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Workers' Comp Versus the Little Guy

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Peggy served as caregiver and patient advocate to family members for over a decade. Here is some of her best advice.

Back injuries happen when you least expect them.

Back injuries happen when you least expect them.

Injury On The Job

Workers' comp conjures up images of big city lawyers and large insurance companies fighting for the little guy, right? Not in this instance. The worker in this case holds down a full-time job despite agonizing back pain from an on the job injury many years ago. Now, years after the initial surgery to repair the problem, the pain has returned with a vengeance as the disks in his back deteriorate further.

But trying to get the surgery he needs has been an ongoing battle with the folks at workers' compensation. The burden of proof is on the worker and he’s fighting a battle for his future health.

They always seem to come from physical therapy right after the meal is served.

They always seem to come from physical therapy right after the meal is served.

Red Tape and Delays

Ten years after this employee was injured on the job, his level of back pain not only returned, it became intolerable. The doctor who originally treated his injury with a discectomy, a minimally invasive procedure that removes excess disk material pressing against spinal nerves instructed the worker to reopen the original workers' comp claim.

Twelve months passed during which the injured worker tried to get approval for the recommended spinal fusion surgery. During that time, the workers' comp rules made him complete a battery of less invasive procedures. Beyond the psychological and neurological testing and painful physical therapy, he was expected to complete a "Work Hardening Program." That's an eight-hour, daily program designed to increase the worker's ability to return to work. In his case, he'd have to leave his full-time job to complete the program. After a long paperwork battle, they let him skip this one-size-fits-all requirement.

Physical Therapy and Rehab

Rehabilitation hospital for physical therapy.

Rehabilitation hospital for physical therapy.

Contested Case Hearing

Following multiple postponement and delays, denials by peer review specialists and ineffective substitute treatments including referral to a pain management specialist (narcotics dispenser), the worker received notice that a contested case hearing (CCH) was scheduled for the end of January—a full year after reactivating the original claim.

Model Illustrating Spinal Fusion

Doctor's model of spinal fusion surgery with screws and pedicles.

Doctor's model of spinal fusion surgery with screws and pedicles.

Difficulty Finding Adequate Representation

Finding an attorney to represent the injured worker was impossible. No attorney would take the case since there's no money to be earned in providing medical treatment.

Although the worker was willing to pay a lawyer, those that were contacted claimed the law prevents them taking the case and receiving compensation. Their monies are required to come from the insurance claim, and any compensation funds have long since dried up.

Illustration of Spinal Fusion

Illustration of Spinal Fusion

What Is an Ombudsman?

"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."1

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?” he asked.

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"Probably not," the ombudsman said.

"Can't we present the CT Scans, X-rays, and MRI films as proof?"

"Nope, 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 said. "This issue is very common."

"Each injured employee shall have access to prompt, high-quality medical care within the framework established by this subtitle; and be provided timely, appropriate, and high-quality medical care supporting restoration of the injured employee's physical condition and earning capacity." 2

— Texas Labor Code 402.021

Official Disability Guidelines or the ODG

The injured worker’s goal was to require workers' comp's insurance company to approve payment for the recommended surgery. 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. During the hearing, they presented telephone testimony with a "pocket doctor" who had neither seen the patient nor looked at his x-rays who claimed the surgery wasn't needed.

Another one-size-fits-all solution: the surgery isn't listed in the ODG or Official Disability Guidelines, which doesn’t cover three-level spinal fusion surgery. The ODG will only approve spinal fusion on two levels. That would mean future surgery on the third level when it fails under the additional pressure.

The Contested Case Hearing

Standing in the lobby of the courtroom waiting to give testimony at the hearing, the Ombudsman handed the worker an appeal form.

She said, "When you lose the case, you can file an appeal." She went on to say most cases like this are lost. Her prediction was true.

It came as no surprise that the worker lost. The real victim is the injured party who suffers ongoing debilitating pain that renders him unable to do most daily living activities such as walking, sitting, standing and sleeping.

