Stories & Grievances
Workers' Compensation and Sham Medical Exams
despite an ongoing reform effort, New York State's workers' compensation system serves no one well and is arguably the most adversarial of any state in the nation. Injured workers who enter the befuddling system -- they are typically those low on the socio-economic scale -- often find themselves trapped in nightmarish delays. Justice can take months or years, and leave many injured workers unable to support themselves and their families on the modest benefits. Workers get shepherded to so-called independent medical examiners who are often anything but independent, since they are picked and paid directly by insurance companies. Employers say they face pressures to reduce injuries because compensation insurance premiums remain a major drain on profits and they do not believe the system is doing enough to ferret out fraudulent claims. To minimize workers' comp costs, many employers discourage injured employees from filing claims and retaliate against those who do, injecting a climate of fear into a system specifically created to reduce acrimony and litigation over workplace injuries.
Workers' Compensation Insurance
NY TIMES, April 14, 2009
Workers' compensation, the oldest form of social insurance, was introduced in the United States a century ago to grant medical care and monetary awards to employees hurt on the job, while avoiding costly and protracted litigation.
Yet a series of articles by The New York Times found that, despite an ongoing reform effort, New York State's workers' compensation system serves no one well and is arguably the most adversarial of any state in the nation.
Injured workers who enter the befuddling system -- they are typically those low on the socio-economic scale -- often find themselves trapped in nightmarish delays. Justice can take months or years, and leave many injured workers unable to support themselves and their families on the modest benefits. Workers get shepherded to so-called independent medical examiners who are often anything but independent, since they are picked and paid directly by insurance companies. Employers say they face pressures to reduce injuries because compensation insurance premiums remain a major drain on profits and they do not believe the system is doing enough to ferret out fraudulent claims. To minimize workers' comp costs, many employers discourage injured employees from filing claims and retaliate against those who do, injecting a climate of fear into a system specifically created to reduce acrimony and litigation over workplace injuries.
The state legislature enacted a reform plan in March 2007 that sought to tackle some of the system's problems. The maximum weekly wage replacement benefit was increased, after remaining unchanged for 15 years. To reduce business's costs, the plan placed a 10-year cap on how long workers with permanent partial disabilities could receive weekly benefits. The plan also put in motion steps to, among other things, reduce delays in the adjudication process, better rehabilitate workers so they can resume jobs, and create more precise guidelines for doctors assessing workers' injuries. For the most part, these goals have yet to be attained.
N.R. Kleinfield and Steven Greenhouse
Workes' Compensation Resources
Workers' Compensation and Cost Data
Workers' Compensation Research Institute
Workers' Compensation: An Overview
U.S. Code Title 5
Office of Workers' Compensation Programs (OWCP)
Sham Medical Exams for Litigation (A Round-Up)
Last week the New York Times ran a huge piece on phony medical exams that were used to deny injured people benefits in Workers Compensation exams. (Exams of Injured Workers Fuel Mutual Mistrust - see below (Editor)) I didn't blog it then as I was starting a trial in New York, a trial made more difficult due to the Astor trial starting the same day and sucking all the jurors out of the system since it was in the same courthouse.
But this was the lede from the Times:
Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker's back. "Mild spasm bilaterally," he said softly. He pressed his fingers gingerly against the side of the man's neck. "The left cervical is tender," he said, "even to light palpation."
Dr. Edward Toriello feels that workers' doctors are often biased. "I think it's human nature to help your patient. I think a lot of doctors say: 'I don't need the aggravation. It doesn't hurt to keep him out of work.'"
The worker, a driver for a plumbing company, told the doctor he had fallen, banging up his back, shoulder and ribs. He was seeking expanded workers' compensation benefits because he no longer felt he could do his job.
Dr. Samuels, an independent medical examiner in the state workers' compensation system, seemed to agree. As he moved about a scuffed Brooklyn office last April, he called out test results indicative of an injured man. His words were captured on videotape.
Yet the report Dr. Samuels later submitted to the New York State Workers' Compensation Board cleared the driver for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.
"If you did a truly pure report," he said later in an interview, "you'd be out on your ears and the insurers wouldn't pay for it. You have to give them what they want, or you're in Florida. That's the game, baby."
The Times also has a related article from March 31st: For Injured Workers, a Costly Legal Swamp.
The problem of so-called "Independent" medical exams, or IMEs, that are dismissive of the injuries suffered by their fellow human are, of course, not limited to Workers' Comp cases. They show up routinely in personal injury cases, especially auto cases where insurance companies and their attorney seek a report claiming that there is no "serious injury" (See: New York's No-Fault Law Problem With "Serious Injuries") and that therefore the case should be dismissed. The plaintiff's bar calls these "defense medical exams," since they are anything but independent.
These sham medical exams have also been the subject of litigation, including RICO suits. My posts on that subject has generated a tremendous amount of page views and commentary, some of which is from those involved in the exams and/or litigation:
* State Farm Hit With Civil RICO Claim Over Sham Medical Exams (2/4/8)
* Allstate Slammed With RICO Charge Over Sham Medical Exams (3/2/08)
* A Doctor, Sued In Insurance Company RICO Suit, Responds To The Charge
* State Farm Hit With New RICO Suit, Brought as Class Action by Patient for Sham Exams
The article and subject matter has also been the subject of commentary in the blogosphere:
* Doctors Paid for False Reports in Injury Cases? (Hochfelder)
* IME Doctors Caught on Tape (Miller)
* The New York Times Tells The Story Behind "Independent" Medical Exams (Perlumtter & Schuelke)
* Biased insurance medical exams reexamined (Shigley)
April 1, 2009
A World of Hurt
Exams of Injured Workers Fuel Mutual Mistrust
By N. R. KLEINFIELD, NY TIMES
Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker’s back. “Mild spasm bilaterally,” he said softly. He pressed his fingers gingerly against the side of the man’s neck. “The left cervical is tender,” he said, “even to light palpation.”
