Aging Workers, Limited English, Limited Skills
Wednesday, November 28, 2012 | 0
When a laborer with limited English is disabled from physical work, is he obligated to increase his employability by learning English? This interesting question emerged in the case of Enrique Gutierrez, a 48-year-old welder who worked at Merivic, a company specializing in grain-related processing. Gutierrez came to the United States at age 14, but in his 34 years in the country, never learned to speak or write English. While at work, Gutierrez fell about 10 feet onto a steel table, injuring his shoulder and wrist. He underwent two surgeries, worked for a while as a one-armed welder, and then was let go. His post-injury functioning was significantly limited, including difficulty lifting and carrying, gripping and grasping, and reaching.
When the Workers' Compensation Commission found him permanently and totally disabled, the employer appealed and the case reached the Iowa Court of Appeals, where the finding of compensability was upheld. Up until 2007, Iowa courts routinely lowered the indemnity paid to limited English-speaking workers, on the theory that a language disability was something within the power of the worker to correct. A case entitled Lovic v. Construction put an end to that practice. The reasoning in this decision is worth quoting:
Unfortunately, this line of cases [involving reduced indemnity] overlooked the fact that the employers who hired these workers should have reasonably anticipated that an injury which limits an ability to return to manual labor work would have far more devastating consequences upon non-English speaking workers than English-speaking workers. Oftentimes, this agency has penalized non-English speaking workers despite the knowledge that the employers actually recruited such workers because they were willing to work for less wages.
In other words, you get what you pay for: limited English-speaking workers are willing to work for less, so the employer benefits from this potential "disability." The ruling goes on to attack the rationale for the reduced wages:
What has been troublesome to many, including myself, is that this agency has never similarly treated non-immigrant workers for failing to learn other skills. Defendants would certainly have trouble citing any agency or court precedent in the workers' compensation arena where an industrial award for an English speaking worker was lowered because the injured worker, before the injury, failed to anticipate he would suffer a devastating work injury and failed to obtain a type of education before the injury that would mitigate the effects of such an injury.
We simply cannot assume that claimant was capable of such training or that such classes are generally successful in leading to employment where fluent English is required . . . .
By reiterating the logic of the pre-Lovic court, Merivic was attacking settled albeit recently settled law. The Appeals Court rejected this "collateral attack" on Lovic and upheld the permanent total award, and in doing stumbled upon yet another conundrum: that of the older worker. The court found that once a laborer goes beyond age 47, his ability to perform physically demanding work comes into question. A vocational expert retained by Gutierrez described the 48-year-old worker as "approaching advanced age." The judge noted that, "We have previously held the age of 47 is a factor that the commissioner may consider in finding industrial disability." The expert also noted that Gutierrez's entire career involved "limited education" and a work history limited to physically demanding jobs, which his permanent work restrictions now prevented him from performing.
The Very Big Picture
Our colleague Peter Rousmaniere provides a valuable perspective on aging manual workers. In his Risk & Insurance article "The Age Trap" he points out that 55+ workers comprised 16.7% of the workforce in 2010, a number projected to increase to 22.7% by 2020. In contrast to Enrique Gutierrez, most aging workers are not injured and eligible for workers' comp; to be sure, their bodies are wearing down and they are confronted with diminishing strength and balance, even as they desperately try to hold onto their places in the workforce. Rousmaniere suggests that employers develop a renewed focus on prevention, one that has been adapted to the realities of the aging worker. After all, these workers are valued for the skill and experience they bring to the work, even as their work capacities diminish.
The big picture here, and it is a very big picture indeed, is the dilemma of aging workers who perform physically demanding jobs and who have little education and virtually no transferable skills. There are millions of such workers, some are immigrants, while many others are native born. Most have zero prospects for a secure retirement, even as Congress contemplates pushing Social Security retirement even further into the future.
Whether they like their jobs or not, aging workers see themselves working out of necessity well into the their 60s, 70s and even 80s. As their bodies inevitably wear out, as their injuries (cumulative and sudden) lead a number of them into workers' comp courts across the country, judges will be confronted with the same dilemma that faced the appeals court in Iowa: for older workers with no transferable skills, workers' comp becomes the retirement plan of choice for those with no retirement plans and no way to continue working.
Jon Coppelman is a principal with Lynch Ryan & Associates, a cost-containment firm in Massachusetts. This column was reprinted with permission from the firm's Workers' Comp Insider blog.
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