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V. Workers’ Compensation in the Meat and Poultry Industry

I kept having pain in my back. My supervisor wouldn’t let me go to the clinic. He said there was too much work and I couldn’t leave the line. I woke up the next day and couldn’t move. When I went to the clinic, they told me I got hurt at home. They said that the regular insurance would pay my medical bills if I agreed that I got hurt at home. They asked me to sign a paper but it was in English and I didn’t understand it, so I didn’t sign it. I quit because the pain was so bad. Nobody paid my medical bills, neither the company insurance nor workers’ comp.

                        —Smithfield Foods worker, October 2003

Workers’ compensation for workplace injuries and illnesses is an integral part of the international human rights standards for workers. This report finds that companies in the U.S. meat and poultry industry administer their workers’ compensation programs by systematically failing to recognize and report claims, delaying claims, denying claims, and threatening and taking reprisals against workers who file claims for compensation for workplace injuries.

For their part, state government authorities (workers’ compensation is a states-based system not governed by federal labor law) do not sufficiently inform workers of their rights, do not effectively enforce workers’ rights under compensation statutes, and do not effectively enforce anti-retaliation provisions meant to protect workers against dismissal for exercising their rights under workers’ compensation laws.

International Human Rights Standards and U.S. Law

Workers’ compensation, the insurance system for job-related injuries and illnesses, is not usually analyzed in light of international human rights standards. But human rights instruments recognize the importance of such protection for all workers, including non-citizens.151 The Universal Declaration of Human Rights underscores everyone’s right to “just and favorable conditions of work . . . and the right to security in the event of unemployment, disability . . . or other lack of livelihood in circumstances beyond his control.”152 The ICESCR repeats the call for “just and favorable conditions of work” and “the right of everyone to social security, including social insurance.”153

ILO Convention No. 121 prescribes workers’ compensation for all employees, including medical care, salary replacement, rehabilitation services, or death benefits to survivors of workers who die. The United States and its trading partners in the North American Agreement on Labor Cooperation committed themselves to “the establishment of a system providing benefits and compensation to workers or their dependents in cases of occupational injuries, accidents or fatalities arising out of, linked with or occurring in the course of employment.”154

Human Rights Watch’s research for this report found widespread failure of the workers’ compensation system to protect meat and poultry industry employees. The human rights dimension arises not with the arguably low level of benefits or restrictive eligibility rules, but with the systematic denial of workers’ claim to compensation at all. Employer pressure, worker fear, and lax enforcement by government officials combine to deny many workers the right to this basic labor protection.

Workers’ compensation is a legal regime dating to the early twentieth century. At that time, maimed workers (and killed workers’ survivors) often failed to win lawsuits against their employers because of common law defenses, like “assumption of risk” and “contributory negligence,” which blame workers for their injuries. Workers and their families became dependent on charity and public assistance. At the same time, some workers or their families occasionally won victories before sympathetic juries yielding large awards for compensatory damages, pain and suffering, punitive damages, and other common law redress. Those awards softened employer opposition to reform efforts. The combination swung state legislators into action replacing dice-rolling common law tort suits with a predictable statutory system.

Workers’ compensation generally is supposed to provide injured workers with full medical insurance coverage, rehabilitation costs, and two-thirds of regular weekly pay during disability caused by a workplace injury (or a specified death benefit in case of fatality) without regard to “fault” of workers or employers. The trade-off is that workers’ compensation is the exclusive remedy for such injuries. Injured workers cannot sue their employers under common law seeking large damage awards for workplace injuries even when injuries are caused by employers’ negligence.155

Workers’ compensation is a states-based system in the United States, really fifty-one different systems in the states and the District of Columbia. The United States is one of only three countries in the world with a sub-national workers’ compensation system.156 The states’ compensation plans have many common features but also many differences in amount and duration of benefits and rules on eligibility for benefits. For example, at the extremes, in 2003 Iowa and New Hampshire provided maximum weekly benefits of slightly more than one thousand dollars, while Mississippi and Arizona capped maximum benefits at less than four hundred dollars. The maximum amounts for Arkansas, Nebraska, and North Carolina respectively were $440, $542, and $674 per week. Again, these are maximums; average benefits are in the $300 to 400 range.157  In sixteen states, average workers’ compensation weekly benefits leave injured workers below the state’s poverty line.158

The majority of state workers’ compensation laws cover non-citizens in their definitions of employees entitled to benefits. In addition, some state courts have specifically found that undocumented workers are entitled to workers’ compensation.159 

