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While Steven and Lisa Frost have faced low point after low
point since he was injured on the job in October 2002, the
lowest point had to be when the cupboards were bare.
Lisa Frost remembers when their 2-year-old daughter cried
“Daddy, I’m hungry,” and they had nothing to feed her and no
money for food.
The low points continued. Unable to qualify for assistance,
the Frosts eventually had to file bankruptcy, losing their
brick home,12-acre farm and good credit. They moved in with
her parents in Hardin and still live there.
Steven Frost’s accident happened when he was helping lift a
wall at Fleetwood Homes in Benton. It broke, and part of it
landed on his right arm, tearing his right rotator cuff.
Federal and state laws require businesses to take out
workers’ compensation insurance in order to provide medical
coverage and wages to employees who are injured at work. As
a result, the workers’ compensation insurance carrier and
the Kentucky Office of Workers’ Claims handle the case once
an injury is reported.
In Frost’s case, the insurance company required him to
undergo four months of physical therapy before authorizing
the surgery his orthopedic specialist recommended.
Meanwhile, he was sent back to work with his arm in a sling
on light duty orders.
Every check they were entitled to while her husband was
unable to work arrived late, said Lisa Frost, who could not
work to make up for the financial hard times because her
husband and 2-year-old needed her care. At one point, Frost
called every 30 minutes for two days before anyone at the
workers’ compensation insurance company would speak with
her, she said.
“It was unreal what we were going through,” she added.
In February 2003, Steven Frost underwent a complete rotator
cuff surgery, spending 12 weeks recovering before returning
to work on light duty. Working was a tall order for Frost,
who was still in pain, his wife said. Sometimes he would be
physically ill from working because the pain was so bad, she
added.
Having learned about workers’ compensation from attending
seminars State Rep. J.R. Gray held when her father owned a
store and conducting her own library research after her
husband was injured, Frost had some idea of what they would
have to do to gain medical benefits from the insurance
company.
They began the process by hiring Murray attorney Jeff
Roberts.
Frost also knew to tape-record all conversations between her
husband’s doctor and the nurse the insurance company sent to
the doctor visits. She also knew to alert the doctor’s
office that any conversations with the nurse must take place
in the Frosts’ presence.
Meanwhile, Roberts helped the couple pursue lifetime medical
coverage for Frost’s injury. By the time they and the
insurance company came to an agreement and settled the case
in January 2005, the Frosts had a number of complaints about
how the insurance companies are allowed to treat injured
workers and how the law does not protect workers nearly as
much as it should.
For one, insurance companies require the injured claimant to
get a second opinion from a physician the insurance company
chooses. While the claimant may have been seeing a
specialist for treatment, the insurance company’s physician
may not be specialized in that area. That physician offers
an impairment rating for the injured part of the body. Frost
said that rating is usually lower than the specialist’s
estimation.
Finding legal representation is a logistical nightmare,
Frost added. Because the law limits how much an attorney can
earn from a workers’ comp case, many attorneys do not handle
those cases, she said.
Roberts confirmed Frost’s complaint about the issue.
Kentucky’s workers’ compensation act is a disservice to the
worker, Roberts said, because it requires the attorney’s pay
to be a percentage of what is awarded. Insurance companies
drag out the cases, and most working people do not have
money to pay attorneys, so handling workers’ comp cases is
not profitable, he suggested.
Another complaint Frost shared was that the insurance
company hired a private investigator to videotape and shoot
pictures of the family without their knowledge. They were
not informed of the investigation until their case went to
trial.
“You have no idea how your privacy is being invaded by these
people,” Frost said.
Another disheartening part of the process is being treated
like a second-class citizen when the doctor’s office learns
your injury is a workers’ compensation case. Frost said at
Primary Care in Murray, her husband is only allowed to go to
the urgent care clinic — as opposed to the regular office —
and the office will not see him over the weekend. The
insurance company will not pay for emergency room visits
because it is not Frost’s designated physician.
The whole experience was painful in many ways, Frost said.
The injured worker and his family are made to feel like
liars, ashamed of not being able to feed their children and
pay their bills, when really, the insurance company needs to
feel ashamed, she said.
Watching her husband suffer from injury, experience mental
breakdowns due to the strain of not being able to provide
for his family and getting addicted to pain medication and
then suffer withdrawal when the insurance company refuses to
pay for it any longer was not part of Frost’s life dream.
