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Workers’ Compensation:  The Man-made Quagmire (Part 2 of 3)

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Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm. Paul has done a good job of describing the difficulties by injured workers.

This is the second part of a three-part series in which I explain why workers should claim their rights under workers’ compensation laws. The first installment explains how employers commonly and purposefully make it difficult for workers to claim comp. This second part explains ways in which workers’ compensation insurance companies (from here on our we’ll call them “insurers”) also throw up barriers to workers getting comp benefits.

It is worth noting that many employers – mostly large corporate employers – file for and obtain a certificate from the Iowa Division of Insurance to “self-insure” for purposes of workers’ compensation. These self-insured employers have offices filled with staff that carry out the same work and serve the same purposes as out-dwelling work comp insurers. They do the same things as out-dwelling insurers to bar coverage, also.  Thus, I will treat them as one entity – “the insurer.”

Our third segment will explain why other benefits and programs don’t come even close to providing what the worker receives in workers’ compensation. It’s unfortunate, but the best thing a worker can do is slog through this quagmire and make good on his or her rights in comp.


Again, researchers determined years ago that many barriers are erected by insurers. The insurers’ barriers don’t stop after the worker applies for comp. In fact, in my experience the insurers deter workers by making obtaining comp benefits so unpleasant and frustrating, that the workers with future injuries will opt to not claim comp, but rather try to make do with other benefits, if possible. The biggest reasons workers give up on their rights in workers’ compensation are due to the insurers’ conscious effort to frustrate, confuse and delay every aspect of the claims process. That, however, is exactly what should not happen in comp. Why do I say that? Because the Iowa Supreme Court has repeatedly said that for decades. According to the Court it’s a basic fact of Iowa worker’s compensation law “that the injured claimant is compensated swiftly, fairly and with the least possible ‘red tape.’” DeShaw v. Energy Mfg. Co., 192 N.W.2d 777, 784 (Iowa 1971)(citing Cross v. Hermanson Bros., 235 Iowa 739, 16 N.W.2d 616, 618 (1944)). Besides being fast in result, the process is supposed to incline in favor of the worker. Again, as stated by the Iowa Supreme Court, “we keep in mind that the primary purpose of chapter 85 [ed. the work comp code chapter] is to benefit the worker and so we interpret this law liberally in favor of the employee. Stone Container Corp. v. Castle, 657 N.W.2d 485, 489 (Iowa 2003).

So what should you do to protect your workers’ compensation rights when the insurer is ignoring them?

Part I: Dealing with the Insurer’s Persuasion Tactics

  1. The Adjuster – The Insurers’ First Fortress in the way of Every WC Claim

    People used to ask why I do not like adjusters. The reason is that very few of them (something less than 5% by my best estimate) have any goal but cutting costs for the insurer, no matter what means are used to do so. In light of that I most commonly file the claim early on so as to deal with the insurers’ lawyers rather than the adjuster. How does the adjuster form a barrier – a tough fort – standing in the way of a legitimate work comp claim?

