The Fallout of Workers' Comp 'Reforms': 5 Tales of Harm

March 31st, 2015
in econ_news

Special Report from ProPublica

by Michael Grabell, ProPublica

Injured workers share their stories, revealing the real-life impact of rollbacks that have been spreading across the country.

An investigation by ProPublica and NPR earlier this month detailed how states across the nation have been dismantling their workers' compensation systems, with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year.

Follow up:

In some states, the cuts have been so drastic that injured workers have plummeted into poverty, losing their cars and even their homes. In others, workers spend years battling insurance companies for the surgeries, prescriptions and basic help their doctors recommend.

The five case studies below are emblematic of the bewildering labyrinths injured workers have to navigate as a result of these cutbacks. As attorneys for injured workers are fond of noting, it's no coincidence that Franz Kafka - known for his tales of suffering at the hands of faceless bureaucracies - was once a clerk in the workers' comp bureau of Bohemia.

22 States Now Set Arbitrary Time Limits on Injured Workers' Temporary Wage Benefits

Green states cap temporary wage-replacement benefits after a period of time ranging from two years in California, Florida, North Dakota, Oklahoma, West Virginia and Texas to about 13 ½ years in New Mexico. Some states have had such caps on the books for decades, but several have recently lowered their limits to two years. Explore the full interactive. (Source: Workers Compensation Research Insitute)

Case 1

Gary Fury was working at a Simonton Windows factory in West Virginia in July 2012 when a large two-window unit slipped to the floor. Fury bent to help a coworker slide it back onto a cart.

He recalled:

"When I went to pick it up. I felt something pop."

Fury, then 49, had torn his rotator cuff and ruptured his bicep. After trying less invasive treatments, his doctor recommended surgery and warned of poor results if it was delayed.

Instead of approving it, Sedgwick Claims Management Services, an insurance claims administrator hired by Fury's employer, sent him to its own doctor for a second opinion six weeks later, according to workers' comp court records. That doctor also said surgery should be authorized immediately and warned that delays could lead to permanent impairment.

But in West Virginia, time is on the insurer's side. In 2003, the state passed a law capping wage benefits for temporary injuries like Fury's to two years - even if the worker hasn't recovered yet. Several other states, including California, Oklahoma and North Dakota, have recently capped payments at two years. Today, 22 states set arbitrary time limits on temporary wage benefits, according to data collected by the Workers Compensation Research Institute.

Despite the recommendations of two doctors, Sedgwick waited another five weeks before approving surgery - a delay that a workers' comp judge said was "especially unwarranted" after Sedgwick's own physician said he needed it "ASAP." By the time Fury finally got surgery, it was January 2013.  He said.

"They just don't know how much pain I sat for six months in waiting to get surgery."

As the doctors had warned, Fury still had pain and limited range of motion after the surgery and was unable to return to regular work. Now, his doctor has recommended additional treatment and possibly another surgery.

But since Fury's two years of wage benefits have run out, if he gets the surgery, his employer doesn't have to pay him while he recovers - even though a state workers' comp judge said Sedgwick is "at least in part responsible" for his medical problems.

After his injury, Fury initially survived on two-thirds of his wages, which are provided by workers' comp, tax-free. But when the payments stopped, Fury has at times had to rely on food stamps and Medicaid.

Fury said:

"It got down to the point where I had to go get help, like from what they call welfare. That was so embarrassing for me. You know, you're used to working all your life. I raised two kids and never had to be on there. Sometimes, it really degraded me to go to a grocery store and you had to pull out your card instead of pulling out your cash - all because you're an injured worker."

Sedgwick and Simonton declined to comment about what happened to Fury.

After hearing the details of the case, Chris Stadelman, communications director for Gov. Earl Ray Tomblin - who was state senate president when the workers' comp reform passed - said the governor's office was "comfortable with the changes that were made" and has not heard complaints from injured workers.

Fury is now applying for Social Security Disability Insurance and watching his life savings slowly drain away.

Meanwhile, Tomblin recently announced a boon to West Virginia employers:  Workers' comp insurance rates would be cut for the 10th year in a row.