The worker, a driver for a plumbing company, told the doctor he had fallen, banging up his back, shoulder and ribs. He was seeking expanded workers’ compensation benefits because he no longer felt he could do his job.
Dr. Samuels, an independent medical examiner in the state workers’ compensation system, seemed to agree. As he moved about a scuffed Brooklyn office last April, he called out test results indicative of an injured man. His words were captured on videotape.
Yet the report Dr. Samuels later submitted to the New York State Workers’ Compensation Board cleared the driver for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.
“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”
Independent medical exams are among the most disputed components of New York’s troubled workers’ compensation system. Under that system, workers with bona fide injuries are entitled to medical care and replacement wages, usually paid for by their employer’s insurer.
The independent exams are designed to flush out workers who exaggerate injuries or get unnecessary care, and there is no question that some of that goes on. As a check on what a worker’s doctor determines, insurers are allowed to order an ostensibly neutral exam by a doctor they select and pay for. They do so regularly, with more than 100,000 exams conducted each year.
But a New York Times review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries.
“You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did,” said Dr. Stephen M. Levin, co-director of the occupational and environmental medicine unit at Mount Sinai Medical Center, who has been picked as the interim medical director at the compensation board. “There are some noble things you can do in medicine without treating. This ain’t one of them.”
New York uses independent medical examiners far more extensively than many states do, and critics say the practice adds to the mistrust in the system. The examiners’ opinions can empower an insurer to slash benefits, withhold medical treatment or stall a case. Workers say that psychologically, there is something particularly damaging about being dishonestly evaluated by a medical professional.
“I was in so much pain and felt so hopeless for so long,” said Carol Houlder, a substance abuse counselor who waited a year for surgery on her injured ankle to be approved. “Doctors see you’re in pain and say you’re not. How do they call themselves doctors?”
Many independent examiners are older, semiretired physicians who no longer treat patients, and claimants and lawyers have asserted that the memories and judgments of some of the doctors have at times been impaired by their age and frailties. The examiners do not need special training, only to have a state license and to be authorized in a specialty.
“Basically if you haven’t murdered anyone and you have a medical license, you get certified,” said Dr. Alan Zimmerman, 75, a Queens orthopedic surgeon who does the exams. “It’s clearly a nice way to semiretire.”
Some examiners see dozens of injured workers a day. Often the appointments are booked by brokers who help insurance companies find doctors. Some brokers are not registered with the state, as required, but there has been little enforcement of the rules.
Insurers, examiners and brokers, however, defend the exams as necessary and largely untarnished by bias. Dr. Brian L. Grant, chairman of Medical Consultants Network, a company based in Seattle that arranges independent exams across the country, said, “We never get pressure from an insurer.”
Many workers contest independent medical examiner opinions and often prevail. Judges can, and do, dismiss the exam findings. In fact, some lawyers and judges laugh when certain examiners’ names come up at hearings.
Dr. Kenneth E. Seslowe, an orthopedic surgeon who mainly does independent medical exams, is mocked at hearing offices by attorneys as Dr. Says-No, because they feel he consistently finds no disability. Asked about this, Dr. Seslowe said, “I really don’t have time for this.”
But even when the opinions are discounted, resolution can take months, years, even decades, and many workers, tired of the ordeal of five, six, seven exams, eventually give up.
Some examiners, of course, do furnish honest, well-reasoned opinions. And sorting out the yawning breach between what a worker’s doctors and an independent medical examiner conclude is complicated by the fact that some injuries and their impact on a person’s ability to work — especially soft-tissue injuries like those to the back and neck — are hard to document with indisputable tests.
Zachary S. Weiss, the chairman of the workers’ compensation board, said that he found the disparities in medical opinions shocking and that use of independent examiners was “off the charts.” But Mr. Weiss, who was appointed in late 2007, said he was unsure what would rectify the problems.
After nearly a dozen years without a medical director, the board has finally filled that job temporarily. It has introduced new, more detailed forms, which many doctors find maddening. It is also working on fresh guidelines that it hopes will better calibrate an injured worker’s care and work limits.
Dr. Robert E. Bonner, the medical director of the Hartford, an insurance company, said it was clear that the landscape had polarized. “Physicians regrettably have moved away from being neutral observers,” he said. “They’ve moved toward one camp or the other.”
Doctor vs. Doctor
When New York companies complain about the high cost of doing business in the state, they often cite fraudulent workers’ compensation claims as a key factor.
Though experts say talk of worker fraud is frequently overstated, it is widely acknowledged that some doctors collaborate with workers or their lawyers to magnify injuries or provide treatment for years without making someone better. Law firms representing workers often have cozy relationships with doctors to whom they refer patients, and vice versa.
A few years ago, Dr. Rafeak Muhammad, a Queens ophthalmologist, was barred from taking workers’ compensation patients after acknowledging that he had treated several long after it was necessary. He declared them unable to work when in fact they could.
David Donaldson, senior vice president at the domestic claims subsidiary of A.I.G., one of the state’s largest workers’ compensation insurers, said, “Our position on I.M.E.’s is we’re looking for someone who is going to give us a coldly objective view of the injury.”
Critics, however, contend that independent medical examiners who reliably dispute workers’ doctors are hired more often by insurers. Some workers cynically refer to them as “insurers’ medical examiners.”
Shu-Ying Xu, 66, a home health aide, said she met with an independent examiner in October 2006 so he could review the back, neck and leg injuries she suffered when she tried to prevent a patient from falling.
She said the exam took two minutes and was so quick that the doctor, Wayne Kerness, an orthopedic surgeon, did not ask her anything.
As a result, she said, when the doctor filed his report he said she spoke English. She does not.
He said she took no medications. She said she took nine.
He said her disability was mild and she could resume work.
