Texas and Oklahoma are two states that do not have state-regulated workers’ compensation in place for injured employees. When employers opt out of workers’ comp, “they avoid state regulation and write their own workplace injury plans, which make it easier to deny and cut benefits, control medical care and limit appeals of their decisions,” said a recent NPR article.
One man has suffered greatly due to this opt-out plan. Kevin Schiller, a Macy’s department store employee for over 21 years in Denton, Texas, has struggled to receive the medical attention and compensation he deserves. After enduring a head injury while working in a Macy’s storage room, Schiller experiences “persistent headaches, memory loss, disorientation, and extreme sensitivity to bright light and loud sound.”
According to Howard Berkes, the NPR article’s author, “Schiller is among 1.5 million workers in Texas and Oklahoma who don’t have state-regulated workers’ compensation to turn to when they’re injured on the job.” And it’s possible that millions more may join Texas and Oklahoma workers, as more states think about giving employers the choice to opt out of state workers’ compensation.
The Employee Retirement Income Security Act, or ERISA, is a federal law that opt-out employers claim is in place to protect injured employees, since they are not protected by state law. This was not much help to Schiller, as he was refused by the state workers’ comp agency, as well as a state court, and ultimately had to go through an appeals process internally, through Macy’s. “People paid by employers decide whether employers are fair. Macy’s rejected Schiller’s appeals,” said Berkes.
Kevin Schiller, who says he is now “next to poverty,” after paying for medical care out of pocket, was advised by his attorneys not to file a federal court appeal, as it was “too risky.” His attorney believes Schiller could have received millions, “given pain and suffering damages and the egregious way that they treated him,” had his case gone to state court. Instead, Schiller who was told he would likely recover within five years, received a total of $713,000.
“I’m just getting by,” Schiller said in the NPR article, “Thank God for Social Security Disability. …After dealing with the whole process I went through and nowhere to go…I mean I’ve gotten no, no justice.”