Sunday, August 20, 2017

Criticism of Enforcing Law

The nation's public radio, NPR, and ProPublica recently published a story critical of the application of Section 440.105 Fla. Stat. The almost 6,000 word story, They Got Hurt at Work. Then They Got Deported, does not cite this statute specifically, but makes references to it. The article is somewhat critical of Florida's Division of Investigative and Forensic Services for enforcing the state's law.

The focus of the story is "how insurance companies use a Florida law to get undocumented immigrants arrested and deported when they get injured on the job." And it alleges that one particular employee leasing organization, workers' compensation insurance carrier, and servicing agent essentially manipulate premium charges with expectation or anticipation of avoiding future claims, with knowledge that the workers hired are illegally in this country (referred to by the story as "unauthorized"). 

The story outlines the story of one man arrested for lying and providing the employer with a false Social Security number. Propublica/NPR characterizes Nixon Arias as "similar to many unauthorized immigrants." He had been in the U.S. for about 9 years, when he was injured in Alabama. For whatever reason, he was apparently provided Florida workers' compensation benefits, and struggled to recover. Eventually surgery was recommended. Then, according to Propublica/NPR, "the insurance company suddenly discovered that Arias had been using a deceased man’s Social Security number and rejected not only the surgery, but all of his past and future care." Arias later was "pulled over and arrested," and "charged with using a false Social Security number to get a job and to file for workers’ comp."

The relevant Florida Statutes might have included any of the following, though not cited specifically in the story:

Section 440.105(4)(b)1. To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.
Section 440.105(4)(b)2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
Section 440.105(4)(b)3. To prepare or cause to be prepared any written or oral statement that is intended to be presented to any employer, insurance company, or self-insured program in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
Section 440.105(4)(b)9. To knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers’ compensation benefits.
Mr. Arias was jailed for about 18 months and then deported. The story cites a similar Massachusetts story of a man falling from a ladder at work who "was detained by ICE" thereafter. Propublica/NPR notes that Florida's statute is unique, but that similar provisions have been advocated elsewhere by "insurers, hardline conservatives and some large employers" that have sought "for the past 15 years to deny injury benefits to unauthorized immigrants."

It is a crime in Florida to present false information either in "obtaining employment or filing or supporting a claim for workers' compensation benefits." The Propublica/NPR narrative does not seem to be about whether providing false information should be against the law, but about the impact of this law on those who are in the U.S. illegally, or are "unauthorized." 

Propublica/NPR makes a valid point that people injured on the job should have the safety net of workers' compensation. The system is designed for the mutual benefit of employers and employees. It is here to provide medical care and wage replacement to those employees and to provide civil remedy protections to employers. It is intended to provide both employees and employers with a more predictable and rapid system than tort law affords.

Every facet of workers' compensation is set forth in the various state statutes that create and define these systems, which are different in each of the states, despite some similarities and even some identical provisions. This is a point that variously draws admiration and criticism. There is no "American workers' compensation system," but at least 55 individual systems, each defined in its own law (including one in each state, the District of Columbia, Puerto Rico, Guam, the Federal workers' compensation system, Longshore and Harborworkers, and more)

The story concludes that "employment of unauthorized workers is a reality of the American economy." It states that "8 million immigrants work with false or no papers nationwide." Propublica/NPR says that these are "more likely to get hurt or killed on the job than other workers," but provides little explanation as to why. Possibly because of risks associated with certain regions, occupations, or tasks? 

But, since 2003, Propublica/NPR says that "insurers have avoided paying for injured immigrant workers’ lost wages and medical care by repeatedly turning them in to the state." This seems to be focused on Florida and to imply of frequent application of the law. 

How prevalent is this? Well,"NPR analyzed 14 years of state insurance fraud data and thousands of pages of court records." The result was about "800 cases statewide in which employees were arrested under the law." Of those, there were "at least 130 injured workers." And of the 800, "125 workers were arrested after a workplace injury prompted the state to check the personnel records of other employees." These number might support that the majority of arrests were not of injured workers.

So, 800 total cases, at least 130 injured workers, and at least 125 employed at a facility that was audited or investigated because of some co-worker's reported injury. 

A database report from the Florida Department of Financial Services generated figures for the period January 1, 2007 through December 31, 2017 (year to date). That is a period of about 11 recent years (acknowledging it to include several remaining months of 2017, possibly leading to an under-representation of actual figures for 2017), a shorter period than the 14 years studied by NPR. This report supports that 618,289 cases were reported to the Florida Division of Workers' Compensation during that time.

That results in an average (annualized) of about 60,000 per year. This does not include all Florida injuries (but "only those lost time workers' compensation records for which a DWC-1, First Report of Injury or Illness, and/or a DWC-13, Claim Cost Report, was reported to/recorded"). If the 800 cases found by NPR were evenly distributed over the 14 years studied, that amounts to about 57 cases per year. Stated differently, the cases found by NPR might be said to represent one tenth of one percent (.00095 - 57/60,000) of the lost time cases in Florida annually, and a smaller percentage of the total volume of injuries (which would also include medical only and first-aid cases).