She said that she was in debilitating pain and that the Social Security Administration had already concluded that by its standards, she was totally disabled.
“She can’t even hold a gallon of milk,” said Peter Chang, her son. He had come along to the exam to translate. Since no questions were asked, he said he had nothing to do.
After checking his notes, Dr. Kerness said it was an error to have said that Ms. Xu spoke English. Otherwise, he stood by the report. “What can I say?” he said. “People can say whatever they want.”
He added: “I have my share of people I’ve found totally disabled and even recommended treatment that has been overlooked. I think I’m pretty heterogeneous.”
A judge ultimately ruled that Ms. Xu’s benefits should continue.
For decades, independent medical examiners were essentially unregulated. Reports were sometimes altered by brokers and exams often were done at airports, hotels or in the garages of doctors’ homes. In 2000, a doctor examined five patients in a Long Island bar.
In 2001, the state introduced rules. Among them: doctors had to register with the board, work in a medical office and let workers record or videotape their exams. Claimants are permitted to bring along anyone they choose to witness or film the sessions.
While the law has helped, the process remains riddled with flaws. Lawyers and injured workers say many of the examiners still do brief, perfunctory, one-sided exams.
A small study conducted a few years ago at the Central New York Occupational Health Clinical Center in Syracuse found that the clinic’s doctors and independent medical examiners virtually never agreed on whether a worker was disabled. When it can be proven that medical examiners have acted inappropriately, the compensation board revokes their certification — which has happened more often in recent years. But investigations are time consuming and only a dozen or so result in revocations each year.
William Gurin, the board’s fraud inspector general, says his unit’s limited resources are best focused on more fertile areas of fraud, such as employers who underreport their work force to save on insurance premiums.
Similarly, the board struggles to regulate businesses, from storefront exam factories to multistate networks, that help produce independent exams. Decades ago, insurers hired doctors directly. Now the job is increasingly done by third-party brokers called entities.
Entities are paid by insurers — around $500 or $600, say, for an orthopedic exam — and they in turn pay the doctor. Often, doctors submit dictated notes or checklists to clerical staff at the firms, who then draft the reports. Other times the notes go to transcription companies. The people preparing the reports may have no medical training.
Since 2001, the state has required entities to be registered. About 170 have signed up. But a fair amount of independent exam work is performed by companies that have never registered.
It was an unregistered company, Wine Medical Management, that arranged an independent medical exam of Santos Padilla, an injured worker, in 2006. The exam was to be done by Dr. Kerness, but it was canceled, and Mr. Padilla was seen by another doctor.
But somehow the compensation board received a report signed by Dr. Kerness recounting an exam that had never happened.
Dr. Kerness blamed the bogus submission on a clerical error by Wine. He said the company, using a signature stamp, had affixed his name to a report he had not seen.
Wine went out of business last year. A former manager at Wine, Laura Urban, blamed the discrepancy on a transcription company that prepared the reports. Ms. Urban moved to Commander Management, another entity that was doing unregistered work until the board ordered it to cease.
The board is looking into the Padilla episode, and has pledged to crack down on unregistered I.M.E. entities. Only a handful have ever had their certifications revoked, usually not for creating shoddy reports but for failing to pay their doctors.
Robert Grey, a claimant lawyer, said the board should track the opinions of independent medical examiners and compare them to ultimate verdicts, and then exclude doctors who were constantly found not credible.
Currently, the best protection for a worker is to tape an exam. But few do. The board does virtually nothing to promote the practice, and some doctors do not like it. When a woman brought a camera to an appointment upstate, the doctor called the police to toss her out.
Ms. Houlder, 63, who hurt her ankle, videotaped her exam by Dr. M. Pierre Rafiy, a 77-year-old Long Island orthopedic surgeon.
In the videotape, Dr. Rafiy grasps Ms. Houlder’s right ankle and says it is swollen. In the written report, he stated that there was no swelling and no disability and that she could return to work.
When subsequently deposed, he backtracked, saying it had been a secretary’s mistake to say no disability. He did not correct anything else.
Asked about the exam in an interview, Dr. Rafiy said: “I have no way to know if she had real pain. You have to remember, a lot of people don’t want to work. They lie a lot.”
Examiners, or Advocates
Dr. Samuels, 79, with a radiant smile and a burst of snowy hair, stopped doing surgery years ago. Until recently he commonly filled his days performing insurance exams on workers, sometimes as many as 50 in an afternoon, he said in his small office in Borough Park, Brooklyn.
“You obviously can’t spend a lot of time with that volume pushing up your back,” he said. “You have to assume there are going to be errors. Look, there are a lot of holes in this thing.”
At times, evidence shows, Dr. Samuels’s official reports were quite different from what he appeared to find during an exam.
Consider his 2007 examination of Johanne Aumoithe, a pastry chef who said she had hurt her arm and neck. On a videotape that Ms. Aumoithe recorded on her cellphone, Dr. Samuels comments that she had limited range of motion. His written report concluded the opposite.
Asked about the discrepancy in an interview, Dr. Samuels chuckled and said he could not even recall the people he saw yesterday. The way he worked, he said, was to submit a checklist to a Queens company called All Borough Medical, which transformed it into a narrative.
“I never write a sentence,” he said. “It’s really crazy, but that’s how it’s done.”
He often inserted numbers in the checklist — say, a measure of hand strength — after the person left, rather than as he performed the tests.
Was he sure they were correct? “I’m not sure of anything,” he said. “They’re just a guess in the first place.”
The law requires a doctor to attest to the accuracy of a finished report before signing it, but Dr. Samuels said he rarely read them. He doubted he had read the Aumoithe report. “I just sign them,” he said.
If he seldom read them, how did he know they were correct?
“I don’t,” he said. “That’s the problem. If I read them all, I’d have them coming out of my ears and I’d never have time to talk to my wife. They want speed and volume. That’s the name of the game.”
