Alabama Litigation Review : North Alabama Personal Injury Lawyer & Attorney : Jeff Blackwell : Hornsby, Watson, Hornsby, Blackwell & McKown Law Firm : Commercial Litigation, Workers' Compensation : Huntsville, Decatur, Athens

If you want to understand the brick wall facing injured workers seeking medical treatment in some states just read the recent article published in the ABA Journal.  The title says it all --

Insult to Injury:  Texas Workers' Comp System Denies, Delays Medical Help

The article begins by telling the story of a Deputy Sheriff who faced a nightmare of denials and delays in his medical care after being shot while in the line of duty.  Those issues included the carrier even claiming the emergency helicopter ride to the hospital for life-saving care was not necessary.

This is not acceptable.  The article paints a picture of Texas where the system may be at its worst.  However, these problems are not unique to Texas.  They occur in Alabama as well.  In the last few years, they have progressively worsened.

The primary purpose of workers' compensation laws is to rehabilitate injured workers so they may return to gainful employment if possible.  More and more, we are losing our focus on this purpose.  I hear it from my clients daily - "I want to work.  I have to get medical treatment."  Yet, they are often frustrated by a system that seems to work against providing medical care.

Clearly, the workers compensation carriers are cutting their costs at the expense of those with serious injuries.  Yet, I would not call this a cost "saving" measure.  Instead, it is a cost "shifting" measure.  The reality is, workers compensation carriers are shifting the costs from themselves to the rest of us.  Medical costs for work-related injuries should be paid out of the large premiums collected by carriers.  Instead, when legitimate claims are denied or delayed, others shoulder those costs.  As taxpayers, we often pay those costs through programs such are Medicare or Medicaid.  On another level, families sometimes become overburdened by the costs of getting basic care and the loss of income while out of work.

The article quotes a recently retired Texas official who spent his career handling workers compensation issues and best expressed the carrier misconduct that frustrates injured workers and the medical system so greatly.  According to this official:

Sometimes they just create a controversy as to whether they owe on a claim.

What are some of the common actions taken by carriers to create a bad reason for denying care?  What practices are used to wrongfully deny or delay medical treatment to injured workers?  Here are a few:

1. Claim A Pre-Existing Problem.  I have written about this issue previously.  Don't simply accept such a denial if you were able to do your job before suffering a work-related injury.  It is not necessary that you have been in perfect health before that injury.
2. Bury The Doctor in Paperwork.  Doctors should spend most of their time treating patients not completing forms.  I have seen far too many cases where the doctor eventually became frustrated and simply gave up because of the level of paperwork required for a claim to get approved.  If your doctor has talked to you about your injury and the need for medical care, then he has most likely put those opinions in your medical records.  That should be sufficient.
3. Use The "Utilization Review" Process.  Alabama law has an administrative review process that was created to evaluate medical issues that are unclear for a variety of legitimate reasons.  Yet, carriers often use the review process as a means to delay or deny legitimate care.  How is this process abused?  Sometimes, the carrier will use it to place extra paperwork burdens on the treating doctor.  Sometimes, the carrier will pay another medical provider for a negative opinion about the requested medical care.  This is called "peer review."  However, it is really just a negative report purchased from someone who never examined you, may not have seen all your records, and may not even be the right type of specialist for your injury.  You don't have to accept the delays or denials of this process.  Instead, you can seek a remedy in court in Alabama.
4. Employ A Bad Case Nurse To Work The System.  Let me start by saying that there are plenty of good nurses that try to help injured workers navigate a difficult medical system.  The bad ones gather information to use against you, try to manipulate the doctors, and work to slow the process.  Good or bad, they all approach with a smile and promises of help.  Since you cannot tell the difference, my advice is to act with caution.  Be friendly but do not provide personal information.  Don't discuss your family, job history, finances, or other health issues and injuries.  Keep your discussions to scheduling your next appointment and making sure the treatment requested by the doctor is getting approved quickly.
5. Require Multiple Opinions.  Alabama law does give the workers compensation carrier some rights to get a second medical opinion.  However, some carriers abuse this limited right by requiring you to get multiple opinions until the carrier gets one it likes.  Another way some carriers abuse this right is by using it as a means to switch your care from a doctor you may like to one more favorable to the carrier.  The carrier cannot legitimately do that and you should not accept it.

