Part 2 of an ongoing series about Hawaii’s workers’ compensation system.
Dr. Leonard Cupo had just testified in a workers’ compensation case in a windowless hearing room in downtown Honolulu. Cupo, a gregarious man, stood up and shook hands with the small group of attorneys and officials who attended the hearing.
Then he came to Vanessa Sylva, the injured worker whose case was the subject of his testimony. He’d been paid by a workers’ comp insurance company to examine and write a report about her.
Sylva refused to take his hand.
She turned to others in the room and apologized.
“This man has caused me so much pain that I cannot shake his hand,” she recalls saying.
This is the story of Cupo and Sylva — how they came to that acrimonious moment a year ago in a clash made possible, even inevitable, by Hawaii’s workers’ comp system.
That system, developed over more than a century, allows insurance companies to pay doctors of their choosing to examine injured workers
A Civil Beat investigation shows how companies use those results to block claims or deny treatment, with far-reaching effects on workers’ lives even if the doctor’s opinions are later discounted.
It didn’t start out that way. Hawaii’s first workers’ comp law, passed in 1915 when it was still a territory, empowered the state Department of Labor and Industrial Relations to appoint an impartial doctor to examine an injured worker and report to panels that decided workers’ comp cases. The doctor was paid by the state.
Insurers Given More Power
Over several decades, changes in the law, giving other bodies the responsibility to decide cases, made that provision obsolete. Insurance companies could hire their own doctors to examine workers.
In 2000, a bill before the Legislature attempted to recreate the original impartiality of doctors by requiring both sides in a workers’ comp case to agree on a doctor. It also applied to motor vehicle insurance cases.
According to a committee analysis of the bill, “every effort should be made to select a neutral examiner with a balanced approach that favors neither insurer or claimant. Those examiners who have acquired reputations for favoring one side or the other should not be selected.”
The provision on motor vehicle insurance survived the legislative process. But the one for worker comp cases was axed.
Today, insurance exams remain an integral part of the workers’ comp system, used in many cases to deny or delay claims from injured workers
Workers can face years-long struggles to get the treatment or money that neutral panels might later agree they deserved. Some workers, facing financial straits, agree to settlements for far less than they might get or even drop their claims, according to doctors and lawyers who advocate for injured workers.
In most cases, there’s no limit on what insurers pay doctors — it’s typically a few thousand dollars per exam or more. Critics say the big money, despite claims of impartiality, gives doctors a strong incentive to write reports to the liking of insurers.
The insurance industry, over the past decade, has blocked a dozen attempts to require both parties in a workers’ comp dispute to agree on a doctor to examine the worker. Insurers argue that requiring both sides to agree on a doctor would add another layer of bureaucracy, another issue for parties to litigate — and take away the only tool to assure treatment plans are necessary or that the injury warrants benefits
Yet several other states have developed systems to allow exams by doctors agreed upon by both parties. In some states, the opinion of the agreed-upon doctor is usually binding, thus avoiding protracted litigation.
Sylva laments losing 10 years of her life trying to overcome the results of insurer-paid medical exams, waiting years for treatment, relying on medication to take the edge off the pain, confined to her home in Wahiawa because even playing cards with friends hurt too much.
“It took away a decade of my life,” she said. “It made it useless. I’ve been in a little box I cannot get out of.”
And she blames Cupo for helping put her there.
A Million-Dollar Practice
Sylva and Cupo took very different views of her case.
Cupo, who agreed that Sylva’s injuries were from work, pointed out that she’d already gotten extensive treatment, including surgeries, and likely would not benefit from more. To Sylva, Cupo’s report was just the latest of a series of attempts by the insurer to deny or delay treatment to relieve the unrelenting pain that had turned her into a virtual hermit.
The two have little in common, at least on paper.
Cupo, 61, a New Jersey native with a cherubic face and a corona of wavy brown hair, declined to speak on the record with Civil Beat. After the Navy put him through Johns Hopkins University School of Medicine, he interned at the Walter Reed National Military Medical Center before being stationed in Honolulu in 1983, according to court records from his 1987 divorce.
