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Home / Articles / · Archive / News & Columns /  Insult to Injury
News & Columns

Insult to Injury

A former intern alleges the Workers Compensation Fund pits counselors against injured workers.

By Shane Johnson
Posted // October 23,2007 -

Jim Fox gave the finger to workers’ comp some 45 years ago, and they paid for his first car. No joke. Working in a restaurant as a teen, Fox chopped off his right middle finger and put the workers’ comp benefits toward some new wheels. Ever since, a simple handshake betrays his affinity for injured and disabled workers.

Today, sitting in a Chinese restaurant, Fox fights back tears explaining why he abruptly terminated an internship with the vocational rehabilitation (voc-rehab) division of the Workers Compensation Fund (WCF).

For his first unsupervised assignment, Fox drew the case of a 60-plus-year-old woman. She’d broken her back in a slip-and-fall at the job she’d worked for 20 years. Surgeries didn’t do much good, and the woman couldn’t return to her former occupation. So she applied and received disability benefits from Social Security. But later finding suitable work at a Wal-Mart store, the woman swore off government assistance and trudged on. That lasted about a year—she just couldn’t bear the pain any longer, Fox said.

On the outs again, the woman posed a liability to the fund, and they sent in Fox.

“They say to me, ‘Fox, what we want you to do, we want you to go down there and … teach this woman how to get a job.’ Oh, it doesn’t matter she can only drive 20 minutes and she’s got to stop. Doesn’t matter she’s in pain all the time. ‘What we want you to do is document everything that she does,’” he said, thumping the table.

And that’s why he walked away from the fund last August. Because, Fox says, its voc-rehab division is more in the business of thwarting injured workers’ rightful disability claims than getting them back to work—the ostensible purpose of the program.

When the fund’s voc-rehab counselors tell injured workers they’re there to help, it’s not the whole story. Fox alleges they’re also gathering dirt and dishing it to claims adjusters and the legal team, so that if and when an injured worker files for permanent disability, the fund has the ammunition to shoot them down at an administrative hearing.

“So, goddamn it, I don’t care what you do. It’s got to stop.” Then Fox handed over the documents that he says prove the division is a wolf in sheep’s clothing, saving the fund millions every year at the expense of injured workers. If the fund takes legal action against Fox for revealing its proprietary secrets, which it indicates is likely, he and his wife have reconciled to sell the house and live “the apartment life” if that’s what it takes to get the word out.

Leigh Ann Havas, the fund’s voc-rehab director, says Fox struggled in his internship and the allegations are baseless. “I think he has taken so many things out of context, I think he did not understand the aspects of the job,” she said.

“I’m rather concerned … that you’re receiving information from an intern who did not do well in our program.”

This is far from a case of one naïve intern misconstruing the inner workings of a mammoth system. Fox knows vocational rehabilitation. At 62, he’s spent the better part of his life helping broken and bruised workers back into the rat race.

As a younger man, Fox was dead set on becoming a lawyer. But he found his true calling after taking a year off from Washington, D.C.’s George Washington University to work at a shelter helping mentally disabled clients prepare for the work force.

“I have a great admiration for people who have disabilities, yet are willing to get up in the morning, and go out and face all the burdens we all face, plus the additional burdens they face, and just endure, and come back and get up the next morning,” he explained.

After earning two master’s degrees in voc-rehab, Fox took up with Goodwill Industries, an international non-profit organization that helps the disadvantaged and disabled overcome employment barriers. When Goodwill operations in Delaware and Missouri were in dire fiscal straits, they installed Fox as CEO to turn things around, which he did in spades. But for a change of pace—maybe it was a midlife crisis, he says—Fox left Goodwill for Deseret Industries, a charitable arm of the Church of Jesus Christ of Latter-day Saints, of which he’s a member.

It’d be a mistake to count him among so many saints, though. When Goodwill called on Fox again, he botched the opportunity to work his magic on another struggling operation in West Palm Beach, Fla.

“I screwed that up,” he said. “I went down there, and I acted like a pompous ass, and the staff recognized a pompous ass and requested the director to let me go.”

So Fox begged his way back into church employment in 1987, where he worked until 2002, mostly as an employment specialist at the church’s charitable services hub, Welfare Square.

