State’s so-called ‘grand bargain’ frustrates employees, employers, taxpayers
(Steven Miller of NPRI) – Nevada’s workers’ compensation system is Kafkaesque.
In one way, it’s simply because workers’ comp systems virtually everywhere — despite their asserted necessity — trigger feelings of senselessness, disorientation and helpless alienation, resembling those so famously evoked by Franz Kafka’s tales.
But it goes deeper: Kafka — highly intelligent and exceptionally sensitive — was himself drenched in the workers’ comp milieu, spending each workday, himself, as a functionary at the Worker’s Accident Insurance Institute in Prague, Bohemia.
Then, after 2 p.m., he would go home and write his evocative tales.
“Out of his experience of paternal tyranny and decadent bureaucracy,” said novelist John Updike in a forward to a collection of Kafka’s stories, “he projected nightmares that proved prophetic.”
“A sense that Kafka epitomized,” said Updike, was “a sensation of anxiety and shame whose center cannot be located and therefore cannot be placated; a sense of an infinite difficulty within things, impeding every step.”
That, in fact, is a pretty accurate description of many experiences of Nevada’s injured workers — once they’ve found themselves subject to work comp’s tender mercies.
“They make you feel like a criminal, workers’ comp does,” a career firefighter told Nevada Journal. “They make you feel like you’re less than” other employees.
That firefighter’s knee had gone out during a mandatory training exercise — which the fire department later canceled for other firefighters. Then the county’s workers’ comp operation denied him the surgery his doctor recommended.
To him, it didn’t make sense — at least not according to the so-called “grand bargain” industrial insurance scheme that Nevada, like virtually every other state in the union, has ostensibly adopted.
How he was being treated seemed totally arbitrary, he said. Other firefighters — those within the department’s “clique” — had no such problem. Surgery for them was routinely approved, even when “everybody knew” their injuries had really happened at home or at a sideline business or at a party on the road.
“It makes you feel like you’re a leper,” he said, describing what seemed to him clear discrimination, aimed at forcing him to retire. “I mean — I can’t get the same coverage that this other person got?”
This fireman’s journey into the work-comp adjudication process with Clark County’s hired third-party work-comp administrator (TPA) at the time, Sierra Nevada Administrators, is amply documented by medical and legal records he turned over to Nevada Journal.
Those records reveal how mysteriously arbitrary — and thus litigation-inducing — the actual administration of Nevada work comp can be.
When this firefighter — who asked not to be identified publicly by name, and whom we’ll call “M” for the moment — went to UMC in mid-July 2012, he explained that two weeks earlier, when climbing through a mock window in a firefighter training exercise, he had “twisted [his] left knee and felt it come out of [the] socket.”
Now, he reported to the examining physician, it wasn’t working properly. Instead, it “locked up.”
The physician’s diagnosis, stated multiple times on the UMC claim forms, was: “internal derangement, left knee.”
The county TPA’s automatic response to the claim, however, was to say that M’s request for benefits “is denied at this time pending medical investigation,” and that “an orthopedic consultation for your left knee” will be scheduled with a doctor with whom the TPA had arranged an appointment, Kirk T. Mendez, of Bone & Joint Specialists.
Mendez, after examining x-rays of the knee, reported back to Clark County’s work-comp adjuster that the x-rays did not show “any new anatomical derangement” and that the osteoarthritic degeneration seen in the knee was “not a direct cause of his reported injury.”
The Mendez statement, however, immediately raises questions. Since “derangement” of the knee had been identified by the first examining physician in mid-July, the exact meaning of Mendez’s term, “any new anatomical derangement,” is unclear. Does “new” here mean in the three weeks since the UMC mid-July examination, or is it challenging the original diagnosis altogether?
Similarly, if the osteoarthritic degeneration seen in the knee was not a direct cause of M’s injury, does that not lend weight to the hypothesis that the injury resulted naturally enough in the context of a fireman’s training exercise to be covered by workers’ compensation?