Congress has never adopted recommendations by a 1972 blue-ribbon commission of experts on workers’ compensation to establish uniform national standards with continued state administration.160  Because workers’ compensation remains a matter of state law, states often compete with each other in a “race to the bottom,” cutting benefits and making eligibility rules stricter in efforts to attract and retain businesses. One analyst notes:

From the late 1980s through the 1990s, the majority of states enacted comprehensive reform legislation that has had the effect of reducing disability benefits (especially for permanent injuries), restricting or eliminating compensation for certain types of injuries, and reducing procedural protections for claimants whose claims are denied.161

State workers’ compensation laws are administered by what is usually called the “workers’ comp commission” in each state, appointed by the governor. The commission decides disputed cases when employers contest workers’ claims that their injuries are work-related and deserving of compensation. Administrative law judges hear evidence in disputed cases, and their decisions can be appealed to the state commission for review.

The “race to the bottom” effect apparently can touch commissions, too. In one widely publicized Arkansas case, an administrative law judge sued the Arkansas workers’ compensation commission for wrongful dismissal after the commission fired her. The judge said her firing was a response to pressure from business because of her decisions favoring workers.162 In 2001, the state government paid her $125,000 to settle the case before trial.163  One legislator who investigated the case said,

You have a commission that is saying that you will decide a case not impartially, but you will decide it with a bias toward business and insurance companies. If you don’t, you’re gone. … You damn sure don’t know whether you’re going to get an honest judge because of the influence of management and the governor’s office on the commission.164

Failures of the Workers’ Compensation System in the Meat and Poultry Industry

The Difference between Workers’ Compensation and Regular Medical Insurance

Understanding the difference between workers’ compensation and regular medical insurance is critically important for understanding why violations of workers’ right to compensation occur so often. Workers’ compensation for work-related injuries and illnesses is much more favorable coverage for workers than regular medical insurance. “Workers’ comp” pays for 100 percent of medical expenses and rehabilitation services. The employee is relieved of any co-payments or other out-of-pocket expenses that are usually required under regular medical insurance. Workers’ compensation also provides weekly income, usually between two-thirds and three-fourths of an injured worker’s regular pay, during the period of disability from work. Such disability can be of long duration in cases of serious injury.

Regular medical insurance involves premium payments, co-payments, deductibles and other costs to employees; caps on benefits and other limitations; and no salary replacement during disability. Some companies maintain a short-term disability (STD) program providing 50 to 60 percent of pay during disability from non-work-related injuries or illnesses. However, most STD plans stop paying weekly benefits after a maximum thirteen-week period. An employee still unable to return to work is then liable to dismissal for absenteeism. It is at the sole discretion of the employer whether to let a worker whose STD benefits have ended return to work with doctor-recommended restrictions, also called “light duty.”

Meat and poultry industry workers interviewed by Human Rights Watch consistently said that employers routinely deny that injuries are work-related when the injury is not obvious to the naked eye. Instead, management insists that workers take regular medical insurance to cover treatment and short-term disability pay if they have to miss work. Many workers succumb to this pressure, knowing that if they persist in making a workers’ compensation claim for a job injury, employers’ denial that the injury is work-related will force them into an administrative and judicial machinery requiring lawyers, hearings before an administrative judge on evidence of the injury, conflicting doctors’ reports, appeals to commissions and courts, and other long, involved legal processes.

Daunted by this prospect, many workers fail to pursue their rights under workers’ compensation laws. Emily Spieler, a workers’ compensation scholar (now Dean of the Northeastern University School of Law) who also served for several years as chair of a state workers’ compensation commission, notes that “the design of the [workers’ compensation] program encourages employers to attempt to prevent workers’ compensation costs by reducing the filing of claims instead of the occurrence of injuries.”  Spieler notes tactics such as discouraging workers from reporting claims, refusing to complete injury reports when requested, and delaying claims processing so that workers turn to other sources of income such as short-term disability insurance, which quickly expires and leaves employers without further liability and workers without jobs.165

Dozens of workers interviewed by Human Rights Watch and other researchers offer a dismaying picture of the failure of company managers, state agencies, and insurance administrators to enforce workers’ rights to compensation for workplace injuries. For example, a Nebraska Beef worker told Human Rights Watch:

