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Part of an ongoing series about Hawaii’s workers’ compensation system.
A year ago, Jay Dela Pina spoke to a Civil Beat reporter about his struggles to get treatment after injuring his lower back working as a hospital custodian when he bent over to pick up a bucket full of solution and mop heads.
Over the course of several years, the workers’ comp carrier had blamed his injury on a pre-existing condition, and then, when that was discredited by a state hearing officer, denied his doctor’s plans to fix his back.
Since Dela Pina first talked to Civil Beat, his insurer approved a doctor’s request to get an X-ray and MRI. But then it denied a different type of MRI that the same doctor requested to determine whether he’d benefit from surgery. Dela Pina would have to get his lawyer to request a hearing at the Department of Labor and Industrial Relations to try to overturn the denial.
In the meantime, his physical problems mount. Now his left side has started to hurt, perhaps because he’s been compensating for discomfort on the right. His leg sometimes gives way. A few weeks ago, he fell down some stairs to his carport and the pain got so bad he went to the emergency room.
“I just want my life back,” Dela Pina said. “I get jealous because people get to go to work. It hurts me to see my wife come back from work, and I’m home.”
Over the past year, Civil Beat described the plight of Dela Pina and many other injured workers in a series called “Waiting in Pain.” They talked about financial struggles, the frustration of living with injuries they believed could be fixed — and even homelessness, depression and attempted suicide.
One year later, many of them have seen little progress.
In its 2018 session, the Hawaii Legislature failed to approve three bills that would have addressed problems identified in the Civil Beat series. One, for instance, would have required both sides in a dispute to agree on a doctor to examine the injured worker.
As a result, the system grinds on much as it has over the past few decades. Workers’ comp insurers pay hand-picked doctors to write reports that routinely deny that the injury occurred at work or that the worker needs treatment.
A significant number of these so-called independent medical exams, or IMEs, are later discounted, but it may take years. During that time, workers may be cut off with no income or treatment while they appeal the denials, often requiring the help of attorneys. Many decide to settle for far less than they might get rather than keep fighting.
“There has been some improvement in the system,” including faster processing of claims at the labor department, said Scott Miscovich, a Kaneohe physician who’s one of the few who willing to deal with the hassles of treating workers’ comp patients.
“But unfortunately,” he said, “the same select group of worker comp carriers continue to use the system against the patient.”
Rep. Aaron Ling Johanson, chair of the House committee that deals with labor issues, says he’s committed to continuing to try to reform workers’ compensation.
“If people are stuck in this purgatory, how do we get them out?” he asked. “One of the reasons I pursue this year after year is that people are suffering.”
But rather than reviving the same proposals, Johanson is considering fresh approaches for the session that starts in January to get beyond the resistance he seems to encounter at each step.
“It’s forcing me to think outside the box,” he said.
Civil Beat’s investigation focused on the insurers’ use of IMEs, based on an analysis of almost 200 reports over seven years by three doctors hired frequently by insurance companies.
In nearly nine of 10 cases in which the IMEs were cited in disputes before the state Labor and Industrial Relations Appeals Board or appellate courts, the opinions of the three doctors were bad news for workers. They said the injury did not happen at work, for instance, or that it needed no further treatment.
Yet in almost a third of these cases, the labor board or appellate court discounted these IMEs or ruled that the insurer, relying at least in part on the doctors’ opinions, failed to produce enough evidence to block the claim or treatment. From 2014 to 2017, the rate was even higher – about half.
In essence, the numbers add up to this: many injured workers can overcome the results of an IME, but not without a long and taxing struggle during which they may be denied payments or treatment.
For more than a decade, the insurance industry has fought off a dozen bills in the Legislature to require both parties in a workers’ comp dispute to agree on an IME doctor.
As far back as 2000, a committee analysis of one such bill concluded that “every effort should be made to select a neutral examiner with a balanced approach that favors neither the insurer nor the claimant. Those examiners who have acquired a reputation for favoring one side or the other should not be selected.”