Yet another report oddity occurs in the entry under the heading “Chief Complaint.” In an instance of the inattention to detail frequently seen in work-comp doctor reports, it immediately contradicts itself, stating: “The Chief Complaint is: Right knee pain. Mr. [M] is being seen with a chief complaint of left knee pain.”
While M “would be a candidate for total knee arthroplasty,” said Mendez, “this would not be due to any workers compensation injury.”
Citing the report, Sierra Nevada Administrators notified M that his claim was denied.
Approximately a week later, M requested a hearing before a state work-comp hearing officer, insisting, “I feel that this injury is a direct result of my job, and [I] was injured while in the course of training in my job.”
At the hearing some 10 weeks later, the attorney representing Clark County and its TPA not only cited the Mendez opinion but argued at length a highly significant proposition: that, under Nevada law, a “work-related injury” does not, in itself, warrant the award of workers’ comp medical benefits:
In attempting to prove his case, the claimant has the burden of going beyond speculation and conjecture. That means that the claimant must establish the work connection of his injuries, the causal relationship between the work-related injury and her [sic] disability, the extent of disability, and all the facets of the claim by the preponderance of the evidence. To prevail, a claimant must present and prove more evidence than an amount which would make his case and his opponent’s evenly balanced. Maxwell v. SIIS, 109 Nev.327, 849 P. 2d 267 (1993).
… the employee is unable to show a causal connection between his pain and the workplace conditions. The claimant’s work environment did not cause his knee to lock up, nor did it make his workplace conditions “any different from or any more dangerous than those a member of the general public could expect to confront in a non-work setting.” (Abel v. Mike Russell’s Standard Service, 924 S.W. 2d 502,504 Mo. 1996). (Emphasis added.)
Reminded of all the post-1993 Nevada increases in the burden of proof for work-comp filings, as well as the Mendez opinion, the hearing officer ruled against M and in the county’s favor.
Interestingly, the legal precedents upon which this decision rested reveal how significantly the original promise made by workers’ compensation has been narrowed in Nevada and, indeed, virtually everywhere. The premise behind the original “grand bargain” of industrial insurance, after all, was that it would take care of all work-related injuries, regardless of cause and regardless of who, if anyone, was at fault. Thus, any need for litigation by either employee or employers would be removed.
Today, however, litigation is again rife. And it is workers’ comp itself that has made it so. So numerous are the conditions and “reforms” that have been added within both statutory and case law, that today even acknowledged work-related injuries can be excluded from medical care and compensation, based on subtle nuances — or selective inattention — within the opinions of different, hired, doctors.
Not to be denied, M, about a month later, went to a different physician, Steven C. Thomas, of the Thomas & Bigler Knee & Shoulder Institute, which ordered an MRI of the knee by Radiology Associates of Nevada.
The RAN findings:
The medial meniscus is extruded out of the joint. The body of the medial meniscus is macerated. There is grade IV chondromalacia in the medial compartment with subchondral edema and large marginal osteophytes….
Significantly, Mendez had only ordered x-rays of the knee, while Thomas had ordered magnetic resonance imaging — more expensive, but also much more informative as to the actual condition of the cartilage, muscles and soft tissues involved in knee function — such as keeping a knee from “locking up.” X-rays are limited to providing detailed images of bone structure.
Subsequently, Thomas issued a “To Whom It May Concern” statement:
[M] has been under our care for treatment of his knee. Given the patient’s history, the most likely cause for the meniscal tear that is present on his recent MRI was the trauma from his work injury on 7/2/12. The patient does have a history of arthritis, but prior to the injury he did not have any mechanical symptoms. Post-injury, the patient does present with mechanical symptoms, which again points to the work injury as the most likely etiology of his meniscal tear. Treatment of this meniscal tear can and should be done arthroscopically. This patient does not need a knee replacement at this time as his previous doctor had suggested. If [M] does not receive this arthroscopic treatment, his knee will only get worse as menisci cannot heal by themselves…. (Emphasis added.)