Dr. Samuels said he generally received about $100 for one of these exams.
The state does not regulate how much a doctor can make for an independent medical exam, though it does limit what a treating physician may charge an injured worker, and generally that is much lower for roughly equivalent work. Some examiners said insurers pay them by the session, say $1,500 to be available from 8 a.m. to 4 p.m. and handle whatever workers are sent to them.
An occupational medicine doctor deposed by Scott Clippinger, a claimant lawyer, said he charged $550 an hour for an independent medical exam. In 2006, Mr. Clippinger complained to the state board that the imbalance in fees “allows the carriers to purchase opinions.” He asked the state why it was not following a clause in state law that says that independent medical exams “shall be paid according to the fee schedule.”
The board’s response was that while the law “does provide that I.M.E. fees shall be paid according to the fee schedule, the fee schedule does not specify a particular fee for an I.M.E.”
Dr. Edward Toriello, a Queens orthopedic surgeon who cares mainly for his own patients, said he is paid nearly twice as much for an independent medical exam than he is for seeing a workers’ compensation patient he treats ($250 versus $140).
Like many who perform the exams, he views the compensation system as bloated with charlatans. Dr. Toriello, who does about 30 such exams a week, estimates that 80 to 85 percent of the time he finds no disability or need for medical treatment in workers whose doctors have found otherwise. He says the disparity is explained by the “comp mentality.”
“I think it’s human nature to help your patient,” he said. “I think a lot of doctors say: ‘I don’t need the aggravation. It doesn’t hurt to keep him out of work.’ ”
Dr. Zimmerman, of Queens, said he believed that 75 percent of people getting workers’ compensation did not deserve it, but also said he was not surprised to hear that insurance lawyers in Queens said his opinions were overwhelmingly disregarded by judges.
“Judges come up with wrong decisions a huge amount of time,” he said. “The lawyers work it so that anyone who scratches their toenail deserves equal treatment as someone who fell out of a 40-story building.”
Sometimes, a review of cases shows, there are stark discrepancies between the testimony independent medical examiners give at trial and their reports.
Twice in 2005, for example, Dr. Francis O’Malley, a Long Island orthopedic surgeon, testified that a disability was more serious than indicated by his reports.
In one case, Dr. O’Malley testified that a man who had hurt his back lifting packages had a “marked” partial disability. The report described the injury as a less severe “moderate” disability.
When confronted with the discrepancy, Dr. O’Malley testified, “I don’t know what’s going on.”
The reports were filed on Dr. O’Malley’s behalf by Hooper Holmes, a national medical services company that operated an I.M.E. entity. The company said that it always submitted exactly what doctors gave it and that it believed Dr. O’Malley, who is 78, was confused. Dr. O’Malley did not return calls for comment.
In the case of William Cassone, the plumbing company driver whose father taped his examination, the exam by Dr. Samuels was arranged by All Borough Medical, an unregistered I.M.E. entity, which got the assignment from another registered entity.
Mr. Cassone had been injured years earlier but was being examined because, as he says on the videotape, he had suffered a second, recent injury.
But Dr. Samuels’s report made no mention of the second injury and deemed Mr. Cassone able to work. When Mr. Cassone got the report, he said, “I was screaming so much I left the house and slept in the car.”
Dr. Samuels later swore in a deposition that the report was accurate. A few weeks later, though, the board received an addendum signed by Dr. Samuels saying he had viewed the videotape and, yes, he had been told of the second injury. Still, he found no evidence of disability.
All Borough declined to comment on the case and its business.
Dr. Samuels said in a recent interview that he had never seen the addendum or the videotape and doubted he had read the original report. He said All Borough must have prepared the addendum without his knowledge.
“This is the first I’ve heard of this,” he said. “Listen, there’s a lot of hanky-panky that goes on.”
Mr. Cassone’s lawyer, Michael Pyrros, told a judge at a hearing that he was concerned there might have been fraud involved in the conduct of Dr. Samuels, the I.M.E. entity and the insurer. When the Cassone case next came before a judge, late last summer, a deal was reached between lawyers to grant Mr. Cassone benefits. Fraud allegations were dropped against the insurer.
Dr. Samuels, who was told to appear at the hearing, did not show up. According to a letter from his lawyer, he was unwell. His behavior was never addressed. Soon after, he retired, his official record unblemished.
A World of Hurt: Anatomy of a Case (video)
March 31, 2009
A World of Hurt
For Injured Workers, a Costly Legal Swamp
By N. R. KLEINFIELD and STEVEN GREENHOUSE, NY TIMES
The hurt workers wait on benches at the Queens office of the New York State Workers’ Compensation Board.
People like Hopeton Watkis, 64, a laborer, who lost two teeth when he fell and hit a wheelbarrow.
Or Rajcoomar Jagan, 50, a construction worker, who injured a leg falling off a scaffold.
Or Vicki Marquez, 32, a retail sales associate, who hurt her elbow hauling clothes.
They come to the board seeking authorization for medical treatment and replacement wages — in short, a quick and fair resolution from a system set up to replace fractious court fights between employers and employees.
What they find instead is a subbasement of the legal world, a $5.5 billion-a-year state-run bureaucracy that, an examination by The New York Times found, struggles to treat workers with due speed, protect employers from fraud or mute tensions in the workplace.
These struggles are particularly evident each day in Queens, the state’s busiest hearing office, where The Times spent 18 months attending hearings, reviewing cases and interviewing participants, virtually none of whom defended the system as efficient.
At some hearings, as judges looked on, lawyers chatted on cellphones, cracked bawdy jokes or read newspapers during testimony. Expert witnesses seemed biased to the point of caricature. Claims dragged on, but hearings seldom exceeded a few blurred minutes, rarely proved conclusive and were conducted in baffling shorthand.
