Who's Your Data? TX Stops Collecting Info on Race of Injured Workers, Paves Way for Discrimination.

Photo of Houston steel worker by Bill Jacobus, via Flickr Creative CommonsSince 1993, state law has required the Texas Division of Workers’ Compensation (TDWC) to maintain information on the race and gender of every valid injury claim. Yet, last year less than 8 percent of claims contained that information. Without this information those who wish to study racial bias in the workers’ compensation system are unable to extrapolate proper numbers and therefore cannot put concrete evidence to the claims being made by many who have experienced such discrimination.  

Take for example claims by Hispanic workers that they face more dangers on the worksite than their co-workers of non-Hispanic descent. The U.S. Bureau of Labor Statistics released a study in February of 2013 which shows Hispanics are more likely to die on the job than workers of other races. The Bureau concluded that part of this was because foreign-born workers were less familiar with English and therefore did not have as clear an understanding of U.S. workplace safety guidelines. 

But information gaps like the one Texas faces mean the same kind of fact-finding is hindered on the workers’ compensation side. So State Representative René O. Oliveira, who oversees the TDWC as chairman of the House Business and Industry Committee, is pressuring the agency to begin collecting the mandatory information. Oliveira notes that this is not the first time the agency has failed to comply with the law:

The Texas Tribune revealed in June that the agency was not staffing its 24-hour safety hotline around the clock. The division later announced that it had taken steps to staff the toll-free hotline day and night as required.

“I’m disappointed that we discover again that the agency is not following its statutory obligations,” Mr. Oliveira said. While the agency may have logistical hurdles in collecting the information, he added, “that’s not justification for not making an effort and ignoring what the law requires.”

The lack of information hurts the legal cases of the injured, as well.  Austin lawyer Brad McClellan ran into this problem while doing research for a case in which he believes a man was discriminated against after second and third degree burns and the loss of an arm from an explosion.  The man is an African-American married to a white women in West Texas.  Mr. Johnson’s story is told by Texas Tribune writer Jay Root:

Injured in a 1998 smelter explosion in Amarillo, Mr. Johnson sustained second- and third-degree burns on his face, neck, upper body, legs and arms. One of his arms had to be amputated. The other was badly mangled.

As part of his rehabilitation, Mr. Johnson, who lived in a small town, worked out at a gym a couple of hours from home. Insurance adjusters suspected he was not using the gym and filed a criminal complaint against him, records show. Soon thereafter, a grand jury indicted Mr. Johnson for insurance fraud, saying the evidence showed he had falsified travel reports.
The complaint relied on electronic records indicating Mr. Johnson had not used a swipe card to enter the gym. After he and his wife were arrested, Mr. Johnson explained that the injuries to his remaining hand prevented him from removing the swipe card from his wallet, and that gym employees had opened the door for him.

The charges were dropped after gym employees signed affidavits attesting to his attendance. But in a multimillion-dollar lawsuit filed against Old Republic Insurance Company for bad faith, malicious prosecution and other alleged misdeeds, Mr. Johnson’s lawyers argued the insurer continued to deny him the benefits and medical treatments he was due. That case is pending.

The copy of Mr. Johnson’s electronic claimant information file has the race line left blank:

“If Glenn had been the white male manager, he would never have had a problem,” Mr. McClellan said, “and certainly would not have been indicted for travel fraud in the Panhandle.”

This valuable data, the collection of which has been willfully neglected, could be the difference maker in many cases.  The system seems to work against Latino’s in particular.  As Emily Timm, deputy director of the Workers Defense Project, pulls no punches:

I think the data would probably reveal some sharp discrepancies about who is getting compensated through the work comp system and who isn’t.”

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