Still Hurting

Injured workers have borne the brunt of workers' comp "reform" in Colorado.

Kim Eli, a 39-year-old single mother with two daughters, knows firsthand just how compassionate Colorado's workers' compensation system is toward people who are injured at work. For years she worked in the delicatessen departments of area King Soopers stores, including the Mayfair branch at 13th Avenue and Krameria Street. Slicing and dicing bricks of Monterey Jack, chopping hams, cutting dozens of loaves of bread and lifting heavy boxes of everything from kosher pickles to Dijon mustard, she earned $11 an hour using her hands day in and day out. With two girls to support, she sought assignments at the busiest King Soopers, knowing that would give her the best chance to work longer hours.

In 1991 Eli was diagnosed with carpal tunnel syndrome in both her hands. Carpal tunnel is a nerve disorder that often affects people who work intensively with their hands, sometimes causing extreme pain. She had surgery on both hands and soon returned to work. "I had my stitches out after ten days and was back to work the next day," Eli recalls. Things were fine until about a year and a half later, when she noticed the familiar pain in her hands again and the pain started moving up her arms toward her shoulder. She sought further medical treatment and says she soon discovered that, in Colorado, injured employees are presumed guilty until proven innocent.

Under current Colorado law, all people injured in the workplace are referred to a doctor hired by their company or their company's insurance carrier. Eli saw a doctor contracted by King Soopers, which is self-insured, to handle workers' compensation cases among its employees. Despite her pain, the doctors provided by her employer kept telling her it was all in her head.

"Every time I tried to get help, they minimized what was wrong with me," she says. "They were trying to tell me there's nothing wrong with me. I asked them several times to let an independent doctor evaluate me and they refused, so I had to go to court."

Eli paid $450 to hire a private doctor to evaluate her injuries. He diagnosed her with thoracic outlet syndrome and said she would probably need further surgery. But King Soopers doctors said she didn't need the surgery, and Eli now finds herself in medical limbo, waiting to see if an independent medical examiner designated by the state division of workers' compensation will approve further medical care. (King Soopers president Don Gallegos says he can't comment on the Eli case because it remains in litigation.) Meanwhile, Eli's disability benefits have run out, and she's now being supported by her fiancé and her family. "I just want to get fixed and go back to work," she says. "That's what this is all about."

Unfortunately for Eli, she's just one of thousands of Colorado workers who have been hurt by the state's 1991 "reform" of its workers' compensation system. That law, parts of which have since been found unconstitutional by the Colorado Supreme Court, was pushed through the legislature by a coalition of the state's largest employers and insurance companies, who conducted a highly effective media campaign to persuade the public that the workers' compensation system had been deluged with fraudulent claims. And the coalition's efforts paid off: The lobbying group that pushed for the 1991 law estimates it has saved Colorado employers more than $2 billion, and average workers' comp insurance rates have declined by 22 percent in the past five years.

The new law dramatically slashed benefits and made it more difficult for injured employees to challenge the judgments of doctors hired by their employer or the employer's insurance company. The legislation, for example, gave employer-designated doctors the authority to terminate medical and disability benefits, even if the injured employee is appealing his doctor's evaluation. That's exactly what happened to Eli. The law also removed any consideration of loss of earning capacity from awards for permanent partial disability. That means if Eli eventually has to take a job at minimum wage--a substantial drop from the $11 an hour she earned at King Soopers--she won't be compensated for her loss of earning ability.

Since injured workers aren't allowed to sue their employers for negligence--the workers' compensation system was set up to avoid employer liability for accidents--injured employees in Colorado often find themselves with meager benefits and few legal rights.

But while the 42,842 people who were injured at work in Colorado last year may be worse off since the 1991 "reform," employers and the insurance industry have profited immensely. And the former state-legislator-turned-lobbyist who shepherded the law through the legislature, Vickie Armstrong, has turned the push to reduce workers' comp benefits into a virtual cottage industry.

Most disturbingly, the 1991 law has created a new underclass of injured workers who find the system won't cover their disabilities. Unable to work and in need of medical care, many of those people wind up on the welfare rolls. As a result, the law that was supposed to reform workers' compensation has allowed some of Colorado's largest and richest companies to shift the costs of caring for their injured employees onto the backs of taxpayers.

There are many losers under Colorado's workers' compensation law, but female employees like Eli may have gotten the worst of it. That's because women tend to work in occupations that require repetitive hand motions, and they're more likely to develop disabilities like carpal tunnel syndrome. Many involved in the workers' compensation system believe the legislature restricted benefits for such injuries under the assumption that most of those claims were bogus. But the state hasn't seen any drop-off in claims for carpal tunnel since benefits were cut back in 1991.

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