At ages 27 and 28, Lisa and Steven Frost live with her
parents and work to make ends meet. With an injury on his
record, it was hard to get hired, but Steven Frost works for
the state highway department. Living with the pain has
become the norm for him, his wife said.
While he was granted lifetime medical benefits for his
injury, the case is not closed since the insurance company
has since refused to pay medical bills. Frost’s specialist
told him he needed another operation due to inflammation
around the site of the last surgery, but the doctor wanted
to wait until his condition was a little worse before
operating.
Frost was injured on a horse since then, and now the
insurance company is refusing to cover the surgery, blaming
the problems on that horse accident, Lisa Frost said.
Roberts has ordered medical records, he said, and is
pursuing the issue.
Frost questioned the insurance company’s argument since the
company sent a letter offering to buy her husband’s lifetime
medical coverage back for $1,000.
Years ago when she attended Gray’s workers’ compensation
seminars with her father, she was shocked by the stories she
heard there. And she hoped she would never have to
experience it, but today Frost believes her family’s story
is proof “There’s something wrong with the system here,” she
said.
Workers’ compensation
During the 2004-2005 fiscal year, 133 Marshall County
employees sustained injuries that required them to miss more
than one day of work. Twenty-four percent of those workers —
or 33 employees — took their claims before an administrative
law judge employed by the Kentucky Office of Workers’ Claims
(OWC). Statewide, the number of employees who missed more
than one day of work as a result of an on-the-job injury was
36,986, according to the OWC annual report for 2004-2005.
Kentucky’s workers’ compensation insurance law covers 80,000
employers and 1.7 million employees, according to the OWC
Web site. The OWC is responsible for the administration of
the Kentucky workers’ compensation program. The office,
which is attached to the Kentucky Department of Labor, has
exclusive jurisdiction over claims.
Kentucky’s workers’ compensation act was created to:
— “Restore an income stream to an injured worker to the
extent it has been severed by an industrial injury or
occupational disease”
— “Provide timely medical services for the cure or relief of
the injury”
— “Provide rehabilitation and retraining services to injured
workers unable to return to their former jobs,” the Web site
indicates.
State Rep. J.R. Gray (D-Benton) explained that workers’
compensation was intended to be an uncontested,
non-adversarial-type situation in which the employee gives
up the right to sue his or her employer for unsafe working
conditions in return for workers’ compensation benefits.
The OWC’s goal is to ensure injured workers promptly receive
benefits state law guarantees them through a claims process
of mediation and judgment of disputes by administrative law
judges, its Web site indicates.
The OWC’s annual report explains how a claim is made: “A
workers’ compensation claim in Kentucky originates when one
of two things happens. A settlement document is filed to
voluntarily resolve workers’ compensation issues between
parties; or a claim application is filed because the parties
are not in agreement and the matter must be resolved by an
administrative law judge.”
The report continues, explaining that workers’ compensation
claims are usually classified into either indemnity or
medical-only. Indemnity claims seek income benefits to
compensate for lost wages, functional impairment or death,
and medical expenses are paid in addition to income.
Medical-only claims seek medical benefits.
Roberts, the Frosts’ attorney, explained four types of
benefits available for claimants:
— Lifetime medical benefits, which is the best option. The
medical coverage lasts for the worker’s lifetime if he
pursues any unpaid claims and does not allow the statute of
limitations to expire.
— Temporary total disability, which is lost-wage benefits
while the injured worker is not working by doctor’s orders
and still receiving treatment for his or her injury.
— Permanent disability benefits, which can mean the worker
is partially or totally disabled as a result of his or her
injury. The worker’s impairment rating determines the extent
of the injury.
— Vocational rehabilitation, which provides for the worker
to be trained in another job if he or she cannot return to
work at the job where the injury occured.
Injustices
While employers and insurance companies complain about the
cost of workers’ compensation, some attorneys, lawmakers,
lobbyists and injured workers have seen their share of what
they consider worker’s compensation’s shortcomings.
Roberts highlighted some of the problems he has seen,
starting with the second-opinion physicians employed by the
insurance companies.
The company’s selected doctor reviews the medical records of
the injured worker to decide whether or not the treatment
recommended by the worker’s physician is reasonable. The
company’s doctor is not required to have a specialty in the
medical field, Roberts said.
For instance, the company may employ a family practice
physician to review the medical records of a worker whose
injured arm is being treated by a specialist. If the family
practice physician denies that the specialist’s
recommendation is reasonable, the insurance company denies
payment of that treatment. The specialist and the injured
worker may appeal the ruling, but often the appeals are
denied, Roberts added. Eventually, litigation is the only
option, he said.
