Workers’ comp leaves world of pain
For many hurt Texans, system makes finding care difficult, dispiriting
As soon as she wakes up, the pain is back. Pain when she stands up to go to the shower. Pain when she puts on a bra. Pain when she sits down to eat breakfast.
After more than two years of living like this, Stephanie Albers, a
Houston flight attendant injured when she fell during severe turbulence, is unable to work, again, struggling with depression and fighting for proper medical care. Her problem: The treatment for her on-the-job injury — which resulted in chronic pain in her left shoulder and neck and numbness in her left extremities — is covered by workers’ compensation.
In Texas, where workers’ compensation is optional and 28 percent of employers don’t even cover their workers, injured employees who file claims through the system enter an endless maze of denials and appeals that block their treatment, recovery and return to work. For many, the process is so exhausting that they rue ever filing a workers’ compensation claim.
Thirty years of legislative changes and judicial rulings have left a workers’ compensation system that makes finding a doctor difficult and fighting against insurance companies effectively im
possible. The frustrations have become so great, advocates say, that workers are simply not reporting workplace injuries, relying instead on health insurance. Workers’ compensation claims fell 12 percent between 2010 and 2018, which a state report attributed in part to underreporting of injuries.
Albers’ doctor-prescribed treatments were routinely denied by the third-party insurance administrator, trapping her in a cycle of denial, appeal and delayed treatment. Hardly better off than when she was first injured in 2017, Albers now worries the nerve damage from her injuries could be permanent.
“My husband has fought for me, but without him, I probably would have just given up,” she said. “That’s what they want you to do — they want you to give up and go away.”
The Texas Department of Insurance, the state agency that manages the Division of Workers’ Compensation, said in a statement that it provides resources to help injured employees navigate the system and has an administrative process to resolve disputes over denials for medical services.
“An injured employee always has the right to dispute an issue with their claim,” said Kate Sidora, spokesperson for the TDI. “DWC is a resource to help injured employees through the claims process and will investigate to make sure all claims are processed correctly and according to state law.”
But experts say the dispute resolution process is hopelessly stacked against workers, leaving them with only one real option: Don’t get hurt at work.
Few doctors
Workers’ compensation, an insurance program managed by the state, is intended as a social contract that provides injured employees with medical care for injuries and illnesses suffered at work and protects employers from personal injury lawsuits by workers. But in Texas, the Legislature and courts have made it increasingly difficult for employees to press their right to care under the state workers’ compensation system.
In the 1990s, the Legislature passed laws to severely limit fees for attorneys representing injured workers, leaving little incentive for lawyers to take workers’ compensation cases. The number of available doctors to treat workers’ compensation patients dwindled, too, following legislative overhauls in the early 2000s. In the last decade, the Texas Supreme Court further blocked workers’ ability to sue insurers
for unfairly denying their claims.
That leaves little recourse for people such as Albers, 54. A flight attendant for a small private air carrier, she was injured when sudden and violent turbulence threw her into the air and back to the floor like a rag doll, damaging nerves in her neck.
If an injured worker’s company opts into the insurer’s local network, which is certified by the state, the worker is required to seek treatment within that network. If the company did not opt in, but has workers’ compensation coverage, the worker must find a health care provider willing to take workers’ compensation.
Doctors are barred by law from billing injured employees directly and must accept what the insurer will pay. Only 35 percent of licensed physicians in the state treated injured workers covered by workers’ compensation in 2018, down from 50 percent in 2005, according to the Texas Department of Insurance. In Houston, 31 percent of physicians treated a workers’ compensation patient, the lowest proportion of Texas metro areas.
TDI attributes the falling share of physicians who treat injured workers to the growth of licensed doctors at the same time claims are declining — proof, they say, that access to care for injured workers has improved.
But Adam Bruggeman, an orthopedic surgeon in San Antonio who has accepted workers’ compensation patients since 2013, said the paperwork, technical requirements and pre-authorization protocols required for workers’ compensation are much more burdensome than a typical patient, discouraging many doctors from taking patients covered by workers’ compensation.
Insurers will “deny your surgery for technical reasons,” he said. “If you don’t use the exact terms that the insurance company uses, then you stand to not get paid. That’s very frustrating.”
