C.A. Upholds $2.65 Million Bad Faith Award Against Insurer

http://www.metnews.com/articles/2006/cent052406.htm
"Award Not Excessive Where Mishandling of Claim Drove Insured to Seek Therapy, Court Says



By KENNETH OFGANG, Staff Writer/Appellate Courts



A Sacramento couple whose insurer’s mishandling of their claim drove the husband to drink, sent the wife to a therapist, and injured their marriage and their business are entitled to keep the more than $2 million awarded by a jury for bad faith, the Third District Court of Appeal ruled yesterday.

The justices affirmed an award of $638,000 in compensatory damages and $2.015 million in punitive damages to Charles and Terese Polisso. A Sacramento Superior Court jury concluded the Polissos were entitled to that sum because Century Surety Co. wrongly refused to defend a claim against their business, Kinzel Glass Co.

The claim had its origins in a 1996 contract in which Kinzel and S.W. Allen Construction, Inc. agreed that Kinzel would install seven glass panels in an underground viewing chamber being built by the U.S. Forest Service near Lake Tahoe. Before the project was completed, however, a heavy rain caused the creek to overflow and submerge the viewing chamber, triggering a series of events that resulted in damage to the glass.

Defense Tendered

Allen sued, naming Kinzel Glass and “CHARLES A. POLISSO...an individual doing business as KINZEL” as defendants, claiming that faulty workmanship was responsible for the damage and that the Forest Service was dissatisfied with the glass as a result. Kinzel tendered its defense to Century Surety Co., from which it had purchased a commercial lines policy covering liability, as well as damage to its glass.

Century brought a declaratory action against Kinzel, Charles Polisso, and Allen to determine what coverage obligations, if any, it had. The Polissos counterclaimed against Century for refusing to defend them in Allen’s suit and to pay for damage to the glass.

Century attorney Callie O’Hara opined that there was no obligation to defend or provide coverage. The company then advised the Polissos that it was denying their claim, but had obtained an extension of time to file and had instructed its lawyers to prepare and file an answer as a courtesy.

Reservation of Rights

Evidence later presented in the bad faith suit showed that at one point, O’Hara advised Century that there was enough evidence to show a “potential” for coverage, triggering a duty to defend in the Allen suit. The company then retained new counsel and notified Charles Polisso that it would provide a defense under a full reservation of rights, but would not provide independent counsel or cover the property damage.

While the litigation was pending, O’Hara recommended that Century file a declaratory action against the Polissos and seek reimbursement of defense costs. The Polissos subsequently retained their own counsel, whom Century originally agreed to pay at its usual rates, but who was owed nearly $70,000 by the end of trial, which resulted in a net zero between the Polissos and Allen.

In the bad faith suit, the Polissos contended that after five years of litigation, with reigning uncertainty as to the outcome and as to whether their defense costs would be paid, they were under tremendous personal stress and had lost their business lease. Because the company had occupied its former premises since 1949 and had to move to a less desirable location, they lost a good deal of business, they said.

Jurors agreed that Century had acted in bad faith, holding the company liable for business and personal injury damages and legal fees sustained in the underlying suit.

Justice Coleman Blease, writing for the Court of Appeal, rejected the company’s contention that it could not be held liable for bad faith because there was a good faith dispute over coverage. While Century could have disputed coverage in good faith, Blease explained, it could not reasonably dispute that it had a duty to defend.

The justice went on to conclude that the punitive damage award was not excessive. It was within the range of reasonableness according to recent U.S. Supreme Court decisions, the justice said, and reflected the reprehensibility of the insurer’s five-year pattern of mishandling the claim.

The case is Century Surety Company v. Polisso, 06 S.O.S. 2550."

Myth of Chiropractic-Caused Strokes Debunked by Medical Researchers

http://biz.yahoo.com/prnews/060527/nysa011.html?.v=43Myth of Chiropractic-Caused Strokes Debunked by Medical Researchers
Saturday May 27, 2:51 pm ET

CHANDLER, Ariz., May 27 /PRNewswire/ -- A recent billboard advertisement, carried on the side of a bus in Bridgeport, Conn., is the latest in a series of attacks on chiropractic that use scare tactics and misinformation to undermine the growth of the profession, according to the World Chiropractic Alliance (WCA).

The advertisement, which asks "Injured by a chiropractor?" directs readers to a website run by an organization calling itself the "Chiropractic Stroke Victims Awareness Group." No information is available in the ad or at the website as to who finances the group.

WCA President Terry A. Rondberg, DC, noted that he wasn't surprised by the aggressive attack. "In recent years, chiropractic has made tremendous inroads into the American health care system. The increased popularity of a wellness approach that doesn't rely on drugs and surgery is very threatening to some elements of our society. They have a huge financial interest in eliminating chiropractic."

In 1990, the American Medical Association was found guilty in federal court of conspiring with other medical organizations in a "lengthy, systematic, successful and unlawful boycott" designed to eliminate chiropractic as a competitor. Many health care officials say that, although barred from many of the illegal practices formerly used, the drug and medical industry still engage in anti-chiropractic campaigns. The consensus is that many of the operations are being conducted using anonymous "front" organizations."