Several years ago, Roberts represented a client who lost
part of his leg in a work accident. Insurance covered the
cost of his prosthesis, but over time, the stump of his leg
changed, as happens when someone loses a limb, Roberts said.
His client needed surgery and then a new prosthesis since
his leg had changed, but the insurance company refused to
pay for another prosthesis. The client was forced to walk
with crutches for six months while appealing the company’s
decision. On crutches, he developed carpal tunnel and other
problems. The judge ruled in his favor, but the lengthy wait
had cost him more than just time.
This story will be continued in next week’s edition.
Roberts said while insurance companies may be fined by the
state if they are found not acting in good faith, the law
provides no significant penalties for denying claims.
Ched Jennings, an attorney in Louisville who serves as
president of CompEd, a non-profit corporation that provides
educational and informational services for the workers’
compensation community of Kentucky, agrees.
Jennings calls it the avoidance game — if there’s a way to
avoid paying for something, the insurance company will do
it. If a person hurts his back at work, but also experienced
a back injury 10 years ago, the company will blame the old
injury and deny the claim, he said.
With so many issues impairing the flow of indemnification
and medical benefits to claimants, Kentucky worker’s
compensation is at the point of crisis, Jennings said.
How long should it take for a worker to receive benefits
after settling his case? Not long, Jennings believes, but he
is seeing claimants wait 30 days for benefits, a problem he
considers an unfair claims practice on the part of insurance
companies.
The system is stacked against the worker, he said. Having a
file cabinet full of 300 cases like Steven Frost’s, Jennings
has story after story to tell of the system failing the
workers it was created to protect.
Take seniors, for instance. Today, more and more senior
citizens work because they need to. If a senior worker is
injured after he or she is past the retirement age, he or
she receives benefits for two years, Jennings said.
Older workers being treated differently if they get hurt on
the job is not right.
“That’s unfair in today’s society,” he added.
A worker hurt before his or her retirement age loses the
benefits at retirement age. Jennings, who was born in 1950,
said he and others born that year are slated to retire at
age 66. If he were injured at age 64, he would receive
benefits for only two years. Penalizing individuals who want
to work and treating seniors differently is a very serious
injustice, he said.
The indemnification itself is another injustice, Jennings
said. When the state created a benefits schedule, it was
based on the state’s average weekly wage, but caps were
placed on the structure. For example, if a worker earns
$27.50 per hour at Ford Motor Company, he earns $1,100 per
week and probably brings home about two-thirds of that, or
$733. If he is injured in 2006, the statute provides he can
earn a maximum of $631.22 per week in several situations:
— Until he reaches retirement age if the insurance company
deems him totally disabled
— For 425 weeks if his impairment rating is 50 percent or
lower
— Or for 520 weeks if his impairment rating is more than 50
percent.
In those situations, the Ford worker will be bringing home
about $100 less per week for supporting his family.
The 2006 income cap, $631.22 per week, is an annual income
of $32,823.44, and it is called a cap because it is the
maximum — if a worker’s income is less than $631.22 per
week, he or she will not earn the maximum in the three
situations named above.
A truck driver may bring home $1,000 a week after taxes, so
drawing workers’ compensation would be an even greater
impact on his family since he would bring home $368.78 less
per week.
William Emrick, executive director of the OWC, calls
Kentucky’s workers’ compensation system “very fair,” and
explained the $631.22 per week cap on income as “what the
legislature has decreed.”
“All I can tell you is what’s in our statutes,” he said.
An open records request to the Kentucky Personnel Cabinet
revealed Emrick earns $132,357.36 per year. If he were
injured on the job, workers’ compensation would pay him
$631.22 per week, which is $1,065.67 less per week than he
currently earns when figuring he nets two-thirds of his
income after taxes.
“If you make any money, you better hope you don’t get hurt,”
Jennings explained. “Because the insurance company will only
have to pay, in 2006, $631.22.”
Overall, the workers’ compensation injury affects families
more than anything else because most people live at the
maximum of their means, Jennings said. When the paycheck
stops, it causes all sorts of problems for the families, and
the delay of benefits has an equally harmful effect because
families are waiting for the injured employee to return to
work.
Legally speaking, workers’ compensation hurts families in a
way other legal problems do not. A divorce may split a
family, but they can still earn a living. A person may lose
his or her driver’s license for driving under the influence,
but he still has the right to earn a living. Take a person’s
ability to make a living away, and further complicate it by
keeping them from receiving medical benefits and treatment,
and it is terrible, Jennings said.