The company can’t get out of workers’ comp if we cut off a finger or get caught in a machine or something everybody can see. But if it’s a back injury or wrist pain or something like that, they can say we didn’t get hurt at work, we got hurt at home. So then a lot of people hurt in the plant just go on regular medical insurance because they don’t want to get into a long fight with the company lawyers and wait two years for their benefits.166 

An Arkansas health care provider who treats poultry workers echoed this account: “The companies always fight workers’ compensation claimed for these types of injuries [musculoskeletal as distinct from traumatic and visible]. If it’s not a cut or a mangled hand or something obvious with witnesses, they say it’s not a job-related injury and they make the workers go through hell with a workers’ compensation claim.”167

North Carolina workers, even those whose claims are not challenged by employers, face the longest delay in weekly benefit payment in any of twelve states included in the Workers Compensation Research Institute’s permanent study group. An average of seventy-eight days pass between the date of a North Carolina employee’s injury and the date that the first benefit check arrives.168  Many workers have no other income during this time. Many other workers, generally aware of this long wait, accede to employers’ blandishments to take regular medical insurance or short term disability instead of workers’ compensation. They gain the benefit of a check arriving sooner, but risk the loss of continued medical insurance and rehabilitation coverage, long-term weekly benefits, and the right to come back to their jobs when they recover.

The Role of On-Site Medical Clinics

Many workers reported problems getting promptly to company medical clinics when injured and getting appropriate diagnoses once at the clinics. In a written statement to Human Rights Watch, Smithfield management described its procedure this way: “The employee is asked to report all injuries and near misses to their immediate supervisor. If the employee requires medical attention, they are immediately referred to the Employee Health department located on-site.”169

Smithfield workers interviewed by Human Rights Watch and by union health and safety researchers consistently gave accounts sharply at odds with management’s stated policy. First, as indicated in the Smithfield policy, the supervisor has the initial power to decide “if the employee requires medical attention.” If the injury is traumatic and visible, most typically a serious open wound, supervisors grant such permission. But if the injury is perceived as a minor cut or a below-surface condition not apparent to the naked eye, supervisors frequently treat workers like malingerers and tell them to finish their shift.

Because they share rides or are picked up after work, or because they have to get children at day care centers or meet other family obligations, many workers must go home when their shift ends, without time to visit the clinic. If they go straight to the clinic the following day and complain of injury, the medical staff tells them it was not work-related. As one Smithfield worker described:

I kept having pain in my back from the heavy lifting. My supervisor wouldn’t let me go to the clinic. He said there was too much work and I couldn’t leave the line. I woke up the next day and couldn’t move. When I went to the clinic, they told me I got hurt at home. They said that the regular insurance would pay my medical bills if I agreed that I got hurt at home. They asked me to sign a paper but it was in English and I didn’t understand it, so I didn’t sign it. I quit because the pain was so bad. Nobody paid my medical bills, neither the company insurance nor workers’ comp.170

Smithfield officials described the plant’s medical clinic and its procedures as follows:

This department is managed by Physicians Assistants, RN’s, LPN’s and EMT personnel. Medical treatment is provided by the team, in the event they are unqualified and/or it is a life threatening event, outside medical attention is sought. As for recordkeeping—the company requests that the employee fill out an injury/accident investigation report. This report is then reviewed by the safety department to assess ways to prevent future occurrence. The medical department completes all required paperwork indicating, by OSHA standards, whether the injury is First Aid only or a Recordable injury.171

Workers at Smithfield and other companies interviewed for this report often described company clinics as a disciplinary arm of management, denying claims and benefits and often failing to report injuries. They said that employers generally acknowledge and apply workers’ compensation to obvious, witnessed, on-the-job accidents causing visible injuries. However, workers told researchers that employers routinely deny workers’ claims for compensation for pain and for below-surface MSDs. The clinics tell them that such injuries are not work-related and should be covered by regular medical insurance, not workers’ compensation.