Contrary to the billboard's message, medical research has shown that chiropractic is extremely safe, particularly when compared to medical treatment. The incidence of stroke following chiropractic adjustments has been estimated at fewer than 1 to 3 incidents per million adjustments.

Medical researchers have admitted that chiropractic care carries far less of a stroke risk than medical treatment. "Indeed, most interventions by allopathic physicians have a higher complication rate than chiropractic interventions," said Philip Lee, MD, a co-investigator of a research survey presented at the American Heart Association's 19th International Joint Conference on Stroke and Cerebral Circulation.

What to do when your family doctor says "I don't treat car wreck injuries" or I don't "DO" Workers Comp

Many people have a personal physician or "family doctor" who they go to for treatment of colds, hayfever, diabetes, or whatever.

But, get hurt on the job or get injured in a car wreck, and suddenly, you find your MD or DO doesn't want to help you out!

What do you do....What DO YOU DO?

Well, if you are in the East Texas area, you are in luck.

Whether you are in Tyler, Kilgore, Longview, Gilmer, Gladewater, Marshall, Lindale, Mineola,
or even in Nacogdoches, you have a doctor available who DOES "DO" car accidents and Work Comp.

Dr. John Raymond Baker,DC, of BAKER CHIROPRACTIC in Longview, received is license in Texas back in 1989 and, since then, has treated thousands of patients.

He has considerable hands on experience in dealing with the challenges of both auto accident injuries and on the job injuries. Also, he is a level two ADL doctor, and works with attorneys in this area as well as far away as Dallas. Need an MRI or CT scan? Dr. Baker regularly orders these advanced imaging procedures. Need an EMG? No problem. Need a consult with an orthopaedic surgeon, hand surgeon, neurosurgeon,or neurologist? Dr. John Raymond Baker will work hard to try to find you the best specialist possible in this area.

As Work Comp doctors get fewer and fewer, Dr. Baker has resisted the pressures many other doctors have succumbed to. Many have dropped out because of the insurance carriers constant denials and disputes and refusals to pay.

Because Dr. Baker realizes that many patients desparately need a treating doctor, Dr. Baker has continued to hang in there, and provide the patients with a doctor who cares about their situation. If you need a doctor who cares, and who puts patient's first, consdier calling BAKER CHIROPRACTIC, PA today in the Brookwood Shopping Center.

Even if you have to drive as far as Nacogdoches, it's worth it to find a doctor who is there for his patients, and no on vacation in the Bahamas.

Call 903-753-5400 today and schedule your appointment!

Hours are 9 am to 1 pm and 3 pm to 630 pm Monday through Friday.

WHAT IS "MORGELLONS"?

Is MORGELLONS a strange new illness?

Check out http://www.morgellons.org

Here is an article found at Times Online
http://www.timesonline.co.uk/article/0,,18393-2188371,00.html

"All in the head?
By Elaine Monaghan, Times Online special correspondent

Imagine one day you see strange fibres, usually clear but sometimes blue, red or black, protruding from your skin, like a piece of spaghetti, or a hair where none is supposed to be.
You itch all over, lesions appear and you have an unnerving, infuriating feeling that bugs are crawling under and on your skin.

"Brain fog" and short term memory loss set in. You are plagued by chronic fatigue. You can't work or go outside much because you don't know if you're infectious and anyway, you're too tired.

Doctor after doctor sees the evidence you bring to your visit - the fibres and the scabs - as the "matchbox" sign that you are imaging things because sufferers of delusional parasitosis traditionally bring their "proof" in a matchbox.

Still the lesions appear, and the fibres. Sometimes you see things that can only be called "fuzzballs," or sometimes grains of sand, or other times, black granules. It hurts. You try to pull the fibres out when you can see them but it doesn't help. Years later, you're still searching for a cure. You might get temporary relief from powerful, long-term antibiotics but as soon as you stop taking them, the symptoms return.

It may sound like a scene from Alien, an elaborate hoax or a biblical parable you forgot. But for an estimated 3,500 self-reported cases, many of them in California, Florida or Texas, it is 21st century reality. These sufferers have registered at a website that seeks support for clinical studies into a mystery disease they have named "Morgellons." Cases have been reported in all 50 states here but also all over Europe, including Britain, many of them by nurses and teachers, according to the Morgellons Foundation. Some doctors have been reported to take it seriously, and one says he has had success treating it with antibiotics. Another physician who specialized in treating Morgellons was in the news a lot lately after he had his license revoked.

But most doctors believe Morgellons is not in the skin, but in the head.

"This is not a mysterious disease," says Dr Norman Levine, a Professor of Dermatology at the University of Arizona. "If you polled 10,000 dermatologists, everyone would agree with me." He says he has seen 100 patients suffering from such symptoms, and they responded well to treatment, including a drug called Pimozide, which is used for chronic schizophrenia. According to Dr Levine, they are suffering from a monosymptomatic disorder in which they are absolutely convinced something is in their skin, a delusional parasitosis. He says he has studied the fibres his patients bring in by the bag-load and they are textile in nature.

Yet the case displayed most prominently by the foundation set up by sufferers is that of a child. Magnified 60 times, this was reportedly extracted from a lesion on the face of a three-year-old boy. Children are not known to suffer from delusional parasitosis. But I suppose organized medicine would say their parents are.