After returning to the mainland for a time, by the early 1990s, he was back in Hawaii. He started doing examinations of injured workers in 1992, he testified in a 2013 hearing on Sylva’s case. In those 21 years, he estimated he had done 7,000 exams for insurance companies, an average of more than 300 a year, in addition to his regular practice.
Like other doctors who do insurance exams, he now typically is paid in the range of $3,000 to $5,000 per report.
He testified that he works long hours, seven days a week. Unlike some other doctors who work for insurance companies, he reviews patient records himself instead of hiring others to do it. On Sundays, he reviews the records while watching football at his Nuuanu-Punchbowl home, he testified.
In one year alone, 2006, one workers’ comp carrier paid him almost $1 million, according to a tax document subpoenaed by an injured worker. His King Street office, which he owns, is valued at $1.6 million, and his Nuuanu house is worth about $3 million, records show. He and his wife also have had timeshares in Manhattan and Las Vegas, according to public records.
In 2007, a TV station reported that the Cupos celebrated the christening of their son with a $250,000 party. The story on KGMB noted that the garden party on the Ocean Lawn of the Royal Hawaiian Resort in Waikiki included gourmet food and flowers imported from Holland. The Cupos also tapped the set designer of the 1995 movie “Father of the Bride, Part II” to reproduce a party scene, KGMB reported.
Cupo has been adamant about his belief that injured workers are getting unnecessary treatment and being encouraged to wallow in their pain.
“Get back to your life. You’ve had a bunch of treatment … you’re fine,” he told Sylva in a 2013 hearing on her case. “I think the message she’s getting from somewhere else is that, ‘You know what? You’re not very fine.’”
He’s also sensitive to the perception that his work is biased. He once complained to some insurance company officials who pushed him unsuccessfully to lower a worker’s permanent impairment rating that he didn’t “want to be seen as a hired gun,” according to a court record.
Sylva, 54, was born and raised on Oahu. For 12 years, she worked for contractors at Aloha Stadium preparing food for events. With her sturdy arms and shoulders, she has the look of someone capable of chopping fruit salads for thousands of people at a swap meet.
But looks can be deceiving. For the past 10 years, she says she’s been severely hobbled by the pain in her shoulders, elbows and wrists from the repetitive stress of working in the kitchen.
While raising a son and daughter pretty much on her own, she was a strict mom, saying grace before every meal, admonishing friends to watch their language around the kids or to go outside to smoke.
When money became tight, she downsized to a rental in Wahiawa. She doesn’t own a working computer or a cellphone. Though she’s given up many of her former pursuits because of her injuries — making wooden plaques as memorials, say, or ceramic toothbrush holders — she still tends a veritable nursery of potted plants.
“From small-kid time, and my mom and stuff, it’s just a place I go to, where happy memories lie,” she said.
After she was injured, she sometimes didn’t feel up to tending them, letting the pots crack instead of replanting. “My friends could tell when I was feeling down or sick,” she said, “because my plants looked sick.”
Obstacles To Treatment
Civil Beat reviewed 71 cases in which Cupo examined an injured worker over the past seven years. Most of them were before the Labor and Industrial Relations Appeals Board, but some reached the Intermediate Court of Appeals of Hawaii.
Our review did not include far more numerous cases before hearing officers from the state labor department — or those that go uncontested — because they are not public.
In more than 80 percent of the cases in which Cupo’s report had some bearing on the worker’s benefits and treatment, his opinions posed obstacles to the worker’s case. Many of his reports found that the injury pre-dated the work incident. Knee joints or spinal discs had been degenerating for years. Or the cause could be found outside work – the claimant’s obesity, for instance, or a stressful relationship at home, or recreational swimming.
Civil Beat surveyed 14 other states on how they handle medical exams of injured workers – the largest states and those similar in size to Hawaii. At least 10 provide for some type of impartial or mutually agreed upon exam, or let the worker choose a doctor at the insurer’s expense, at some point in the process. Following is a sample:
Texas: Any party in a workers’ comp dispute can request a designated doctor certified and chosen by the state, with credentials relevant to the injury. The insurer may also request an examination with a doctor of its choosing and get a state order if the worker refuses.