Too often employees suffering significant injuries are left without proper medical care because of carrier misconduct.  That is not acceptable.  That is why it is so important to stay alert to these issues that benefit the bad carriers at the expense of everyone else.

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In Alabama, if you are injured on the job then you are entitled to workers' compensation benefits from your employer.  Each state has some form of workers' compensation system.  As a result, the benefits provided to injured workers can vary from state to state.  Although some large employers are self-insured, most purchase insurance coverage to cover the benefits required by a state's workers' compensation system.

An injured employee can obtain workers' compensation benefits regardless of fault.  However, Alabama law also allows the injured worker to pursue a legal claim against another party who may have caused the injury.  Here is an example -- You are a delivery driver.  You are on the job, driving the company truck, when another driver runs a red light and crashes into your vehicle.  You are hurt.  Under Alabama's workers' compensation system, your employer must provide you medical care and may also have to pay you certain disability benefits set out in the law.  Wait, the collision was really caused by the other driver.  If so, then you can pursue a claim against that other driver.  The workers' compensation system does not provide full compensation for all your damages.  However, you can pursue a claim against the other driver for all your damages.  These cases are commonly referred to as third-party claims by attorneys.

One issue in the scenario I just mentioned where you are hurt on the job due to the fault of another is that the workers' compensation carrier has a lien against your recovery from the responsible person.  That is, if your employer or its insurance company paid benefits for medical treatment or disability, they are entitled to get their money back if you successfully recover damages from the responsible party.  This is a complicated issue and it is important that the lawyer handling such a case have a full understanding of this area of the law.  Although complex, here are several quick tips to consider when handling this type of case:

1. Verify the claimed lien. -- In every case, I ask the insurance carrier for a print-out of all payments.  I often find that the print-out lists administrative and investigation expenses incurred by the carrier.  The carrier's lien only applies to actual expenses for medical or disability payments.  By reviewing the actual payments which comprise the claimed lien you can often eliminate amounts that should not be collected.  Many attorneys simply accept the carrier's statement as to the total lien amount without reviewing all the payments.  You can often save your client considerable money just by performing this simple task.
2. Bring the workers' compensation adjuster to the trial of your other case. -- When I go to trial in a third party case, I typically present the claims adjuster as a witness.  Since the insurance carrier often has a considerable lien, they should not mind sending a representative to trial.  I have found, however, that the carrier is rarely asked to send its adjuster to trial.  I cannot understand why many lawyers would not do this.  I have spoken with jurors after several of these trials and they have all indicated that having an adjuster testify to the significant amount of money spent to treat your client's injuries as well as the fact that they have a lien, has a great impact.  This witness, if handled correctly, can have a tremendous impact in validating the extent of your client's serious injuries.
3. Keep the workers' compensation carrier informed as to all difficulties and problems with your other case so that they will be in a position to negotiate with you in an effort to reduce the lien. -- Too many attorneys ignore this issue until there is a settlement in their third-party case.  Then, they call the adjuster handling the claim expecting to negotiate a reduction in the lien.  Whenever I have a third-party case, I periodically call the adjuster to talk about any difficulties with the case.  If you truly have a difficult third-party case where you might need to compromise in order to settle, don't you think the carrier might be in a better position to also compromise its lien if you have informed them of the issues along the way?
4. Seek discovery of any contracts between your employer and the other party if they had any prior relationship.  -- This is a great issue.  Many third-party cases arise out of construction work or work in an industrial setting.  In order to do this work, your client's employer will often enter into a contract with another business.  If that other business (or one of its employees) caused the injury, make sure you get a copy of the contract.  I have found that these contracts sometimes contain clauses where one party agrees to waive any claims against the other or against any money paid by the other.  Sometimes, these waiver clauses specifically waive liens.  If so, you can argue that there is no lien.  I have successfully argued this on a prior occasion before a trial court in Alabama.  One warning here, however, is that Alabama's Supreme Court has not addressed these clauses, including the issue of whether an employer can waive the lien of its insurance carrier.  This is an interesting issue for appeal.

The issues surrounding liens are often complex.  Too many attorneys either don't understand the issues or don't take the time to deal with them.  However, they are very important issues to consider when handling a claim.  Dealing with these issues correctly can often save your injured client significant money.