Insurers have consistently argued that such a move would only add another layer of bureaucracy. And it would take away their primary tool for making sure that treatment is warranted, they say.
But Civil Beat found that several other states have found a way to allow both parties to agree on a doctor. Some make the opinion of the agreed-upon doctor binding to avoid protracted litigation.
Yet another neutral IME bill in this year’s session went nowhere.
Two other workers’ comp bills made it much farther.
One would have compelled insurers to pay benefits for injured workers while the insurer investigated whether the claim was valid, rather than delaying payments until they were deemed legitimate. In practice, the insurance investigation can go on for months, during which the injured worker may get no benefits.
“This idea of ‘denied pending investigation’ basically destroys the whole no-fault idea,” Wayne Mukaida, a longtime workers’ comp attorney, told Civil Beat last year. “And that’s the start of unwarranted months and months of delay.”
The other bill that almost made it would have clarified that IME doctors owed the same duty of care to workers’ comp patients as to traditional patients. Some critics of the current system believed this would restrain IME doctors from writing reports tailored to the interests of the insurer.
Differing versions of each bill passed the House and Senate. They were then killed by lawmakers in conference committee, where the two chambers try to resolve differences over legislation.
Despite its warnings about proposed legislation, the industry appears to be doing well. From 1986 to 2017, workers’ comp premiums paid by Hawaii employers have dropped from $8.91 per $100 of payroll to about $2. Hawaii used to be almost three times above the national median, but now is just slightly above it.
Civil Beat contacted additional workers featured in the series to see how they were doing. They described how their struggles have continued, sometimes in ways that seem almost Kafkaesque.
Michael Makekau recounted in a 2017 story how doctors hired by his employer, Hawaii County, wrote that his respiratory ailments were not caused by mold in the Hilo landfill scale house where he worked.
Makekau countered the IME reports by paying for his own sampling of mold and hiring experts to analyze his medical records. Eventually, after Makekau declared bankruptcy and sold his house, the county admitted that he was injured on the job.
Since that time, Makekau had a CT scan and a pulmonary function test, as recommended by an earlier IME. Then, the county sent him to a doctor to rate his level of permanent disability, which determines how much he will be paid to compensate for his impairments.
In August, that doctor said he didn’t think mold had caused the lung disease, just aggravated it, which mystified Makekau because that was not the issue he’d been asked to address.
“We kind of went backwards,” he said.
Even stranger was that the doctor wrote that Makekau had failed to get the CT scan and pulmonary function test. Since the workers’ comp carrier paid for the testing, he assumed someone would make sure the results got into the hands of the doctor lined up to examine him.
“It’s not my job to find out what that process is and who’s responsible,” he said.
He works two jobs, struggling to get through the day sometimes, and is hoping eventually to get the insurer to pay for comprehensive testing of his lungs in San Diego, perhaps as a prelude to a lung transplant that one doctor said could become necessary.
Daniel Junker, another worker profiled by Civil Beat, was working as a security guard in Kakaako in 2015 when a prowler slashed him with a box cutter in the upper chest and forearm and slammed him against a dumpster.
After an IME doctor attributed Junker’s chronic pain to earlier shoulder problems, his workers’ comp insurer cut off his payments and denied further medical care. But a state hearing officer sided with Junker, appearing to clear the way for treatment, including a complicated surgery on his axillary nerve that would have to be done by specialists in Massachusetts.
At the time the story was published, the insurer had denied a treatment plan from his doctor, citing the earlier IME report that had been discounted by the hearing officer.
Since then, the insurer paid for him to fly to Massachusetts for a consultation with the two shoulder specialists, who outlined the complicated surgery. Including stays in the hospital and a rehab facility, the cost would approach $200,000.
The insurer rejected it. Junker and his lawyer are appealing. “It’s like starting over,” he said.
The only thing that keeps him sane, he said, are his four cats. On a recent morning, one stole a cigarette from his pack and started rolling around on the floor with it.
“They’re more therapy for me than if I went one-on-one with a doctor,” he said.
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