The Cost of Comp
By Mary Bailey,
President of the Florida injured worker group, VOICES
Every time I (or any injured worker or member of Voices, Inc.) testify before your committees, you ask for evidence of what we report. You want proof that the things we are telling you are true. I now offer you that proof, using my own case as evidence. Every time an injured worker told you where the true cost drivers exist in the workers comp system, you didn't want to believe anyone without proof.
Here is the direct evidence from my own claim. I can provide complete documentation of every detail I am submitting. My only request is that you read this entire story. It is long and it has been very difficult to write. It's hard to expose such personal things about myself, but there is so much at risk here. Therefore, if I can expose myself and all the explicit details, I am expecting you to read this in its entirety.
I will give you a brief summary of my claim, tell you some things, and show you exactly where the money goes in comp, exactly who and what is driving up the costs. If you don't want the documentation from me, you can check the files at the Division of Workers Compensation and see for yourself.
In 1987 I was 37 years old and at the top of my career. I had been working for 20 years by that time. I was mid-level management at a plant that manufactured aircraft parts for the government, McDonnell- Douglas, and Northrop. We sold parts to many other aircraft companies as well. I was making $1,000 a week at the time of my injury and could reasonably assume I would be making a lot more in the future.
One night after I had pulled a double shift, I shut down the plant and locked up. On my way home I was assaulted by three employees who worked for the company. I received massive injuries. I was bruised from head to toe but because of the delays in the comp system, it took years to get properly diagnosed and get some of the treatment I needed. I have been told by just about every doctor I have ever seen that if I had gotten immediate medical treatment I most likely would not be permanently and totally disabled today. Imagine the cost savings that the carrier would have accrued since my injury.
I originally filed my claim under my regular health insurance thinking that was the place it should be filed. The Director of Human Resources at my job instructed me to file a comp claim and put all my treatment under that, and I did.
A couple of years went by and after attempting to return to work on three separate occasions, my employer said I could not do my job at even a sedentary position and I was taken off work. My employer contacted my doctor and both agreed I was unable to perform even sedentary duties. I was forgetting things, falling asleep at work because of the 16 different medications I took and was having difficulty learning new things.
I was diagnosed with closed head trauma, frontal lobe syndrome, soft tissue swelling of the brain, concussion, loss of peripheral vision, pain in joint involving the shoulder, migraine headaches, unspecified abdominal pain, seizure disorder, back inflammation, closed fracture of multiple limbs, pain in limbs, contusion of ankle and foot, neck sprain, generalized anxiety disorder, post traumatic stress disorder, dissociative disorder, and multiple myalgia. This of course was the initial diagnosis and I was to be referred out to specialists in the various areas of my injuries. I was referred to a general practitioner, a psychologist, and a neurologist for my seizure disorder. I was so out of it that I had no idea what was going on most of the time. Still I was determined to go back to work even if I couldn't do my old job. As I mentioned above, I convinced my doctors, against their better judgment, to let me return to work on three different occasions. I loved to work and couldn't imagine my life without it.
I was then sent to a neuropsychologist for neuropsychological testing. There it was discovered that I also had damage to the brain stem and frontal lobe damage that affected my cognitive abilities. I have short term memory loss, some loss of motor skills, loss in visual and verbal reading skills, loss of organizational skills, and many more cognitive deficits.
Permanent and Totally Disabled
I was in the hospital more than I was out for years after that. The employer/carrier initially accepted me as permanent and totally disabled (PTD) administratively. Unfortunately, I didn't get to see many of the specialists my doctors referred me to but I sure went to see many of their IME doctors (Independent Medical Evaluations) at the employer/carrier's insistence. This made it difficult to link many of my injuries to the injury at work because after waiting several years to get treatment for them, doctors could not easily determine that the injuries were related to the work accident because such a long period of time went by.
Not PTD? First Litigation; Benefits Unjustly Cut
After providing me benefits for over two years, the employer/carrier decided that the injury was not compensable even though there was well-documented evidence that it was. All my benefits were cut off. I had no medical or indemnity benefits for over two and a half years while I was waiting to get to court and get an order from the Judge of Compensation Claims which went completely in my favor. That means that I had no income or medical care for two and a half years. Unjustly.