Mr. Watkis waited two years to get his front teeth fixed. Ms. Marquez had to postpone elbow surgery for a year until the board allowed it. Mr. Jagan exhausted three years trying to get compensated, only to be denied all benefits, a decision that stunned even some insurance company lawyers.
“Comparing Supreme Court, say, to this is like comparing a hospital to a MASH unit,” said Anthony Pizza, a lawyer for insurance companies. “A lot of it is meatball justice.”
Workers’ compensation systems across the country are troubled, and reform efforts are under way here. But New York, a pioneer of the concept and home to the nation’s second-largest system, has some signature claims to dysfunction and is widely recognized as the most adversarial.
Though its commissioners largely function as a legal tribunal, most are not lawyers but relatives or allies of politicians, appointed usually without regard to experience in the field.
Though many cases turn on medical evaluations, the board has not had its own medical director for nearly a decade. Decisions are often driven by the opinions of doctors certified by the state as so-called independent medical examiners. Yet claimant lawyers and treating doctors say these examiners often understate workers’ ailments to win business from the insurers who pay them.
Fines for infractions are usually small, and some insurers ignore paying them for years without consequence. A few months ago, New York City agreed to produce $1.1 million in penalties, some years overdue.
Workers are known to fabricate claims, while employers can be equally uninhibited about pressuring injured workers against filing for compensation, or punishing them if they do.
And everywhere the system tolerates delays that can make the injured wait months or years for money and care. Statewide, in about one in six cases, insurers dispute that injuries are real or were suffered on the job. Until recently, these cases had averaged nearly nine months to resolve. And many of them remain unresolved years later.
Even unchallenged cases plod on. A.I.G., the insurance company, said a review of its 2007 New York cases found that those involving missed work took on average 802 days to reach a final stage, 30 percent longer than in the rest of the country.
A recent task force study found that when insurers reject a medical procedure, say, an operation, it takes more than three or four months for the board to settle the dispute. The delay can mean that injuries heal slowly or improperly, and in 75 percent of those cases, the worker’s need for the procedure is upheld.
Zachary S. Weiss, the chairman of the compensation board since late 2007, said that given the scope of what needs to be done, change must be incremental.
“There are millions of things I would like to correct and I’d like to correct them all immediately, and I can’t,” Mr. Weiss said.
State officials do say that as imperfect as it is now, the system used to be much worse. Before he resigned, Gov. Eliot Spitzer managed to pass a law that sliced costs and gave workers more money. Until then, New York’s system had achieved the neat trick of being both among the most expensive for business and the stingiest to workers.
The board has recently found an interim medical director. But the intended overhaul has yet to deliver on many of its other goals and does not address some of the most stubborn flaws.
“There are still many issues that need to be dealt with,” said Joel Shufro, executive director of the New York Committee for Occupational Safety and Health and a labor advocate. “How it will play out will not be known for a number of years.”
One target for improvement is basic record keeping. No one has ever documented, for example, the extent of worker fraud, though accounts of bogus claims have dominated news accounts of workers’ compensation for years.
Actually, while the system has a lengthy history of being cheated by employees who exaggerate injuries, experts say they believe more substantial fraud and misbehavior are woven through the process in less obvious ways that hurt workers.
“This is a terrible thing to say,” said Dr. Robin Herbert, co-director of the occupational and environmental division at Mount Sinai Medical Center, “but if I had a health problem at work, I’m not sure I’d file a workers’ comp claim. It’s the Wild West of health insurance.”
Mary Jeffords, the head of Injured Workers of New York, an advocacy group, says she knows of numerous disabled workers so ground down by the process that they begin to unravel.
“I’ve talked to workers that held a gun to their head as we talked,” she said.
Waiting for Help
George Vasilescu’s reaction was immediate. He tossed his head back, thumped his feet.
“No more,” Mr. Vasilescu, who is deaf and mute, signed. “I beg you. No more.”
Mr. Vasilescu, 64, a hotel steward who hurt his back, neck and wrist, had just been told by his lawyer that the judge wanted him back for another medical exam, another hearing, another delay, after four years churning through the system.
It is a good day at the Queens hearing office when there is only one such outburst.
Few people think about workers’ compensation until they wrench their back or lose a thumb and become one of the roughly 140,000 new cases filed statewide each year. Those with minor injuries often sail through the process.
But so many workers have been so frustrated or mistreated that they don’t even submit claims when they are injured. Instead, they improperly use regular medical coverage. Or they apply only for Social Security disability or welfare. Costs rightly borne by employers are then billed to the general public.
All that is flawed with the system can be witnessed daily inside the stubby building at 168-46 91st Avenue in Jamaica, one of three dozen redoubts statewide where cases get heard. It doesn’t take long there to grasp how proceedings have devolved into something out of Kafka, who was himself once a compensation claims examiner.
Cases are delayed for any of myriad reasons, or no reason. When the Workers’ Compensation Research Institute recently studied speed of payment among 15 states, it found New York the slowest to pay workers their first check.
“These people are not chattel,” said Neil Abramson, a claimant lawyer. “They’re human beings.”
In Queens, it often takes four to six months from the time of injury to get before a judge, a period during which a worker may not receive care or wages. Typically cases are decided piecemeal — months can pass before both sides even agree on how much a worker earned — and so that first encounter may begin a procession of hearings that become stretched-out wars. Any appeal had once meant another six to nine months for a ruling, though since the board made recent changes many have been coming much quicker.
Three-quarters of the appeals are by insurers.
An insurer appealed, for example, when Ms. Marquez sought surgery for her injured elbow in 2007. The appeal, which the board found particularly weak, meant the surgery did not get approved until a year later.
To accelerate cases, the board has increasingly allowed some involving lesser injuries to be decided by a claims examiner, instead of a judge. The examiners are not required to have legal or medical training, or even a high school diploma, and lawyers and judges say their decisions often contain errors. Judges must review the rulings, but some admit it often gets done hastily.