Sleeping while sitting in a chair became the only way to avoid shooting leg pains.

Sleeping while sitting in a chair became the only way to avoid shooting leg pains.

The District Court Appeal

Weeks passed before a notice came that he lost the next appeal in District Court. There was no courtroom drama for that part which was merely a paper battle with no additional testimony taken, just reams of paper shuffled between the insurance company and the State.

Epidural Steroid Injections

Waiting for Epidural Steroid Injections at the doctor's clinic.

Waiting for Epidural Steroid Injections at the doctor's clinic.

Temporary Relief

A bit of good news came when he changed from the first pain management center located on the rough side of town where prescriptions for pain medication (opioids like hydromorphone and oxycodone) were handed out liberally.

At the new pain management clinic, the new doctor recommended epidural steroidal injections (ESIs). The procedure, somewhat disturbing to a diabetic, returned a semblance of a normal life for a brief time through injections of steroids into his spine before they stopped working.

Walking may still be painful after injury—even with the aid of medical devices.

Walking may still be painful after injury—even with the aid of medical devices.

Exhausting All Appeals

Two years after reopening the case, a new MRI was approved and the worker struggled to lie still for thirty minutes during the process. The day after Christmas, the MRI X-rays were reviewed by the original orthopedic surgeon. He dictated that "the patient's daily living situation was intolerable and surgery was necessary."

Now that all appeals with worker's compensation have been exhausted, he can finally apply for surgery through his current employer. It's just a matter of time for the claims forms to be processed, denied and submitted again with more paperwork.

Lymphodema: a side effect after years of prescription drugs to reduce pain.

Lymphodema: a side effect after years of prescription drugs to reduce pain.

Surgery At Last

Because of the prolonged use of opioid pain medication and doctor-prescribed narcotics, the patient's feet have swollen to nearly double their normal size.

But the good news is that after much delay, three-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 was scheduled for immediate hospitalization and surgery to fuse Lumber 3, 4, and 5, with rods and screws which the surgeon hopes will reduce the pain to a tolerable level. After a battery of tests to ensure the patient can withstand the procedure, forms were signed and the operation was scheduled.

Worker's compensation and the responsible insurance carrier shared no responsibility for paying this hospital bill or the recovery and rehabilitation that was needed afterward.

Quotes

  1. Injured Employee Counsel, Publication 448.4E 8/08
  2. Texas Labor Code 402.021
  3. MedicineNet dot com https://www.medicinenet.com/dilaudid_vs_morphine/article.htm#dilaudid_vs_morphine

This content is accurate and true to the best of the author’s knowledge and does not substitute for diagnosis, prognosis, treatment, prescription, and/or dietary advice from a licensed health professional. Drugs, supplements, and natural remedies may have dangerous side effects. If pregnant or nursing, consult with a qualified provider on an individual basis. Seek immediate help if you are experiencing a medical emergency.

© 2011 Peg Cole

Comments

Peg Cole (author) from North Dallas, Texas on December 01, 2018:

Hi Laurie, Sorry to hear about your friend's situation. I'm not qualified to advise you on future actions that might affect her case. Simply stated, I'm an advocate for my husband as he goes through this. You may want to check your state laws and her ombudsman to see what options are available.

Laurie on November 30, 2018:

My friend was injured on the job. Broke her humorus in 3 places. Had surgery to put a rod in her arm to hold bones so they would heal. 1 month later her workers comp was denied. Because another employee was horseplaying and knocked her into a rack. She has gone almost 3 months with this rod in her arm. Not able to work. She finally got approved for financial aide. Saw a dr this week. When they xrayed her arm. The bones did not fuse together. She may need another operation to fix it. She did not know she could appeal worker comps desition. Need advise. Should she contact a lawyer?

Peg Cole (author) from North Dallas, Texas on February 17, 2016:

Hi DebraHargrove, Thank you for dropping in. Yes, it does sometimes require talking to other parties to get the treatment that is necessary and you're right about the insurance companies.