The Next Six Or So YearsFor the next six or seven years things went not great, but okay. To this day many of my injuries have not been treated. By the way, I only file a petition for benefits when it is a medical crisis because if I filed a petition for benefits for everything they denied, I would be in court forever. You learn real quickly in the comp system to only ask for what you think they will provide and not necessarily for what is necessary to treat the injuries or what you really need. I suppose that is a kind of cost-savings strategy by the carrier.
I was going to doctors five days a week and sometimes
more except for when I was in the hospital which was
often. Now I go at least four times a week most
During all this time I stayed in the house going out only for doctors' appointments and only for what I considered a must. I was afraid of people. I had no friends and didn't want any. I did most of my shopping through catalogues so I didn't have to go out in public. My daughter or family did most of my grocery shopping.
My cognitive therapist was working with me to learn to use different parts of my brain to take on functions of the damaged areas. She also continues to work with me on adapting techniques so that I can function more normally. My psychologist was working on my psychological issues and both of those doctors were working with fear and trust issues, trying to slowly get me out of the house for short periods of time.
Benefits Cut Again; More Attorney Costs
Then somewhere around 1999, the employer/carrier decided they were overpaying me. This was inaccurate. Nevertheless, first they cut off all my checks for a while and later they partially restored them and sent them at sporadic times. I never knew when my checks would be coming. Months passed while my attorney was trying to get the carrier to work these issues out with the defense attorney. Of course they never worked them out because the carrier had grossly miscalculated my pay and they refused to fix it.
Lost Everything; Unjustly; Judicial Delays
During this time I lost everything I ever had. My house, my vehicle, and what little I had in savings left from the last time they stopped paying me. Once again I had to file a petition for benefits and litigate to get the benefits guaranteed me by the law.
This process once again took me over two years. I won my case once again and the judge ordered my benefits restored.
Unfortunately for me, the employer/carrier appealed the case. Under Florida law, the benefits awarded need not be paid while an appeal is pending. Resolving this took another year and a half to get through the courts. The appellate court once again ruled in my favor on December 31. The carrier had 30 days to pay the back money they owed me.
Unlawful Delays By Carrier; Refusal to Comply with Court Order
January went by and then February and still no money. My attorney called the carrier several times and the adjuster always told the carrier's attorney that the money had been mailed out. Finally my attorney's office called the adjuster one day, with the permission of the carrier's attorney, and the adjuster told my attorney's secretary that they weren't going to pay and didn't have to pay.
My attorney called the carrier's attorney and the money finally came somewhere in the beginning of March.
However, they did NOT pay the penalties for paying it two months late as mandated by statute. Even though the law clearly states that they had to do this, they refused.
I went to the EAO office and asked for help but the carrier still refused to pay. Even though the carrier clearly knew the law and that they would lose their case and be required to pay the penalties, they still preferred litigation.
Since the Division of Financial Services cannot
enforce the law, it left me with no other option than
to again file a petition for benefits. Believe
me, the DFS tried very hard to resolve this issue but there
is only so much they can do without the power to
enforce the law. This should have never have
had to go to court but it did. After another two
years in litigation, I settled this one issue at much
less than what I believe they owed me in order to get
the issue resolved. That is, if the carrier
honors their agreement that they made before the
judge. Truthfully I have little faith that this
carrier will honor anything. Will I have to file
another petition for benefits to force the carriers to
comply with the current judicial order?\
Who is driving up the cost here? Is it me or the carrier?
A Done Deal - Why Contest It?
In this case we went to court on an issue that the law clearly states I was entitled to. It is unequivocal. Both my attorney and the carrier's attorney are getting paid, though the carrier's attorney will receive a much higher payment than my attorney will. In addition to salary costs, there were legal expenses.
Who is driving up costs here?
Time and Money Wasted Through Lack Of Preparation
I went to a mediation in which the carrier's attorney didn't have a clue about her position on the case when she got there. Even the mediator made the statement something to the affect of "I am here to mediate, not to baby-sit." After sitting in a room for an hour with my attorney while the mediator tried to get the defense attorney to figure out what she wanted, we left and no offers were made because in my opinion either the defense attorney came to the mediation unprepared or there was never any intention on the carrier's part to resolve the issue. So here was the cost for a mediator and two attorneys to attend a mediation that was doomed before it ever started. All of this for something the law clearly says I was entitled to. My attorney was certainly prepared. What about theirs?
Who is running up the cost here?
