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An Injured Worker’s “Across the Border”
Odyssey into Insurer Absurdity
A “war story” about another state’s approach to comp
By Tracy Watson
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A worker injured on the job has
no idea what post-injury travails loom. Workers’ comp can
be described as trading the workplace injury for death by a thousand
regulatory paper cuts. While every state system has its own myriad
rules and regulations, the common dominator is the obtuse manner
in which those rules are applied to injured workers -- or ignored.
Occasionally the injured worker finds a front-row seat in the theater
of the absurd. This is one such story….
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| I received the call from my brother
Tim on an October afternoon two years ago from the emergency room
of a Portland, Oregon hospital, where he was being treated for a
catastrophic injury. Tim was working for a national chain I will
call “Labor-Savers,” that provided temporary labor services.
A forklift dropped 1000 pounds of fencing on Tim, crushing his pelvis,
fracturing two vertebrae, and puncturing his bladder and lower GI
tract. |
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Tim gave me permission to speak with
the attending physician (HIPPA also applies to family members). The
doctor told me that Tim’s supervisor from Labor-Savers had
requested that Tim be transferred to one of the company’s injury
clinics, instead of being treated in the ER. I was stunned into silence
for some seconds, but the indignant ER doctor said he had pretty
much kicked the supervisor out of the ER. Tim later said that the
company has contracts with several local ‘emergency’ care
clinics to treat Labor-Saver workers when injured on the job, as
part of its managed care program. However, this was a transparently
ham-handed (not to mention legally dubious) attempt to avoid triggering
the enormous paperwork and liability for costs associated with a
workers’ comp claim. So the supervisor was quickly shown the
door.
Tim was quickly transferred to Good Samaritan’s trauma
unit, where he underwent multiple surgeries to bolt his pelvis back
together, insert pins into his cracked vertebrae, and repair the
soft tissue damage to his bladder, urinary tract and abdomen. He
was hospitalized for 15 days, until he was stable enough to be transferred
to an acute-care facility.
Tim authorized me to manage his case until he was better. Barely
two weeks after the accident, “Jenny,” the Nurse Case
Manager for Labor-Savers’ insurer, contacted me to ask questions
about Tim and his care. She voiced concern about Tim’s care
plan and assured me that his recovery was the insurer’s first
priority. My suspicions were aroused when Jenny started asking questions
about the circumstances of the accident, especially how it happened
and what Tim’s actions were at the time. There is a difference
between routine medical care questions and deposition interrogatories,
which is where I sensed this was heading. I thanked her for her time
and interest, but made it clear that Tim was not to be disturbed
while recovering. |
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Tim’s
supervisor was kicked out of the ER when he laughably attempted
to direct Tim’s medical care to a contract clinic instead
of a trauma unit to avoid triggering a WC claim.
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My next task was to find a workers’ compensation attorney in
Portland who would be interested in taking Tim’s case, as
I had quickly hit the limit of what I could do for my brother in
advocating for him long-distance. Since Oregon’s regulations,
like California’s, generally favor employers and insurers,
legal representation in any serious case is an absolute must. After
searching on Lexis and Google for only 30 minutes, it became apparent
to me the legal climate of WC representation in Oregon was every
bit as grim as California. One of the primary differences between
the two states is the amount of attorney compensation: Oregon allows
a 25%-10% scaled award vs. 15% in California. However, even with
the modest bump in allowable compensation under Oregon law, the number
of applicant attorneys to choose from was slim. I flew up to Portland
to interview a couple, and within one day had secured a WC firm to
represent Tim.
The WC attorney was also interested in the case because
Tim’s on-the-job injuries were caused by a third party who
was driving the forklift – opening up the possibility of a
personal injury suit as well as his WC claim. After some research
into this issue, the attorney found there was no civil liability
because the employer of the fork-lift driver had a comp policy and
the accident happened on that employer’s premises.
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The climate for applicant attorneys
in Oregon is just as hostile as California. Fees are capped at 25%
of an award for the first $17,500, and then 10% of anything above
that amount. For more on Oregon’s law on attorney fees, click
here.
