Injured Workers Must Sign
Waivers Before Treatment

By L.M. Sixel
Houston Chronicle

Martha McJimsey was pulling brains out of cow carcasses coming down the line at IBP in Amarillo when she split one of her fingers wide open.
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 injuries.
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 Healthcare System.
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 waivers.
"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 care."
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 Friona.
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 ruling.
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 become.
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," Wyatt said.
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," he said.
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



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