With his knee doctor’s opinion in hand, M appealed the hearing officer’s decision. A week later — it was now late December — the state appeals officer scheduled a March 2013 hearing and notified M he could either be represented by a private attorney or one from the state’s Nevada Attorney for Injured Workers (NAIW) office.
M opted for IAFF Local 1908’s highly experienced work comp attorney at the time, Dean Hardy, who soon wrote Mendez, asking him to clarify his earlier medical opinion.
“[D]o you agree that [M]’s meniscus tear is related to the July 2, 2012 accident and should be repaired as a compensable consequence of this claim?” asked Hardy. “Please outline your opinion in this matter in a short note to this office.”
Evidently, Dr. Mendez did not agree, because toward the end of February, M was directed by Sierra Nevada Administrators to go see yet a third doctor, per Nevada’s two-out-of-three process to resolve disagreements between TPA-selected doctors and patient-selected doctors.
“Sierra Nevada Administrators (SNVA) wants to make sure that you have been provided with the best possible health care regarding your industrial injury,” the TPA wrote to M.
About the same time, M was informed that his appeal hearing had been postponed yet another month: Instead of late March, it was now set for late April.
Early in April, however, M pulled the plug on his appeal — and pulled the plug on his job, too, and retired.
He’d been told by a union attorney, he says, that “work comp” was “just going to keep screwing you around.” So, for his knee’s sake, he ought to just get the remedial surgery done through the union’s insurance, rather than keep slogging through the state’s workers’ compensation system.
“So, basically, I just said, ‘Screw it,’” M told Nevada Journal. “‘I’ll go ahead and get it done through the insurance,’ and I pulled the plug. I retired, you know? And, I did have a bad taste in my mouth, but in all retrospect, I’m 52, I’m retired, I’ve got 32 years in, I’m getting a decent pension.”
In Kafka’s The Trial, after unknown, nameless men come into K’s bedroom and then tell him he’s under arrest, K asks the natural question:
“And why am I under arrest?”
“That’s something we’re not allowed to tell you,” is the bureaucratic answer. “Go into your room and wait there. Proceedings are underway and you’ll learn about everything all in good time…”
In Nevada workers’ comp — now over a century old — a similarly slow-moving bureaucratic fog seems to envelop virtually everything and everyone. Implicit within that fog is the “experience of paternal tyranny and decadent bureaucracy” that both Updike and Kafka identified.
Facilitating this is the system’s complexity: After the law’s initial 1913 passage, in nearly every one of the next 49 regular biennial sessions of the Nevada Legislature, lawmakers again amended the law. And workers’ comp is again up for amendment in the Legislature’s 2015 session.
The fog-like paternal tyranny that envelops workers’ comp, however, has an origin beyond the complexity of ever-shifting statutes and regulations.
A quiet duplicity is inherent in the so-called “grand bargain.” Ostensibly promising so much, workers’ compensation builds in moral-hazard risks that are similarly profound, appealing to sharpies of every stripe — whether employee, corporate, administrative, bureaucratic or labor union.
And so what the supposed “bargain” offers workers and employers with its one hand, the actual text of industrial insurance laws has necessarily evolved to take away with the other — through a disorienting maze of conditions, provisos, loopholes and openings for appeal and endless litigation. Today, that’s true not only here in Nevada, but also in most U.S. states.
Thus, the increasingly arising criticism: that — seen from the 20,000-foot level — workers’ comp resembles nothing so much as a politically sanctioned bait-and-switch.
Lending weight to such an argument is the very origin of state-mandated industrial insurance — in late 18th Century Prussia, at the hands of that demonic master of the political bait and switch, the Junker Iron Chancellor, Otto von Bismarck.
Nevada Journal will examine that illuminating bit of history in this series’ next installment.
Read the original version of this column at the Nevada Journal.
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