The 130 injured workers NPR found over the studied 14 years (or the other 125 arrested after accident-induced investigations), would be about 9 per year, or about 2/100ths of one percent (.00015 = 130/60,000) of the lost time injuries. The volume of affected individuals is thus notably small. That said, each of the individuals mentioned are human beings, workers, and deserving of the benefits afforded by the social contract that is workers' compensation. Why? Because they were hired by the employers, worked for the employers, and were injured in that endeavor. That is the socialistic contract that is workers' compensation. The cost of such injury is appropriately born by the employer and its customers, not by the injured worker. 

The percentage that were deported as a result is even smaller. The Propublica/NPR headline is They Got Hurt, Then They Got Deported. Some might interpret that to mean work injury equals deportation. Propublica/NPR reports however only that "At least 1 in 4 of those arrested were subsequently detained by ICE or deported." That would be a total of perhaps 200 (a quarter of the 800 total cases found by Propublica/NPR) at least "detained." Because of the "or deported," some might infer that even less than 25% of the one tenth of one percent were deported. The statistics reported also substantiate that of the 800, only about 130 were injured. Some might argue that the suggested correlation between getting hurt and being deported may not be as absolute as the headline might insinuate.

Despite the Florida law being unique, Propublica/NPR rdescribes injured workers from Massachusetts, Pennsylvania, and Kansas who perceived mistreatment and/or deportation from involvement in workers' compensation accidents. 

ProPublica/NPR reports that a large portion (75%) of those who were arrested in Florida were reported by one private investigation firm in Central Florida. Half of those arrested in the last four years worked for the same employer, which is owned by the same person that owns both that employer's workers compensation insurance company and claims management company. The implication perhaps being that this particular combination of employer/carrier is more aggressive regarding these laws than perhaps others are?

Critics of the "no lying" law and of the outcomes it has produced complain that false social security numbers could be identified in the hiring process. They contend that hiring is the time to deal with the documentation issue, and seem to insinuate that the employers involved acquiesce in hiring and working those without solid documentation, and enjoy a benefit from their labor. Then, after there is a loss, the same employer escapes liability for the injury on a basis that could have been discovered earlier, could have precluded employment, and thus prevented the injury. Would it be better to more proactively investigate/research, and exclude those without appropriate documentation from the workforce?

There are likely various reasons for making misrepresentations when seeking a job. One quoted state official stated “there’s quite a lot of other circumstances why people use fake names and IDs and Social Security numbers aside from immigration." Examples offered included "people who might have other legal problems," and "people who are wanting to stay off the books for specific reasons," such as "divorces or liens put against them.” However, Propublica/NPR claims that it found only five instances of such "other reasons" in the 800 cases it identified. It quotes a state report that says “'nearly 100 percent' of the suspects investigated under the statute were undocumented workers."


And, is there injury to others? Propublica/NPR reports that "In one case, state investigators found that more than 100 workers were all using a Social Security number belonging to a 10-year-old girl." How will that girl be affected if she one day becomes employed in Florida, and suffers a work injury? Or, could the people using her Social Security number cause other damage to her by this use, or theft, of her identity? If someone uses your identity, is that "identity theft" or merely "unauthorized" use?

One of the workers quoted by Propublica/NPR concluded that she was unjustly treated. She complained of the "injustice (of) what happened to me,” which was “all because I fell, I slipped.” Some might contrarily argue that some portion of what happened to her was attributable instead to having either entered or remained in this country illegally, or to making false statements in the employment process. One attorney, quoted by Propublica/NPR said "even immigrants who are 'truly injured' should be denied benefits if they’re using illegal documents for their claim and 'they shouldn’t be here in the first place.'”

Propublica/NPR suggests that the Florida laws on false statements are efforts at controlling immigration, citing sources that perceive constitutional issues therefrom. There is discussion of Arizona v. United States, in which the United States Supreme Court struck various provisions of Arizona law by which local law officers were to enforce federal law. Propublica/NPR concedes that "unlike Arizona’s law, the (Florida) statute doesn’t mention immigrants specifically." However, it quotes an attorney that contends the results of the law, its impact, disparately affects illegal immigrants, which he says is "problematic" from a constitutionality standpoint. 

This is an enlightening piece from NPR/Propublica. There will perhaps be elements of the story that are troublesome to various perspectives. However, it is probable that the story will generate intelligent discussion and debate; some may perhaps question their perspectives as a result. Newsweek reports that deportations have dipped slightly in early 2017, arrests of illegal immigrants have increased. Whether deportation will be different in what Propublica/NPR refers to as "the age of Trump" or not, deportation appears a likely subject of debate and discussion in years to come. 

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