Another Petition for Benefits, Or Two
Over the years I probably went to at least 20 IME's that the employer/carrier ordered. I have never requested the first IME. I have never sent in for mileage expenses to and from my doctors. When I couldn't drive, I always found someone to take me and rarely requested transportation services from the carriers. Maybe I have had transportation services twice since my injury. I have even paid for many prescriptions and doctors' bills when the bills were turned over to collection agencies because the carrier refused to pay them. When the carrier denied these bills, I had enough litigation for a lifetime and sure had no intention of filing a petition for benefits again. I have paid out-of-pocket for expenses that the carrier should have paid for without the threat of litigation, just because it was lawfully right for them to do so.
But, now once again I will be filing a petition for benefits and heading into litigation and the mess starts all over again and you are the people who are allowing this to go on constantly in the comp system for the more seriously injured workers. Two or three years from now I will write you and tell you of the outcome of my case. Two or three years; justice delayed is justice denied.
Presently, in spite of having the Judge of Compensation Claims and also an appellate court rule on the amount of pay I was entitled to, the carrier has once again lowered my indemnity checks. Additionally, they have refused to allow a much-needed referral to a specialist from my treating physician (who was selected by the carriers, by the way), and they continue to send me on unnecessary and meaningless IME's for no other reason than they want to find some doctor to disagree with mine. How many times do these guys get to take you or force you to court? How long do they get to starve out a disabled person? How much "doctor shopping" are they allowed to do?
Who is driving up costs here?
EAO Has Limited Power
I have been to the EAO office and they have done everything in their power to resolve these issues. Guess what! They can't - because the carrier wants to starve me out and the carrier refuses to cooperate with the EAO office. You haven't given the EAO office the power to enforce the law. There is no way for me to address these issues except through litigation.
What is driving up costs here?
This Last Year
Now let me tell you about my last year and things I have learned about this system.
I live in Jacksonville , Florida . The carrier sent me on an IME to Gainesville saying there were no comp doctors of the particular specialty here in Jacksonville , but there are. I called the carrier and asked her why she didn't refer me here and she said she didn't have to. I asked the EAO office to try and get the appointment with a doctor here. The carrier lied to the EAO office saying there was no doctor in Jacksonville to see me. I sent the EAO office a list of 36 local doctors who take comp and said they would see me. The carrier told the person in the EAO office that if I didn't make the appointment, my benefits would be stopped. Because I get lost easy due to my workplace injuries, I couldn't drive there and I couldn't find someone to take me, so I had to request transportation. That added up to a long and tiring day for me and a much more costly one for the carrier.
Who drove up the cost?
Next I had heart surgery, not workers comp related. However, while I was still in the hospital, the carrier set up a 6 hour IME for me. I came home from the hospital on Sunday and the IME was on Wednesday 3 days after I came home from the hospital. This seemed to be unusually curious timing. I called the EAO office to see if they could get the carrier to move the date because I wasn't up to it. The EAO office requested a change, but the carrier refused them, too. The carrier said I must go or my benefits would be cut off even though I had been out of the hospital for heart surgery for only three days! My cognitive therapist, who had been out to my house to give me my meds and check on me on Monday, wrote a note and sent it to the carrier saying that in her opinion I was not well enough to attend the appointment. The carrier told the EAO office that she didn't get anything from my cognitive therapist and then she looked and said she did. She then said my cognitive therapist didn't say I was not up to the appointment in the note but that it said I said I wasn't up to the appointment in the note, so I had to go. She deliberately lied to the EAO person. I faxed the EAO person a copy of the note who then called the carrier back. The adjuster still said I had to go. Finally I called my attorney and told him the situation.
He called the adjuster who told him I had to go or my benefits would be cut off. She also told my attorney she didn't have any note but he knew she did because he had also faxed her a copy of the note. She finally admitted to having the note but still insisted I go to the appointment or my benefits would be cut off. My attorney told me not to go.
He talked with the adjuster and gave her the required advance notice the law requires if I can't attend an appointment they set up. She still said I had to go even though we had complied with the law. The day before the appointment, the doctor's office called me to verify I was coming to the appointment. I told them that I couldn't make it and that they should have been notified. The adjuster had told him I had better make that appointment. The next morning, the day the appointment had been scheduled, I got a call from a transportation service that they were sending out a car for me. I told them I didn't need a driver because there was no appointment. A car pulled up which I had not requested. They were there to take me to the appointment. I told the driver I had canceled the appointment. The driver called his boss who said he had called the adjuster who said I had to go to the appointment so to send out the car. He told the driver that he was told by the adjuster that he was to send out a car and I had to personally refuse the transportation before he could come back. Result: someone had to pay for the driver and the cancellation fee for the appointment. I had done what the law required so who is driving up the costs in comp here?