Like the Frosts, many claimants have to sell their homes and
move in with relatives or friends, he added. Some of his
clients do not have telephones and just live wherever they
can as they wait for the process to finish, he said.
While Jennings said the trial process cannot move more
quickly since it takes time to get the case before a judge,
gather information and get the case decided, he said that’s
no solace for someone who has lost his home and is dealing
with the pain while he waits for a medical procedure.
James Schehr is battling workers’ compensation troubles in
Louisville. April 8, 2002, he fell 12 to 14 feet from a
ladder at Vendome Copper and Brass Work. Pain in his back,
hip and shoulder still plague him today, and while he has
been released for light duty work, he stopped going to work
with or without a doctor’s excuse because he is in too much
pain, Schehr said in a phone interview, adding there is no
light duty in his trade. Consequently, he is not earning any
income.
His story is one that includes 14 doctors and pain that many
of them do not seem intent on solving. Visiting orthopedic
surgeons, neurologists and pain management specialists has
taught him that when he mentions workers’ compensation to a
doctor, that doctor does not want anything to do with him.
They roll their eyes at him, Schehr said, and his original
family doctor will not see him anymore.
“I hate it,” he said of the struggle with doctors. Schehr
added he started having his wife accompany him to the
doctor, and that seemed to make the doctors treat him
totally different.
But still, he said he feels when the insurance company’s
doctor is making notes during benefit review conferences, he
writes whatever he wants in the medical records and has the
company on his mind more than Schehr.
He has been attending hearings for some time now, but his
attorney told him it might take another two to three years
for his case to be settled. A criminal gets quicker justice,
Schehr said, adding he cannot believe how long it is taking.
“Meanwhile, I’ve got this pain in my freaking back,” he
complained.
But emotional pain is also causing him to suffer. His
youngest son was 7 years old when the injury happened, and
now he is nearly 12. Schehr, 48, said his two sons and wife
have missed out on quite a bit on account of him. They get
food stamps now, but he does not qualify for unemployment
because he has too many limitations. He applied for Social
Security disability, but Schehr said the office indicated it
would take 90 to 120 days for a decision to be made. It’s
been longer than 120 days now.
His wife is searching for a full-time job while she works
part-time, but their situation is looking grim. Last month,
the Salvation Army paid their house payment, and this month
six or seven churches helped him make the payment.
“I don’t know what I’m going to do for next month,” Schehr
said.
The workers’ compensation system has not given him much
faith in the outcome of his case. All the judges see is
writing on paper, he said, not doctors or people taking
functional capacity tests or the pain he is in. One judge
told him Kentucky has one of the best workers’ compensation
systems in the United States.
“I don’t want to live anywhere else if that’s the case,”
Schehr said.
Bill Londrigan of the Kentucky AFL/CIO said folks in the
workers’ compensation system like Schehr have discovered an
inability to get paid for benefits and a necessity to fight
with the insurance company to get what they have been
awarded. It is a system that works against the people it is
supposed to be protecting, he added.
“It doesn’t really work for them,” Londrigan said. “The
benefits are low and slow in getting to people.”
Londrigan said he understands the system is set up so that
injured workers
cannot sue their employers, but it should be more fair for
the injured workers.
The other side of the coin
Emrick, of the Office of Workers’ Claims, admitted there are
cases when you examine the particulars and the worker did
not get what he deserved, but he said every case is
different and the system is very fair.
Emrick highlighted the fact that the injured employee can
choose his or her own physician. Regarding the practice of
insurance companies employing unspecialized doctors who
overrule specialists’ recommendations, he said companies can
have an independent doctor review the case.
Since the insurance company provides the benefits, it can
contest claims. After an administrative law judge has made a
judgment in the case, disputes can take place over whether a
treatment procedure is necessary and reasonable, Emrick
said.
As for lack of attorneys willing to take workers’
compensation cases, Emrick explained he does not see any
shortage of attorneys who want to take the cases. He does
not see a problem with them getting compensated for the
services, he added, saying the cap on attorneys’ fees is
$12,000 for both the plaintiff and the defendant. Attorneys’
fees must be approved by the administrative law judge, of
which there are 16 throughout Kentucky.
Regarding insurance companies’ use of private investigators,
as happened in the Frost case, Emrick said it is just
another measure of proof because cases of fraud have been
proven by video before.