Attorney Terry M. Kilbride has represented hundreds of meatpacking and poultry processing plant employees in workers’ compensation cases in North Carolina for many years. In an interview with Human Rights Watch, Kilbride declined to discuss specific cases involving Smithfield or other companies currently in dispute before the North Carolina Industrial Commission. However, he identified what he called “common themes” in workers’ compensation cases based on a decade’s experience. One such theme involves plant clinics:

Company medical clinics are notorious for failing to take a description from the employee about how the injury occurred. That often causes problems later when we are faced with the task of proving when and how the injury occurred in court. Companies don’t fill out the OSHA 200’s [forms supposed to be filed under OSHA reporting requirements, now called OSHA 300’s], then they say the employee never reported the injury. The plant clinic is also very, very reluctant to refer employees for outside medical care. Management always send people to the clinic so they don’t see a real doctor. They simply tell the employee that there is nothing wrong, and keep stringing things along until the situation becomes intolerable. By making the process take long, cases get more and more difficult to prove. The longer the lapse between the injury date and the filing of the claim, the more difficult the claim is to prove.172

Employees described various company rationales to deny workers’ compensation, such as accusing workers of calling the rescue squad without calling the company first; of waiting to report an injury; of “lying” to a doctor about a work-related injury when the company’s injury report, written by the clinic staff, said the injury happened at home; of waiting a day to report an injury to avoid a drug test; of going to the hospital emergency room without permission, etc. Here are some of their accounts:173

  • I just couldn’t take the pain anymore. Three times I slipped and fell on the greasy floor. The first time I went to the clinic, and they told me I just hurt my pride and to go back to work. The last time I fell, the clinic sent me back to work again. A few days later I woke up in the middle of the night and I couldn’t move. I called the rescue squad and they took me to the hospital. The doctor there took x-rays and told me I had a herniated disc. I was out for two weeks. When I tried to get workers’ comp from Smithfield, they told me I couldn’t get it because I called the rescue squad without calling the company first. The supervisors don’t do anything about injuries, they get angry at workers who get injured.174

  • My work was always bending and turning and lifting. The pain was low at first, but then it got to the point where I could hardly walk. I went out on medical. The doctors told me I have a bulging and degenerative disc in my lower back. When I called my supervisor about a workers’ comp claim, she told me it was useless because I didn’t report an injury at work when it happened. She told me I would lose the case. So I didn’t claim workers’ comp because I’m afraid they will fire me and cut off my medical insurance.175

  • I cut my finger cleaning a knife in 2003. It was just a small cut so I didn’t report it. A few days later it was swollen and infected. When I went to the workers’ comp office at the plant, the manager told me that because I didn’t report it on the day it happened, she was going to write up that I hurt it at home. I went to the hospital and told the doctor there that I hurt my finger at work. He told me to take off three days. When I went back to the plant the supervisor sent me to Human Resources. The manager there accused me of lying and said the report said I cut my finger at home. I told them I had witnesses but they said they didn’t want to hear any witnesses. They said I was fired for lying. They didn’t pay any doctor bills.176


    Problems in the workers’ compensation reporting and claims system can be compounded when companies self-insure for workers’ compensation, as do Smithfield and many other meat and poultry companies. These companies have a bottom-line incentive to deny claims or to steer workers toward the regular medical insurance program, since every dollar saved in workers’ compensation payout is saved by the company. As one industry journal explains:

    The basic concept of an individual workers' comp self-insured program is one in which the employer assumes the risk for providing benefits to its employees. So, instead of paying a set premium to an insurance carrier or to a state-sponsored workers' comp fund, they pay for each claim as it incurs out of their own pocket.177

    The Self-Insurance Institute of America explains the system this way:

    Employers typically choose to self-insure their workers' compensation plans because it gives them more opportunities to control costs . . . Under a self-insured arrangement, employers pay claims as they are incurred as opposed to paying costs up front in the form of a commercial insurance or state fund policy. This “pay as you go” approach serves to maximize cash flow.178

    Companies that self-insure use third-party claims administrators (TPAs) to manage the compensation program. As the industry trade journal explains:

    One challenge is more administrative work because in essence, the employer becomes the insurance company. The employer will be required to administer claims in-house or subcontract the duties to a third party administrator (TPA). In most cases, employers running these programs use a variety of service providers to help them. TPAs often set up and operate plans in addition to coordinating excess insurance coverage. Controlling claims is also necessary as it can more directly affect the net income, which can require additional financial and managerial resources.179

    The key in the company-TPA relationship is that management controls the information that goes to the administrators. As Smithfield management explained:

    If a workers’ compensation claim is to be opened all appropriate paperwork is completed by the medical department and sent to the company’s Third Party Administrator to open the claim so that medical and/or indemnity payments can be authorized. With the assistance of our TPA we assess all claims to ensure they are truly work related. If they are, they are processed, if it appears they are not work related, the company will challenge the claim.180

    Here is Attorney Kilbride’s account of how workers’ compensation operates when a company self-insures:

    One difficulty in handling these cases requires some understanding of the usual process in workers’ compensation claims. To start with, many companies are self-insured, so avoiding claims is a high priority for their bottom line. They use a third-party administrator as a buffer, but the companies control what goes to the administrator. In any case, the administrator is not going to pay a nickel unless and until the claim is reported. So companies almost never report the injuries to the administrator unless the injury is so obvious, in front of witnesses inside the plant, that they can’t not report it.