So I talked to Mary Leitao, who set up the foundation after she says her son Drew, now seven, first started complaining about the bugs in his skin at the age of two. She put a plastercast on his arm to make sure the fibres she kept finding really weren't coming from the carpet or some other external source. They weren't, she said. A trained biologist, she works from home full-time now, trying to draw attention to Morgellons, which she said also afflicts her two teenage children. Her story is tragic. Her husband, a physician, passed away unexpectedly from a heart attack in his sleep two years ago.

She came up with the name Morgellons in 2002 after reading a letter penned in 1690 by Sir Thomas Browne, in which the following sentence appears: "Hairs which have most amused me have not beein the Face or the Head, but on the Back, and not in Men but Children, as I long ago observed in that Endemial Distemper of little Children in Languedock, called the Morgellons,wherein they critically break out with harsh Hairs on their Backs, which takes off the Unquiet Symptomes of the Disease, and delivers them from Coughs and Convulsions."

A Dr. C.E. Kellett of Newcastle-upon-Tyne, in 1935, wrote an account of references to this or similar conditions through the ages in 1935. "

WHAT IS THE DEFINITION OF HEALTH ACCORDING TO WORLD HEALTH ORGANIZATION?

The World Health Organization (WHO) has maintained the same definition of health since 1948 and has not changed it.

Their definition is this:
"Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."

"The correct bibliographic citation for the definition is:

Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19-22 June, 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948."
============End of Quoted material================
Using that definition, how many of us are truly "healthy".

In this country, medical doctors and osteopathic doctors (MDs and DOs) tend to define health narrowly in their reports on patients, indicating that the absence of disease or infirmity, is a state of health.

From reviewing medical narratives and reports, it is clear they embrace a very different review of what constitutes health than the WHO.

How many of us truly enjoy a "state of complete physical, mental and social well-being". Most laypersons even have a more limited view, and see themselves as healthy if they are symptom free.

Chiropractic doctors are one of the few groups who actually embrace this WHO definition of health. We stress that true health is the optimum functioning of mind, body, and spirit/psychology and not merely when one is asymptomatic.

I think all health providers would do well to adopt this definition of the WHO with regard to what constitutes health.
~Doc

To Whom Does a Doctor Owe His Primary Concern?

Attorneys have a fairly clear duty. An attorney has a legal duty to be the best advocate his client can have. He (or she) has an actual legal duty to provide the client with not only the best professional advice they can give, but to be their actual advocate and to protect their interests.

So, how about doctors. I have heard people say that a doctor has to be careful NOT to appear to be too much an advocate of their patient(s). But, what is a doctor's duty to their patient?

I've been a doctor in Texas since 1989. I have had very nice and kind words from patients, other doctors, and lawyers during those years. My most cherished rememberances are those times when patients have told me or someone else who told me, that I was the first doctor who had treated them with respect, who took their problems seriously, or in some other way, gave them good care.

Years ago, I had a patient in Beaumont Texas who had terminal cancer. The patient had various other providers, including a family doctor, oncologist, orthopaedist, pain management doctor, and others. When he died, the family only sent out ONE thank you note to any doctor who treated him. I was the doctor that received that thank you note. The family thanked me for showing care and concern for him, and that my treatment gave him some relief, and the caring environment of our office, and our occasional jokes, uplifted his spirits.

If you are a doctor, and you cannot or will not put your patient number one, you are in the wrong profession. I see nothing wrong in being an advocate for a patient, either in getting them the best care possible, or in substantiating the degree or nature of their injuries or problems when it is appropriate.

If you, as a doctor, are NOT an advocate for your patient, then what the heck is your purpose, and if you are not their healthcare advocate, then who the heck is supposed to be?

I am a Chiropractic doctor, and I am from a family of doctors. My uncle was a well known MD (Psychiatrist), my cousin is an MD , my great grandfather was an MD, and my grandfather was a Veterinarian. And, father back, my family on the Native American side, were medicine men.

I am proud to be a doctor. I think there is no more noble profession, than to try to ease suffering and try to help nature in its quest to restore the patient to health.

I have never been afraid to tell a patient I would not take the case if I either thought I was not the doctor for them, or thought they were not being completely truthful about the nature or degree of their problems.

In WORK COMP these days, the role of treating doctor has become infinitely harder due to insurance carriers denying patient's injuries, denying payment for care, refusing to authorize either diagnostic procedures or treatment.

But, someone has to fight for the right of patients to get the care they need.

I'm proud to be the one my patients place their faith in.

~Doc

Nine Companies Approved to Self-Insure for Workers' Comp in Texas

http://www.insurancejournal.com/
"May 19, 2006

Texas Commissioner of Workers' Compensation Albert Betts recently approved the reapplications for Certificates of Authority to Self-Insure covering a one-year period for nine private employers.

Texas law allows certain large, private employers to self-insure for their workers' compensation liabilities, while retaining the protection of workers' compensation insurance coverage as provided by the Texas Workers' Compensation Act.

Each of these employers must have a minimum workers' compensation annual premium of $500,000 and meet other requirements to be approved as a Certified Self-Insurer in Texas. The Texas Department of Insurance Division of Workers' Compensation's Self-Insurance Program is the approved program in Texas for certifying companies to self-insure.