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Claim-jumping Insurance Managers
Once the insurer had been informed that Tim had legal counsel,
the attitudes of the various players immediately turned sour. Even
though the insurer’s claim manager had been informed Tim
was represented by counsel, she started pressuring him to get a
statement for his claim. At one point, I fielded a call from Tim’s
bedside and advised the claim manager this was inappropriate contact.
Shortly after, Tim was transferred to the long-term care facility
for the long, slow and painful rehab process.
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The WC landscape is littered
with the unsatisfied and unrepaired lives of injured workers who
attempt to battle an insurer unrepresented.
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About two months after the injury, Tim and his attorney met with
the claim manager at the insurer’s offices, ostensibly to
provide details of how the injury occurred. After a couple of hours,
it was obvious that the manager was doing more than routine fact-finding.
Once the claim manager started inquiring into injuries Tim may
have had in high school -- thirty years ago – his attorney
called a halt to what had morphed into a deposition and told Tim
to leave. The attorney later explained that under Oregon WC law,
any pre-existing injuries could be used to deny a claim, even if
they are not related to the new injury, which is why the routine
questioning took so long. The insurers typically go on fishing
expeditions when there is not any obvious pre-existing condition
on which to base a claim rejection. If a claim is denied based
on a pre-existing condition, the burden shifts to the worker to
prove the injury is unrelated.
MCMs Behaving Badly
The next wrinkle in Tim’s case involved the NCM, Jenny. Tim’s
attorney had a prior case where Jenny had deliberately impeded closure
of her client’s file to the point where she had to have Jenny
removed from the case. Given this contentious history, and the (not
unfounded) opinion that more of the same conduct from this NCM could
be expected, the attorney sent Jenny a notice of no contact with
Tim. However, since Jenny was employed by the insurer, she was still
able to gain access to Tim’s medical records and to make recommendations
without informing either Tim or his attorney.
One of the hazards for patients staying in long-term acute care is
the risk of infection, especially when they have external tubing
such as catheters over an extended period. About three months after
the accident, Tim developed a nasty case of MRSA – a drug-resistant
staph infection – requiring yet another trip to the hospital
ICU. The NCM claimed the rehab facility had not provided quality
of care and used the staph infection as a pretext to prematurely
discontinue convalescent services about six months into Tim’s
recovery.
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Oregon insurers are allowed to
conduct fishing expeditions to uncover old injuries and use them
as a pre-existing condition on which to base a denial of a claim.
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One Step Forward, Two Steps back
After more than eight months, Tim had still not been assigned a
rehabilitation specialist by the insurer, so the NCM had the orthopedic
surgeon on Tim’s case (who is not qualified to make rehab
decisions) blindly sign off on a return to work authorization – for
a man whose pelvis was crushed, had pins in his spine, required
a walker and could not lift his own leg, let alone the 40 pounds
as stated in the release. After yet another call from Tim’s
attorney to the claim manager to complain about the loose cannon
NCM, another “care” provider was added to Tim’s
case – the MCO administrator. In Oregon, there is a layer
of overhead between the insurers and the treatment providers called
a managed care organization (MCO). These administrators are responsible
for approving bills from providers within their system and will
summarily deny claims from any non-MCO providers. The MCO assigned
a rehab physician, with the goal of getting Tim medically stable
so the claim could be closed.
In many cases, the reports by MCO care providers are more beneficial
to the insurers than to the injured workers. Surprisingly, Tim’s
new MCO rehab specialist spent hours of comprehensive testing on
Tim (something the ortho doctor did not) and came back with a permanent
partial disability rating based on his injuries that was accurate
and fair. This physician prescribed a rehab regimen over a few
months to help Tim regain some of his lost strength and mobility,
but with the caveat that no amount of rehab would undo the permanent
nerve and spinal damage the accident caused.
Just when Tim began
to regain some mobility, disaster struck again. The scar tissue
that had built up in his bladder and urinary tract required a fifth
surgery, negating any small gains he made from rehab. This meant
more hospital time, and more time-loss payments instead of work.
Tim had to start all over with rehab just to achieve the ability
to walk-shuffle with a walker, then a cane. After more than a year
of pain and hospitals and care centers, Tim was starting to lose
hope of having any semblance of recovery or resumption of a normal
life.
