Among the topics involved was the potential for changes in the way the City administers workers' compensation claims. As SAFD healthcare costs have risen, workers' compensation claims have become a flashpoint in that struggle. The City has increasingly denied claims and pushed costs onto the health insurance side of the ledger, affecting firefighter careers, pensions, and the bottom line in insurance negotiations.
I currently practice at The Law Office of Alan Tysinger located in San Antonio, Texas and represent injured workers throughout central and south Texas and the Rio Grande Valley. I have represented quite a number of firefighters, both SAFD and those employed by other jurisdictions. I have also represented non-firefighter first responders (SAPD, DPS, etc.). I have represented firefighters in injuries arising out of traumatic events (motor vehicle accidents, lifting injuries, falls, etc.), as well as occupational diseases (cancers). The focus of my practice is work injuries, with an extensive docket of workers’ compensation administrative hearings and claims in district courts (judicial review of administrative decisions). I also handle personal injury trial litigation, including third party recovery with subrogation.
I have observed the frequent pattern that the city will initially accept liability for an injury that is reported, but once that injury progresses to the point of diagnosis beyond a simple sprain or strain, the city will deny all such diagnoses and force litigation. For example, it is typically the case that, after a musculoskeletal injury, a physician will prescribe physical therapy and medications. When these conservative measures fail to resolve the symptoms, an MRI is ordered. The MRI discloses additional pathology (a herniated disc or rotator cuff tear). Upon receipt, the adjuster will almost invariably enter a denial of any conditions disclosed in the testing. While I observe that many insurance carriers will consider available evidence in evaluating a new diagnosis, the city typically employs a “dispute first, ask questions later” approach.
This was especially true of cancer claims. Any claim for an injury or occupational disease is under time constraints for investigation and dispute. Under the Labor Code, disputes must be filed within 60 days or the city would waive its right to dispute the claim absent newly discovered evidence. During the first 15 days, the city has the right to investigate without payment or denial. After 15 days, the city must begin payment if it has not denied the claim. The payment is without prejudice as to the right to deny the claim within the remaining portion of the 60 day period. Normally, an insurance carrier would undertake fact-finding to evaluate the claim. Such investigations would normally include investigative tools like recorded statements, witness statements from co-employees, review of employment records, and review of medical records. It has been my experience that the typical approach by the city was to deny the claim without significant investigation and put the onus on the firefighter to pursue the denial.
Similarly, city adjusters would often put the status of a diagnosis in limbo. I observed that firefighters would be referred for diagnostic testing (say, an MRI). The facility would contact the adjuster to verify coverage, although the first MRI does not necessarily require preauthorization. They would get no response or they would get verbal response over the phone that the claim was a sprain or strain and therefore the MRI would not be paid. This would then trickle down to the firefighter as news that the claim was denied and the MRI was cancelled. This generates no paperwork to appeal and no verified denial that would trigger a request for a hearing on the part of an attorney without investigation to nail down what the real root of the problem is. This delays corrective action.
Any of these issues can occur in a claim and will often delay resolution of the dispute for 6-9 months or more.
The rough timeline is as follows. From the point of denial, it takes approximately 2-3 months to request a medical examination with a state appointed physician and then receive the report of that state designated doctor on a disputed issue. It takes another thirty days to hold the first benefit review conference. The city is entitled to a second opinion required medical examination doctor, which typically results in a second benefit review conference approximately 60 days later (the claimant is also entitled to a second opinion, which may further delay proceedings). Additional lag time may result from time necessary to secure prior medical records or from waiting on delayed medical reports. From the second benefit review conference, the matter is set for a contested case hearing, typically held within 60 days. If the judge has all medical reports necessary to resolve the case, a decision is written and sent out to the parties within 2-3 weeks. Often, the judge must solicit an amended report from the designated doctor (which usually delays the matter 2-4 weeks for letter, response, and comments by the parties) or even order a re-exam with the designated doctor (which would be another 2-3 months).
Given that these new diagnoses often come into play 1-3 months after the initial injury, and that line of duty pay is available for a maximum of 12 months under the Government Code, any such dispute commonly places the firefighter in serious jeopardy of exhausting line of duty leave and having to dip into the sick leave pool to stay afloat financially (workers’ compensation benefits alone, when paid to a firefighter, are typically less than half of pre-injury wages, even apart from the 25% deduction for attorney’s fees). Further, such delays will put the firefighter’s career on hold in ways that, even apart from the physical effects of the injury, the firefighter will never recover from.
