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Advocates seek a safety net for injured NC workers

RALEIGH — John Ashworth survives on a web of government programs never designed to help him.

The program that should have – a swift and efficient workers’ compensation program – has failed repeatedly to make Ashworth whole since he shattered both feet after falling off a roof in 2008.

His former boss, Robert Wayne House of State Wide Roofing in Franklin County, didn’t have insurance required by law and owes him more than $70,000 in lost wages; another employee who fell off a roof is due more than $100,000. Though the N.C. Industrial Commission has been leaning on House this year to settle the debt, he has shelled out a total of $75. 

Ashworth spent more than the $25 monthly settlement payment on parking fees and gas traveling from Franklin County to the hearings in Raleigh.

“This is not even worth my time,” said Ashworth, 53. Ashworth is now disabled and gets by with Social Security disability, food stamps and Medicaid.

Advocates for injured workers say the state needs a safety net to catch vulnerable workers such as Ashworth. They want state leaders to create a fund to pay for lost wages and medical bills quickly so these workers aren’t left destitute while their employers try to pay the claim.

At least half of the states, including many that border North Carolina, offer compensation to workers hurt while working for companies without insurance.

“These folks are hurt, broke and seem to have no place to go …,” said Harry Payne, a former state labor commissioner and now a workers’ advocate at the N.C. Justice Center. “Any time you look at the effect of this on the ground, you find these workers laying around in all these impossible situations.”

The problem of uninsured employers in North Carolina is pressing. The News & Observer reported in April that 30,000 or more employers required to carry insurance don’t. Little has been done to find these companies or to order them to buy insurance before workers get hurt.

Over the last several years, the commission has heard from between 300 and 500 workers a year hurt while working for an uninsured boss. The commission vets the cases and often awards payments, but collecting the money is often a futile effort.

After the N&O’s reports in April, the commission called back hundreds of old uninsured cases. It threatened the employers with penalties and trips to jail. Some workers collected payments they had waited years to see.

But many, like Ashworth, languish as the commission tries to flex its muscle and force employers such as House, who is now disabled, to take care of his injured workers. House has said in hearings that he’s broke, too, and that he’s no longer in business.

Arresting the boss

Frankie Boykin knows what it’s like to wait to be made whole again.

Boykin was called back to the Industrial Commission in May, four years after a major head injury caused by the brakes going out on a truck he was moving at a used car dealership in Smithfield. He was out of work for nearly two years, and even now, his injury lingers, robbing him of his short-term memory and some muscle function.

He fell behind on child support payments and once spent the night in jail for his inability to support his teenage son. He relied on the charity of relatives to eat and find a place to stay.

“My whole world was upside down,” said Boykin.

Until earlier this month, Boykin’s former boss, Andy Salvatore, owner of Smithfield Auto Center, hadn’t paid Boykin a dollar of the more than $120,000 he owed. After months of Salvatore’s ignoring the commission’s order to come to a hearing and explain why he hadn’t paid Boykin, officials finally arrested Salvatore this month for failing to appear.

The arrest got his attention, and Salvatore came to Raleigh and agreed to settle the claim with Boykin for $1,000 a month until he paid $65,000. He also agreed to pay more than $100,000 in medical bills to WakeMed and Johnston Memorial Hospitals.

Salvatore offered no explanation to a deputy commissioner for his delinquency. He told a reporter that he hadn’t noticed the orders to appear for hearings because he gets so much mail. He said his business has faltered during the recession.

A deputy attorney general told Salvatore that the state would likely spare him more than $100,000 in penalties for failing to carry insurance if he made good on his payments to Boykin.

Salvatore handed over his first installment this month in a makeshift courtroom at the Industrial Commission: $1,000 in cash.

Boykin counted the stack of $100 bills as tears welled in his eyes. He talked about his son and all he’d deprived him of in those years he was without work.

“This means more than you know,” he told an investigator at the commission.

An idea for help

State leaders have been wrestling with the problem of businesses skirting their tax and insurance obligations to gain an edge in the marketplace. A task force of agency leaders and a separate legislative subcommittee met this past fall to discuss how to crack down on businesses that cheat.

Leonard Jernigan, a veteran plaintiffs’ attorney, implored leaders at these meetings to consider setting up a fund to help injured workers whose employers had no insurance. Jernigan has handled uninsured cases for years and has seen how the workers’ needs get absorbed elsewhere: by Social Security disability, food stamps and Medicaid.

“The taxpayer ends up paying for this one way or another,” Jernigan said.

He urged leaders to beef up enforcement efforts and use penalties to help feed the fund.

One legislator asked for more information about how others states’ programs work, but nothing formal has been presented.

What S.C. does

South Carolina leaders set up a similar fund 30 years ago. A fee assessed on workers’ compensation policies supports the fund, drawing about $18 million a year.

“We wanted to make sure the person gets help and back to work as quickly as possible,” said Gary Cannon, executive director of the S.C. Workers’ Compensation Commission. “We don’t want them out there struggling.”

Ray Evans, general manager of the N.C. Rate Bureau, which represents insurance companies in requests for rate adjustments, said the problem of uninsured employers is pressing. He said a fund would be a big help to injured workers but wouldn’t address the problem of compliance.

“There’s always the problem of where the money will come from,” he said. “When it’s been discussed, employers weren’t too keen on any sort of new tax, and insurance carriers are not excited to pay more. The idea of this has come and gone, but not the problem.”

Leaders at the N.C. Chamber, the state’s major business lobby, worry that assessing any fees from businesses abiding by the law is unfair and could hinder job growth. Gary Salamido, the Chamber’s vice president for governmental affairs, said the state needs to do a better job educating businesses about their responsibility to carry insurance.

He also urged better enforcement against those who refuse.

“We need to identify businesses that are skirting the system without intention of ever becoming compliant, and ensure that the Industrial Commission has the authority to take appropriate action to shut down their business until they secure workers’ compensation insurance,” Salamido said.

Penalties from uninsured employers, as it stands now, couldn’t float any sort of uninsured fund.

In the fiscal year that ended in 2011, the commission collected $30,900 in penalties from uninsured employers. That same year, it handled claims for 378 uninsured workers.

Locke: 919-829-8927

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By Mandy Locke – [email protected]
SOURCE:  Raleigh News & Observer, Published December 26, 2012