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While sitting in court on a recent workers' compensation case, I started to think about all the reasons someone calls an attorney after suffering a significant work-related injury.  For me, former clients are often the best source of referrals.  However, I'm not talking about why the caller chose a particular attorney.  Set aside referrals and marketing for a moment.

I am talking about why the injured person even decided to consult an attorney at all.  Sometimes, the injured person feels they need some general legal advice in light of their situation.  That's often a good idea.  A significant injury presents many issues that can be helped by competent advice.  Most personal injury attorneys will provide a free consultation.

Aside from general advice, what are some of the most frequent problems encountered by injured workers that lead them to call an attorney?  I can think of many common problems that lead to such a call.  Here is a list of a few of the most frequent reasons I hear:

1. The Preexisting Condition Denial -- The insurance carrier denied my workers' compensation claim because I have a preexisting condition.
2. The No Settlement Unless You Close Medical Benefits Refusal -- The insurance carrier refuses to discuss my claim or negotiate any settlement with me unless I give up all rights to medical care for my injuries.
3. The Company Doctor is a Bad Doctor Problem -- The insurance carrier has provided me with a doctor.  However, he won't treat my injuries; won't listen to me, etc..  If the provided doctor wants to care for me, then the carrier won't approve his treatment; denied his request for specific treatment; tried to make me change doctors, etc..
4. The My Case is Only Worth That Shock -- The insurance carrier has provided an offer.  However, it is extremely small and the carrier has insisted it is all I am entitled to receive under Alabama law.
5. The You Did Not Give Us Proper Notice So We Don't Accept Your Claim Excuse -- The insurance carrier claims I did not provide notice of my accident as Alabama law requires and refuses to do anything.

I have written previously about the impact of preexisting conditions on a workers' compensation claim.  That excuse, like the others, is often not a reason to deny or refuse a claim.  For example, in Alabama, you cannot be forced by the carrier simply to give up your rights to medical treatment.  While some attorneys routinely let their clients give up medical rights, I typically do not.  The security of getting treatment for a significant injury is too important simply to give away.  At least, that's how I feel about the issue.

As for problems with the authorized physician or "sticker shock" over a low offer that the carrier insists is all you are entitled to receive, those are common and complicated issues.  You do have to seek care with the doctor chosen by the carrier.  However, there are legal avenues you can take to change or challenge the situation where you cannot get good medical care.  Alabama law provides some methods to change doctors or get a panel of alternative doctors.  Also, you can seek court intervention if the carrier is simply refusing to approve recommended care from a doctor who is trying to help you. 

As for low settlement offer shock, Alabama law does provide only limited benefits based on certain calculation methods.  While I am sure some may disagree with me, I believe that Alabama law fails to provide sufficient benefits.  That is why it is so important to understand how benefits should be calculated so that you can obtain what the law does allow.  However, the carrier will often use the lowest method of calculating benefits.  In many cases, the benefits really owed can be very different.  As an example, in many cases, you are entitled to be compensated based on your vocational disability (the impact of the injury on the number or amount of jobs you can now no longer perform).  Yet, carriers will typically only offer injured workers a settlement calculated upon the usually much, much lower number assigned as a physical impairment rating.  If you don't understand how calculations based on a vocational disability or impairment rating are determined, you are not alone.  Many attorneys don't have a good grasp of these terms or the methods of calculating benefits.  You can bet that the claims adjusters working for the insurance carrier do understand them and will often offer the lowest method of calculating benefits.  So, you better seek advice from someone who fully understands the calculations as well.

Notice of your accident can also be a complicated issue.  The requirement of notice can be met in a variety of ways.  It is not always the clear bar to a claim that the carrier would lead you to believe.

These issues can be complex.  They are too complex to discuss together in detail in this one post.  You should not simply accept a denial without consulting a professional in this complicated area of law. 

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Last November, I wrote about the U.S. Justice Department's recovery of $3 Billion in fiscal year 2010 that had been originally lost to our government due to fraud.  When you look at the government's recoveries, you soon see that much of the fraudulent activity against our government involves the health care system.

This morning, The Birmingham News had an interesting article concerning the penalties assessed for health care fraud over the last four years, just in North Alabama.  It appears that over the last four years, the U.S. Attorney's office in North Alabama has recovered $48 Million dollars in penalties.  This recovery is estimated to be only a small portion of the illegal fraud in our health care system locally.