In almost every workers’ compensation claim I am involved with that proceeds to a final hearing, the city will employ a team of outside “peer review” doctors to support its position on the disputed issues. Notably, the city will employ these physicians to offer reports and testimony to support its position after the city’s third-party administrator has entered the denial on the claim—not beforehand to determine what its position should be. The city will frequently employ the same physicians over and over again. Principally these include an outside radiologist to offer opinions contrary to radiologists who have originally reviewed the films and prepared reports, and a plastic surgeon who is paid by the city to travel from the DFW area to San Antonio to perform required medical examinations, following which a report is generated offering consistent opinions that minimize the nature of any injuries sustained. The city will also employ an orthopedic surgeon to offer telephonic testimony in workers’ compensation administrative hearings regarding diagnosis of injuries, causation, disability duration, necessity of medical procedures, and maximum medical improvement/impairment rating.
Under the law, the city is able to pay physicians any contractually agreed-to rate to provide review of records, testimony, and opinions regarding disputed issues in a workers’ compensation claim. It makes frequent and repetitive use of certain physicians to support its prior denials of benefits and diagnoses. However, there is no corresponding provision in the law allowing for the system to pay a physician to testify on behalf of the firefighter or perform extensive record reviews of prior injury claims or diagnostic films. Typically, the firefighters have, to offset this imbalance, used primary treating physicians and specialists who are willing to offer their opinions at little or no cost in order to keep the claims moving forward. This is crucial because often, even though the state-appointed designated doctor may offer opinions favorable to the firefighter, the opinions are not developed or articulated with full awareness of expert report requirements under civil law, and therefore may be subject to attack as constituting no evidence. As such doctors are shielded from post-examination direct contact by the parties, there may be no meaningful remedy there to the firefighter if the firefighter’s physicians on the claim are unwilling to assist in this way.
The city, with its healthcare network limitation of physician choice, now forecloses that from happening. I have reviewed the network information and network list of primary treating physicians. I am generally familiar with the physicians in the San Antonio area who will provide opinions and testimony regarding disputed workers’ compensation claims. I do not have any experience (either directly from claims I handled or from reviewing files for potential review handled by ombudsmen or other attorneys) that such physicians will testify or offer opinions for injured employees. Further, you may recall above that a firefighter is entitled to a second opinion medical exam following the report of a state designated doctor. This medical exam may be used to buttress the report of that doctor and/or rebut the report of the city’s physicians. Some of the physician groups on that list designated as treating doctors are known to me to (1) decline not only to offer testimony or expert opinions regarding disputed issues (they will tell the firefighter to get it fixed and come back when they have a decision), or (2) confine any such reports to a referral within the group who is already part of the same hand-selected list of city-authorized physicians.
This means the city largely controls the evidence that will be submitted to hearing regarding a benefit dispute. It controls the physicians who will offer primary care. It controls the specialists. It controls the second opinion required medical examiner it will employ. It controls the physicians who will review records and offer paid testimony on its behalf. And it controls the second opinion physicians to whom a firefighter is referred for an alternate medical evaluation/certification.
The network administrator (Injury Management) is the same vendor the city has been using for several years now for precertification of medical care. I have observed that frequently this vendor fails to send notification of denied medical care to me as the attorney, fails to timely send notice to the injured firefighter, does not provide all relevant records for its physician advisors to review, and does not consistently provide a clear basis for denials. This is now the entity that controls the list of physicians available for firefighters to use for medical care.
The cumulative effect of these problems is that firefighters often decline to file a workers’ compensation claim or drop the workers’ compensation claim in order to pursue medical care under their health insurance plan with the city. They reason that they can either delay their claim 6-9 months, paying a significant portion to an attorney in the process, for the chance at the city paying the claim under workers’ compensation. Or, they can go to their family doctor, get a referral to (for example) a surgeon right away, and be on the operating table within a month. Not only does this dramatically reduce the impact on career advancement and just month-to-month finances, delayed medical care often results in general deconditioning (increasing the risk of new injury upon return to work) and undermines any reasonable opportunity for full recovery of strength and neurological function.
Often I have found that the City's approach discourages honest reporting of real dangers (firefighters don’t report claims, treating them through other channels, reducing information flow to the city about conditions it could remedy). It harms morale (firefighters are discouraged as they go through the process, worried about how the injury will affect their career). It distorts costs (medical care and lost time that would otherwise be apportioned to work injuries is credited to general sick leave and rising healthcare costs). In any dispute resolution system, denials and delays of some kind are inevitable. But the path the city has chosen seems to maximize the downsides to firefighters and does not appreciably benefit the city’s larger goals of a healthy firefighting workforce.
Comments