    1. The Various Types of Obstructive Adjusters
      Adjusters commonly do several things that occur so frequently that I believe that these things are learned and practiced forms of conduct, which are designed to frustrate any injured worker. What things?
      1. The Absent Adjuster – most commonly the adjuster may never answer the phone, instead letting all of your calls go to voice-mail. Then, the adjuster will not return your calls.
      2. The Rude Adjuster – nearly as common is the adjuster who denies a claim without explanation and will be demeaning and condescending in refusing to be willing to explain anything. In a system in which the worker is usually without any way to know things, being put down and denied without explanation is a very effective method of driving the worker out.
      3. The 100% Purposely-Ineffective Adjuster – the adjuster many times will promise action on a benefit and may even set personal deadline to do so. Then, the adjuster fails to get the action and merely extends the time for the deadline, again and again. Again, this is a very effective means to drive a worker from the system because the benefits (both medical and money) are usually promptly needed.
  2. The Adjuster’s Wingman – The “Nurse Case Manager” Commonly the adjuster/insurer will assign a “nurse case manager” (hereinafter “NCM”) to your claim. The NCM is a “confidence person.” She (the NCM is always a female in my experience) will tell the worker and family that she is there to get better and more prompt care. In fact, the NCM almost invariably seeks to interfere with the minimal care that even a company doctor renders. In most cases the NCM will also do anything to persuade that the worker should be returned to work, whether safe or not. The only effective remedy I’ve found for the NCM who acts unreasonably in denying my clients care is to file a complaint with the Iowa Board of Nursing.
  3. Employer’s Choice of Medical – “Paul McAndrew’s best friend” Why is it my best friend? Because if the law allowed Iowa workers the right to choose their own medical care, more than half of the workers who come in and need me would no longer need me. Why say that? Because about 75% of the workers who come to my office do so only because they’ve been delayed, denied, and frustrated in getting timely and proper care, so much by the company doctor (usually in conjunction with the adjuster and NCM) that they can’t get back to work as they must and they come to me to merely get medical care. They don’t even want the benefits much. They want only to get healthy so they can get back to work and earn a living to support their family. How does the adjuster/NCM/company doctor bar proper and timely care? By these means:
    1. The Company “Hack” (General-Practice Doctor)
      There are many company doctors who are well known to the practicing work comp bar as being dedicated to one thing: Maintaining that doctor’s share of the insurers’ referral of injured workers by almost any means. This leads the doctor to be little more than a mouthpiece for the insurer. This takes the form of:
      1. Stating some uncouth reason why the injury did not arise out of and in course of (commonly called “cause” but very different than) work (e. g., the court reporter, Smith).
      2. Minimizing or even ignoring the worker’s injury condition until the worker is discharged to her/his own doctor, or just leaves due to frustration.
      3. Carrying the worker along over months of periodic clinic visits without any real effort to determine a diagnosis and treat that diagnosis.
    2. The Company “Sweetheart” (Specialist Doctor)
      This specialist—-commonly an orthopedic surgeon or neurosurgeon—becomes the insurer’s favorite by always giving a favorable-to-the-insurer opinion. Again, the Sweethearts are well known to lawyers, but not to the worker.

Part II: The Insurers’ Tricks for Wrongfully Manipulating Care

  • Prompt Care/Unreasonable Delay in Providing Care
    This speaks for itself. It’s far and away the most common method of denying care—just delay it long enough and the worker’s life demands will cause the worker to turn elsewhere for care. This is easily overcome with the Alternate Care Procedure, briefly described here.
  • When the Authorized Doctor Recommends Care that the Insurance Company Denies
  • When the Authorized Doctor Refers to another Doctor and the Insurance Company Denies or tries to Refer, instead, to its “Sweetheart”
  • When the Authorized Doctor orders care and, Instead, the Insurance Company tries to “Transfer Care” to a Sweetheart Who Will Likely say what the Insurance Company Wants to Hear
  • When the only Care Offered is not Convenient Care. This is now standardized: if the care offered is more than 50 miles from the worker’s home and the same type of care is offered closer, then the 50+ – care is “inconvenient.” Remember the “convenience” requirement applies only to “care.” Unfortunately, it does not apply to the company’s right to send the worker for a medico-legal, one-time “independent medical examination.”

 


Alternate Care Process

The Iowa Legislature enacted in 1913 the comp’s system’s healthcare provision method. Iowa Code 85.27. 85.27 provides that the employer has the right to make the initial selection of care. In this regard, Iowa is only one of ten out of the fifty states and the United States (under FECA (Federal Employee Comp Act) and the Long Shore Act) that provide the employer with such unfettered power. For years, a worker had to wait months or more than a year to get to the final hearing to challenge the insurance company’s denial of care.

In 1992, however, Commissioner Byron Orton drafted a provision that was accepted by consensus of all interest groups and enacted into law, which create the “alternate care process.” This process allows the worker to obtain prompt relief for the denial of proper care. The process is relatively simple and designed to be carried out by a worker or union representative.

NOTE: While Section 85.27 gives the employer the right to select care, that right is qualified. The care provided must be (1) prompt, (2) reasonably suited to treat the injury and (3) without undue inconvenience to the claimant. Westside Transport v. Cordell, 601 N.W. 2d619, 694 (Iowa 1999). The failure of the employer to provide care meeting any of these three requirements gives the worker the right to bring an alternate-care procedure and have the Division of Workers’ Comp. order proper care be provided.