Debra Hargrove from North Carolina on February 16, 2016:

Lots of insurance information. I have found if the injuries are pretty serious then speaking to a personal injury attorney before working with the insurance company may be best for the injured person. Insurance companies are not always going to be helpful.

Kristen Howe from Northeast Ohio on May 06, 2015:

My pleasure Peg. It was an interesting read.

Peg Cole (author) from North Dallas, Texas on May 06, 2015:

Kristen, Thank you for coming by to read this and for the votes.

Kristen Howe from Northeast Ohio on May 05, 2015:

Peg, this was useful and interesting to know how workers comp worked. Thanks for sharing this intriguing hub. Voted up!

Peg Cole (author) from North Dallas, Texas on September 07, 2014:

Hi Penny G, Your story about the worker's comp lady does sound like an invasion of privacy. I'd be very suspicious of anyone who makes that sort of claim. Of course there are always those who prey on people in pain who may be vulnerable to someone offering so called help. We spoke to a number of other patients who had injuries during our many waits in doctor's waiting rooms and some of their stories were heart renching. It is truly shameful the way injured workers are treated.

Penny Godfirnon from Southern Iowa on September 06, 2014:

So many people at my work have gotten hurt and getting appropriate health care through workers comp has been a nightmare. In fact I think some of them suffered permeant damage because of that. One told me at her appointment a woman ran up to her and said HI I am with workers comp and i will be coming back with you to see the Doctor! What the heck. This was after they had tried to get my friend to sign off on this claim. What happened to the privacy laws?

Peg Cole (author) from North Dallas, Texas on September 05, 2014:

Hello Lilly Rose. First of all, I'm so sorry for the trouble your husband is experiencing with his injury. It is so difficult to navigate the red tape that comes with any sort of on the job accident and the inconsiderate delays and barriers to treatment by the insurance companies is shameful.

I hope for you and your family that this will soon be remedied and that your husband's health will be restored. I'll keep you both in my prayers.

Lilly Rose on September 04, 2014:

These insurance company's who are supposed to take care of injured workers are nothing more than convicts!! My husband was injured in the oilfield in texas in 21039. He was crushed in a manlift by a person who was not only high on meth , but come to find out he had no certifications to be operating the machines. NOW keep in mind this is one of the biggest drilling companies in the WORLD! !!!! He got a broken back and also crushed his internal organs. Hes had 3 surgerys so far and needs more, because the implant that was placed in his back has now come apart. At this point he has shrunk in height 3 inches because of the implant not holding his spine straight and the screws from the implant itself are 1 inch from punching a hole in the sac that holds his spinal fluid, we all know what the outcome of that will be!!!!! And the screw points to the hepatic sac which is also a BAD thing.we have a lawyer, I myself dont have alot of faith in him or the system at this stage in the game. My husband is in so much pain , it hurtful me to watch him go through all this crap. He literally crawls out of bed in the morning and comes down the hall on his hands and knees. He sees a shrink to because it has become to much mentally for him the stupid ins comp. Workmanship comp All of them need to know that where there is a will there is a way, OH YES they to can be sued!!! If they deny u the help u need to LIVE its their ass sooner or later! They think they are untouchable.Not so. If anything happens to my husband any worse than what's going on already then they can bet there denying asses that justice may not ALWAYS prevail, but THERE is a GOD, and he knows who they are!!!!.

Peg Cole (author) from North Dallas, Texas on July 16, 2014:

Hello Cryer, Your situation sounds dire and I can certainly understand the transition from pain, agony, stress and despair to anger. That you have been treated so poorly is shameful and wrong.

Please hang on and try to find a legal representative to help you negotiate the twists and turns of the system. If you are in Dallas, please give the people at PRIDE a call and tell them your situation. They have been our last resort and were the real solution to my husband's difficulties. I will be documenting an article in the near future to speak about their program that helps those who've been injured on the job. If you search on Google under Dallas PRIDE, you can read about their program.

