Mar 24, 2020
The coronavirus pandemic is a historic moment in the nation’s history that many experts fear will likely lead to significant economic recession (with some going as far as to predict an oncoming depression). As the number of unemployment claims rises, it may seem logical to assume that the number of workers’ compensation claims would therefore fall accordingly (ostensibly, if people are unable to work, they’re therefore unable to file workers’ compensation claims). However, it’s entirely possible that we will actually see workers’ comp claims increase given two unique factors currently impacting the country:
1. General underreporting: As we will examine, the statistics behind underreporting workers’ compensation claims for injuries and/or workplace harassment are nothing short of staggering. In short, underreporting has been widespread over the past decade on both the part of employees and employers.
2. Coronavirus unemployment: With coronavirus suddenly leaving thousands out of work, one of the most common reasons for underreporting work comp claims — a fear of retaliation by the employer and the potential to lose one’s job — is removed. With mass unemployment impacting hundreds-of-thousands (and potentially millions) of workers almost overnight, the ramifications for outstanding claims could be noteworthy.
Could those two factors combine simultaneously to create a perfect storm of sorts within workers’ compensation law that might dramatically increase the number of work comp claims for injury or harassment? To answer such a question, it’s necessary to examine each factor individually in greater detail.
How prevalent is underreporting of workplace injuries in the U.S.? Let’s take a look at some of the statistics over the past decade.
In November 2009, the New York Times published an article detailing how both workers and employers significantly underreport work-related injuries and illnesses. The article cited a recent report by the Government Accountability Office (GAO), which called into question the accuracy of data from the Occupational Safety and Health Administration (OSHA).
According to the Times, “the GAO report cited several academic studies that found that OSHA data failed to include up to two-thirds of all workplace injuries and illnesses.”
Those “two-thirds” of unreported claims, the report found, were likely due to two factors:
1. Many employers not reporting workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.
2. Many workers not reporting job-related injuries because they feared being fired or disciplined.
In other words, employers underreport claims because of increased costs, and workers underreport claims due to fear of retaliation and losing their jobs.
The findings of the GAO report shouldn’t have been too surprising at the time, given that just a year-and-a-half earlier the U.S. House of Representatives issued a report with similar findings entitled: ‘Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses.’
In 2013, a study by the National Institute of Health looked at reasons behind a high level of underreporting among workers in construction and other industries. The study found that 27% percent of construction workers had failed to report a work-related injury, and that the most frequent reasons given were related to perceptions of injuries as “small” and “part of the job,” as well as “fear of negative consequences” that could follow after reporting the injury.
Moreover, in December 2019 a report from Bloomberg examined UPS and what it referred to as a “culture of fear” within the company related to potential retaliation for filing workers’ comp claims. The article cited an OSHA report which detailed a specific accident from 2018 where a worker:
“Fell from a loading dock and broke his hip, pelvis, wrist, and elbow” and “[subsequently] company managers placed the injured employee on a package cart and rolled him to the parking lot where he was then taken to a hospital.”
OSHA’s review of the accident concluded:
“UPS failed to maintain a safe workplace,” and criticized the company in a narrative of the accident for “failing to call emergency services.” The report went on to state that moving the worker, who had “visibly broken bones,” endangered his life.
Sadly, these are just a handful of examples of how widespread underreporting of workplace injuries has been over the past decade, and remains today, even at some of the nation’s largest and most well-known companies.
What’s even more unfortunate, however, is the fact that many workers are unaware that if they ever had a work injury in the past but never filed a workers’ compensation claim, they may still be eligible to receive benefits. This is true even if a worker was recently terminated as a result of the economic impact of coronavirus. Such a fact is conceivably underreported almost as frequently as the injury itself, as many workers are unaware of their rights regarding an unreported injury following termination.
How prevalent is underreporting of workplace sexual harassment claims in the U.S.? As it turns out, perhaps even more underreported than workplace injuries.
In February 2016, NPR (National Public Radio) published an article entitled: ‘Underreporting Makes Sexual Violence at Work Difficult to Address.’ In that article, which was written less than two years before the MeToo Movement would become a part of everyday culture, NPR declared there were “no recent, reliable statistics about sexual violence at work.” At the time, the most recent data from the Bureau of Justice Statistics estimated there were more than 43,000 workplace rapes and sexual assaults annually. However, as NPR noted, “anti-rape advocates say that vastly underreports the crimes, because many victims are afraid to or discouraged from coming forward.”