New Hampshire: Injured workers can request one medical exam with a doctor of their choosing, paid for by the insurance carrier. This often happens for permanent impairment ratings but also for workers within the state’s managed care network who want to get an opinion outside the network.
Florida: Parties have a choice. They can either pay their own doctors and have those doctors’ findings be subject to challenge in work comp hearings. Or the two sides can agree on a doctor and be bound by the findings. In addition, if an injured worker pays for an exam and that doctor’s findings are upheld, the insurer has to pay.
Georgia: The injured worker may request a medical examination at the expense of the insurer within 120 days of the last receipt of income benefits, typically after the insurer has cut off benefits. The worker gets to pick the doctor.
In some cases, he asserted that the injury did occur at work but had resolved on its own and needed no further treatment. He rated workers’ impairments at lower percentages than other doctors did, or said they were not impaired at all. He called one worker “delusional.” Another was engaging in “drug-seeking behavior.”
In about six out of 10 cases in which Cupo’s exam had a bearing on the outcome, the labor appeals board or court accepted his opinion – finding, in essence, that it was consistent with other testimony, medical records and workers’ comp law.
But in a third of those cases, the adjudicators either expressly discounted Cupo’s report or found that the employer, relying at least in part on his exam of the injured worker, had not produced enough evidence to block the claim or request for treatment or other benefits. (The remainder of the cases had mixed results.)
Civil Beat’s analysis found Cupo’s record in this regard was comparable to two other doctors, Clifford Lau and Brian Mihara, used frequently by insurers. Their reports posed obstacles to the workers’ case about nine of ten times, slightly more than Cupo’s.
And neutral fact finders discounted their opinions or found that the insurer had not produced enough evidence to reject the claim, treatment request or other benefits in more than a third of cases in which their exams were a factor. Since 2014, nearly half the opinions of Lau and Mihara have been discounted.
Not An Exact Science
In any given case, it can be difficult to determine which side was right.
Workplace injuries can fall into gray areas, with experts disagreeing about the connection to work and the wisdom of treatment. Legal standards for whether an injury was caused by work can differ from medical assessments.
It’s not an exact science. But crucial aspects of a worker’s case, from the percentage of impairment from an injury to the fundamental question of whether it resulted from work or a pre-existing condition, are treated as if it is.
A typical case in which Cupo’s opinion was affirmed involved a Maui police officer who claimed his neck was injured in a fall on the job. In 2013, the Intermediate Court of Appeals of Hawaii agreed with the labor appeals board that the employer had produced enough evidence to block the claim.
The appellate court accepted Cupo’s opinion that the neck injury was from the natural progression of degenerative disc disease, not the fall. Cupo had cited medical records showing that the police officer had consulted a doctor for neck pain three and a half months before the work accident.
One of the cases in which his opinion was discounted involved Judy Fernandez. Cupo wrote that Fernandez’s back injuries were not related to her work as a security guard, despite her contention that they had been caused by stepping into a pothole on the job.
His opinion relied heavily on the fact that the back pain wasn’t documented in her medical records until two and a half years later. Cupo wrote that she had told other doctors that her back pain got worse when she washed the car windshield or rode a moped. He contended that those activities were probably the cause of her increased low back complaints.
The board did not agree with Cupo. Why, board members asked, had Fernandez undergone an x-ray of her lower back six days after the alleged work injury if she hadn’t been hurt? Also, Cupo failed to adequately address the fact that, a week or so after the injury, the employer had forced Fernandez to sign a form saying she would not make a workers’ comp claim. Why would her bosses have done that if nothing happened, board members asked. Wouldn’t it have made Fernandez reluctant to report the injury happening at work?