10 States Since 2003 Have Expanded Their Use of Outside Medical Reviewers to Assess Injured Workers' Doctors' Recommendations

Green states have increased their use of - or the weight given to - outside doctors who review treatment recommended by workers' physicians. In some states, these reviewers have the power to rule an injury isn't work-related or to deny treatment after only a brief exam or paperwork review. Explore the full interactive. (Source: ProPublica research on state reform laws)

Case 2

Nicolas Mercado, a 54-year-old quadriplegic, sits in a long-term care facility waiting to return to his home in San Bernardino, California, to return to the smells of home-cooked Mexican food and the giggles of his granddaughter. Home to the same street corner where he and his wife met as teenagers.

Mercado has not lived there since December 2011, when the tanker truck he was driving to collect kitchen grease flipped over on an exit ramp, leaving him paralyzed from the neck down.

Mercado misses the taste of his wife's home-cooked Mexican food so he asks the nurses at his long-term care facility to cut up chilis to spice up his meals.

In March 2013, his doctors said that his medical condition had stabilized and he could go home as soon as modifications were made to accommodate his wheelchair. Under state law, home modifications are covered by workers' comp.

The California Insurance Guarantee Association (CIGA) - which took over the claim when the original insurer went bankrupt - sought a second opinion from another doctor, who approved some modifications and rejected others. Then CIGA ignored many of its own doctor's recommendations and insisted a new state-mandated medical review process allowed it to delay the fixes.

A 2012 law in California put medical disputes between the workers' doctors and insurers into the hands of "independent medical reviewers" who remain anonymous and make decisions based solely on medical records. California is one of 10 states since 2003 to expand its use of such outside doctors, who have the power to say an injury isn't work-related or deny recommended medical care after only a brief exam or paperwork review.

In Mercado's case, CIGA approved a wheelchair lift, but it didn't fix the doorway it leads to, which has a step and is too narrow for Mercado's chair.

One of several rosaries and other religious items Mercado keeps in his room at his assisted living facility. His doctor say he is ready to go home as soon as some modifications are made to accommodate his wheelchair.

CIGA argued that the "prudent and responsible" course was to wait until the new medical review process was complete before doing any further modifications.

Judge Paul DeWeese, a workers' comp judge in Anaheim, rebuked CIGA, saying it was insisting on "form over substance" and that the medical review process was never intended for cases like Mercado's.

DeWeese wrote in his May 2014 opinion:

"That assertion is outrageous. The 'prudent and responsible course,' not to mention the legally required course and the only moral and humane one, is to assist Mr. Mercado in returning home forthwith."

For Mercado's wife, Linda, it's been especially wrenching to leave her husband at the long-term care facility month after month, when he could be home.  She said:

"When I leave him over there and I see him through the window, and I wave bye and I throw him a kiss and he throws me a blessing, and I give him a blessing, it just tears my heart. I don't like to let him see me crying, but once I leave that parking lot, everything comes out."

Mercado lost the ability to move his left hand, but still has some movement in his right and must sleep in this wrist brace to protect the nerves.

The independent medical reviewer, who is supposed to have the final word under the new law, denied the additional home modifications. In October, the state Workers' Compensation Appeals Board ruled in Mercado's favor and ordered CIGA to finish the job. But the insurance company appealed once again.

After a local TV station aired a story about Mercado's case in January, CIGA agreed to make the home modifications.

Wayne Wilson, CIGA's executive director, said in an interview:

"I took a look at what had happened in terms of the case and determined we could have probably gone down a different path."

10 States Since 2003 Have Increased Use of Pre-Existing Conditions to Limit or Deny Care After Workplace Injuries

Green states have either raised the qualification standards for workers' comp when a work injury aggravates a pre-existing condition or have reduced the liability of employers and insurers for the full effects of the injuries when other conditions, such as aging, may have contributed. Explore the full interactive. (Source: ProPublica research on state reform laws)

Case 3

Brenda Albright spent 16 years as a forklift driver hauling rolls of paper to make cardboard boxes for Smurfit-Stone Container in Fargo, North Dakota.

One day in June 2010, she squatted down to remove a tag from one of the rolls. As she stood back up, she suddenly felt what she describes in workers' comp records as an "extremely ungodly pain."

Her husband, who was Smurfit-Stone's plant superintendent, rushed her to the emergency room, and she was diagnosed with a herniated disc.

Two doctors for North Dakota's Workforce Safety & Insurance agency (WSI), including its medical director, reviewed Albright's records and agreed that despite prior back problems, her herniated disc was due to the incident at work and not a pre-existing condition, according to court records. The agency, which insures North Dakota businesses, accepted the claim.

Or so it seemed.