Now let's talk about other costs.
Because of my head injury and cognitive impairment, I have to be monitored by my doctors on my medications. I don't even keep them at home. Sometimes before I was being monitored, I would take my medicine too many times because I would forget I had taken it or I would just plain forget to take it, period. My cognitive therapist set up a schedule and a plan to help me with this daily task. After much hard work and a lot of monitoring I now take my meds on a fairly regular schedule and the way it is set up I can't accidentally take meds too often or forget them.
I used to get my meds at a local drugstore. So there was just my cognitive therapist, my doctor, and the drugstore involved. Then I got a letter saying I had to receive my meds through the mail. I started getting my meds through the mail. Then I got another letter saying that the carrier was having a company called Total Medical Solutions order my meds. It was their job to reorder the meds when it was time. So now when there is a problem with my meds I have to go to several people at different companies to get it straightened out.
This is how it works. Total Medical Solutions calls my doctor for a prescription when it is time. They then call Orangebelt Drug Mail Services and place the prescription order. The pharmacy calls the adjuster to get approval for the meds. Then Orangebelt sends me the meds. So now to get my meds taken care of, the process has to go through my doctor, my cognitive therapist, the adjuster, Total Medical Solutions, Orangebelt and a delivery service.
How is this cost effective?
Who Is The Doctor Here?
Often I used to call the adjuster to tell her she was sending me meds that I didn't take on a regular basis every month and more often than I needed them. She told me that I had no say in my meds and that she would decide what medicines I need and when. The end result is I'm getting medicine I don't need and probably won't ever use. My cognitive therapist keeps it and sends letters on it but often it takes months to straighten it out.
How is this cost effective?
Layers after Layers in Billing
Next on billing. There are always problems getting doctors paid in the workers comp world, but this is more in reference to an extra step in the process. My doctors send the bills to the carrier. Many but not all of the bills are sent to a place in Tennessee called Medsights which reviews the bill and then sends it back to the adjuster with a recommendation as to whether and how much to pay on it.
My bills are consistently for the same amount. I see the same two doctors who provide consistent and unvaried services four days a week for the exact same amount of time. That is unless I am in the hospital or they are on vacation or something comes up such as illness. This is year round. I see my general practitioner once a month to review meds in order to get my prescriptions ordered. You would think with that there would be no need for the carrier to have someone review the bill before they pay it. Not true with this carrier. Even with this routine they still often send the bills on to Medsights for review. Who is paying for that?
A Useless Test
My most disabling injuries are cognitive and psychological. I have been to probably 30 doctors over the years who all say the same thing: I am permanently and totally disabled. The carrier has chosen all of my doctors.
Presently, the carrier has scheduled what they call a comprehensive functional medical evaluation. I really don't have a problem with this test except that it is an exhausting test that takes four to six hours, it's stressful, it costs on average around $800 to $1,000, and there is nothing in this test that addresses the reason I can't work. Remember, my most disabling injuries are cognitive and psychological. This evaluation covers neither.
So my attorney asks the defense attorney why they are giving me this test. They say because they are entitled to an evaluation every year for people on PTD.
Let's review. They have chosen all of my doctors, sent me on IME after IME and there are monthly reports that say I still cannot and will not be able to go back to work ever. I have been in the hospital 9 times this year with an average of a five-day stay and all the stays are related to my work injury with the exception of the heart surgery. There is a large body of documentation and an appellate court ruling stating that I am PTD.
I don't know about you but I think $800 to $1000 is a lot of money to pay for a test that doesn't address any of my disabilities. It will provide them with no useful information for any useful purpose other than perhaps to inconvenience and harass me or perhaps to pad the pockets of some cronies. I can understand having such an evaluation every year maybe, if my doctors say there is a change in my condition, but to have an evaluation just for the sake of having an evaluation and especially one that doesn't address my disability makes no sense to me even if the law says the carrier is entitled to one a year.
Who is paying for this cost? And why?