In more than 80 percent of cases where Cupo’s report had some bearing on the worker’s benefits and treatment, his opinions posed obstacles to the worker’s case
In another case, Cupo admitted that Karen Erickson, a nurse anesthetist, had injured her lower back at work when she tripped over a cord. But he said that her requests for treatment such as acupuncture, massage and chiropractic care would not be warranted because it was merely palliative and would not cure her back pain.
Erickson argued that those kinds of treatments helped her keep her job and avoid taking narcotic medication, which could get her fired. The board agreed, finding that Cupo and another insurance doctor had focused on the palliative nature of the treatment rather than whether it would help her keep working.
“To accept Employer’s position that palliative care should be denied simply because it is not curative would be to deny medical benefits to many injured workers who need it the most,” the board wrote.
In a case before a labor department hearing officer, Cupo wrote in his report that it was “medically certain” that injured worker Raymond Welch had experienced a tear in the meniscus of his left knee prior to the date of his claimed work injury. The incident on the job had nothing to do with his ongoing pain.
There was only one problem: the records Cupo had relied on addressed Welch’s right knee.
From Cook To Patient
Sylva put in 12 years working at Aloha Stadium, starting in the early 1990s – cooking on an epic scale for big crowds. There was always something going on — not just college football games, but swap meets, weddings, high school games. The crew also catered events. She’d sometimes work 18 hours in a day.
“I could do almost 80 hours in six days,” she said. She liked setting an example of hard work for her two children.
At first, there were enough people to do the job. But new kitchen managers cut back on staff, she said.
“We got to dice and chop all those onions for that whole stadium and there’s three of us,” she recalled.
There were two enormous kettles, but they weren’t the kind that tilted so Sylva and her coworkers had to scoop the food out. They had to do dishes by hand.
Fruit was delivered “in the thousands of pounds,” she recalls. “You’ve got to cut them, peel them, it depends on if they’re having fruit salads or fruit slices.
“You got 2,000 sub sandwiches, so you got to slice those meats, then you got to slice the tomatoes … 6,000 slices already just for the tomatoes.”
In 2005, she started noticing that her hands would go numb. Sometimes she’d drop things. She had to have an unrelated surgery that would require months of recovery at home. By then, she figured, the problems in her hands and arms would probably go away on their own.
They didn’t. Two years later, it got so bad that she could barely brush her teeth. With pain in her wrists, elbows and shoulders, she made a workers’ comp claim.
An insurance doctor examined her in 2006, another one six months later. The second one mentioned that she had a history of intravenous drug use. She was shocked. She had hepatitis C, which can be contracted by IV drug use. But Sylva believes she got it from a homemade tattoo of her two children’s names – she said she’s never shot up drugs.
“That puts me in a light that now all these hearing officers are going to look at me as a druggie,” she said.
She had surgery on her right shoulder in 2008. Then an MRI showed a tear in her left shoulder as well, and she had surgery on that one later in the year.
But the pain persisted, in her left shoulder and in her elbows and wrists.
In 2009, a labor department hearing officer ordered the insurance adjuster, John Mullen & Co., to pay for an MRI of Sylva’s left shoulder. Almost a year later, the MRI showed a tear.
But it would be two more years before the surgery was approved and done. During that time, she had another exam by a third insurance doctor. He raised the possibility that the pain in her left shoulder might be related to her hepatitis C. He also brought up her “long history” of anxiety and depression, which can lead to “somatization” – basically, physical symptoms caused by a psychological condition.
True, Sylva had seen a counselor. She sought help after her son enlisted in the Marines six months before his 18th birthday. She had to sign for him, which she immediately regretted. Then he did two tours of duty in Iraq. She was worried about her teenage daughter, and stressed by not having enough help at work.
But Sylva found it absurd that those very real worries years earlier had anything to do with the fact she couldn’t put her arm down on a table without searing pain in her shoulder.
This doctor also wrote that she had probably become dependent on pain pills. Sylva admits she was taking pain medication. She lived alone and had to be able to function. But she said she was careful to limit the amount. She had to drive and didn’t want to get a DUI. Nor did she want to turn into a “zombie.”
And besides, she said, “they’re the ones keeping me on this medication, because I cannot get out of this pain.”