The Steps for Filing and Prosecuting ON YOUR OWN an Alternate Care Claim

  1. Before filing, the worker must communicate the basis of her/his dissatisfaction with the care (or lack of care) offered by the employer. If you don’t, the filing will be dismissed. Communicate dissatisfaction in writing or the employer will likely deny that there was communication.
  2. File on the form provided by the Commissioner. This form can easily be obtained at http://www.iowaworkforce.org/wc/publications.htm. There is no cost/filing fee. Make sure you send a copy of the form to your employer, also, as explained on the form.
  3. When filling out the form, ensure you state: (A) The specific medical treatment sought; (B) the grounds why what’s offered (if anything) is not proper (for example, “not prompt,” “not convenient,” or “not proper care for the injury condition,” etc.); and (C) that you ask for hearing by telephone.
  4. Alternative medical care proceedings are only prospective in nature. Bills for prior care will need to be adjudicated about a year later in the primary hearing.
  5. The grand majority of alternate care hearings are heard by phone.
  6. Alternate Care Procedures Yield Prompt Results. Why? Because by law the commissioner must both hear the alternate care matter by phone and issue the decision on the matter within ten (10) days of the filing of the alternate care petition.

Please join us next week for Part 3: Why it’s Important to Receive Comp.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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What’s an IME (Independent Medical Examination)?

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My employer just set me up for a “second opinion” or IME with another doctor. What is that?

An IME is an abbreviation for an independent medical examination. The purpose of an IME is seeking a second opinion from a non-treating doctor for your work injury in order to obtain an opinion on pretty much anything regarding your workers’ compensation injury: medical causation, diagnosis, treatment, restrictions, impairment, etc. The IME doctor, however, does not actually provide any treatment him/herself. The IME doctor merely dictates a report with his/her evaluation, opinions, and recommendations.

An IME can be requested by the plaintiff or defendant in a workers’ compensation claim. Although “independent” is in the name, oftentimes these exams are not independent at all. In fact, there are three different types of IMEs in Nebraska, and not all would be considered “independent.”

  1. An IME may be requested by plaintiff. In this scenario, the injured worker can choose his/her own doctor with the cost paid by that worker or that worker’s lawyer; 
  2. An IME may be requested by both parties. If there is a medical dispute, the parties can agree to an IME doctor, or have the court appoint an IME doctor, the cost of which is borne by the employer or insurance company; and
  3. An IME may be requested by defendant. The employer or insurance company may choose its own doctor much like the worker can choose a doctor. The cost of this IME is borne by the employer.

Injured workers must be cautious of both #2 and #3 above. In #2, the IME opinion may be binding on both parties at trial if the doctor was agreed to by the parties. Without proper knowledge of the doctor involved, the injured worker may not know that a particular doctor is employer-friendly and is not likely to provide the worker with a favorable opinion.

Under #3, the injured worker must also be cautious. The worker cannot outright refuse to attend an IME, so the worker needs to be on his/her toes with the doctor, because the doctors hired by the insurance companies will go to great lengths to please the insurance companies that pay them big bucks for these IMEs (to the detriment of the worker). Sometimes that can mean denying further treatment for an injury or stating that a worker is “malingering” – or faking – an injury just because a worker didn’t look like he was hurt when he was getting out of his car in the parking lot. In other words, be warned that the doctor is always watching you during these IMEs.

Other advice that I give my clients before going to an IME is to be honest about all prior injuries, because the IME doctor will probably know more about your medical history than you. Be professional at the appointment and non-confrontational. Finally, bring a friend or family member with you to the IME. This can keep the IME doctor more honest hopefully, and can give the worker an additional “witness” about the examination when it comes time for trial.

Probably the best advice for anyone being sent to an IME is to contact a lawyer immediately. Chances are very good that your claim will be denied once you have been sent to an IME, and the sooner you contact a lawyer at that point, the better.

 

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Is Your Workers’ Compensation Check Late?

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My work comp check was late or hasn’t come yet. Now what?

If you are entitled to workers’ compensation checks, and the insurance company has not paid them on time, you might be entitled to a penalty from the insurance company in addition to the amount that you are owed.

The penalties for late payments vary from state to state, but most states have laws to help workers when this problem arises.

In Nebraska, the work comp insurance company has 30 days to pay benefits from the day that it has notice of the disability, or 30 days from the day that the Court entered an Order, Award, or Judgment. If the insurance company does not pay the benefits within those 30 days, you may be entitled to Continue reading

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Workers' Compensation, Workplace Injury and tagged , , , .