With his latest undertaking, Fox could end up needing some employment assistance of his own. Shortly after leaving Welfare Square, he went back to school at Utah State University (USU) to earn a third graduate degree in voc-rehab. To satisfy a course requirement, he took on the full-time internship at WCF.

But halfway through the gig, in late August, Fox had had enough. The fund’s voc-rehab division was an “ethical cesspool,” he reported back to USU.

He didn’t find a sympathetic ear in Julie Smart, director of the university’s rehabilitation counseling program. That’s because WCF reported to Smart in October that during his internship Fox experienced some interpersonal problems with other staff members. Fox says the allegations surfaced two days after he turned in a scathing evaluation of his experience at the fund.

Near the beginning of the internship, Fox was tagging along with a female counselor when she suggested that they stop for lunch before making the rounds with her clients. Fox blurted out that his wife might have concerns about a co-ed sit-down. He now realizes the comment could easily have been misread. But fresh off a 15-year stretch working for the LDS Church, where the policy is that you’re never to be alone with a member of the opposite sex, he figured it was a valid concern.

Fox assumed the controversy had been squashed shortly thereafter. Smart even asked in August if he’d serve as the student representative on a search committee for the program’s next faculty member. But since the allegations, Smart has indicated her belief that Fox has a “tendency to sexualize relationships with women.”

And WCF says Fox is only sour on the fund because he got a C grade for a poor internship performance, a charge Fox finds ludicrous.

“What the hell are we talking about? We got people out there that are getting screwed, and I’m worried about a [grade]?” he asked incredulously. “What they’re going to do to me is not germane to what Workers’ Comp is doing to these people.”

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The entire workers’ compensation system is a kind of “social contract,” says Joyce Sewell, director of Industrial Accidents for the Utah Labor Commission. It’s set up as a quid-pro-quo where insurance carriers promise to promptly take care of injured workers’ medical claims and lost wages. In return, workers are barred from suing their employers. In Utah last year, there were about 65,000 on-the-job injuries reported to the commission. Of those, about 15 percent resulted in time lost from work. And in 2,495 cases, severely injured workers were paid permanent disability benefits.

WCF, by far Utah’s largest workers’ comp carrier, purports its voc-rehab program to be a valuable service to its 30,000 policyholders and injured workers alike. By helping workers back into employment as quickly as possible, the program diminishes WCF’s liability, cuts employers’ premium costs and reduces hardships for workers. Everybody makes out.

But from the get-go, Fox became convinced that WCF wasn’t holding up its end of the bargain. It started with little things. Like when the voc-rehab division manager, Rex Johnson, told Fox and a few other counselors at a lunch meeting his view that “All injured workers are liars.”

It wasn’t the only time Fox heard the cynical refrain. And fundamentally, Johnson runs the voc-rehab division with that premise in mind, Fox said, adding, “When you have that attitude, you can’t help the people.”

Havas, WCF’s voc-rehab director and Johnson’s immediate supervisor, says she doesn’t doubt Johnson made the comment. She heard it herself on one occasion. “And we all had a laugh,” she said. Fox simply didn’t understand the tone and context, Havas continued. Johnson had just gone through a taxing ordeal with a supposedly injured cowboy out of Wyoming. After doing everything he could to help, it turned out the cowboy was lying to get over on the system, Havas said.

“Sometimes to relieve the stress, as in any environment, we tend to have our own jargon, and sometimes use humor to break the stress,” Havas said.

The fund would not allow Johnson, or any of its voc-rehab counselors, to comment for this story.

Flippant comment or not, Fox says Johnson made it abundantly clear that injured workers were not to be trusted.

Case in point: As an intern, every couple of weeks Fox was required to turn in an activity log for Johnson’s assessment. Reviewing one such log, Johnson openly mocked Fox for naively reporting that a handful of injured construction workers seemed eager to get back to work, Fox recalled. Notwithstanding Johnson’s “all injured workers are liars” sentiment, Fox says the tone was unmistakably hostile toward injured workers.

“These people, they’re blue-collar workers. Most of them, if they’ve graduated from high school they’re lucky. They spent their life working in construction, or the women working in waitressing, or whatever. Their bodies are what gets them money,” Fox said.

