- Martha McJimsey was pulling brains out of cow carcasses
coming down the line at IBP in Amarillo when she split one of her fingers
- But before a nurse would stop the bleeding and stitch
her up, McJimsey had to sign a waiver promising not to sue the company
now called Tyson Fresh Meats.
- It didn't matter that her right hand -- her writing hand
-- was dripping blood. A company representative simply put a pen in her
left hand and told her to sign.
- "You have to sign a waiver every time you get hurt,"
said McJimsey, who consented to four post-injury waivers during her 25
years at the plant. "The only excuse is if you're completely unconscious."
- McJimsey said her union representative assured her not
to worry because she was signing the waiver under duress and that should
she decide later to sue, it wouldn't stand up in court. To her surprise,
the 59-year-old, who has since left the company, later discovered the waiver
was valid and she had no legal right to sue.
- McJimsey's case is rare, but some fear the practice will
grow if not outlawed.
- Until state law forbade companies from seeking pre-injury
waivers in 2001, some got workers to agree not to sue if they suffered
- With that avenue cut off, some companies have resorted
to asking workers to sign legal waivers after injuries if they want their
medical bills paid, as was done in McJimsey's case.
- It's difficult to determine how widespread the use of
post-injury waivers is, but they appear to have become standard practice
at meatpacking and chicken-processing companies, such as Tyson Fresh Meats,
Tyson Foods, Pilgrim's Pride and Cargill-owned Excel.
- And they've even been used in Houston at Memorial Hermann
- Advocates for worker rights say if post-injury waivers
are not outlawed soon, the practice will spread and more workers will be
left at the mercy of their employers for medical care and financial compensation.
- Companies defend the use of post-injury waivers, saying
they keep legal and medical costs down and allow them to afford medical
care and compensation for all their workers.
- Coverage not required
- At the core of the controversy is the state law governing
workers' compensation insurance.
- Texas law doesn't force companies to carry workers' comp
insurance, but those that do are shielded from nearly all negligence lawsuits.
- Thirty-five percent of Texas companies have chosen to
"go bare" and face the risk of high jury awards from on-the-job
injuries. To help reduce that risk, some have begun to use post-injury
- "The acceptance and waiver limits our legal liability
in the same way as the state's workers' compensation program limits an
employer's liability," Tyson Fresh Foods spokesman Gary Mickelson
wrote in an e-mail. "This legal agreement helps us more effectively
manage the program and ensures our team members receive quality medical
- Mickelson added that his company doesn't force workers
to "sign the agreement, particularly right after a serious injury."
- But if an employee doesn't sign, many times there's no
one to pick up the medical bills. That's because health insurance plans
specifically exclude coverage for injuries that occur on the job.
- Either the employee picks up the tab for medical expenses
and faces lost compensation or he signs the waiver.
- Until the law was changed in 2001, some employers used
pre-injury waivers to avoid lawsuits.
- About 35 percent of Texas employers opted out of the
workers' compensation system in 2001. Here are some reasons from a survey:
- That's what happened when a grinding machine chopped
off Ruben Young's leg in 1999 at the Cargill-owned Excel beef plant in
- He took the company to arbitration and won. But a court
stripped him of his $3.5 million award because his union, the United Food
and Commercial Workers Union, had signed a pre-injury waiver on his behalf.
- The use of pre-injury waivers received further support
from a Texas Supreme Court ruling in March 2001 that the pre-injury waivers
signed by two injured workers were valid, blocking their attempt to sue
their employers for negligence.
- Overnight, the court's decision gave employers the green
light to require their employees to sign pre-injury waivers.
- But the high court seemed to sense what was coming and,
in its opinion, indicated that it was the Texas Legislature's role to address
the public policy concerns of the waivers.
- In stepped Sen. Robert Duncan, R-Lubbock, chairman of
the Jurisprudence Committee.
- Duncan was worried that the ruling would undermine the
entire workers' compensation system. Unless the Legislature stopped the
use of pre-injury waivers, employers would have all the legal protections
from lawsuits but wouldn't have to purchase workers' compensation insurance.
- Personal injury lawyer Kevin Glasheen, whose son is in
the Boy Scouts with Duncan's son, used the Scout meetings to lobby Duncan
about putting a stop to the pre-injury waivers and require at least a 60-day
waiting period for post-injury waivers.
- With Duncan taking the lead, the Texas Legislature voted
to prohibit pre-injury waivers three months after the Texas Supreme Court's
- If he thought pre-injury waivers were bad, why didn't
he seek a ban on post-injury waivers as well?
- "Believe it or not, it surprised me, but we had
a real problem getting the pre-injury bill passed," Duncan said.
- Given the thin margin of support coupled with legislator
worries that prohibiting post-injury waivers would make it difficult to
settle other types of legal claims, Duncan said he took what he could.
- He said he couldn't even muster much support from fellow
legislators to require employers to wait 30 to 60 days after an injury
before asking employees to sign waivers.
- Duncan said he believes post-injury waivers are an end-run
around the pre-injury law. And it's problematic, he said, for an increasing
number of Texans to give up major rights without much protection in exchange
for fewer and shorter wage and health benefits.