Finally, in 2012, the insurer gave its approval and she had a second surgery on her left shoulder.
‘Check And Balance’
Cupo had been doing workers’ comp exams for more than a decade when an injured worker filed a lawsuit that probed the nature of his financial relationship with one of the insurance companies that most often employed him.
The plaintiff, Matthew Burns, argued that the Hawaii Employers’ Mutual Insurance Company, or HEMIC, was paying Cupo so much that he could not possibly be objective. Cupo had written a report saying that Burns did need treatment for low back pain, but that it was for an earlier injury that had occurred almost a year earlier when a different workers’ comp carrier was covering Burns’ employer.
Burns called Cupo “nothing more than a tool which HEMIC uses to deny claims.” Cupo, in return, made a “shockingly tremendous and exorbitant amount of money” and became “a very wealthy person in a matter of a few years.”
HEMIC stated that it had no secret agreement with Cupo, “either formally or implied.”
But Burns pushed for records showing how much HEMIC paid Cupo and how often they used him, arguing it was central to proving the company’s bad faith denial of Burns’ claim. He got a tax document from a different worker comp case showing that HEMIC had paid Cupo $986,170.64 in 2006. (The insurance company raised the possibility that some of that money may have been for treating injured workers.)
Eventually, the two sides agreed to a mediator and the lawsuit settled out of court under confidential terms.
HEMIC, the only insurer or insurance doctor to respond on the record to Civil Beat, said it could not discuss the Burns case.
In general, however, chief executive officer Martin J. Welch, who arrived after the Burns case concluded, said the medical exams act as “an important check and balance” in workers’ comp treatment and return-to-work efforts.
The exams help the insurer gather information on the cause of the injury, whether the worker is medically stable and to help assist the worker consider other options if progress has stalled, he wrote.
HEMIC chooses its doctors from a pool that’s been certified to conduct worker exams and tries when possible to have workers seen by someone who specializes in that injury, Welch wrote.
He pointed out that the company uses the exams sparingly — in only about 5 percent of the 1,300 claims a year in which an injury was severe enough that the employee missed work.
Cupo’s first involvement in Sylva’s case came in 2008. He reviewed her medical records, but did not examine her. He wrote that she had degenerative tears in her shoulders, unrelated to work, but that they had been aggravated by repetitive motion on her job. Her elbow, wrist and hand complaints also stemmed from the job, Cupo wrote. None of these conditions were related to her other medical problems, particularly hepatitis C.
In January 2013, Sylva was ordered to attend an examination with Cupo.
She recalls it as an unpleasant experience. Cupo administered a test in which he rolled a pinwheel over her hand while her head was turned away and asked her to say whether one spoke or two was touching her skin. She said she couldn’t distinguish – to her it just felt like vague pressure.
To report the “Waiting In Pain” series, Civil Beat investigations editor John Hill interviewed dozens of injured workers and their lawyers and doctors and reviewed their case files. He analyzed several hundred workers’ comp cases before the Labor and Industrial Relations Appeals Board and appellate courts, looking for patterns in how often treatment was denied and how often insurance doctors’ opinions were discounted, including a more detailed look at three doctors used most frequently by insurers.
Hill examined other state workers’ comp laws, particularly those pertaining to medical exams, as well as precedent-setting Hawaii court cases and the legislative record of failed attempts to pass a law requiring both parties to agree on a medical examiner.
“Dr. Cupo, he actually yells at me, ‘Just give me a number!’” she said.
In another test, using a brush to measure sensation on the top of her hand, she felt nothing. “He said, ‘Hello? I’m waiting on you.’ I said, ‘I’m waiting on you’.”
In his report, Cupo admitted again that Sylva’s shoulder and arms had been injured at work. But the injuries had either resolved or improved as much as they were ever going to. The outcome of her shoulder surgeries had been “excellent” or “good.”
She needed no further diagnostic testing or treatments, he wrote. Nor did she need routine doctor visits, physical therapy, injections or surgeries. She could do exercises at home and take Tylenol for any pain.