Largely because of delays and litigiousness, only about a third of the state’s 66,000 active licensed doctors take compensation cases. One of those who does, Dr. Miron Fayngersh of Brooklyn, said he had 41 outstanding bills for a single case, one a year old.
“The percentage of denials is worse in workers’ comp than in any other area in my experience,” said Dr. Robert Goldberg, former head of the Medical Society of the State of New York.
One case that seems to exemplify the broad faults is that of Richard Frank, a forklift driver for New York City Transit. After he had a work accident in 1991, the agency prolonged his case for years, ignoring judges’ orders, according to court rulings.
After a September 1995 hearing was adjourned because his employer had furnished illegible evidence, Mr. Frank told his lawyer “the Transit Authority is going to kill me.” That night he died of a heart attack. He was 50.
For a decade, the agency then contested whether his widow was due death benefits, until an appeals court ruled in 2005 that his death had been caused in part by the agency’s “unlawful coercion” and “disgraceful conduct” in resisting his claim.
Claimants who typically wait months to talk to a judge are surprised by the lightning speed of hearings. Eight minutes is typical. A trial can run a half-hour to an hour. Some matters finish in a minute or two. Often workers don’t even get to speak. Sometimes they wait outside while their lawyers perform.
Vera Rutherford, a substance abuse counselor whose carpal tunnel case had plodded along for two years, asked, “Is it normal for a person to go in there and say nothing and have people decide their life for them?”
One day, Fernando Tenorio, a school safety officer hindered by a knee injury, emerged from his hearing, dazed by its velocity: four minutes flat.
For months, Mr. Tenorio had received no money. Now, his lawyer, Mark Allen, explained to him, the case was adjourned for another few weeks for an investigation, though he would be paid something while waiting.
As Mr. Allen put it, “Six weeks is like tomorrow around here.”
But Mr. Tenorio blurted out, “There’re some other things I want to tell you.” He had lost his apartment and was cooped up in his brother’s basement; his bank account was empty.
Mr. Allen halted him: “Forget about personal. They don’t think of you as a person. They think of you as a file with a dollar sign on it. They don’t care if you can’t put food on the table or put braces on your daughter. You’re thinking of this logically. I stopped thinking that way a long time ago. This is comp.”
New York’s workers’ compensation system was born in 1914, an idea of great promise that grew in part from great tragedy, the Triangle Shirtwaist Factory fire that killed 146 garment workers in 1911.
The state, one of the first to adopt such a program, founded the system on a simple bargain. Hurt workers, who previously had to prove their employer’s negligence in court to get compensated, now would get medical care and wage benefits automatically. In turn, they would be barred from filing suit.
At its most basic, that no-fault insurance system is the same today. Essentially, companies buy compensation insurance and their premiums underwrite the cost of running the system and all claims. Virtually all employers must carry coverage.
Hearing rooms across the state are filled, not with office workers, but with people who make biscuits or work construction or strip beds: physical laborers who often live just above society’s safety nets.
These workers confront a law that is maddeningly complex. In its barest form, it requires workers to report an injury to their employer within 30 days, then file a claim with the compensation board. If the insurer doesn’t object, it is generally required to begin medical and wage benefits within a few weeks.
But if information is missing, as is common, the clock doesn’t start until it is submitted, so payments often start much later. Disputed cases are frequent, require judicial intervention and can take months or years to resolve.
There are no cost-of-living adjustments, so payments can lag behind wages. A plumber who has New York’s longest-running claim, from a back injury in 1937, gets all of $6 a week.
Given its tortuous nature, it’s no wonder the system has figured in some of New York’s noir moments. For 16 years in the 1940s and 1950s, George Metesky, the so-called Mad Bomber, concealed bombs around New York in a rage precipitated by the rejection of his claim.
Changes introduced in 2007 mean that for the first time since 1992 the maximum weekly benefit will rise, in stages, from a flat $400 to what will next year and thereafter be indexed to two-thirds of the state’s average wage, a cap of about $760. But the reform also ended payouts that could last a lifetime for workers with permanent partial injuries, like an impaired back. Now these awards generally expire within 10 years.
Those adjustments were designed to correct a longstanding paradox of the New York system: how it could be one of the most expensive for employers yet have one of the lowest payouts to workers. Experts say that although the wage benefit was low, insurance rates were steep because the state, unlike many others, had no time limit on payments for permanent partial disabilities.
New York not only had a high level of these injuries, it also had one of the more litigious processes, which further drove up costs.
Today, even with the payout increases, New York lags behind many states. Injured workers in Iowa can get about double New York’s limit.
John F. Burton Jr., professor emeritus at the Rutgers School of Management and Labor Relations and an expert on workers’ compensation, feels that systems nationwide have become less fair to workers, in part because the political balance has tilted toward management.
“In general, it’s not economics that is driving this,” he said. “It’s that employers have gotten the upper hand.”
In New York, average premiums have fallen over the last dozen years (though they vary enormously among employers), as have claims. But the perception reigns, driven in part by insurers, law enforcement and the news media, that the system is expensive because it is bloated with embroidered claims.
Fraud does occur, not only when workers feign injuries, but also when they stay out five weeks when four would suffice. In 2007, the authorities arrested a bus driver, receiving compensation for a hurt shoulder, who Brooklyn prosecutors said had been touring Europe as a drummer in a rock band.
But experts believe far more money is siphoned by employers that illegally underpay premiums by underreporting the size of their work force or by doctors who fabricate bills.
Some defects are addressed by the latest changes. For example, “rocket docket” rules are being applied to speed up initially disputed cases, and while not everyone has embraced them, some progress has been made.
“We want our comp system to do so much,” Mr. Weiss said. “And it should do so much. And it does so little.”