    There is almost nothing that a lawyer can do to force an employer to comply with the terms of its own insurance policy. This makes the early part of the process proceed far more slowly than it does in other cases. Moreover, the more slowly the wheels of justice turn, the more desperate my clients become. Most cases settle for less than workers are rightfully due because they are desperate for income and employers have the economic power to outlast them.181

    Injured Worker Surveys

    Interviews and data compiled in late 2003 and early 2004 by a team of safety and health specialists from the United Food and Commercial Workers, the union assisting Tar Heel workers’ organizing efforts, confirmed the lack of workers’ compensation for many injured workers. The researchers interviewed sixty-three Smithfield workers injured at work. Slightly more than half of the workers were identified from OSHA report logs.182 Others were referred by union organizers based on house visits, and some were referred by interviewed workers themselves.183

    Of the sixty-three injured workers, only fifteen (24 percent) received workers’ compensation. Among Latino workers the rate is even more startling: just one of nineteen Latino workers interviewed received workers’ compensation. English-speaking American workers fared better. Of forty-four such workers, fourteen (32 percent) received workers’ compensation.

    Thirty-eight workers identified their injuries as caused by sudden accidents resulting in visible physical damage. Of these, twelve, or about one-third, received workers’ compensation. Thirty workers identified their injuries as musculoskeletal disorders (MSDs), skin disease or other ailments from repetitive motion or exposure to substances in the plant.184  Only three of these, or one-tenth, received workers’ compensation.

    Workers’ Compensation and Short-Term Disability (STD)

    In a written reply to questions from Human Rights Watch about the relationship between workers’ compensation and the company’s insurance and STD programs, Smithfield officials said:

    The company carries out the appropriate investigation regarding any accident or injury to determine whether it is work related and follows the procedures set forth under the workers compensation laws in North Carolina if it is work related. . . .

    Where the injury by accident is compensable under North Carolina law, the employee receives benefits as prescribed under the worker's comp statute. Otherwise, the employee receives benefits pursuant to the company's medical plan if the injuries or events are covered by the plan. . . . The company has a light duty program; if appropriate, we may place an individual into this program. This is managed on a case by case basis.185

    Management’s description of a smooth, fair, efficient system does not correspond with workers’ stories of their often failed efforts to claim their right to compensation for on-the-job injuries. Many workers’ accounts described companies maneuvering to put as many injuries as possible on regular medical insurance plans or short-term disability rather than workers’ compensation. A Smithfield worker explained:

    I worked as a stunner on the Kill Floor starting in 2000. I got hurt in 2003 when a hog I stunned rolled into my left knee. My knee was swollen and painful. I went to the plant clinic. They wrapped it with an ace bandage and told me to go back to work. I finished the day and then had the weekend off. On Monday morning I could hardly walk. I went to the emergency room. I put it on the company insurance card. They took an x-ray and gave me a note for the plant. The company put me on medical leave. When I called about benefits, the company insurance office told me they denied workers’ comp and wouldn’t pay the emergency room because I went there without permission. I went into the office to see what was going on. They told me I would get a letter from Smithfield headquarters in Virginia. They sent me a letter that said I had to sign a waiver of any workers’ comp claim if I wanted to get medical insurance or short term disability. I signed it but it was under pressure because I had not gotten any income for weeks. Then I got $109 a week for thirteen weeks.186

    Former Smithfield worker Melvin Grady also experienced the company’s resistance to covering workplace injuries under workers’ compensation and instead forcing them onto the regular medical insurance plan and short-term disability. As recounted earlier, Grady suffered a torn Achilles tendon when he slipped and fell on a greasy stairway at the plant in September 2002. The clinic nurse sent him back to the shop, but he told his supervisor he had to go to the hospital. Grady told Human Rights Watch that at the hospital emergency room:

    They took an x-ray and the nurse said to me, “How did you even get here? Your Achilles tendon is torn. They should have brought you here right away.” She asked me, “Is this workers’ comp?” I said, “I think so. It happened at work. I don’t know.”