Then Albright came face to face with a growing trend in workers' comp - the aggressive effort to pin workplace injuries on pre-existing conditions. In recent years, North Dakota and several other states have increasingly allowed insurers to deny claims by saying that work injuries only aggravated existing conditions caused by aging, prior injuries or the structure of workers' bodies.

Since 2003, insurers in 10 states have moved in this direction. In one case in Kansas, an insurer refused to cover carpal tunnel surgery for a hand packer at a warehouse, asserting that her thin body frame made her susceptible to repetitive stress injuries.  Florida lawmakers have added a twist: Insurers there can cite pre-existing conditions to require workers to pay up to 49 percent of their medical costs even when work was the primary cause of their injuries.

In 2008, employees at North Dakota's WSI told auditors that their bosses were directing them to look for reasons to deny claims. They reported a recent:

"shift in management focus to a more aggressive and in-depth search for prior injuries or pre-existing/degenerative conditions, which could possibly reduce WSI liability for the injury."

Share Your Workers' Comp Story

As part of our ongoing investigation, we invite you to tell us about your experience navigating the workers' comp system. Have something we should look into?

According to her claims adjuster's notes, Albright's employer, Smurfit-Stone, was "not happy" with WSI's decision to accept her claim. The agency agreed to reconsider - a decision a judge later described as "bowing to pressure from the employer" - and hired an independent medical reviewer to look over Albright's records.

Without examining Albright, that doctor said her back problems were the result of a degenerative condition unrelated to work. Using the new opinion, the agency denied the claim.

Albright's own doctor was dumbfounded, according to a letter he wrote WSI.  While Albright had problems in her neck and lower back, an MRI from a few years before showed she didn't have any problems in her lower middle back, where the herniated disc was, he wrote.  Any pre-existing condition, he said, was most likely caused by the repetitive twisting and jarring she experienced driving the forklift.

He wrote in his letter:

"Clearly, the single event at work led to her herniated disc."

Millions of Americans had her back problem, he noted, but it didn't mean they were all doomed to have herniated discs in the future.

A judge in Albright's case called the agency's medical reviewer a "professional witness" who had "only read about" the tissues and intervertebral discs that Albright's neurosurgeon "once held in his hands."

The judge ruled in her favor, but the North Dakota Supreme Court overturned that decision, noting that the legislature has restricted the courts' oversight of the workers' comp agency to cases where no "reasoning mind" could have come to the same conclusion.

In an interview, WSI director Bryan Klipfel stood by the decision, saying work didn't cause Albright's injury.  He said:

"I've got bad back issues also, But if I'm at work and I bend over to pick up a paper clip or something and my back goes out, it's maybe caused at the job, but my job didn't cause the injury."

RockTenn, which owns Smurfit-Stone, said the case was handled appropriately.

Albright, 57, remains out of work and on programs funded by taxpayers. The Social Security Administration awarded her disability benefits immediately, listing the onset date as the day she felt the "ungodly pain" at work.

37 States Now Restrict Injured Workers' Ability to Choose Their Doctors

Green states allow employers and insurers to choose workers' doctors, at least initially. Blue states restrict workers to doctors approved by their employer, state or insurer or to those in their employers' managed-care plans. Explore the full interactive. (Source: Workers Compensation Research Insitute)

Case 4

Christopher Carter's left foot was mangled when it got sucked into a conveyor belt at a gravel pit in Great Falls, Montana, in July 2012.

The 43-year-old mining equipment mechanic went to a podiatrist who recommended a simple, inexpensive remedy: a cortisone injection to reduce inflammation and alleviate the pain, according to medical records.

His workers' comp claim could have ended there. But Carter soon learned that something as basic as choosing your own doctor is no longer guaranteed in workers' comp. A 2011 Montana law gave employers and insurance companies the right to pick workers' doctors after accepting their claims and to transfer their care to another doctor at any time.

Eighteen states now allow employers to select the physician who treats their injured workers at least initially, according to the Workers Compensation Research Institute. And another 19 states require many workers to choose from a list of doctors - sometimes as few as four - approved by their state, insurer or employer.

"I Try to Forget"

Paralyzed in a warehouse accident, Joel Ramirez has battled California's workers' comp system. View Photos

After Carter saw the podiatrist, his employer's insurer, the Montana Contractor Compensation Fund, sent him to an independent medical examiner, who also recommended a cortisone shot.

Instead of approving the treatment, the insurer changed his treating physician. Same result: The new doctor also recommended the shot, referring Carter back to the podiatrist he'd seen to begin with.