As head of the compensation board, Mr. Weiss, who earns $120,800, directs the system, which employs 1,500 people. The other commissioners earn $90,800 and primarily rule on appeals that bubble up from local offices.
Commissioners often work from home, reviewing opinions generated for them by board lawyers. Just five of the current 11 commissioners are lawyers.
Last year, after a dozen years as a commissioner, Michael T. Berns wrote a book titled “Behind the Closed Doors,” which he describes as a kind of apology for a system where, he said, workers suffer in part because some commissioners know too little about the relevant law, work just a few hours a week and do not read many of the decisions they sign.
“The whole push is a numbers production,” he said. “Quality is irrelevant.”
The board members are appointed by the governor in a process long regarded as dominated by politics.
Commissioner Candace K. Finnegan is a former personnel director for a state psychiatric facility, and also a close friend of Libby Pataki, the wife of former Gov. George E. Pataki. Ellen O. Paprocki had been assistant director of the New York State Fair, and is also the daughter of John O’Mara, who was an adviser to Mr. Pataki.
Frances M. Libous, a former nurse, is married to Thomas W. Libous, a ranking Republican state senator. Mark D. Higgins, recently appointed by Gov. David A. Paterson, is a longtime union official and brother of Representative Brian Higgins, an upstate Democrat.
“It is political employment for the politically connected,” said Richard A. Bell, a commissioner. He once served as the board’s executive director, and his wife worked as an executive assistant to Mr. Pataki.
While politics is a factor in appointments, several members said those selected are nonetheless qualified.
For years, judges and lawyers say, politics also played a role in who got hired as district administrators to run the system’s 11 district offices. The posts, created a decade ago by state lawmakers, paid $104,080 a year. But critics said the administrators’ duties were light and little different from those of the district managers they were brought in to supervise.
This month, the board simply did away with district administrators, leaving two regional administrators in their stead, millions of dollars having been spent to no clear end.
Injured and Indigent
Carlos Pabon, a parks department manager and an Army veteran, hurt his back and neck when someone opened a door into him in a Bronx storeroom in 1997 and knocked him down a flight of stairs. Tossed into the cumbersome workers’ compensation system, he has never left.
Initially, the system took care of his injuries and Mr. Pabon, now 50, stayed on the job, earning up to $60,000 a year. But his pain worsened over time, he said, and he began to miss days. In the summer of 2006, his doctors advised him to stop working.
New York City arranged for him to get an independent medical exam. That doctor felt that Mr. Pabon’s doctors were wrong. He had no disability. He could do his job without restriction.
In January 2007, the wage benefits he had been receiving stopped because of the independent doctor’s report.
Michael Serres, Mr. Pabon’s lawyer, sought to challenge the doctor by having him testify. But nearly a year would go by before he did.
In the meantime, Mr. Pabon, who said he wrestled with grinding pain, could not live on a tiny military pension and the slim disability income of his fiancée, Grace James. The bank seized his car. He reached the limit on his credit cards and pawned his jewelry. He went on welfare.
In November 2007, the city’s doctor finally testified. He stood by his report. Another hearing in Queens was scheduled.
The matter was still unresolved last year when a city marshal arrived at Mr. Pabon’s apartment with an eviction notice. It was Valentine’s Day. Mr. Pabon was eight months behind on the rent.
In a bone-chilling wind, they left: Mr. Pabon, Ms. James, their child and another from Ms. James’s previous relationship. A third child was at school. They juggled what they could carry, including their bird. After depositing the children with a relative, Mr. Pabon and Ms. James rode the A train all night. The next evening, they slept in the boiler room of an apartment house.
Soon, they landed in an echoing homeless shelter where they washed their clothes in the tub. Occasionally, Mr. Pabon stole food. “I took cookies, hard salami, half a pint of milk, cakes, doughnuts, small stuff,” he said. “I stole a deodorant stick from Rite-Aid.”
“I worked in the parks taking care of kids, making sure they didn’t get hurt, being a role model,” he said. “Here I am stealing things.”
They moved from one shelter to another. Mr. Pabon began to have nightmares and imagined himself blowing up people. He and Ms. James bickered.
“Look at where we are,” she told him one day. “What kind of man are you?”
The next hearing for Mr. Pabon, his 13th in a case in its 11th year, was set for April 1, 2008.
Mr. Pabon arrived by bus from the shelter. He was penniless.
“I feel so down. I mean, down on the ground,” he told his fiancée.
“This could put someone in a mental hospital,” she replied. “I can see myself sitting in a room in a straitjacket, rocking.”
As the hearing approached, as often happens, the lawyers fashioned a deal. Mr. Pabon was offered $265 a week. By the system’s metrics, he was deemed about 33 percent disabled.
The calibrations of disability can be arbitrary. Few doctors are trained to gauge how injuries restrict a person’s particular work capability. Some workers with frightful injuries are judged 75 percent disabled. But a professor, or an accountant, can often continue a career. Laborers judged 25 or 50 percent disabled often are stuck. Who hires a laborer who can manage half a job?
Mr. Pabon had expected $400 a week, the limit for a case of this vintage. Yet he accepted.
“I need money now,” he said.
After the lawyer’s fee, Mr. Pabon would get a back-payment check of $11,921. Once he satisfied his most pressing creditors and bought clothes for his family, he expected to have maybe $7,000 left.
He still would be unable to work and without a home.
John Vos, the lawyer for the insurer, saw the deal as an effort “to meet in the middle.” He said he had no idea how injured Mr. Pabon was — “I’m not a doctor” — and that the cyclical hearings were simply the norm.
Compensation cases are like serials without endings. Over the next eight months, Mr. Pabon was sent to two more insurance exams, had two more hearings, got his rate raised to $350 because of continuing depression and had a kidney removed.
He continues to live in a shelter.
Joking and Settling
The compensation lawyers in Queens are a clubby bunch. Often they go to greasy spoons for burgers and pizza, claimant and insurer alike, piling into the van of Ed Hilfer, a claimant lawyer.