From the business standpoint, Mike Ridenour, vice president
for public affairs with the Kentucky Chamber of Commerce,
said the workers’ compensation system must focus on
balancing the worker’s ability to get medical care,
rehabilitation and lost income with the ability of employers
to pay to support the system.
Ridenour said there are always going to be individual cases
that did not work properly, but the system benefits workers
by providing medical benefits that are paid immediately.
First-dollar medical coverage to see that any injury is made
whole, without any appeal to hold up the injured worker’s
return to good health, is a hallmark of the system, he said.
“Immediate treatment, no questions asked,” Ridenour added.
As for employers, they face the huge expense of paying for
unlimited lifetime medical coverage for injured employees,
he said, adding that other states have considered limiting
those benefits, but Kentucky has not.
Ridenour’s role in workers’ compensation is working to
reduce the number of accidents. He said the discussion of
workers’ compensation should not be just about how much
money an injured worker receives per month or the treatment,
but also about workers’ safety in the workplace. The
Kentucky Chamber plays a role by getting the word out to
decrease accidents by increasing safety.
In sum, Ridenour said the employer community is concerned
about what seems to be an upswing of cost and administrative
determinations that favor the employee. He said he has heard
a big cry that workers’ compensation is becoming more
costly, and the discussion serves as notice that state
legislators will continue to bring up the issue in future
sessions. That, he added, is a good thing, since it should
be revisited often to ensure the state is achieving the
balance for employees and employers.
Legislation
One local legislator has had workers’ compensation on his
mind quite a bit in the past. According to Jennings, the
attorney in Louisville, State Rep. J.R. Gray held hearings
with the Kentucky House Labor and Industry Committee in
1999, and over 400 claimants showed up that evening at the
Louisville hearing to tell about the inequities in the
system. Gray and the others on the committee stayed until 1
a.m. to listen to every story.
If Gray holds another meeting like that, Jennings said, it
should begin at 10 a.m. and it will still last into the
night because the issue plagues so many injured workers and
employers.
Gray indicated he is aware the workers’ compensation
struggles are widespread. More people are crying out for
help now than when he began representing the district years
ago at the state level, he said.
Anymore, the workers’ compensation system is no longer the
non-adversarial situation it was created to be, Gray said.
Instead, it has become so adversarial that people spend so
much time in court they get disgusted and give up. The
bottom line is the system does not serve the cause very
well, he added.
While Gray said he was not as well-versed in the workers’
compensation laws as he once was, he indicated legislation
is the remedy for insurance companies pulling tactics like
dragging the cases out, intimidating injured workers and
doing anything possible to place economic pressure on them.
Over the last 20 to 30 years, Gray said he has seen a
gradual tilt of the law to give the employer and insurance
company more advantages than the employee. The limiting of
benefits and tightening of rules for injured workers has
taken place alongside a tweaking of the law to make it
easier for insurance companies to deny claims and prolong
cases, Gray said. It has made pertinent the proverb “Justice
delayed is justice denied,” Gray added.
He blamed the decrease in union workers and the subsequent
election of more employer-friendly legislators for the
changes in workers’ compensation, adding now the House Labor
and Industry Committee, which he chairs, deals blows by
killing pro-employer proposals because fewer proposals are
created to benefit workers.
Londrigan, of the state AFL/CIO, said his organization
represents working people and runs an uphill battle to lobby
for better workers’ compensation benefits. Since major
reform in 1996, people do not feel like they are getting a
fair shake in the system, he said.
The AFL/CIO has been pushing for the legislature to address
unfair claims practices by insurance companies, more serious
penalties for insurance companies dragging their feet and
the end of benefits at retirement age.
Jennings, the attorney in Louisville, also serves as vice
president of the state chapter of Workplace Injury
Litigation Group (WILG), which is a national organization
with about 600 members.
The Kentucky chapter is eager to represent the interests of
injured workers and resolving problems in the state’s
workers’ compensation system. Part of that mission takes
form in the chapter’s legislative committee, which works
with other interest groups on a legislative package for
changes in the workers’ compensation laws.
Jennings blames the 1996 reform for some of the problems
injured workers face today. Before 1996, administrative law
judges decided cases on an occupational standard, taking
into consideration the level of impairment and the ability
to return to the job. Now, judges decide cases based solely
on a functional impairment standard, which Jennings said is
not fair to injured workers.
Jennings offered some hope for the future of what he
considers a workers’ compensation crisis: “People want to
hope and pray that they don’t sustain a work-related injury
in Kentucky because the law and the system are not very
equitable. We need changes, and that’s what we are working
on.”
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