    I had an operation right after that. Then for one month I was in a cast from my knee to my toes. I started getting STD [short term disability] from Smithfield after about three weeks. It was for $227 a week, but with deductions I got about $170 a week. I called the clinic and said I thought I should get more out of workers’ comp. They told me, “Your case is not workers’ comp. It is not work-related.” I didn’t know anything about workers’ comp law and I figured they knew, so I let it go.

    At the end of December 2002 I got an STD check with a notice saying “This is your last check.” I went to Smithfield with a doctor’s note saying I could work, but with “no prolonged standing or climbing up and down stairs.” I could have done it because I could sit down in knife sharp a lot of the time, and I could just bring my lunch. I didn’t have to climb the stairs.

    Management told me to go back and get a doctor’s note with no restrictions, or I was out of a job. My doctor wouldn’t give it to me. Smithfield told me I was terminated. I asked them could I get unemployment comp and they said no, I couldn’t apply for unemployment because it was my fault I was out of work.

    I started doing temp jobs in the area, and that’s what I have been doing for the past year. At Smithfield I made eleven dollars an hour with a fair amount of overtime. The temp jobs are six dollars an hour, that’s what I make now. I was bringing home $500 a week from Smithfield. Now it’s $150 or $175 a week.

    I didn’t want to hire a lawyer or anything because I figured Smithfield knows what the law is about workers’ comp or unemployment comp. But when the bank foreclosed on my house in January I called up the union and they got me a lawyer. He is helping with my case now. I hope he can do something because I am filing for Chapter 13 bankruptcy.187

    Fear of Job Loss

    Many workers are fearful of losing their job if they press for compensation for a workplace injury. Such retaliation is unlawful in every state (except Alabama, which allows employers to fire workers for filing compensation claims). But workers’ compensation expert Emily Spieler found that:

    Factors extrinsic to the workers’ compensation system itself play an important role in influencing workers’ claims filing behavior . . . [A] primary risk is that of actual job loss, or of other retaliation by the employer . . . for seeking benefits. . . . “Good” workers become those employees who do not file claims, even when they meet the eligibility requirements. . . . Prospects for successful reinstatement . . . are notoriously bleak. Retaliatory discharge lawsuits are a useful tool primarily for professionals, managerial, and other upper income workers.188

    In a written reply to questions from Human Rights Watch about employees’ fears of termination, Smithfield management said:

    Employees should not fear retaliation of any sort from the company for reporting actual injuries or accidents or for making good faith claims relative to injuries they may have sustained. The company will not tolerate retaliation by supervisors or anyone else against employees making good faith reports or claims.189

    Many workers see the situation differently. In the union researchers’ survey of injured workers, fifteen of the sixty-three individuals in the database were dismissed by Smithfield after their injury. One former Smithfield employee said:

    I worked on the spiral hams line in the conversion department. In 2002 the side of my face got a nerve reaction. It felt like it was paralyzed. The nerve specialist told me it was a reaction to the cold work area and gave me a note saying I should move to a warmer area. When I went to Human Resources they told me I was a high risk and I was terminated. I never got paid for the time I was out, and I never got workers’ compensation. My unemployment compensation has run out and I have no income at this time.190

    Another worker had this to say:

    I worked in casing for five years pulling guts. . . . In 2003 I was pulling hard when I felt a sharp pain in my shoulder. I went to the plant clinic. They gave me a heating pad and a muscle rub. I went off the line for two days on light duty, picking up meat off the floor in the department. It wasn’t getting any better so I went to the office and asked for time off to let it heal. They told me it was not work-related and I couldn’t have time off. I just worked with the pain because I couldn’t afford to take off and they would fire me for absenteeism.191

    Spieler’s study of workers’ compensation systems concludes:

    The employer’s ability to affect claims filing behavior is directly tied to the inequality of the employment relationship. . . . [Unorganized] employees rarely pursue litigation against employers while they remain employed . . . Workers’ compensation forces the pursuit of litigation during the existence of this relationship . . . the more workers perceive loss of trust or of job as one possible outcome of pursuing compensation claims, the lower the likelihood they will pursue claims.192

    Company-Selected Doctors

    Poultry workers interviewed by Human Rights Watch for this report described another recurring problem related to a common feature of workers’ compensation systems: the power of employers to require workers to see a doctor chosen by the company. By itself, such a practice does not violate workers’ rights. Most states permit employers to have a worker claiming compensation see a company-chosen physician in addition to the employee’s own physician, with provisions for a third opinion in case of a dispute between physicians. But in Northwest Arkansas, where many workers are immigrants without drivers’ licenses and cars, transportation to company-assigned doctors located hours away presents a major barrier to claiming their right to compensation.