Few students in law school imagine a career as a workers’ comp lawyer or judge. For most, it is an accidental destination. Many say they chose it because of the hours. Hearings go from 9 to 4, and judges and lawyers often fly out the door minutes after their last case.
Fees for claimant lawyers are set by judges and come out of awards to workers. Insurer lawyers get paid whatever they negotiate. Rewards for claimant lawyers in Queens typically arrive in dribs and drabs of $50 and $100 fees, augmented by sweeter windfalls from settlements.
For both sides, it is a volume business: the more hearings, the more fees, thus the incentive to keep cases alive.
For workers, a lawyer can be an essential brace. In Queens, though, a claimant is commonly represented by a firm that specializes in workers’ compensation law, not an individual. So if there are six hearings, a different lawyer might handle each one. Sometimes a freelancer steps in when the assigned lawyer is overloaded.
As a result, some hearing lawyers have never spoken to the client, and have barely studied the file. The same hasty preparation is often true for the insurance lawyer and the judge. Even preparation for trial testimony might get done in a few stuttering moments in the waiting area.
During one hearing, a claimant’s lawyer asked his client a question in Spanish. That went poorly, since the man was Armenian.
“There was a judge I was talking to and he said there are only two ways in my court that your fees would be cut: if you’re not friendly or if you’re not willing to compromise,” said Mr. Pizza, the insurance company lawyer. “I said, ‘What if you’re not prepared?’ He said that doesn’t matter.”
Between hearings, the lawyers’ room has the feel of a college social club. Lawyers play pinochle. Watch hockey fights on YouTube. Joke about judges, like the “Cruise Director,” whom they mock for roaming the halls. Or they check the “meat chart,” which lists awards for lost body parts, based on a grisly schedule that codifies missing limbs with weeks of wages.
The rate for an arm is 312 weeks of wages. A leg gets 288, a big toe 38, the index finger 46. Rates fluctuate by state, for no apparent reason. Lose an index finger in Idaho, it’s 70 weeks.
Despite the esprit de corps, the opposing lawyers have clashing worldviews about the system.
A few years ago, Mark Allen represented a delivery driver who had injured his back lifting packages. The next day, the man told his manager the pain was so bad it hurt when he pulled on his socks. The insurer said: not a work injury; he must have hurt himself putting on his socks.
“If you fell out of a tree when you were 5 and you have a knee injury when you’re 55, they’ll say it was the tree,” Mr. Allen said.
On the insurer side, Nicholas Rupwani typifies the many lawyers who view the system as a worker fraud trough. One day he recounted the case of a pet store clerk bitten by a rat who said her injuries had been serious and the experience traumatizing. Yet, Mr. Rupwani noted, her MySpace page showed her throwing darts in a bar and indicated she might start a pornographic Web site.
Mr. Rupwani said he felt bad for workers who suffer crushing injuries — but not too bad. “If you’re a secretary with a torn meniscus who is losing her house, go back to work,” he said. “It might hurt, but people work through the pain.”
When workers moan during hearings about family strife and ruin, he said, “that’s when I tune out.” His theory is that the more people broadcast their situation, the more likely they are fakes.
“Sometimes the claimant is sitting next to you and doing this quiet sobbing,” Mr. Rupwani said. “That’s when I usually recommend that the insurer put them under surveillance.”
He said he recommended surveillance about once a day.
Both sides talk about how inconsistent decisions are. “The law allows some leeway,” said Mr. Pizza, “but there shouldn’t be eight different ways of doing things. ‘I won’t allow depositions,’ ‘I will allow depositions,’ ‘I’ll only allow 15 minutes a witness.’ You shouldn’t put justice on a time clock.”
A popular option in the last decade is a cash settlement under which workers close their cases in exchange for a lump payment to cover living expenses and medical bills.
For some workers, a settlement might allow them to start a business or get a degree. For others, they are economic quicksand, one-time payouts that some people find hard to resist. A state task force found that those who accept them are typically lower-paid workers, with average wages of about $19,000.
Insurers relish settlements because they end their exposure. Claimant attorneys relish them, too. They typically extract a 10 to 15 percent cut.
But do workers know what they’re choosing?
The lawyers routinely say clients are “adults.” But the compensation system is so puzzling that even a Queens judge abandoned her own case years ago out of frustration. And there are lawyers in Queens, regulars at the hearing office say, who undersell settlements, pushing low-ball deals on workers just to pocket a quick payday.
No comprehensive studies have examined the impact of settlements, though limited academic studies tend to find them problematic.
“If it were my case, I wouldn’t take one,” said Thomas Gleason, a former executive director of the board who is now a deputy executive director of the State Insurance Fund, New York’s biggest workers’ compensation insurer. “Some guys get $50,000 or $60,000 and go out and buy a new car — or go to the casino.”
Jorge Manzano, 31, a lumber company driver who hurt his back lifting a cement bag, was offered a settlement in 2007. His lawyer negotiated a $12,500 payment, but Mr. Manzano felt that was insufficient and hired a new lawyer.
At a hearing, his new lawyer asked, “What do you want?”
He said, “Like double.”
The insurance lawyer agreed to $20,000. After a legal fee of $3,000, Mr. Manzano would get $17,000.
His lawyer, who knew almost nothing about the case, made a quick fee, the insurer concluded its exposure and the compensation board closed one more file.
And Mr. Manzano?
He said he plucked the $25,000 number out of the air. His friends warned him not to settle. What if he needed surgery? After all, he could barely hold his daughter. “I’m like an old man,” he said.
But his motivation, as it so often is in the compensation universe, was simply to escape the stultifying system.
“I don’t want to come here and feel like I’m begging,” he said. “Frankly, I’ll take just about anything, just so I don’t have to see this place ever again.”