Fraud and abuse in our health care system threaten the delivery of basic health services.  Last week, Alabama's Medicaid Agency Director painted a grim picture of the agency due to budget issues.  On a Federal level, we've all heard the near constant debate on Medicare's projected budgets. 

During these difficult economic times when so many people are dealing with personal budget problems, it is good to see that our U.S. Attorney in North Alabama has taken an active role in pursuing some of the fraud in our system.  These cases can be initiated by our U.S. Attorney or by private citizens under the False Claims Act.  If we want to curb the cost of health care, the best place to start is with those who abuse the system by defrauding the government.

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In at least two prior posts, I have discussed issues surrounding Medicare's rights to be reimbursed for medical payments from settlements or judgments in personal injury claims.  As I stated in the past, dealing with Medicare can be an extremely frustrating experience.  So, I am happy to report a recent court decision that, to some degree, requires Medicare to play by rules that apply to the rest of us.

On September 29, the United States Court of Appeals for the 11th Circuit issued a decision in Bradley v. Sebelius.  The case involved reimbursement claims by Medicare arising out of a wrongful death settlement in Florida.  This case is a welcome decision for attorneys frustrated by the experience of dealing with Medicare.  On his blog, Tennessee attorney John Day wrote a great analysis of this decision.  I agree with John after reading the facts of the case that it involved some great lawyering on the part of plaintiffs' counsel to document and position the case in an effort to achieve this great result.

In the case, the Federal Court rejected Medicare's far-reaching argument that its own field manual was basically entitled to the force of law.  In rejecting those claims, the Federal Court actually stated:

The Secretary's ipse dixit contained in the field manual does not control the law.

If you want to understand the Latin phrase ipse dixit, here is one definition as to its meaning:

The term ipse dixit is the Latin equivalent of the Greek autos epha, referring to Pythagoras, as in, The master (Pythagoras) said it so it must be true and no proof is needed.

The master said it so it must be true!  That pretty much sums up Medicare's prior attitude in dealing with its beneficiaries.  Here, Medicare created its own manual and has attempted to enforce it against beneficiaries as if it were a validly enacted statute.

Additionally, according to this case, Medicare must account for underlying state law concerning substantive recovery rights.  Under Florida's wrongful death law, the claim of an estate is separate and distinct from the claims of the survivors.  Both the estate and survivors of a deceased can sue the party responsible for causing the death in Florida.  However, under Florida law, only the estate can claim medical expenses as part of its damages.  Thus, only the estate's share of any settlement is subject to Medicare reimbursement claims.

This decision is a welcome limitation upon Medicare's actions.  Now, if Congress would only pass legislation requiring Medicare to respond in a timely manner to efforts by private parties to reimburse medical payments.

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As I have previously written, it is essential that an attorney handling personal injury claims have a sound knowledge of reimbursement and subrogation issues.  Otherwise, the attorney will be ill-equipped to protect his injured client and maximize any recovery for that client.  Many issues and facts impact the rules applicable to each specific case.  For instance, does the injured party have health coverage through a private plan?  Is that private plan provided through an employer?  If the injured party does not have private coverage, do they have coverage through Medicare or Medicaid?  Is the coverage through some other public source, such as the Veterans' Administration?  Each of these presents unique issues and rules.

I could write exhaustively concerning the various aspects of dealing with each type of coverage and its unique issues.  However, I truly believe that most attorneys who handle personal injury claims would agree that dealing with Medicare is the most frustrating of any of these.  Imagine a system that requires (with the full force of Federal law) the injured party and his legal counsel to reimburse it from a settlement or judgment, then will not communicate effectively or timely so that those parties can fulfill their legal obligations.  That is Medicare.  Attorneys for personal injury claimants often wait months (or longer) for Medicare to respond to efforts at repayment.  A reporter at The Miami-Herald did an excellent job documenting the frustrations of lawyers attempting to comply with Medicare laws on behalf of their injured clients.  At our office we have experienced that frustration first-hand.  In addition, just imagine how much money is actually available to our government in attorney trust accounts throughout our country.