Carter's insurer wouldn't authorize him to see the podiatrist who initially cared for him or even another recommended by the new treating doctor. Instead, the insurer inexplicably sent Carter for another exam, this time bringing in an orthopedic surgeon from Missoula, 170 miles away. She recommended a similar injection.

Two years after his injury, Carter still hadn't received approval for an injection, although four doctors had recommended it. His insurer just kept sending him to more doctors.

Mel Pozder, senior claims examiner for the contractors' fund, declined to comment, citing health privacy laws.

Out of frustration, Carter settled his case with the Montana Contractor Compensation Fund last spring for $46,250 to cover his unpaid medical bills and future wage loss. He has struggled to find work to support his three children, ages 11 to 15, and now works at a relative's auto body shop.

He wrote to a state legislative committee studying workers' comp last year:

"I think that my foot and ankle could have been healed by now, or greatly improved, if Montana law allowed me to choose my treating physician."

He said in an interview:

"I'm 43 and I walk like I'm 80."

California Now Uses New, Stricter Guidelines to Reassess Old Cases and Deny Care

Case 5

In 1997, Frances Stevens was the editor and publisher of Curve, one of the best-selling lesbian magazines in the country. She was in incredible shape and training for the Golden Gloves boxing tournament.

Before she was injured at work, Frances Stevens was an avid boxer as well as the editor and publisher of one of the best-selling gay and lesbian magazines in the country.

One day in October, she and her staff were carrying boxes of the magazine's latest issue to a storage closet. Stevens, 30, tripped over an area rug and broke a bone in her foot. She was put in a cast and had surgery.

The bone healed, but the fall damaged her nerves, leaving her with excruciating, unexpected pain, often affecting both feet.

More than 17 years later, Stevens can't walk and gets around in a motorized wheelchair. At night, the simple brush of a bed sheet over her feet will send her screaming in pain. She can't take a shower without submerging her feet in a bucket of water so that the stream won't touch them directly.  She said:

"It's like that nerve pain that just zings through your whole body like an ice pick."

California's workers' comp system once paid for a home health aide to help Stevens during the day. But in 2013, a new law took effect, subjecting old cases like Stevens' to a greater emphasis on narrow guidelines that, among other things, severely limited home health care for people injured at work. When Stevens needed to replace her aide, her insurer, the State Compensation Insurance Fund, used that request to decide that an aide was not medically necessary.

Under the new law, Stevens' only recourse was to appeal to an independent medical reviewer chosen by a company hired by the state. But that doctor never needed to see her, didn't have to be licensed in California, would remain anonymous and could only be challenged under limited circumstances.

A letter to Frances Stevens from her insurance company, denying four of four requests for medications. When court dates in her legal fight for care approach, she often receives this much paperwork in the mail in just one week.

She was supposed to get an answer in 30 days, but instead the process took nearly seven months. The medical reviewer upheld the insurance company's decision to deny the aide.

Now, Stevens is challenging the constitutionality of that process. In a petition recently accepted by the 1st District Court of Appeal in San Francisco, she argues that allowing medical decisions to be made by anonymous doctors who don't examine the patients and can't be questioned violates the rights of injured workers.

California workers' comp issued a warning to insurance companies last week that the new law shouldn't be used to revisit existing agreements for home health care.

The State Compensation Insurance Fund said the request for the aide was denied based on medical evidence. In documents filed with the appeals court, it argued that workers have adequate avenues for appeal and that the legislature acted appropriately to try to create a "faster and cheaper" process that would "promote better health."

The pills Frances Stevens takes daily to manage the pain and other side effects resulting from her on-the-job accident, and a whistle she carries with her when she leaves the house so she can call for help if she falls or has any other emergencies.

The State Compensation Insurance Fund wrote:

"The legislature's motivation was to help both employers and injured workers."

Having been both an employer and injured worker has given Stevens a unique perspective on a system she only thought about when she paid her insurance premiums.  Stevens said:

"I had just turned 30. I was an athlete. I had a job that I loved, a life that I loved. I couldn't ever imagine this happening to me, and in a second, my life changed. If people don't stand up and start noticing how broken the system is, by the time you figure it out, it's going to be too late."

Correction: An earlier version of this story said that Christopher Carter was sent by his employer's insurer for an independent medical exam in Missoula, Montana. Instead, the insurer brought the Missoula physician to Great Falls for the exam.

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