A few days after Cupo submitted his report, Sylva’s shoulder surgeon reported that she continued to feel a burning sensation in her left shoulder when she pulled on things. He proposed another MRI of her left shoulder.
John Mullen denied it, citing Cupo’s exam. Sylva appealed to the labor department.
In support, her treating doctor, Scott McCaffrey, wrote in a letter that “the interference of Cupo and other insurance examiners has added several years of … unnecessary downtime for this unfortunate woman … Basically, every time an insurance evaluator says there’s nothing wrong with this woman, objective medical testimony has proven otherwise.”
“Just because this patient’s case is complicated does not mean she should be abandoned by her healthcare system … Otherwise, I have nothing further to add to Cupo’s report which, as so many others are, is slanted against this patient allowing the insurer to cut off care.”
In July 2013, a labor department hearing officer denied the MRI of the left shoulder and other treatment her doctors had requested, such as physical therapy. Sylva appealed again to the three-member labor board.
A Philosophy Of Pain
In a hearing, Cupo expounded at length on Sylva’s case.
“At the time of the evaluation, I was very supportive,” he said. “I said you’re doing great. Get back to life … You’re not perfect, but you’re fine.”
He also described his philosophy of treating pain like Sylva’s.
“In cases of chronic pain,” he said, “focus should be on functionality, independence and not promoting things like dependency on braces, medication, therapists, doctors and systems of entitlement and compensation. We need to set people free from their chronic pain by giving them functionality.”
At other times during the contentious back-and-forth with Sylva’s lawyer, Cupo took issue with her account of his exam, repeatedly accusing her of lying.
“You know what? I don’t make up things,” he said. “I don’t lie and I am thorough with my exam and … she is lying.”
As the struggle over her treatment played out, Sylva says she was in constant pain. A couple of times, she went to the emergency room. The discomfort in her shoulder was so intense, she thought she might be having a heart attack.
“I couldn’t even play cards,” she said. “The burning would start and it would be just miserable.”
She just wanted to go home where she could prop herself up on pillows, to get as comfortable as possible. “And the next thing you know, I just stop going out,” she said. “It was less painful.”
During one of her MRIs, Sylva said she asked why they were only taking images of part of her left shoulder. The radiologist said that’s all that the insurance adjuster had approved.
In late 2015, she said, she asked her new primary care doctor through her regular medical insurance to refer her for another MRI, this time of the whole shoulder. That test found a tear. Her shoulder surgeon recommended arthroscopic surgery to reattach or tighten torn ligaments.
John Mullen & Co. denied the procedure, based on Cupo’s 2013 exam. The insurer also got the labor department to order another examination by Cupo.
That exam, in August 2016, came to very similar conclusions as the one three years earlier. Although Sylva reported pain while showering, brushing her hair, brushing her teeth, vacuuming, mowing the lawn, making the bed and sweeping, she needed no further treatment, he wrote.
Sylva’s “ongoing subjective complaint of pain,” Cupo wrote, “is fueled by investment in the workers’ compensation system” and dependency on muscle relaxants and opiates she was getting from her treating doctors.
Despite the MRI that Sylva’s shoulder surgeon said showed instability in her shoulder, Cupo wrote that she did not show evidence of that in his exam.
“It is wise to treat the patient, not the MRI scan of the patient,” he wrote.
Surgery — Four Years Later
After the insurer rejected yet another treatment plan, Sylva appealed to the state labor department. In December, a hearing officer approved the shoulder surgery.
She had it done in March.
After 10 years, the burning sensation in her shoulder – what she refers to as “this towering inferno” – went away. She was so excited she thought of hugging her surgeon, but decided it would be unprofessional.
She still hopes to get treatment for her elbows and wrists, and vocational rehab. Now that the pain in her shoulder has gone away, she feels capable of working again.
She’s gone through her savings, thankful that a sister on the Big Island can help with a couple hundred dollars a month.
“It feels so good not to be on fire,” she said. “I actually go out a few days, go to a friends’ house and talk story a little bit.”