Workers' Comp Versus the Little Guy
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.
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
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
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.
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.
"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.
Injured workers are being denied medical care because it isn't on the ODG.
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.
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
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.
Dilaudid vs Morphine
Morphine is a chemical found in the opium plant. It is a narcotic pain reliever similar to Oxycodone, morphine, methadone, fentanyl, and other opioids. Morphine, like other opioids, stimulates receptors on nerves in the brain to increase the threshold to pain (increasing the amount of stimulation it takes to feel pain) and reduce the perception of pain (the perceived importance of the pain).3
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.
For more of the story, see Opioid Addiction and Dependence, A True Story.
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.
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.
- Injured Employee Counsel, Publication 448.4E 8/08
- Texas Labor Code 402.021
- MedicineNet dot com https://www.medicinenet.com/dilaudid_vs_morphine/article.htm#dilaudid_vs_morphine
Questions & Answers
© 2011 Peg Cole