It’s frustrating for patients, too. By law, once you enter the workers’ compensation system, you can never leave. All treatments related to the injury must go through workers’ comp, which blocks workers from using health insurance or personal resources to obtain medical services. “You can’t even help yourself,” Albers said.
The first physician Albers saw gave her steroid shots, but a few months later, she was in more pain. She saw a second doctor who obtained approval for surgery to repair a torn rotator cuff in her shoulder, completed in March 2018, seven months after her injury. The pain, however, returned a few months later.
Her doctor requested a second surgery to release a compressed nerve. But that procedure was denied by the claims administrator, Gallagher Bassett Services, as were subsequent requests for physical therapy, pain management prescriptions and an MRI, according to Albers’ claims records. The wrongful denials, subsequent appeals and long waits for approval regularly delayed treatments by weeks.
“She’s in pain every single day, and they’re dragging their feet, doing this dog and pony show, all this administrative stuff,” said Dwight Albers. “In the meantime, she’s not getting any better.”
Gallagher Bassett said it does not comment on claims that are in administration, litigation or the process of resolution.
Stephanie Albers describes the pain as a toothache in her shoulder with a bowling ball on top of it. Finally, more than a year after her injury and following her eventually approved second surgery, she returned to work in the fall of 2018.
Benefits run dry
In September 2019, Albers’ pain began to increase again, despite a pain management program that included new prescriptions and heating pads. Then, she noticed her left extremities going numb. In December, she dropped a bowl on a passenger because she didn’t feel it falling out of her hand.
She wondered, “Am I on the way to being paralyzed?”
In January, when the pain forced her to leave work again, she could not receive any compensation for missing more work. A few months earlier, the state had required her to attend a “maximum medical improvement” exam performed by a designated doctor. That doctor, a chiropractor, evaluated her as 3 percent “impaired,” a rating used to calculate how much more the state needs to compensate a patient for lost wages due to the injury.
Based on that rating, the state paid Albers about $3,800, equivalent to about two weeks of her salary, and ended those benefits.
Albers is appealing the exam, claiming the chiropractor who evaluated her wasn’t qualified to assess nerve damage. More than 80 percent percent of the designated doctors available in Harris County are chiropractors, according to state records.
No defense
The Albers sought lawyers to help them. None would.
That’s because in 2012, the Supreme
Court of Texas ruled that insurance carriers are immune from lawsuits in workers’ compensation, which has its own dispute resolution process. Once workers enter the system, the court ruled, their only recourse to challenge an insurer is the dispute resolution process. (Albers’ first step in the process, a benefit review conference, is scheduled for March 3.)
Before the landmark decision, workers could sue insurance companies when they believed erroneous denials of treatment resulted in further harm.
“They took that right away from the worker, and I think today what (insurance companies) are doing is fraud and illegal,” said Sue Stinson, a flight attendant who was injured in 2003 and obtained a settlement after suing an insurance company. “They know you can’t touch them.”
Even before the Supreme Court’s decision, legal help for injured workers was difficult to find. Texas law caps attorneys’ fees in workers’ comp cases at 25 percent of an injured worker’s weekly benefits. As a result, hardly any lawyers take on these cases.
“To send an injured worker through that process completely unrepresented, when the insurance companies have legions of attorneys and lobbyists to make sure their interests are protected, skewed the system pretty dramatically away from the needs of the injured workers,” said Rick Leavy, the president of the Texas AFL-CIO. “That’s not an accident.”
Workers’ compensation claims to fell to 88,000 in 2018 from 99,000 in 2010, a decline advocates attribute to employees covering up workplace injuries and filing claims through health insurance. The Texas Division of Insurance says increased safety awareness and technology improvements, in addition to “possible under-reporting,” are responsible for the decline.
In December, Albers’ doctor requested approval for injections of an anesthetic and steroid in the hope it would provide relief. That request was denied because the administrator claimed sedation for the procedure was not medically necessary. But Albers’ doctor refused to do it without sedation, worried she would move and the anesthetic would hit her spinal cord, resulting in paralysis. Once again, treatment was approved on appeal, but not without more paperwork and delays in care.
“This has taken my life away, and it’s not fair,” Albers said. “When someone is hurt, and they need medical attention, they should get it. It’s an insult.”