Cryer on July 16, 2014:

I was denied emergency surgery after first doctor sent me on. She had been approved. The dr stood in the doorway and sent me home with no explanation. We know why, don't we. The sad part is I didn't die. 6 months of pt that caused undeniable additional injury and damage to existing. Both reports and X-rays. Then when one doc gave in and tried to do right I would be moved on. Even when finally a doctor had the long list of damage, much of which is destroyed and there's no fix (thus, emergency surgery) I will have complications for life. At minimum 4 indisputable diagnosis caused by adjuster. 11 months now I get released and I can't even function from this emotional hell. Unable to even do adl's most of the time but refused help and I'm alone. Lost job. Ttd quit. Don't care. I'd rather bleed out slowly than go through even 1/2 that again. The physical injury is nothing. My life is destroyed from the tactics and loss of complete control of every aspect of life. Run by one who already hurt me and could not care less. And there can't even be a letter of complaint. Untouchable. Inconceivable.

Cried 3 months straight from pain stress no sleep. Now it's uncontrollable rage. How can this be? I will never let go. Everyone is this state with ears is going to get sick of me. They could not even consider these stories to be true. And my injury was quite visible and no question of compensibility. So all the bullying made no sense. No no no never again. Good luck everyone. Hope you get your dignity hope and rights back.

Peg Cole (author) from North Dallas, Texas on October 24, 2012:

Amen, to that WesJ. It is disheartening to have to fight for something that should be taken care of in due time without delay or denials. So sorry you are suffering right now. It affects every aspect of a person's life to live in pain. I do hope that you get this resolved quickly. My thoughts are with you. Peg

WesJ on October 24, 2012:

Yes, this story is exactly 90% of what I have been going through with Workers Compensation in Virginia. Suffered a lumbar injury to my back on the job moving something the employer asked me to move and BAMM here comes the pain! I have been through the hoops and they delayed delayed delayed until I had a discogram procedure proving my lumbar discs have ruptured, and then they are trying to deny my lumbar surgery. What kind of country do we live in?

Peg Cole (author) from North Dallas, Texas on April 24, 2012:

Snakeslane, you are such a good friend to say all this. I can always count on you for an uplifting message. Oh, I am nowhere near calm, cool and collected. I wish I could tell you differently. This has affected our lives so deeply and dramatically; nothing is as it was. The current health problems that Jim is now suffering all relate back to this long neglected medical treatment, which took him to the point of near unconsciousness on pain medications that were dosed out. All this so they could avoid paying for this necessary surgery. It is shameful and wrong.

On a happier note, thanks for your vote of confidence on the writing of this article. It is a true story and a sad representation of how worker compensation and our legal system fail to protect the working people of this country.

About the van picture, you know that is a prop at Universal Studios, right? hahaha. He couldn't really lift a van before his injury. I love the name of the company painted on the truck, "Lacks Security." LOL

Thanks again, Snakeslane, for your insightful and compassionate comment. I am blessed with friends like you. Will pass along your sweet comments to Jim as well!

Verlie Burroughs from Canada on April 24, 2012:

Hello Peg, first things first. Those *(*&^%&^!#@$ b_st_rds!!!

Ok, deep breath, Your hurting husband has been through hell and back. My hat is off to both of you. To you for managing to stay calm, cool and collected in the face of grievous, injustice, neglect and abuse. And on top of that being there for Jim throughout this long drawn out ordeal. And Jim, my heart goes out to you dude. You deserve so much more after all your years of working in pain.

This is an excellent article Peg. I'm surprised it hasn't won some kind of special accolade for investigative journalism. Yes it is your true story, but it's written very professionally. This is a tough, complex topic to get a handle on, so multi-layered with all the different scenerios and players involved. You've given a perfect example of what is wrong with the system. It's too big. Everyone is out for their own interests and forgetting about the injured party. It's so disheartening. I don't know where you get your courage and your strength from Peg, (both of you) but it is admirable. The photo of Jim lifting the van says it all. You guys rock!

