Employers And Insurers Gain Control In Workers' Compensation Disputes In 10 states, injured workers are finding it more difficult to get or keep medical treatment their doctors prescribe because of reforms to workers' comp laws.

Employers And Insurers Gain Control In Workers' Compensation Disputes

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Let's look more closely at changes in workers' compensation. NPR and ProPublica have been examining changes in the system that is supposed to take care of workers when they're injured on the job. We found cuts in benefits, or new barriers to benefits, in 33 states. One change makes it easier for employers and insurance companies to challenge the medical treatment doctors prescribe. Some workers say they're not getting the treatment they need. NPR's Howard Berkes reports.

HOWARD BERKES, BYLINE: In 10 states in the last decade, employers and insurance companies have gained more control over medical treatment of injured workers. They get to second-guess what workers' doctors prescribe. They can bring in outside doctors who challenge and even overrule the workers' physicians in some states. These challenges might involve brief physical exams or just reviews of paperwork, which is what happens now in California, where independent medical reviewers, as they're called, don't have to be licensed in the state, remain anonymous and have the final say.

FRANCES STEVENS: It used to be a person that would see and evaluate me. And now it's some person who's never met me that sits maybe in an office on the other side of the country with a stamp going no, denied, click. Next.

BERKES: Frances Stevens was a 30-year-old magazine publisher training to be a Golden Gloves boxer when she tripped in her San Francisco office and broke her foot. That was 17 years ago. There was serious nerve damage, and she was diagnosed with chronic regional pain syndrome. It's so bad at times she can't walk, can't bear contact with socks or blankets; even a shower's spray is excruciating.

STEVENS: I've asked to have my feet amputated - especially that right one because it's just such a liability that anything it touches, it's just so painful.

BERKES: You asked to get them amputated?

STEVENS: Yeah, and the doctor said it doesn't work that way because you would still have the pain.

BERKES: Pain medications and a home health aide helped. But two years ago, the State Compensation Insurance Fund rejected continuation of the prescribed treatment, saying it wasn't helping Stevens recover. The dispute went to an independent medical reviewer. That anonymous doctor sided with the insurance agency, and that's not surprising. Independent medical reviewers in California uphold insurance companies more than 90 percent of the time. That's a good thing, says Alex Swedlow of the California Workers' Compensation Institute.

ALEX SWEDLOW: I see it as a sign of decision-making process being largely correct, that 91 percent of the time the decision that is being made to either deny or modify was made on solid ground.

BERKES: This happens so often, he says, because physicians treating injured workers are overprescribing drugs or surgeries or seeking treatments that don't fit medical guidelines. That's one of the problems California lawmakers tried to fix when they overhauled the workers' comp system in 2012. Swedlow also says most injured workers are getting what their doctors prescribed. Only 5 percent of the cases go to independent medical reviewers, but they issued 260,000 decisions in the last year alone, which concerns Keith More, an attorney for injured workers.

KEITH MORE: It's a completely anonymous system. We'll never know who reviewed it, and we have nothing that we can do about it. We can't go in and depose that doctor, see what medical records he reviewed, and we'll never know that.

BERKES: More sites the case of Nicolas Mercado, a 54-year-old quadriplegic who was disabled on the job in a truck accident in 2011. He's been in hospitals and nursing homes ever since. Two years ago, his doctor said he was ready to go home, but his house needed about $170,000 in modifications. The bathroom and bedroom were too tiny for his wheelchair. There was no safe escape in case of fire. The California Insurance Guarantee Association fought most of the changes, so Mercado was left with occasional visits home.

NICOLAS MERCADO: Hi, my little princess. I love you. You want to give me a kiss?

BERKES: Mercado tips his wheelchair forward and his granddaughter wraps her arms around his neck and kisses him on the cheek. All he has left in life, he says, is time with his family. His wife, Linda, can't bear to leave him at the nursing home more than an hour away.

LINDA MERCADO: And I see him through the window, I wave bye. And I throw him a kiss, and he throws me a blessing. And it just tears my heart because I don't like letting him see me crying. But once I leave that parking lot, everything comes out. It's hard for me to leave him there and see him suffer.

BERKES: Mercado says her husband gets good care at the nursing home. He just wants to be home with his family. Attorney Keith More.

MORE: If Nic Mercado needs his home modified and the treating doctor who's in your network says this is what you need to do, why deny it? To save money.

BERKES: The case went to an independent medical reviewer and the insurance agency prevailed. Then this happened...


UNIDENTIFIED REPORTER: Whatever horror stories you've heard or perhaps even endured because of government bureaucracy, the one you're about to see may be the very worst.

BERKES: This story on NBC4 News in Los Angeles embarrassed the insurance agency. It suddenly agreed to remodel Mercado's home. Director Wayne Wilson said expensive workers' comp cases will still go through the new review process, and that's the way it should be, says Christine Baker, the state official overseeing workers' compensation in California. Baker says the old system relied more on judges to resolve disputes, which led to time-consuming and expensive litigation.

CHRISTINE BAKER: We have the highest medical costs in the country. This reform was an attempt to put in balance the medical costs, the medical care. The focus is on appropriate treatment. We looked at the best delivery of medical care that is not litigious and took it away from litigants to doctors.

BERKES: Baker defends the anonymity of independent medical reviewers. It isolates them, she says, from the pressure insurance companies or workers' attorneys would apply. Workers and their attorneys in California and other states say these medical review systems erect new barriers to treatment, which prompts this warning from Frances Stevens, the disabled publisher and boxer.

STEVENS: If I was young and strong and in perfect health and this could happen to me, this could happen to anybody or it could happen to somebody you love. You know, if people don't stand up and start noticing how broken the system is, you know, by the time you figure it out, it's going to be too late.

BERKES: Stevens challenged the use of independent medical reviewers as a violation of due process. Her lawsuit is a constitutional test of the new system, and it's destined for the California Supreme Court. Howard Berkes, NPR News.



And you can read much more about Frances Stevens, Nicolas Mercado and other injured workers at npr.org.

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