    In one interview, a Central American worker from a local poultry processing firm with his fingers frozen in a permanent, disfigured curl said:

    I worked in a processing plant for four months. I was on a bagging machine when the bags got stuck. The only way to fix it is with the machine still running. My hand got caught in the machine. Four fingers got torn up. The foreman took me to the Harrison Hospital for treatment.193  The hospital is two hours away but they make us go there because that’s where the company doctors are. They just do what the company tells them.

    I was there until 3:00. My hand was killing me, but the doctor said I could work. They made me sign a form saying I could not get my own medical records without company permission.

    The foreman told me to come back to work that night using one hand. I tried it for a few days but the pain was intense. I went to the company nurse. The nurse told me to get Tylenol out of the Tylenol vending machine and go back to work.

    I was afraid of gangrene, working in the cold room. I couldn’t stand the pain. After a week a friend of mine told the supervisor he should give me some time off. The next day the personnel manager called me in and told me I was fired because of my bad hand.

    I applied for workers’ compensation. The company said I had to see their doctor at the Harrison Hospital two hours away to keep checking on me. But I didn’t have a car, I couldn’t always get there, so the company said I was negligent and they won’t pay for any therapy by my doctor here in town.

    My hand is useless. I can’t grip, so I can’t work. All the work is hard work, even light duty. Not just chicken work. Any work. I’m still trying to get workers’ compensation. In the meantime, my wife is supporting me. If she gets hurt I don’t know what I’ll do.194

    Another chicken processing worker described in detail a serious, permanent, disfiguring injury that was plain to see. However, Human Rights Watch must relate this interview in non-specific terms because the nature of the injury would likely identify the worker:

    The injury happened on the night shift. The manager took me to the emergency room where I got initial treatment. He told me to see the nurse the next day. The nurse is only on duty for the day shift. The next day, the nurse told me to see the personnel manager. The personnel manager told me I will have to go to the company doctor at a hospital in Okalahoma. It’s about four hours away. I couldn’t drive, and my spouse doesn’t drive. There is no interpreter there. So I missed appointments and now they are fighting my workers’ compensation claim because of that.195

    [151] See text accompanying footnote 283 for a more detailed discussion of the applicability of human rights standards to non-citizen workers.

    [152] Universal Declaration of Human Rights, art. 2.

    [153] ICESCR, art. 7.

    [154] See Appendix B for full text of international standards on workplace health and safety, including workers’ compensation.

    [155] For a comprehensive history and analysis, see Emily A. Spieler, “Perpetuating Risk? Workers' Compensation and the Persistence of Occupational Injuries,” 31 Houston Law Review 119 (1994) (“Perpetuating Risk?”).

    [156] Australia and Canada are the others.

    [157] See AFL-CIO, “Workers’ Compensation under State Laws, January 1, 2003,” available online at:, accessed on November 17, 2004.

    [158] See Allan Hunt, Adequacy of Earnings Replacement in Workers’ Compensation Programs (National Academy of Social Research Paper), (Kalamazoo: Upjohn Institute for Employment Research, 2004). Nebraska is one of the sixteen.

    [159] See “Focus on Worker Health and Safety: Equal Access to Workers’ Compensation Benefits,” in National Employment Law Project, Low Pay High Risk: State Models for Advancing Immigrant Workers' Rights, (November 2003), available online at:, accessed on November 17, 2004.

    [160] See Terry Thomason, Timothy P. Schmidle, and John F. Burton, Workers’ Compensation: Benefits, Costs, and Safety under Alternative Insurance Arrangements (Kalamazoo: Upjohn Institute, 2001).

    [161] See Martha T. McCluskey, “Efficiency and Social Citizenship: Challenging the Neoliberal Attack on the Welfare State,” 78 Indiana Law Journal 783 (Summer 2003).

    [162]  Ruling against a motion to dismiss the suit and ordering the case against the commission to trial, the federal judge hearing the case pointed to “further evidence, according to deposition testimony, that some management attorneys and lobbyists had been working directly and through the Governor’s office to get the Commission to terminate plaintiff because they found her unfriendly to employer interests in the cases before her (or unduly sympathetic or ‘liberal’ toward claimants).”See Harrison v. Coffman, 111 F.Supp. 2d 1130 (2000).