Peg Cole (author) from North Dallas, Texas on March 01, 2012:

Hello there WD,

On January 19th Jim underwent three level spinal fusion surgery to repair the three disks that were damaged from the original injury in 1999. He is in the process of recovery at the moment, on medical leave from his present employer.

This is no thanks to the Worker's Compensation folks or the responsible employer's insurance company who won a decision against treatment in the related court case. Not even the shyster lawyers would take this case since there was no money to be paid out, only medical treatment sought. (Money talks)

I sympathize with your knee pain and hope you wil eventually find relief. For my husband, the recovery is ongoing. He is eager to return to his job and thankful that we got the final kiss off by Worker's Compensation so that we could finally get treatment for this injury after two agonizing years.

Thanks so much for your insightful comments.

WD Curry 111 from Space Coast on March 01, 2012:

I can relate. I have an old workes comp injury (knee surgery) that has been causing similar problems. Write all of the letters you want. Meanwhile, ask around and find a shyster lawyer of your own.

You live in Texas, so it should not be too hard to find one!

Back pain is the worse. I have some pretty good injuries myself. This old retired doctor told me to wet a hand towel, wrap a heating pad around my body with an ace bandage and leave it on all day (extension cord). I did it for several days, before it started working, but it worked.

Peg Cole (author) from North Dallas, Texas on February 23, 2012:

Hello Thelyricwriter. It's nice to see you here today and I want to thank you for explaining your situation with this sort of insurance treatment. You would think reputable companies would stand behind their sense of integrity and take care of wrongs like this.

Three days. I didn't know the magic number was three days. Interesting how companies find reason to "let you go" that never were enforced before your injury.

I am overdue for a major update on this situation that will turn into a hub in itself, so I'll just let you know that things are slowly getting better now that we've been through the system. There is a light at the end of the tunnel, still a work in progress.

Thanks for your great story and I wish you all the best in your continuing recovery.

Peg

Richard Ricky Hale from West Virginia on February 22, 2012:

Peg, this is such a sad story and I hope your husband finds comfort and peace from his pain. I have been a victim as well. My case was denied. I worked at a Pizza Hut and their security tower for their camera system fell off the wall and hit me on the spine. Ever since, I have been in terrible pain. I went to the emergency room and they gave me 3 days off. Everyone knows that the magic number is 4, days that is. 4 days or more and you can collect income. I went to a follow up and learned I had fractures through a MRI. That doctor gave me 2 months off work. I turned that excuse in and I was still denied. It triggered a chain of reactions. When I went back to work, the kitchen was completely changed. 2 days later, I was fired. Their reason was because I was eating pizza on the clock, something that everyone does. Brickstreet Insurance is a joke. I really hate hearing this story cause I know he is more then deserving. Hopefully you will be compensated for everything one day. I surely hope.

Peg Cole (author) from North Dallas, Texas on December 31, 2011:

Dear sweet Maria,

Yes, toxic and arbitrary "guidelines"; you would understand completely about fighting the system for things that should be automatic. However, as we know, the worker's compensation insurance groups that employers select are in it to protect their customer, the employer, certainly not the employee who has been injured.

The insurance companies serve primarily to prevent employees from suing their employers for injuries sustained on the job. With that bureaucracy comes loopholes that allow the insurance companies to slither off into their muddy "guidelines" which are really "Bibles" that dictate what injured parties can expect for medical treatment. Anyhow, sorry for this long rant after your lovely and considerate message.

I should post an update on our current situation since things have deteriorated since the last entry. Right now, the issue is too close to give my words the perspective they need.

Thank you for the positive thoughts and we are praying for relief to come through the latest MRI results taken this month, December 2011, that he will meet the criteria for treatment now.