Commissioner Betts approved Certificates of Authority to Self-Insure for the following companies that employ a total of 28,076 workers in Texas. The companies are listed in alphabetical order with the city and state of the company headquarters or the Texas business office:

ABF Freight System Inc., Fort Smith, Ark.
Ameron International Corporation, Pasadena, Calif.
Ascension Health, St. Louis, Mo.
Baptist Hospitals of Southeast Texas, Beaumont
Cooper US, Inc., Houston, Texas
Dolgencorp of Texas Inc., Goodlettsville, Tenn.
Jacobs Engineering Group Inc., Houston
Mount Vernon Mills Inc., Mauldin, S.C.
PACCAR Inc., Bellevue, Wash."

INTERESTING ARTICLE ON BAD FAITH AS IT APPLIES TO WORK COMP IN TEXAS

TEXAS WORKERS’ COMPENSATION COMMISSION 2005 EDUCATIONAL CONFERENCE Consumer Protection:

Bad FaithRoyce V. Bicklein Law Offices of Miller & Bicklein, P.C.

Royce@millerbicklein.com Odessa • Lubbock • San Antonio Royce Bicklein Plaintiff’s /

Claimant’s personal injury attorney practicing in West Texas & South Texas. Board Certified Workers’ Compensation, 2004. Licensed, State Bar of Texas, 1998.

This is a look at Bad Faith from a workers’ compensation Claimant’s attorney perspective. It’s what the average attorney who representsClaimants sees as Bad Faith. Bad Faith is NOT a black and white issue. Its sometimes hard to find and hard to define. The issues of Bad Faith in this article are things that lead to Bad Faith, or at least raise the specter of Bad Faith. I. Bad Faith defined.A. Duty of Good Faith and Fair Dealing. B. Failure to pay a claim when insurer new or should have known liability was reasonably clear. Nice “gray” terms. Not a black & white area. Did the carrier have REASONABLE grounds for denial?
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II. Why discuss Bad Faith?A. It’s making a comeback. B. Becoming more common in general which means it WILL grow in the workers’ compensation arena. C. Because I’m a Claimant’s attorney and Carrier’s should know that my fellow attorneys and I are looking for it. III. Where is Bad Faith from?A. Common Law 1. Duty of good faith and fair dealing 2. A judicially made concept 3. Created out of the traditionally unequal position of the insurer and insured. B. Statutory Provision 1. DTPA §17.01 2. Texas Insurance Code a. Old version §21.21 b. New version Chapter 5 §541.060 IV. Seminal decisionsA. Aranda v. Ins. Co. of North America, 748 S.W .2d, 210 (Tex. 1988). B. American Motorist v. Fodge, 63 S.W. 3d, 801 (Tex. 2001).
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V. Workers’ compensation insurance coverage does not easily lend itself to a Bad Faith claim.A. Claimant must almost always exhaust his administrative remedies. B. TWCC has exclusive jurisdiction over issues involving workers’ compensation benefits. 1) Questions of paying or not paying benefits must first get a final decision from the TWCC before you can pursue a district court option, even if the claim is tangential to the payment of benefits. 2) Failure to exhaust administrative remedies means: a. Abatement pending exhaustion b. Dismissal for lack of jurisdiction C. Medical claims 1) Such as denied surgery or medical care. 2) Must go through MDR first! D. Indemnity claims 1)Such as slow paying benefits or wrongful denials 2) Must go through the BRC/CCH process first! E. If the Claimant loses at the TWCC administrative level it will be hard to pursue a Bad Faith claim. 1) A Commission decision in the Carrier’s favor is POWERFUL evidence that their position is reasonable. F. If the Claimant prevails at the TWCC administrative level she will still have to prove that the payment was denied when the Carrier knew or should have known liability was reasonably clear. G. Workers’ compensation insurance and the TWCC “system” makes Bad Faith hard to pursue, but NOT IMPOSSIBLE!!!
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VI. What are the potential costs to Carriers? Damages!A. Actual damages Mental anguish Loss of earning capacity Loss of credit (watch out for bankruptcy or repossessions) B. Interest C. Court Costs D. ATTORNEY’S FEES 1. This is why a lot of attorney’s are looking at Bad Faith. 2. No matter the amount of the actual damages the Claimant’s attorney can be paid his attorney’s fees for pursuing. E. If deemed to be “Knowing” act Ins. Code calls for Treble Damages F. Common Law Bad Faith allows for Punitive Damages if the Bad Faith was committed in the face of a risk of extraordinary harm. VII. Who gets sued?A. Carrier 1. In Common Law Actions B. Adjuster 1. In. statutory DTPA or Ins. Code actions.
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VIII. Carrier DefensesA. No exhaustion of administrative remedies B. No coverage 1) If no coverage, generally no liability for Bad Faith. 2) Exception to general rule if: a. Extreme conduct causing injuryb. Failure to investigate*Exception to general rule very limited application to workers’ compensation by the Supreme Court decision in Fodge.C. Reliance on an expert 1)MUST be careful that it is an OBJECTIVE report. 2)State Farm Lloyds v. Nicolau, 951 S.W.2d, 444 (Tex. 1997) a. Did expert do lots of work for Carrier? b. Did expert know the effect of his opinion? c. Did expert give same opinion over and over? POINT: If it looks like a “shill” report or that the Carrier “shaped” the opinion then the Court might find reliance on an expert’s report NO DEFENSE AT ALL! 3)Did the Carrier shop for an expert? Liberty Mutual v. Crane, 898 S.W.2d, 944 (Tex. App. – Beaumont 195, no writ). a. Did the treating doctor, RME doctor and peerreviewer say surgery was reasonable? If so, it is unreasonable to rely on yet a fourth doctor. b. Did the Carrier “shop” for a doctor until they got the opinion they wanted?
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4)Did the adjuster set up the expert? a. Did the adjuster send the entire file for review? b. Did the adjuster send only selected and favorable parts of the file? c. Did the adjuster leave out a critical report? d. If the experts opinion is based on incomplete or inaccurate information as “set up” by the Carrier then you may not rely on the expert’s opinion. D. Reliance on Legal Precedent 1) Does case law provide a defense? 2)Make sure the facts are applicable. 3)Use a prior district court decision not an Appeals Panel Decision. a. Courts will often ignore a APD no matter the circumstances. IX. That’s all good, but how do you AVOID committing Bad Faith or being accused of committing Bad Faith?A. Common Sense Use your common sense. B. Common Sense C. Common Sense Ask for a second opinion. D. Investigate You can’t be sued for gathering too E. Investigate much information!!! F. Investigate Unless you ignore it.
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G. The most common problem? 1)Adjusters stop using common since 2) Carrier gets personally involved or attached. 3)Leave your personal feelings at home. 4)Most errors are committed when you get emotionally involved in a case… both for and against the Claimant. H. Avoid digging in your heals. 1)If three people have told you should pay a claim, they are probably right. 2) Did your BRC representative and your Attorney both recommend settlement? I. Listen to your attorney (I know that sounds self-serving) 1)You’re paying your attorney to give you advice. 2)They give you advice. 3) Then Carrier’s ignore it and press on. a. Attorney’s… only loved by God and their mothers Develop a relationship with your counsel so that they are just working for you, they are working with you. Too few carriers take this approach with counsel. J. Do the right thing (I know this sounds condescending) 1) Don’t try to “get away with it.” 2) If you think you should pay the full amount, pay it. Don’t try to “low ball” an un-represented Claimant.
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X. Employers… No, I didn’t forget about Employers.A. Employers help contribute to Carrier’s committing Bad Faith. B. Allow your adjusters to adjust. 1. They are licensed (hopefully) 2. They are schooled 3. They are trained 4. They have experience (again, hopefully) C. Employers should tell the adjusters what they think but DO NOT DICTATE TO THEM WHAT THEIR DECISIONS SHOULD BE!!! XI. Don’t forget… even us lowly little workers’ compensation attorneys are actively looking and pursuing Bad Faith.A. My firm has filed signed more Bad Faith claims in the last year than we did in the prior 3-4 years combined.