“But once they break that ankle, and it can’t be repaired again; once they break that knee; once they get that shoulder shot, it’s not a matter of ‘Now I’ll learn how to operate a computer, or now I’ll become a newspaper writer.’

“Most of them are in their 40s and 50s, what are they going to do? They don’t get a hell of a lot off of permanent total disability anyway, but that’s the law. When you go and screw them out of what they should get, they got nothing.”

It was an internal WCF document—compiled to justify the voc-rehab division’s existence amid proposed internal cutbacks in 2002—that finally cemented Fox’s suspicions that the program is primarily a tool to deny injured workers’ their rightful disability benefits.

The document lists three categories where the program saves the fund money. First, by going in-house rather than contracting with outside providers, voc-rehab saved the fund $260,000 over six months. And by returning clients to work before they reach maximum medical improvement—the point at which workers are deemed as healthy as they’ll ever be, and when temporary disability payments from the fund cease—the program saved roughly $130,000. The last category, the kicker for Fox, shows that the voc-rehab department saved WCF nearly $26 million over six months “as a result of negotiated settlements, denial of liability, disputed validity or returning to work.” It’s a nice chunk of change considering the fund paid out approximately $110 million in claims that year, the last year for which the Utah Insurance Department has financial statements.

Negotiating, denying and disputing claims should be functions of the fund’s claims adjusters, fraud investigators and lawyers, says Fox. In no way is it in keeping with voc-rehab counselors’ primary objective—helping injured workers back to work.

Havas says Fox misinterpreted the proprietary record, which wasn’t meant for public consumption. But she couldn’t seem to make up her mind when asked how exactly the voc-rehab division could save the fund all that money by negotiating, denying and disputing claims. “We don’t have anything to do with that,” she said at one point.

Asked why the savings would end up in a voc-rehab report if they had nothing to do with the division, Havas relented. “Sometimes on a negotiated settlement, it’s because we’ve been able to show that … this injured worker is employable in certain kinds of jobs,” she said.

But the portion dealing with denial of liability, “that is not ours,” Havas said. She later clarified. “[Denial of liability is] probably on there because occasionally some of the work that is done in our department is information passed on to the claims adjuster that helps them decide whether or not the injury actually happened.” As for disputed validity, Havas admitted it’s about the same as denied liability. “So it’s just, they might use our reports as a piece of the evidence to say ‘We’ve got a dispute.’”

The confusion begs a couple of questions: Where does the voc-rehab division ultimately owe its allegiance, to the fund or injured workers? And how can helping injured workers to get back up and running actually hurt them?

According to the national Commission on Rehabilitation Counselor Certification (CRCC), “The primary obligation of rehabilitation counselors is to their clients.” Not to be confused, “client” in this case refers to the injured worker, not WCF.

Joyce Sewell of the Labor Commission says that there’s a risk whenever someone is expected to serve two masters. “I think you have an inherent conflict of interest with a person working for the company and also working on behalf of the injured worker,” she said.

Tim Allen, a former Labor Commission administrative law judge, has a more cynical take. “It’s not something that I lose any sleep over,” because, he said, “It would be naïve to think that the insurance company is going to have somebody see you who doesn’t represent their interests.”

Seasoned workers’ comp attorney Virginius Dabney says the fund’s program is a sham. “It doesn’t have anything to do with getting people back to work, because they don’t care,” he said. “It has to do with documenting the person’s file so that they can undermine a [permanent total disability claim].”

It isn’t clear where Havas stands. In one breath she said, “Our job as vocational counselors is to act as consultants for the claims adjusters and the legal department.”

But when further pressed she assured, “First and foremost, our job is to be advocates for the injured worker.”

And finally, when asked why her program touts the availability of voc-rehab counselors to testify at Labor Commission hearings for the fund, but not for injured workers, Havas laid it out. “Our job is to protect our company. I mean first and foremost, we work for the Workers Compensation Fund, so of course we’re testifying on behalf of the insurance company.”

Besides being inconsistent on its face, and possibly violating the CRCC’s most basic tenet, Havas’ position could also run counter to CRCC standards regarding testimony. “When serving as case consultants or expert witnesses, rehabilitation counselors will provide unbiased, objective opinions,” states the CRCC code of ethics. A top CRCC representative said she would not comment on an ethics matter without having received a complaint.