Finally, those knowledgeable and involved in the Medicare reimbursement process are beginning to discuss methods that would force Medicare to act in a just and timely manner.  In March, legislation was introduced into the U.S. House of Representatives on this issue.  The proposed legislation has support from varied groups, including groups often at odds in personal injury claims.  Despite their differing opinions on many issues, these varied groups all seek changes in Medicare reimbursement procedures that would make the process quicker and more efficient.  What does the proposed legislation do?  The bill itself is fairly short.  It simply provides time limits for Medicare to respond when parties seek to reimburse prior payments for medical treatment.  That is a much needed change that should certainly be discussed and considered.  While I do have some initial concerns with the bill, including whether a potential defendant in a claim could use the provisions to its benefit in litigating that claim, it is a much needed start to resolving a frustrating issue for injured parties.  It is also my hope that Medicare will act to comply with any enacted time requirements so that health care costs are not unnecessarily shifted from private insurers to our government.

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This morning, the workers' compensation attorney Jon Gelman had an interesting note on his blog about a recent Medicare recovery case filed here in Alabama.  Essentially, the case involves the United States seeking to recover medical payments made by Medicare on behalf of several injured individuals.

The case raises an often misunderstood and complicated issue that we must handle on a daily basis.  Most often, our clients have some type of health coverage that pays their medical bills.  For many, this coverage is provided by private insurance such as Blue Cross.  For others, coverage may exist through some type of government program such as Medicare, Medicaid, or the Veterans' Administration.  Normally, when we seek medical care our particular coverage provides some level of payment.  Typically, this is the end of the story.  However, each of these plans or programs possesses unique rights to be reimbursed for their payments if an injured individual then recovers for their injuries from some third party, such as a personal injury lawsuit recovery.

Many personal injury attorneys seem to focus exclusively on the value of their case from the perspective of what amount of verdict or settlement can be obtained from the responsible defendant.  Personally, I believe that every case should be prepared for trial, rather than simply a settlement, from the beginning.  While this should be the most important focus of an injured person's legal counsel, it should not be the sole focus.  Too often, legal counsel ignores the complicated issues of medical reimbursement and subrogation.  Each particular type of coverage brings unique recovery rules and rights to the table.  These recovery rights are probably the greatest with Medicare.  In the case of Medicare, the government has far reaching rights to pursue claims against not only the injured party, but also, their legal counsel and the original personal injury defendant.  In the case of Medicare, as opposed to a typical private plan in Alabama, those rights even extend to future medical costs.

Effective legal representation in personal injury cases requires an attorney to understand the complex web of subrogation law and to deal effectively with the specific providers.  This is important to avoid a negative action by the coverage provider such as a lawsuit or a future refusal to provide benefits.  Also, if counsel clearly understands the various rules and how to use them, he can often work a resolution that minimizes any reimbursement, and thus, maximizes the recovery ultimately provided to the injured individual.

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In a previous post, Beware of Fraudulent Health Plans, I mentioned a prior client who had been left with thousands of dollars in unpaid medical bills after his health plan wrongly refused to cover his cancer treatment.

With the current debate in Congress over health coverage, this is an issue that may change greatly.  However, at present, many people are searching for affordable coverage. Here is a good list from The Coalition Against Insurance Fraud of 10 warning signs that offered health insurance may be a fraud:

1. The coverage costs 25 percent or more below the norm, yet promises generous benefits and a large provider network.

2. The plan readily accepts people with serious illnesses and other medical conditions that other plans normally reject.

3. The insurance has few or no underwriting guidelines – the agent or rep appears almost too eager to sign you up.

4. You’re approached by an insurance agent, phone call or direct mail. Honest group plans are sold this way, but so are dishonest ones. Unless the plan is sponsored by your employer, verify that plans solicited by outsiders are licensed and legitimate.

5. The plan isn’t licensed in your state, and the agent (falsely) assures you the federal ERISA law exempts the plan from state licensing.

6. The plan seems like insurance, but the agent or rep avoids calling “insurance,” and instead uses evasive terms such as “benefits.”

7. The agent or rep doesn’t have clear answers to your questions, seems ill-informed, or avoids sharing information.

8. You’ve never heard of that health insurance company — and nobody else has, either.

9. You have to join an “association” or “union” to obtain the health coverage. But you get no voting rights, receive no bylaws or other material, and aren’t involved in the group’s activities.

10. Your hospital keeps calling you to complain that your health plan isn’t paying your medical bills. Often the plan’s reps keep making flimsy excuses, or stop returning phone calls altogether.

We've all heard the warning about things that sound "too good to be true." When it comes to health insurance, ignoring that warning can lead to devastating health and financial consequences.

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