Workers' comp: Medical gridlock

http://www.wfaa.com/sharedcontent/dws/wfaa/latestnews/stories/wfaa060512_wz_workerscomp.34c18607.html
"By BRETT SHIPP / WFAA-TV





WFAA-TV
Robert Frederick called the revised workers' comp system "a farce." Also Online

Brett Shipp reports

3/28/06: Sick insurance adjuster fights for workers' comp

1/13/06: Workers' comp to get overhaul

6/1/05: Perry approves workers' comp reforms

8/26/04: Insurance industry blames fraud for rising premiums

8/25/04: Workers' comp insurance losses drop; premiums rise

6/11/04: Injured workers continue to wait for care

5/18/04: Injured workers voice complaints to lawmakers

4/28/04: Report: Changes to workers' comp needed

4/27/04: Senators probe workers' comp issue

1/23/04: Workers' comp investigation begins

1/7/04: End may be near for embattled workers' comp system

11/18/03: Workers' comp system on verge of collapse?

More stories on this topic

News 8 Investigates

Division of Workers' Comp
• from Texas Dept of Insurance

Office of Injured Employee Counsel
• Official site
A farce.

A mess.

Medical gridlock.

Those are just a few of the phrases being used to describe the workers' compensation system in Texas.

Nine months after an overhaul of the system, the early reviews are not promising. Many doctors and their patients are calling the new law a failure.

Changes in the law were prompted, in part, by a series of News 8 Investigates reports.

Robert Frederick of Dallas fights through flashes of pain he has endured since hurting his back while working as an auto mechanic four years ago.

But from his hospital bed, he can finally see a light at the end of the tunnel—a spinal fusion operation he hopes will end the constant suffering.

"This is a dream come true for me," Frederick said.

It's an operation his doctor has been fighting for; a procedure the workers' comp insurance carrier has refused to pay for since 2002.

Frankie Dutcher of Azle gingerly walked toward a workers' comp hearing room. He hoped that a judge would finally award him medicine and benefits.

Dutcher's doctor determined he was exposed to harmful chemicals while repairing power lines 10 years ago. He said he suffers from symptoms including blackout spells, constant dizziness, extreme nausea and severe headaches.

