Texas has long allowed companies to opt out of the state's workers' compensation plan and offer their own benefit plans instead. Now, with the backing of big companies such as Wal-Mart, Nordstrom, Lowe's and Whole Foods, that policy is spreading to other states. Oklahoma recently adopted a similar law allowing its companies to create their own workers' comp plans, and Tennessee and South Carolina are considering similar measures. Plans like these now cover nearly 1.5 million workers in Texas and Oklahoma.
Those in favor of allowing companies to adopt their own plans say the practice will lower costs, get employees back to work faster, and improve workplace safety. They say that workers' compensation has created a huge and costly bureaucracy and fostered an adversarial relationship between injured workers and their employers. Their opponents, however, say that the changes will prevent injured workers from getting help and shift the cost of care to federal programs like Social Security, Medicare and Medicaid.
To analyze what kind of effect these rule changes are having, ProPublica and NPR took a detailed look into the kinds of injury benefit plans that have replaced traditional workers' comp for nearly 120 companies that opted out of the state plans in Texas and Oklahoma -- the first independent analysis of what impact these new plans might be having on workers.
The new plans "almost universally have lower benefits, more restrictions and virtually no independent oversight," write Michael Grabell of ProPublica and Howard Berkes of NPR.
The graphic below, by Lena Groeger and Michael Grabell of ProPublica, shows that average workers' compensation benefits for a person who loses the use of a hand, foot, arm, leg or eye across the United States are indeed significantly higher than those awarded in Texas (you can click on the graphic to enlarge it):
The investigation also reveals how many loopholes and oversights the Texas corporate plans contain. Whether intentionally or not, the plans are written to exclude a lot of injured workers who would have been compensated under the state plan.
For example, they found that McDonald's doesn't cover carpal tunnel syndrome. Brookdale Senior Living, which runs a chain of assisted-living facilities, doesn't cover bacterial infections among its employees. Costco doesn't cover exposure to asbestos or mold. Costco also won’t cover external hearing aids costing more than $600 – even though the cheapest external hearing aid Costco sells is $900, Grabell and Berkes say.
One of the most substantial changes is that almost all of these plans require employees to report an injury within a brief time window -- usually, before the end of their shift, or within 24 hours -- or forgo any compensation for that injury altogether. Under the old workers' compensation rules, an employee would have 30 days to report an injury. In addition, Texas plans cut off medical treatment after about two years, compared with lifetime medical care under traditional workers' compensation. The plans place strict limitations on payouts for deaths and catastrophic injuries, and don't pay compensation for many permanent disabilities, Grabell and Berkes found.
In Texas at least, the new rules allow workers to sue their employers for negligence, a potentially huge payout that proponents of the changes say will help create better working environments. But Grabell and Berkes also find that companies are finding ways to avoid these lawsuits, including having employees sign waivers and using more arbitration agreements.
Employers also have much more control over how an injured worker is treated -- what doctor they can go to, for example -- and how a claim is legally settled. Employers can decide to terminate benefits if employees are late to doctors’ appointments or if they consult their personal doctors about their injury. Unlike under traditional workers' compensation, employees can also be fired in retaliation for a claim.
Many of these companies refused to discuss their programs in detail. A representative from Tyson Foods told ProPublica that the company opted out of the state's workers' compensation plan in Texas to give its employees the best possible medical care and have more control over which doctors workers can see.
The graphics that Groeger and Grabell put together show that individual company plans in Texas are all over the map in terms of their coverage. Some of the best plans are from Home Depot and W. Silver, a steel company, which offer maximum benefits that are higher than the U.S. average:
However, most of the companies profiled do significantly worse than the U.S. national average. Some of the worst offenders look like Macy's and J.B. Hunt, whose maximum benefits are significantly lower:
And here's how some other big companies rank, including Costco, Domino's, Lowe's and more:
"Price Check: How Companies Value Body Parts." Lena Groeger and Michael Grabell, ProPublica, Oct. 14, 2015
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