Fast forward to October 2017, just after the Harvey Weinstein scandal broke, when Vox examined underreporting of workplace harassment and cited statistics available from the U.S. Equal Employment Opportunity Commission (EEOC), a government agency responsible for processing the sexual harassment complaints that do get reported. The EEOC’s latest reports found the following alarming statistics:
While those statistics may seem like a travesty, keep in mind that they only include harassment of a sexual nature, leaving additional types of workplace harassment unaccounted for. Not all workplace harassment is sexual in nature, and as Forbes noted in examples from an October 2018 article, it can include disturbing stories revealing “a gang mentality, with groups (including HR) conspiring together to alienate others.” Additionally, the Forbes article highlighted the fact that many instances of harassment are not a matter of gender. Forbes provided an anecdote where, “One woman revealed her harassment was rooted in a cruel abuse of power: ‘A lady put duct tape over my mouth. I am visually impaired and didn’t see her coming, so I couldn’t block her.'”
As demonstrated by the above statistics, workplace injury and harassment claims are significantly underreported. So, what does it mean to have so many unreported claims, and what is the likelihood that a greater percentage of recent incidents will ultimately be reported? One particular event will likely have the greatest effect on how those questions are answered.
Even in its early stages, coronavirus has already altered the labor force in ways that were unthinkable just weeks ago. With coronavirus sidelining indefinitely or outright removing workers from the labor force, many people are theoretically sitting at home right now with outstanding claims that could be filed. The main question is whether or not recently unemployed workers are aware of their rights under the law.
Moreover, with the first Harvey Weinstein verdict coming only weeks ago, many pundits expressed the opinion that we’re on the cusp of a movement among women who are more likely to come forward and report instances of sexual abuse and harassment at work. That shift in societal norms and expectations, with many individuals feeling more comfortable coming forward to tell their stories, combined with a wave of unemployment due to coronavirus could mean the new normal is a sudden deluge of claims that eventually eclipse our history of extreme underreporting.
To reiterate, if you recently lost your job as a result of the economic impact of coronavirus and experienced a work-related injury or harassment that was never reported, you may still be entitled to workers’ compensation benefits and financial compensation.
As we have seen from the above statistics, one of main reasons that people suffer from work comp injuries and workplace sexual assault is the fear of losing one’s job due to retaliation. Nevertheless, when people lose the very same job in which they experienced an injury or harassment, their first instinct is often to believe that they have no recourse because they never filed a claim. The first step in this process is to understand that you do have recourse, and you do have rights under the law.
As an example, you may have something known as a continuous trauma claim for an injury that happened over time (such as back pain without a specific accident date). All workers — documented and undocumented — have the right to file a claim after termination for all continuous trauma claims.
Additionally, newly terminated workers have the right to file a claim for all specific injuries where there is proof of notice (such as medical records documenting the injury before termination). For example, if you experienced back pain because of a specific injury and visited a doctor for your ailment but never filed a claim, you are still eligible to file for workers’ compensation because you have proof of notice via medical documentation.
The same is true for workplace harassment. For example, if you experienced workplace harassment (whether or not it was of a sexual nature) and visited a mental health professional due to the psychological impact, that is also considered proof of notice, and you are still eligible to file a claim (even if you were recently terminated and never reported the harassment previously to your employer).
Continuous trauma and proof of notice are two examples of how you may still be eligible to file a workers’ comp claim if recently terminated, but there are additional unique circumstances that may also apply and impact eligibility. Given the complicated nature of the law, workers are recommended to consult with an attorney as soon as possible.
The next step is to contact a qualified and experienced workers’ compensation and personal injury lawyer to evaluate your case and determine what, specifically, you may be entitled to in the form of work comp benefits. Workers’ compensation laws provide protections for all individuals — even undocumented workers — though most are unaware and never take advantage of their rights under the law.
For a free consultation to discuss your unique employment situation, please contact Dordulian Law Group today.
Our law firm in Glendale, CA advocates for victims of sexual assault, injury, employment disputes, and personal injury concerns.