Both men's hopes are pinned on sweeping reforms adopted by the Texas Legislature last year. Lawmakers abolished the old workers' comp commission and handed over operations to the Texas Department of Insurance.

"This is a new agency with a new approach, with a new culture," said Albert Betts, the state's Commissioner of Workers' Compensation. "We're still, for all intents and purposes, in the baby stages of getting up and running."

"I haven't noticed any difference so far," said Dr. Robert Henderson, who performed Robert Frederick's surgery.

That's because everyone in the operating room for Frederick's $100,000 procedure—the doctors; the nurses and assistants and specialists—were all working for free.

Why?

Because Frederick's insurance carrier still refuses to pay his claims, saying his injury is imagined—not real.

After four years of frustration, Dr. Henderson had enough of seeing his patient in pain, so he performed the surgery for free.

"Virtually every surgery we do gets denied once, gets denied twice and then we have to take it to some type of a hearing," Dr. Henderson said.

Frankie Dutcher said doctors diagnosed his injury as being job-related almost a decade ago—on May 21, 1996.

His workers' comp claim continues to be denied.

The insurance company said Dutcher didn't report the injury until Nov. 15, 1996, failing to meet the 30-day reporting deadline by five months.

But Dutcher said his own cell phone records show a call to his supervisor in Decatur, Texas, on May 22—one day after his doctor's diagnosis.

"The evidence is all there," Dutcher said. "I don't know why they won't act upon it."

After nearly one year of workers' comp hearings, Dutcher and his wife are growing tired fighting the old and new systems. "They put you through all these hoops with the hopes that you will either die or go away," said Dena Dutcher, the injured worker's wife.

Unfortunately, under the new system, it may be the doctors who are going away.

"The reform has done nothing other than drive good doctors completely out of the system," said Kym Grant, a patient advocate who is trying to lure doctors back into the new system.

She said very few North Texas physicians are showing an interest. The problem: Proposed low reimbursement rates and continued slow or no pay.

"I've knocked on these doors and begged these good surgeons to listen to me and to help us come up with a solution," Grant said. "They don't want to hear it; they don't want to participate in it, and why should they?"

If there is hope for the injured worker, it may rest with Norman Darwin, who was appointed by Gov. Rick Perry to head the new Office of Injured Employee Counsel. "It has not been a level playing field, there is no question about it," Darwin said.

Darwin's charge is to beef up the ombudsman program and to hire lawyers to help represent injured workers who have disputes.

Yet Darwin offered a sobering admission when asked if his office could make life better for injured workers. "I can in some cases," he said. "I can't necessarily say that I could in all cases."

That leaves injured workers like Dutcher and Frederick at the mercy of a system so broken that compassionate doctors are giving away care.

"There's no way to describe it," Frederick said from his hospital bed. "The system is totally a farce."

Insurance industry officials said it is too early to judge the success or failure of the revised Texas workers' comp system, a system that is supposed to work like managed health care.

Many injured workers we talked to said they would settle for any kind of care. "

"SOMEONE I HAVE CONFIDENCE IN AND FEEL COMFORTABLE WITH"

Sometimes, the biggest reward you have as a doctor, is knowing that you have inspired confidence in you as a professional, from your patients.

What made me think of this was hearing a conversation two of my patients were having in the office this afternoon.

One patient, who had been through the system and had run afoul of a "company doctor" was telling the other patient about his trials and tribulations along the way. The company was trying to make him stick with the doctor THEY wanted him to see, and he was saying that he told them that he had the choice to choose his own treating doctor, and wanted someone he could have confidence in and feel confortable with.

I feel very honored the patient chose me as his treating doctor, based on another patient who had told him about me.

That is in stark contrast to the future that House Bill 7's full implementation would have, in which patients will only be able to pick from the limited choices on the health network's provider list.

MORE ON WRONGHEADED ACOEM GUIDELINES

From ChiroGeek.com
http://www.chirogeek.com/005_ACOEM-101.htm
The following shows how STUPID the ACOEM guidelines are
"“Invasive techniques (e.g., needle acupuncture and injection procedures, such as injection of trigger points, facet joints, or corticosteroids, lidocaine, or opiods in the epidural space) have [b] no proven benefit[/b] in treating acute neck and upper back symptoms.” "

Many Medical Doctors who provide work comp patient care, and do ESI injections, facet injections, TP injections, will be quite irritated to read that the ACOEM finds their treatments have no proven benefit in treating acute neck and upper back sydromes.

And this from the same page (I highly recommend ChiroGeek's website)
"ACOEM: NOT FOR CHRONIC PAIN:

[ Neck & Upper Back | Low Back | Wrist & Hand | Elbow | Shoulder | Knee | Ankle&Foot | WCAB Opinion ]

To support the contention that ACOEM is NOT intended for use in managing the chronic spinal-pain patient, we have the forthcoming passages from the ACOEM guides:

1) CHAPTER 8

Chapter 8, page 165 states, in relevant part: “This chapter’s master algorithm schematizes the manner in which primary care and occupational medicine practitioners generally can manage patients with the acute and subacute neck and upper back complaints.”

