people pursuing valid claims or filing
claims in the first instance. A study by the National Institute
for Safety and Health a few years ago found that, for example,
only one in four workers with provable occupational disease files
for workers' compensation benefits. Unsubstantiated charges of
massive claimant fraud have undermined public confidence in the
system and have discouraged legitimately injured and diseased
workers from participating in the system. Finally, the phony claimant
fraud "crisis" has distracted policymakers and the public
from the more prevalent and costly problem of employer and insurer
So if the real facts and statistics completely fail to support
the other side's charges, why is it still "the story"
- why are you still hearing it and telling it to us? As Senator
Bullworth (Warren Beatty) said in the movie Bullworth: "Yada,
yada, yada, it's all about money." The other side
has the money, and is only interested in the money. It has the
access to the media, and knows the power of "factoids."
What are these? Factoids are invented facts that folks believe
to be true because they appear in print and then are rebroadcast
and "spun" by the major media and via Rush Limbaugh-type
programs. (Sorry "Rush" listeners - hope there aren't
many of you - he's a "factoid fraud.") A colleague of
mine describes factoids as mental viruses which like real viruses,
not quite living and not quite dead, reproduce and spread. They
thrive in the shadowy territory between the possibly somewhat
true and the completely false. They are communicated from the
human mouth and eye to the human mind, infecting the host who
then transmits this contagion to other human minds. They breed
best in ignorance and prejudice. And they are believed because
they have been so often repeated and then because they are consistent
with what we already think we know.**
Factoids, when packaged with the videos of "Joe Jet-ski,"
make good TV. It's hard to make an equally compelling prime-time
TV piece about employer fraud - envision the investigative journalist's
cameras rolling as company executive picks up his pen to sign
an industrial insurance premium check short by tens of thousands
of dollars because of fraudulent underreporting. Then, fade to
black. Maybe John Stossel of ABC's "20/20" program,
who has been a reliable anti-worker media henchman over the years,
having run numerous pieces about worker fraud in the comp system,
could be persuaded to figure out a good TV angle for this story.
So I'm asking you to help stop the spread of the workers' comp
fraud factoid virus. Let's finally stamp out this myth, and stop
painting all workers' comp claimants with tar and feathers. When
you hear this kind of nonsense, don't accept it or repeat it -
challenge it. Let us know about it. The Workplace Injury Litigation
Group (WILG), which I helped found, can and frequently does respond
to anecdotal pieces in the media, whether in print, on radio or
television, and WILG has research materials that can address purported
"statistics" about workers' comp fraud.
Sure, I've been fooled a few times by clients over 25 years.
A couple of them have been real doozies. But overall in our experience,
the whole worker/claimant fraud issue is an unworthy story. We've
seen much more significant employer abuse of the system, which
is a story - the Wal-Mart cases are one outrageous example.
Thanks for taking the time to read this.
**I stole the following analogy about factoids from the same prominent
trial lawyer colleague who so eloquently defined them.
Abraham Lincoln once asked an adversary in court, "How many
legs does a sheep have?" The man replied, "Four."
Lincoln then asked, "And if you were to call a tail a leg,
how many legs then?" The man replied, "Well I suppose
you'd have to say five in that case." Lincoln smiled and
responded, "No, because calling a tail a leg doesn't
make it so."
Next Issue - images of the lawyers in the workers' comp and personal
injury system, and some more factoids.