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Another layer in the Oregon system
is the Managed Care Organization (MCO). If an insurer is enrolled
in this program, the worker may only obtain services from a closed
list of care providers. Going outside of the system results in no
claim benefits paid, with no exceptions.
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In With a Bang, Out With a Limp
Once he made it out of post-surgical services, Tim resumed very
light work duty on a part-time basis with a greatly modified release
written by his rehab physician. After a series of follow-up appointments
with the treating physicians, they were in agreement that Tim would
not benefit from further rehab and could be declared medically
stable. The rehab physician cautioned Tim would walk with a permanent
limp and never be able to lift more than 20 pounds, effectively
preventing him from earning a living at his previous work. The
urologist also closed out his file, with the possibility of future
surgeries and more hospital time. They wrote up their final notes
in his medical files, and began the process of closing out his
case.
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Another major difference between Oregon
and California’s WC programs are the rating systems. When Tim’s
rehab physician assigned the levels of permanent partial disability
to Tim, he did not use the AMA Guides. Oregon workers’ comp
instead mandates the use of a document called the “Workers’ Compensation
Division Bulletin 239.” Prior to 2005, the ratings had a very
convoluted method of using not one, but two rating systems called
Scheduled and Unscheduled Fees, and by the state’s own analysis,
resulted in fewer benefits to injured workers. Under the old scheme,
the theoretical maximum any injured worker could be awarded was capped
at $162,272, or a mere $559 per ‘degree’ of injury. In
2005, Oregon moved to an impairment rating system that covers both
impairment disability and work disability awards, allowing for larger
awards. However, in 2010 the WC board abandoned use of the Guides
in favor of Bulletin 239.
So, Tim tried to resume his limited work schedule and waited for
a notice of closure. And waited. Having waited more than three months
after being declared medically stable, his attorney filed a motion
for sanctions against the insurer for refusing to close the claim.
In a stroke of double-speak genius, the insurer baldly claimed in
their defense that their own MCO physicians had not provided them
with the necessary documents (even though they were never requested).
The attorney called their bluff. Not coincidentally, the notice of
closure and claim award mysteriously showed up in my mailbox (and
Tim’s attorney’s) a scant two weeks after the sanctions
motion was filed. After Tim’s attorney checked the benefit
formula, she accepted the award on his behalf and later withdrew
the motion.
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Before the law changed in 2005,
Oregon’s degree-based system meant an injured worker could
never receive more than $162, 272, regardless of the severity of
the disability.
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The light
at the end of the WC tunnel isn’t always an
oncoming train
To underscore the horrendous financial costs catastrophic work
injuries can cause, the numbers on Tim’s case alone are sobering. Over
a period of 13 months, Tim’s accident resulted in:
- five
surgeries
- 35 days in the ICU
- three months of acute-care
- three
months of long-term care
- four months of rehab
- plus
time-loss
All told, these itemized expenses nearly topped $300,000.
And, this figure does not include the disability/work claim award.
If there is one bright spot in this life-altering accident, it
is the lack of uncertainty over future medical costs. Under Oregon’s
claim scheme, set-asides for future medical expenses are not required
when calculating the final claim award. If Tim continues to suffer
the effects of these injuries, he can return to the MCO care providers
and receive treatment, without incurring additional costs or starting
a new claim. Sadly, Tim’s case typifies the bargain employers
struck when workers’ comp systems were instituted in the
U.S.: companies avoid costly lawsuits, but the workers are never
really made whole with awards that are designed to avoid damages
and diminish their claims.
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There are no set-aside requirements
in Oregon WC cases when calculating the final award. If an applicant
requires future medical services because of the injury, they can
contact the MCO providers and not incur out-of-pocket costs.
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Tracy Watson is a marketing
communications professional and web designer who has worked on
getMedLegal’s website for the past six years and also works
part time for a law firm as a certified paralegal. He wrote this
article with the gracious permission of his brother, Tim.
For
more about Tracy, click here.
To reach Tracy, email him at
tracy@twdgroup.com |
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