“Recommendations on assessing and treating adults with potentially work related neck and upper back complaints are presented in this chapter….this chapter’s master algorithm schematizes the manner in which primary care and occupational medicine practitioners generally can manage patients with the acute and subacute neck and upper back complaints.” [Occupational Medicine Practice Guidelines - second edition’ ACOEM 2004; OEM Press: Beverly Farms, Massachusetts: page 165 - Chapter 8]

2) “Recommendations on assessing and treating adults with potentially work-related low back problems (i.e., activity limitations due to symptoms in the low back of less than three months duration) are presented in this clinical practice guideline…. this chapters master algorithm schematizes how primary care and occupational medicine practitioners generally can manage acute or subacute low back complaints.” [Occupational Medicine Practice Guidelines - second edition’ ACOEM 2004; OEM Press: Beverly Farms, Massachusetts: page 287 - Chapter 12]

3) “Recommendations on processing and treating adults with work-related forearm, wrist, or hand complaints are presented in this clinical practice guideline…. This chapter’s master algorithm schematizes how primary care and occupational medicine practitioners may generally manage patients with acute and subacute forearm, wrist, and hand complaints.” [Occupational Medicine Practice Guidelines - second edition’ ACOEM 2004; OEM Press: Beverly Farms, Massachusetts: page 253 - Chapter 11]

4) “This chapter presents recommendations on assessing and treating adults with elbow complaints that may be work-related…. This chapter’s master algorithm shows how physicians should generally manage patients with acute and subacute elbow complaints.” [Occupational Medicine Practice Guidelines - second edition’ ACOEM 2004; OEM Press: Beverly Farms, Massachusetts: page 227 - Chapter 10]

5) “This clinical practice guideline presents recommendations on assessing and treating adults with potentially work-related shoulder problems…. This chapter’s master algorithm schematizes the manner in which primary care and occupational medicine practitioners generally can manage patients with acute and subacute shoulder problems.” [Occupational Medicine Practice Guidelines - second edition’ ACOEM 2004; OEM Press: Beverly Farms, Massachusetts: page 195 - Chapter 9]

6) “Recommendations on assessing and treating adults with potentially work-related knee problems are presented in this clinical practice guideline…. This chapter is master algorithm schematizes primary care and occupational medicine practitioners generally can manage patients with acute and subacute knee complaints .” [Occupational Medicine Practice Guidelines - second edition’ ACOEM 2004; OEM Press: Beverly Farms, Massachusetts: page 329 - Chapter 13]

7) “Recommendations for accessing and treating adults with potentially work related ankle and foot problems are presented in this clinical practice guideline…. This chapter’s master algorithm schematizes the recommended way primary care and occupational medicine practitioners should manage patients with acute or subacute ankle and foot complaints.” [Occupational Medicine Practice Guidelines - second edition’ ACOEM 2004; OEM Press: Beverly Farms, Massachusetts: page 361 - Chapter 14]

Again, the aforementioned verbiage clearly indicates that the ACOEM authors are describing recommendations that are intended for the acute or subacute patient and not for those who have been chronically suffering pain for more than 90 days.

Even in Staal, Hlobil, and van Tulders’ recent International Comparison of Occupational Treatment Guidelines for the Management of Low Back Pain, they noted that our (USA) ACOEM guidelines were applicable for “Workers with <3 months activity intolerance due to low back pain and/or back related leg symptoms related to occupational injury or exposure.” [J B Staal, H Hlobil, M W van Tulder, G Waddell, A K Burton, B W Koes and W van Mechelen. ‘Occupational health guidelines for the management of low back pain: an international comparison’ Occupational and Environmental Medicine 2003;60:618-626 Table 3 Occupational guidelines: recommendations regarding assessment of LBP: under Patient Population / ACOEM]

WCAB OPINION ON ACOEM FOR CHRONIC PAIN:

3) Los Angeles Times v. WCAB (Herbinger) 7 WCAB Rptr. 10,109; 70 CCC 504 (2005) “The Court believes that Mr. Herbinger’s injury is long past the acute phase. Thus, the Court believes the ACOEM guidelines referenced by the defendant are inappropriate at this point.”

4) Hamilton v. S.C.I.F. (2004) 32 CWCR 249: a WCAB panel recently issued an Order Denying Reconsideration in which it found that the ACOEM guidelines did not apply to chronic injuries, i.e., those requiring treatment more than 90 days from the date of injury.

NOW, LET’S DEFINE CHRONIC PAIN:

"Chronicity may be reached from one to six months post injury. The International Association for the Study of Pain has stated that three months is that definitional time frame, while the American Psychiatric Association uses a six-month limit. The most clinically useful definition might be that "chronic pain persists beyond the usual course of healing or an acute disease or beyond a reasonable time for an injury to heal." American College of Occupation and Environmental Medicine (ACOEM) – 2nd edition. “Occupational Medicine Practice Guidelines” 2004; OEM Press: Beverly Farms, Massachusetts: page 108 - Chapter 6

SPINAL SURGERY:

SPONDYLOLISTHESIS:

"There is good evidence from controlled trials that spinal fusion alone is effective for treating any type of acute low back pain problem, in the absence of spinal fracture, dislocation, or spondylolisthesis if there is instability and motion in the segment operated on." Glass LS, et al. “Occupational Medicine Practice Guidelines: evaluation and management of common health problems in functional recovery of workers.” 2004: American College of Occupational and Environmental Medicine (“ACOEM”), second edition; Chapter 12, page 307.

