Images of the Worker in Workers' Compensation

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 fraud.

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.