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Workers' Comp vs the Little Guy
Injury On The Job
The idea of workers' comp might bring images of lawyers and insurance companies fighting for the little guy injured on the job. But that's not the case for this guy who battled the system for over two years trying to get approval for surgery.
This worker, who manages a full time job despite agonizing back pain, is fighting a battle for his future health as the disks in his spine deteriorate. The burden of proof is on him as he faces the insurance company whose resources include "pocket doctors" and high paid attorneys.
Red Tape and Delays
Ten years after this employee was injured on the job, his level of pain not only returned, it became intolerable. He went back to the doctor who originally treated him with a Discectomy, a minimally invasive procedure that removes excess disk material pressing against spinal nerves. He was told that in order to receive additional treatment he would need to reopen the original Workers' Compensation claim.
Twelve more months passed trying to get Workers' Compensation to approve the additional surgery that the orthopedic doctor now recommends. During this time, the Workers' Comp required him to complete a battery of less invasive procedures including psychological and neurological testing along with painful physical therapy before they will consider him for lumbar fusion back surgery.
Their "Work Hardening Program," designed to increase the worker's ability to return to work, would require the injured worker to quit his full-time job. Worker's Compensation eventually let him to skip this requirement. Their one-size-fits-all program didn't fit here.
Model Illustrating Single Level Spinal Fusion
Contested Case Hearing
Following months of postponement and delays, denials by Peer Review Specialists and ineffective substitute treatments including referral to a Pain Management Specialist (Narcotics dispenser), the worker got a notice that a Contested Case Hearing (CCH) was scheduled for the end of January, a full year after reactivating the original claim.
At a meeting with the assigned Ombudsman he was told he will likely lose this case. Is the surgery necessary? Yes. Will they approve it? Probably not.
"An Ombudsman is an Office of Injured Employee Counsel employee who has a workers' compensation adjuster's license. The Ombudsman assists unrepresented injured employees when there is a problem or dispute in their workers' compensation claims that cannot be easily resolved."— Office of Injured Employee Counsel, Publication 448.4E 8/08
Physical Therapy and Rehab
Texas Labor Code Chapter 4
"To provide timely, appropriate, and high-quality medical care supporting restoration of the injured employee's physical condition and earning capacity"
Finding an Attorney
Finding an attorney to represent the case has been impossible because of the way the law is written to protect the victim from fraudulent counsel. No attorney will take the case since there's no money involved in providing the medical treatment he requires. Though he is willing to pay an attorney, the law prohibits this.
At least a dozen attorneys contacted claim they are prohibited by law from taking the case and receiving compensation from us. Their monies are required to come from the insurance claim. He needs medical treatment and the salary compensation funds have long since dried up from years ago.
Liberty Mutual Insurance and the ODG
Liberty Mutual Insurance, staffed with an abundance of attorneys, assigned a lawyer to represent them at the Contested Case Hearing, to refute the necessity of surgery. The objective of the hearing is to make Liberty Mutual Insurance to approve payment for the surgery the orthopedic doctor recommends based on CT Scans, X-rays, and MRI films of the patient's spine.
But there's little chance of getting approved for the surgery which isn't listed in the Official Disability Guidelines which does not cover this type of surgery.The ODG will only approve spinal fusion on two levels. That would require future surgery on the third level when it fails under the additional pressure.
Can he present the X-rays as proof?
Nope. According to the ombudsman, the Judge will look at the ODG Matrix of approved surgeries and treatments, compare that with the Attorney's Exhibit 'A' and pronounce that the surgery doesn't fit into their guidelines. She told us this issue is very common.
Injured workers are being denied medical care because it isn't on the ODG.
The victim in this case is the worker who suffers daily debilitating pain that renders him unable to do most of the things any ordinary person needs to do like walking, sitting, standing and even sleeping which is fraught with agonizing pain.
He needs help and there is no help to be found. Tomorrow is the contested case hearing, and he can only hope that justice will prevail.
Years of Back Pain Due to On-the-Job Injury
It came as no surprise that he lost the Contested Case Hearing in January. As he walked in to give testimony at the hearing, the Ombudsman handed him an appeal form. She said, "When you lose the case, you can file an appeal." She also said most cases like this are lost. Her prediction was true.
The next appeal was to the District Court. It was a paper battle with no additional testimony taken, only involving paper copies shuffled between the insurance company and the State.
One step in the right direction was being moved from the first Pain Center where medication was dispensed, a sketchy place on the rough side of town. He was reassigned to a new doctor who provided some relief through epidural steroidal injections (ESIs). Although this is somewhat frightening to a diabetic, it's has returned a semblance of a normal life for the moment. He's grateful for some temporary relief through the injections in his spine.
Walking with Pain
The epidural steroid injections, E.S.I., worked until the session on December 20. After a lot of walking at a business seminar, the pain moved to the other leg and numbness extended to the toes. Under Worker's Compensation, approval must be received before any more procedures or x-rays can be performed to diagnose the changes.
On December 27, a new MRI was approved and the worker struggled to make it through thirty minutes of lying perfectly still on his back during the process.
December 29th, films went to the original Orthopedic Surgeon who reviewed them and noted that the patient's daily living situation is "intolerable".
Now that he has exhausted all appeals with worker's compensation, the worker can finally apply for surgery through his current employer. It's just a matter of time for the claims forms to be processed, refuted and submitted again with more documentation.
Meanwhile, the worker is still unable to sleep lying down. At this point, he can only sleep sitting upright in a chair to avoid shooting pains that extend down both legs when he lies down. The clock is ticking as he waits to see what will happen next.
Side Effects of the Medications
Update January, Twelve Months Later
Due to increased and prolonged doses of Opioid pain medication and narcotics the doctors prescribed, the patient's feet have swollen to nearly double their normal size.
After two years of delay, the multi-level spinal fusion surgery is finally scheduled for the patient whose neurosurgeon confirms through MRI scans and testing that this is the right path for his recovery.
He has been scheduled for immediate hospitalization and surgery to fuse Lumber 3, Lumbar 4, and Lumbar 5, with rods and screws which he hopes will reduce the pain to a tolerable level. Surgery followed a battery of tests to ensure the patient can withstand the procedure. Forms are signed and the operation will be done.
Worker's Compensation and the responsible insurance carrier shared no responsibility for paying this hospital bill or the recovery needed afterward.
Have you ever been injured on the job and filed for worker's comp?
- 83% Yes
- 10% No
- 8% No, but I know someone who was injured on the job
This poll is now closed to voting.
© 2011 Peg Cole