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Havas’ confounding explanations can be encapsulated in this nutshell: the voc-rehab division may or may not have anything to do with hampering injured workers’ permanent disability claims. But here’s how the process works.

If an employee is unable to return to work due to an on-the-job injury, an employer’s insurance carrier is responsible to cover that worker’s medical expenses and wage replacement. The quicker the fund can get a claimant working, the quicker it can stop paying temporary benefits and the less likely an injured worker will file for a permanent disability.

Injured workers who do file will encounter a bureaucracy that in many ways tilts in favor of the fund. The adjudication of a claim can take years due to a backlog of claims and insurance carriers’ propensity for dragging out cases for as long as possible. Other than interest penalties, there are no disincentives for carriers that challenge legitimate claims. Meanwhile, claimants go years waiting for wage replacement and medical procedures.

At the initial client consultation, voc-rehab counselors tell injured workers they’ve come as advocates to help, Fox said. If the worker agrees to participate, by the end of the first meeting the counselor will have laid out a return-to-work plan consisting of a timeline and some employment objectives.

“They make up a plan, and there’s nothing wrong with that,” Fox said. “Then, a couple of days later, they’ll call them back: ‘Have you done x, have you done y, have you done z?’ If they haven’t done x, y or z, they make a note in their record. So in essence, they are building a record which, in my opinion, demonstrates that the individual is not cooperating with reasonable rehabilitation efforts.”

Then Fox learned just how vital full cooperation is if an injured worker intends to file for permanent disability. In a presentation by the head of the fund’s legal department, titled Strategies for Permanent Total Disability Claims, the two ways for refuting such claims were outlined: either prove the claimant is employable in steady work for hire, or prove the claimant is non-cooperative in reasonable rehabilitation efforts.

“That’s where they’re screwing over these people,” Fox said. “They were never informed that if they didn’t [cooperate], it could affect them. They’re thinking, ‘Well, nobody’s told me I had to do it, nobody’s told me it’s going to have an effect.’ So they blow it off,” Fox said.

Every time a client misses an appointment, forgets to make a phone call, or veers from the return-to-work plan in any way, it goes into a dossier. And that information is invariably shared with adjusters, investigators and the legal team—all of whom are in the business of challenging permanent-disability claims.

The average cost of one permanent total disability claim to the Workers Compensation Fund would be about $350,000, according to company documents. But where the fund plies its voc-rehab services, the cost drops to between $80,000 and $120,000.

However, there’s at least one other variable that could account for some of the difference. The Utah Labor Commission caps contingency fees for attorneys representing injured workers at just above $10,000. Attorneys don’t get paid unless they win, and since their fees top out on an $80,000 settlement, there isn’t much incentive to fight for more.

Most of the 800 clients served each year by the fund’s voc-rehab division are potential permanent-disability cases. That is, the client has been seriously injured on the job, will probably suffer the effects for life and poses a huge financial threat to the fund.

Sitting in on roughly 30 initial consultations, Fox said counselors never told injured workers that failure to abide by the return-to-work plan could jeopardize their future benefits.

Havas said it wouldn’t be the counselors’ place to give such advice, even though the information could be used for such a purpose.

Besides, she says, “If our program was set up the way [Jim Fox] is describing, the Labor Commission would have my head.”

Not so, says Sewell. “We have no authority to go in and audit that process.” The fund is ultimately answerable to the Utah Insurance Department, which would only conduct an investigation upon receiving enough complaints to establish a pattern. A call to the Insurance Department revealed that there are no outstanding complaints.

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By and large, workers’ comp attorneys have yet to clue in on the practice. But it doesn’t surprise attorney David Parker. “These insurance companies constantly are thinking up ways they can talk to injured workers and monitor them,” he said.

Attorney Dawn Atkin could never understand why a voc-rehab report, which was introduced at a Labor Commission hearing, repeatedly stated that her client seemed unwilling to return to work. Atkin’s client, who was not applying for permanent disability, had found several jobs on her own, but had to quit because they aggravated her injury.

“[The report] was listing all of these things that my client refused to do, but in the exact same report said that she had done them,” Atkin said. “So the idea that they were just trying to create a document to say she was not complying, actually, it all makes sense for the first time ever.