    [163] See Seth Blomeley, “Lawmakers want details on settlement of firing case,” Arkansas Democrat-Gazette, January 24, 2001, p. B2; Seth Blomeley, “Legislators question judge’s firing; State paid $125,000 to settle case brought by Workers’ Comp hearing officer, “Arkansas Democrat-Gazette, January 31, 2001, p. A10.

    [164] See Seth Blomeley, “Everett fears workers won’t get ‘honest judge,’” Arkansas Democrat-Gazette, February 1, 2001, p. A8.

    [165] See Spieler, “Perpetuating Risk?” p. 127, 234.

    [166] Human Rights Watch interview with a Nebraska Beef worker, Omaha, Nebraska, July 16, 2003.

    [167] Human Rights Watch interview, Northwest Arkansas, August 15, 2003.

    [168] See Testimony of H. Allan Hunt, Ph.D., Hearing before the Subcommittee on Workforce Protections, Committee on House Education and the Workforce, May 13, 2004 (citing Telles, Wang and Tanabe, CompScope Benchmarks: Multistate Comparisons, 4th ed. (Workers Compensation Research Institute, 2004).)

    [169] Smithfield response to Human Rights Watch inquiry, received as e-mail attachment, January 30, 2004.

    [170] This worker from Mexico was interviewed by union health and safety researchers in Fayetteville, North Carolina, October 28, 2003.

    [171] Smithfield response to Human Rights Watch inquiry, received as e-mail attachment, January 30, 2004.

    [172] Human Rights Watch telephone interview with Terry M. Kilbride, February 10, 2004.

    [173] These interviews were conducted and contemporaneously written by health and safety specialists employed by the United Food and Commercial Workers (UFCW), October to December 2003. Dates and other identifying information are approximated to address workers’ security concerns. Full survey results are contained in Appendix F.

    [174] This worker was employed by Smithfield for three years.  UFCW interview, Fairmont, North Carolina, October 22, 2003.

    [175] This Smithfield worker had been out of work since early 2003 with an injury; UFCW interview, Lumberton, North Carolina October 24, 2003.

    [176] UFCW interview with a Smithfield employee, White Oak, North Carolina, October 31, 2003.

    [177] See “Trusting in Workers’ Compensation Self-Insurance Programs,” Insurance Journal, March 22, 2004. Smithfield and Tyson also self-insure for regular medical insurance, as indicated by their 10-Q quarterly SEC reports, but regular medical insurance benefits do not include disability pay, which is substantially lower than workers’ compensation disability pay and which terminates after thirteen weeks.

    [178] See “About Self-Insurance” at the Institute’s website at

    [179] “Trusting in Workers’ Compensation Self-Insurance Programs.”

    [180] Smithfield response to Human Rights Watch inquiry, received as e-mail attachment, January 30, 2004.

    [181] Interview with Kilbride, February 10, 2004.

    [182] OSHA report logs are legally-required and publicly available records that all companies must maintain providing details of each work-related accident or injury requiring some form of medical attention.

    [183] The interviews have no pro- or anti-union bias. Union organizers visited workers’ homes based on name and address information they had obtained without knowing the workers’ sentiments about the union. Workers referred to injured coworkers without regard to union sympathies.

    [184] Five workers reported both categories of injury.

    [185] Smithfield response to Human Rights Watch inquiry, received as e-mail attachment, February 27, 2004.

    [186] Under workers’ compensation, this worker would have received approximately $380 a week for the entire period of disability. Human Rights Watch interview with a Smithfield worker, Red Springs, North Carolina, January 21, 2004.

    [187] Human Rights Watch telephone interview, Fayetteville, North Carolina, February 13, 2004.

    [188] See Spieler, “Perpetuating Risk?” p. 219, 230.

    [189] Smithfield response to Human Rights Watch inquiry, received as e-mail attachment, February 27, 2004.

    [190] This Smithfield worker was interviewed in St. Pauls, North Carolina, December 9, 2003.

    [191] Human Rights Watch interview with worker, January 14, 2004.

    [192] See Spieler, “Perpetuating Risk?” p. 233.

    [193] North Arkansas Regional Medical Center, Harrison, Arkansas.

    [194] Human Rights Watch interview, Rogers, Arkansas, August 13, 2003.

    [195] Human Rights Watch interview, Bentonville, Arkansas, August 13, 2003.

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