Tuesday, August 27, 2013

Not The Average Case

The workers' compensation system "efficiently disposes of the average case," claimant attorney, John Gibson, of Lubbock, told the Houston Chronicle. However, he said, "the system is not set up to take care of the more significant medical issues. The worse the injuries, the more hurdles there are, instead of the other way around."

Gibson was interviewed for a story about former Harrison County deputy sheriff Mike Freeman.

Freeman was gravely injured in a June 2007 high-speed chase. Due to alleged delays in his medical care, his condition deteriorated to the point that he is on a ventilator and the family is preparing for his death.

Gibson has sued the third party administrator in civil court on the grounds that they have a pattern of routinely denying or delaying required care and as a consequence induce needless suffering on those workers' compensation claimants with serious injuries.

We've seen that story before in other states.

Not coincidentally, in other news, a New Mexico appellate court last week ruled that the widow of an off-duty tribal police officer who died more than a decade ago after he rescued a child from the Rio Grande river is entitled to workers' compensation benefits.

"Because of the unique nature of law enforcement duties, we conclude that law enforcement officers may recover workers' compensation benefits in some instances for off-duty injuries occurring in response to circumstances reasonably calling for police officer assistance," the court said.

Kevin Schultz took Aug. 17, 2002, off of work in order to chaperone a church youth group fishing trip near the small community of Pilar, which is outside the boundaries of Pojoaque Pueblo lands. His wife and two other adults also came on the trip.

A 12-year-old boy from the group fell into the fast-moving waters of the Rio Grande, and Schultz leaped into the river to save him.

After pulling the unconscious boy to safety, Schultz collapsed in shallow water and drowned.

Though he was off work, the Schultz family was told by numerous officials of various agencies that they would do all they could to secure workers' compensation death benefits for the family since Schultz received accolades, commendations and awards, posthumously, for his heroic act "in the line of duty."

Despite these promises, officials failed to take care of the filing in a timely manner, and other delays ensued because Schultz' wife relied on the promises of these officials. She ultimately took care of the claim herself but had to overcome various procedural and substantive arguments related to statutes of limitation and compensability.

After going to the state Supreme Court, which remanded back to the Court of Appeals finding for Schultz on AOE/COE the appellate court overrode earlier rulings denying the claim.

"Given the unique nature of law enforcement duties, including the fact that in some circumstances an off-duty police officer may be required to respond in an official capacity to incidents arising in the officer's presence, courts have struggled with determining the compensability of off-duty police officer injuries using traditional interpretations of the 'arising out of and in the course of employment' test," Judge Cynthia Fry said, in writing for the court.

I remember Alex Rossi, risk manager for Los Angeles County, explaining to attendees of the annual California Workers' Compensation Institute meeting in 2012 several years ago that managing the risk of first responders is much different than for private enterprise.

Paraphrasing Rossi, when there's a fire privately employed employees run away. In public safety, when there's a fire, employees run to it.

Which is why many states have various laws with presumptions in favor of public safety workers.

Society has determined through its laws that those in the first line of emergency response get special treatment.

That philosophy needs to be carried through to claims administration.

Sure, there's always someone trying to take unfair advantage of the system - understandably those cases will be vetted, reviewed, denies properly, etc.

But there seems to be this overall theme that has developed over the past decade or so of deny first, until later reversed. There's seems to be a lack of sensitivity to the social promise.

In the Freeman case, no lawyer was necessary until the TPA cut off supplemental income benefits because his wife missed filing paperwork with it on time. In fact the paperwork was filed timely but the adjuster failed to notify Freeman's wife that the fax number had changed...

In the meantime, Freeman's serious injuries degraded to the point of numerous surgeries and hospital trips. Almost universally his various physicians prescribed specialize powered wheel chair, and bed, so that he wouldn't develop bed sores and require further hospitalization.

Those recommendations didn't pass utilization review so they were denied.

And Freeman ended back in the hospital, some 30 times.

Now he's on a ventilator awaiting death.

And in Schultz' case the widow was assured, not only by his direct employer, but also by various other governmental officials, that his death would be covered.

Until the matter got to the TPA. Then all bets were off and if it wasn't for the dogged efforts of Schultz' widow for over 10 years that she will get some closure.

These are both tragic circumstances, made unnecessary by insensitive claim handling.

Some call for stronger penalties in the wake of reforms that have shifted the balance of power.

Others call for better training and oversight.

Some say that these are just aberrations.

Regardless, Gibson has a point - workers' compensation remains pretty efficient at dealing with routine injuries.

But we need to get better at dealing with the tragic, catastrophic situations.


  1. David,

    This blog is a great illustration of one of the reasons employers who can, self-insure. It is true in Texas and I expect to some extent in other jurisdictions that the employer may not direct the actions of the carrier or TPA. On the whole this is probably a good thing. Self-Insured employers have more flexibility to extend coverage to cases that are clearly compensable, but may have a technical defect. Granted employers are people and make mistakes. Sometimes an employer may want to have a claim denied for less than admirable reasons. Regulatory agencies and dispute resolution processes are in place to provide safeguards for that. They aren't perfect either, but that is their job. I have yet to see them tell a self-insured employer who wanted a claim covered that they couldn't do it. I admit to being prejudiced, but my experience with certified self-insureds in Texas is that they are responsible employers who care about their employees. They want them to receive quality medical care and to be treated with dignity and respect.
    I have worked with small to large companies over the years and while it is easier to have an impact with the carrier or TPA if you are in the Fortune 100, smaller companies can, and should, be prepared to move their business if their service provider doesn't reflect their values. To the extent employers put price as the only differentiator in selecting a provider they are as much a part of the problem as the carrier or TPA.
    Workers' compensation is a complex and convoluted legal construct built on basic concept of the employer/employee compromise. As someone recently pointed out, more rules make more opportunities to play the game. The more game players we have, the more the we need rules to keep them in check. Every so often things get so out of balance we have to have "Reform". When cases like the ones you describe get to be too common (and one is really too many) people will push for reform. The best we can hope for is to reform for balance rather than retribution.
    Thanks again for something for us to get our teeth into.

  2. Great comments Sam. Thanks for sharing your thoughts.