- With the door open to post-injury waivers, the practice
is beginning to catch on. Yet it's hard to gauge how prevalent they've
- Only a handful of companies use them, said Bill Minick,
principal of PartnerSource, an employee benefits consulting firm in Dallas
that represents many large "non-subscribers" -- the companies
that don't carry workers' compensation insurance.
- He points to a survey taken two years ago, before pre-injury
waivers were outlawed, by the Research and Oversight Council on Workers
Compensation in Austin. It found that 7 percent of employers required their
employees to sign waivers. And of them, 92 percent were pre-injury.
- Minick, who has designed some post-injury waiver programs,
said he doesn't promote them as a way around legal liability, but if a
company insists on using them, he cautions them to be careful in the way
they're designed and presented to employees.
- Minick has heard the horror stories and is worried that
if the post-injury waivers get too much exposure, the Legislature will
clamp down on nonsubscribers in general.
- "We don't want employers or the Legislature to take
an overly aggressive posture to upset the balance," he said.
- If employers were forced to subscribe to workers' compensation
insurance, many would move to states with lower-cost insurance or cut back
on the number of employees, he said.
- Excel spokesman Mark Klein said that's why the Cargill-owned
meat processor opted out of the workers' compensation system in 1990. The
costs were jeopardizing the livelihood of 4,000 employees in
- Plainview and Friona, he said in an e-mail response to
questions about the plan.
- Worker compensation costs in Texas were more than four
times higher than the combined costs at four plants in other states, even
though all plants had the same worker safety programs, Klein wrote.
- Time to think
- When Memorial Hermann Healthcare System decided to drop
out of the workers' compensation system 11 years ago, it worried it would
get hit with big lawsuits.
- To limit exposure to big jury verdicts, the giant health
care provider began requiring employees to sign waivers after they've been
injured in exchange for medical care and partial wage replacement.
- But hospital representatives wait until the second visit
to the doctor before presenting the waiver and a pen, said Jerry Wyatt,
director of occupational health and safety.
- "We don't want you bleeding all the way to the health
office," Wyatt said.
- He also said employees are given time to consider the
waiver -- including an opportunity to have an attorney review it.
- Employees are sometimes reluctant to sign, said Wyatt,
recalling how he told one doubting employee the issue comes down to trust.
- "Well, you trust us to pay you every two weeks,"
- In the end, most sign the waivers. And if they don't?
They don't receive medical care or wages while they recover, he said.
- A hospital isn't as dangerous as a slaughterhouse, but
150 to 200 employees at Memorial Hermann injure their backs, pull muscles
or trip and fall each year, and must take time off from work to recover.
- The injuries cost the hospital about $3.5 million a year,
said Wyatt, who estimates that the post-injury waiver program has saved
millions of dollars for the hospital system.
- Wyatt is proud of the money he has saved, which has made
Memorial Hermann more efficient. One of his competitors who stayed in the
workers' compensation system spends $12 million a year.
- And more injured employees return to work faster because
they don't fall into the "black hole of comp," Wyatt said.
- That helps to explain why the average injury costs Memorial
Hermann between $600 to $800, compared with the average workers' compensation
claim of $4,000.
- "The nice part of our program is we can sit down
and work out a reasonable solution that's happy to him or her," Wyatt
said. "You can't do that under comp."
- But X-ray technician Gabriel Beltran said his experience
was anything but positive.
- In 1999, the 162-pound Beltran was injured when a 250-pound
patient fell on him and herniated a disc in his back. But before he could
get to see a neurosurgeon, he had to sign a waiver promising not to sue.
- At the time, it was his only option. His medical insurance
wouldn't pay the bills because it was an on-the-job injury.
- "I have a wife and two kids," recalled the
$38,000-a-year technician, who said the hospital wouldn't even permit him
to show the post-injury waiver to a lawyer first.
- "I was kind of stuck. I wouldn't have a paycheck,
and who would pay for my medical costs?" he said recently, showing
where he noted on the form that he was signing it "under duress."
- "But I guess that didn't mean much to the court,"
- Beltran never got to present his case to a jury because
then-state District Judge Patrick Mizell ruled that Beltran signed the
waiver under his free will and dismissed it.
- "I knew it was a long shot, but I was hoping that
the judge would rule it's not valid because it was under duress,"
said Mark Murray, a lawyer with Abraham, Watkins, Nichols, Sorels, Matthews
& Friend, who represents Beltran.
- "He was certainly not in a position to negotiate
his health care," Murray said.
- In the end, Memorial Hermann paid for Beltran's two back
surgeries and several months of pain management before it refused to pay
any more bills. Now Beltran picks up the $600 a month tab for pain medications.
- And the hospital terminated him in February 2002 after
losing his lawsuit.
- In a prepared statement, a spokeswoman for Memorial Hermann
Healthcare System said Beltran's separation was unrelated to the status
of his lawsuit.
- Call for a solution
- So what should be done?
- Rick Levy, legal director for the Texas AFL-CIO in Austin,
said it's time for Texas to join the rest of the 49 states that require
companies to carry workers' comp insurance.
- Failing that, he said, the Legislature should close the
loopholes that leave too many workers stranded when they're hurt, he said.
- "All the incentives are there to leave the system
instead of fixing it," Levy said.
- But don't count on the Legislature to act any time soon.
- Sen. Duncan says there are too many pressing problems
facing the Legislature now.
- Copyright 2003 Houston Chronicle