Doctor Shopping by the Carrier
Now let's talk about the steps leading up to this evaluation. I live in Jacksonville . My carrier is in Orlando . My carrier hires a company called AssessAbility to find me a doctor to give me this test. This company is in West Palm Beach , Florida . There are plenty of doctors in Jacksonville that take comp and do this same test. AssessAbility sends me a packet of information on the test and then calls me to confirm I got the packet and that I will be at the appointment.
In the packet it says this is a Functional Medicine Evaluation ordered by the adjuster. It is to be done at Northeast Florida Occupational Health Clinic in Orange Park , Florida . That is close enough to Jacksonville . It says the evaluation will take four to six hours and I will be seeing a Dr. Michael Webb. The paperwork says Dr. Michael Webb in care of Dr. Chappa.
I call the center to confirm the appointment and ask to speak with someone on Dr. Webb's staff. They say we don't have a Dr. Webb. I ask them if they are the Northeast Florida Occupational Health Clinic and they say yes. So I ask if there is a Dr. Chappa there. They say no. Then they say they do have a Dr. Chappa who works out of another center but that he doesn't have an office or a staff at the clinic. So I say I am scheduled to have an evaluation there on Wednesday. I give her my name. The receptionist checks her schedule book and says wait a minute. We are bringing a doctor in from another area of the state to do this evaluation and Dr. Chappa is coming over here to oversee it. I say why would you do that? Don't you have any doctors that do that there and that take comp? She says yes but the adjuster wants you to see this doctor. Now who is paying for this? Doesn't this sound just a little odd or even suspicious in light of the rest of my history with this carrier?
Okay, so now we have an injured worker who lives in Jacksonville with a carrier based in Orlando who calls a company in West Palm Beach to find me a doctor in Jacksonville . Add to that the doctor is not even in Jacksonville so that means they are paying his traveling expenses and possibly motel room and most likely an extra fee to have him come up here and have another doctor that works in another facility go to this closer facility to supervise the other doctor while he gives me an evaluation.
In other words, the local clinic which is qualified to do the test is required by the adjuster to bring in at their regular fees plus additional costs for travel and consultation one out-of-town doctor and one doctor from across town to perform an $800-$1000 test that is guaranteed to provide no useful information nor will it address the conditions that prevent me from working.
How much is this costing? Who is paying for it? Who is really driving up the cost in the comp system? Is it possible that these companies are colluding for profit? Why in the world would someone do things this way and expect it to be cost effective?
No wonder they say they aren't making a profit. No one could make a profit running a business this way. How can a company operate like this and then turn around and complain about not making a profit?! And get the legislature to pass laws assisting them?
This is inhumane, unbelievable, unreasonable, unacceptable, not cost effective, and cruel, and you have given these people the power to get away with this time after time with all the favorable legislation you have passed over the years. This year you gave them even more power and took away the only power that injured persons have to fight with.
Who will stop this runaway train and when?
This is not something that just happens to me. It happens to just about anyone and everyone that has any kind of serious and long term injury. It happens on a regular basis in all parts of the state and all parts of the country. Same song, different verse.
You are the people elected to ensure these things don't happen. So why is it happening continuously? Please do something about this.
Now that you have finished reading this, do you still believe that the cost driver in comp is anything but the carrier? If you don't, then perhaps you should pull the files on every long term and seriously injured claim.
You will see the same thing over and over again. Open your eyes.
It needs to be said that as of Oct. 1, 2003 , the Division of Financial Services has been given statutory authority to examine and investigate carriers and claim-handling entities (F.S. 440. 525).
If; the department finds the claims handling entity has engaged in patterns or practices that violate the law, the department may impose penalties;
Sources at DFS have indicated to me that DFS intends to use this provision.
We applaud their actions and gratefully note how much more assistance we have gotten from DFS in the last year and a half. Because of their interaction with DFS, some injured workers have had successful resolutions of their complaints without having to resort to litigation.
DFS has the authority to investigate and to levy fines but there is still no way to actually enforce the law! Give someone the power to enforce the law and press criminal charges against the insurance companies when these conditions exist, but first -- this runaway train has to be stopped! Do the job you were sent there to do.
Fix the law, then enforce it. You, not special interest group lobbyists, are supposed to be our leaders. You are supposed to write the laws to protect and defend the people of this state. The laws written by lobbyists and passed by the legislature are hurting business and injured workers.
Please evaluate the laws you passed last session and look at restoring rights to injured workers. Restore the only power injured workers have to fight the arrogance of the of the scofflaw carriers. We, all the citizens of Florida , need your help now, today.