Chapter 12, page 305 states the following: "...referral for surgical consultation is indicated for patients who have: (1) Severe and disabling lower leg symptoms in a distribution consistent with abnormalities on imaging studies (radiculopathy), preferably with accompanying objective signs of neural compromise; (2) Activity limitations due to radiating leg pain for more than one month or extreme progression of leg symptoms; (3) Clear clinical, imaging, and electrophysiologic evidence of a lesion that has been shown to benefit in both the short and long term from surgical repair; (4) Failure of conservative treatment to resolve disabling radicular symptoms."

Chapter 12, Table 12-8, page 310 states, “Surgical Consideration – Recommended: Discuss surgical options with patients with persistent and severe sciatica and clinical evidence of nerve root compromise if symptoms persist after 4-6 weeks of conservative therapy.” "

AMEN ChiroGeek..AMEN!

Nurse Case Managers and the Texas Work Comp System

Any provider in the current Work Comp system in Texas eventually gets a visit from a nurse case manager. I am mystified as to several things. One is that they seem to believe they have a RIGHT to call or visit the provider's office.

I have links to the full text of HB7 and to the Texas Work Comp Act of 2005, and though "case managers" are mentioned, in no place did I find that communication with providers must be in any other means than in writing.

If the reader doesn't believe me, search for yourself.
HB 7, full text is HERE.

Here is the timeline for implementation of certain HB 7 provisisions, at THIS LINK.

Here is the 2005 PDF of the Texas Workers Compensation Act...at THIS LINK

There are only TWO references to "case managers" in the 2005 WC act.
Both instances are here
§413.021 RETURN TO WORK COORDINATION SERVICES
"(a) An insurance carrier shall, with the agreement of a participating employer, provide the employer with return-to-work coordination services as necessary to facilitate an employee's return to employment. The insurance carrier shall notify
the employer of the availability of return-to-work coordination services. In offering the services, insurance carriers and the division shall target employers without return-to-work programs and shall focus return-to-work efforts on workers
who begin to receive temporary income benefits. The insurance carrier shall evaluate a compensable injury in which the injured employee sustains an injury that could potentially result in lost time from employment as early as practicable to
determine if skilled case management is necessary for the injured employee’s case. As necessary, case managers who are appropriately licensed to practice in this state shall be used to perform these evaluations. A claims adjuster may not
be used as a case manager. These services may be offered by insurance carriers in conjunction with the accident prevention services provided under Section 411.061. Nothing in this section supersedes the provisions of a collective bargaining agreement between an employer and the employer's employees, and nothing in this section authorizes or requires an employer to engage in conduct that would otherwise be a violation of the employer's obligations under the National Labor Relations Act (29 U.S.C. Section 151 et seq.)."

House Bill 7 effectively has the same language as the above.

The next reference to case managers in HB7 says the following :
"(j) The network shall have a medical case management program
with certified case managers. Case managers shall work with
treating doctors, referral providers, and employers to facilitate
cost-effective care and employee return-to-work."

One shall note that this refers to health network treating doctors,
and does not have impact on current treating doctors NOT in health networks.

This pretty much covers the mention of "case managers". The main thing is that an adjuster MAY NOT be used as a case manager. It does not say that only NURSES can be case managers, and in NO WAY states that treating doctors must talk with them face to face, or on the phone. Full communication can and does take place via faxes and regular mail. Information can be promptly transmitted via fax, including but not limited to testing results, treatment plan, referrals, 73 forms, 69 forms, in short, all reasonable information that they may need.

For treating doctors who have felt that nurse case manager personal visits are non-productive, and that phone conversations are unnecessary, they may demand proof that the law mandates tête - à - tête little visits with nurse case managers, or phone contacts.

My contribution to the Register, with regard to HB 7 implementation

http://bakerchiro.1gta.com/article15.html
http://www.sos.state.tx.us/texreg/sos/adopted/28.INSURANCE.html#328


" General Comment: A commenter expressed a general assessment of the workers' compensation system as a whole as a result of HB 7 implementation efforts, including observations that the current system is already overloaded, underpaid, overworked, and breaking down at a rapid pace. The commenter additionally has some generalized observations about the basic tenets of the rule, but primarily focuses on the belief that the denial processes were discriminatory and arbitrary. The commenter states that the denial processes are not favorable towards chiropractic providers and are used as a delaying tactic to avoid payment.


Agency Response: The Division notes the commenter's concerns about the current system. The Division has taken many steps in an effort to develop a fair and effective preauthorization process to address the burdens of the current system and notes that an enforcement mechanism has been added to the rule to address inconsistencies in the process.


General Comment: A commenter states proper preauthorization requests are not being replied to within the mandated timeframe, and that carriers are not being compliant, and there seems to be a lack of enforcement.


Agency Response: The Division acknowledges the commenter's concerns. New subsection (k) clarifies that there is an enforcement mechanism to assure that preauthorization requests are processed in an efficient and effective manner. In order for the Division to take action, a complaint must first be received by the Division for investigation. "

I am "the commenter" referenced.

~Doc