“It makes it look like the person does not want to try. You know, judges are human; they don’t want to award benefits to someone who just wants to sit home and watch Oprah.”

Wendy Gibson has never been one to sit around and languish. After more than a decade working through a debilitating workplace injury, she settled for $115,000 on a permanent total disability claim last year. “I probably would have gotten a lot more money going to court,” she said.

By preempting an administrative hearing, Gibson will never know how much her disability was really worth, and she never found out if her voc-rehab counselor dished any dirt. However, Gibson admits she didn’t abide by her return-to-work plan as judiciously as she could have, but it was because her counselor was pushing her into untenable employment opportunities, she said.

That’s not to say she got the feeling her voc-rehab counselor was out to get her. But by the end of her dealings with the fund, Gibson gleaned two conclusions: her voc-rehab counselor wasn’t at all helpful in finding suitable employment, and “this whole process to get your disability; it’s more a process of you having more stamina than [the fund].”

Gibson, 51, blew out her back in 1987 heaving one too many 50-pound bags of flour in the bakery she owned. Laid up from the injury, she couldn’t keep up with business and had to sell the next year.

For 13 years after the injury she tried to tough it out as best she could. Spinal fusion surgeries didn’t do the trick. And Gibson only managed to stay employed about five months out of the year working various sales jobs.

“I wanted to be able to work,” she said. “I pushed myself to try and do numerous jobs … but they just didn’t work out.”

By the end of a day, Gibson says she felt worn to the bone. The pain kept her up nights. “And obviously if you’re not consistent, and if you have days off, you’re employer doesn’t like you too well,” she said.

Years of job insecurity began taking a toll on Gibson’s finances. Meanwhile, her back deteriorated.

It wasn’t until after she filed a claim for permanent disability benefits in 2001 that the fund’s voc-rehab division stepped in.

Gibson already knew how to find a job. Keeping it was the thing. And what help her voc-rehab counselor offered was superficial at best.

“They really don’t do anything,” she said. “It’s the stuff that anybody would normally do: go to workforce services, look in the newspaper, tell your friends and neighbors and all your family that you’re looking for a job.

“Well, I’ve already done that stuff, and if you have severe limitations, in my estimation, they didn’t really try and find anything that would work.”

Gibson’s counselor pushed her toward work-from-home jobs—notorious for rarely panning out—that would have had Gibson sitting at a computer all day. That, despite doctor’s orders restricting Gibson from sitting or standing for more than 20 minutes at a stretch.

“If you’re not injured, you don’t get it,” she said exasperated. “It has to do a lot with consistency.” Yes, she can sit. Yes, she can stand. But no, she can’t sit through a two-hour movie without getting up half-a-dozen times to pace at the back of the theater.

Her counselor just wouldn’t let up. Besides the work-from-home prodding, she constantly pressured Gibson to take out a loan and start her own business. Already broke, Gibson wasn’t up for the risk, she said.

At the same time, Gibson was busy going head-to-head with the fund’s other departments. Fraud investigators lurked in the neighborhood to film Gibson walking her dog which, with enough morphine, isn’t too unbearable. And it’s one of the few chances she has to get the blood circulating, which she told the fund from the outset.

And—despite her doctor’s contrary evaluations, and the fund’s willingness to admit liability and settle for $115,000—it seemed all of the fund’s medical specialists were saying the same thing: “You’re fine.”

Even more infuriating, Gibson says, was the time her claims adjuster let slip that Gibson was just another member of the “low-back losers club.”

Against those odds, when all was said and done Gibson pocketed her settlement, plus a little peace of mind, and burned her workers’ comp records in effigy.

Susan Wilson never figured her voc-rehab counselor for much of an ally. After an initial assessment in 1996, the only job assistance she received was a couple of classified ads. “Of course,” said Wilson, they were “work-at-home-type schemes.”

Add to it that Wilson’s counselor had her cast as a malingerer from the word go. Based on an hourlong meeting, the counselor concluded that the most significant barrier to Wilson finding work was her state of mind. “She has been in a disability mode for some time receiving medical treatment however not increasing her abilities and feeling comfortable in returning to work,” the counselor’s report stated.

“There is some skepticism towards her lack of recovery,” it continued.

The counselor must have been talking about someone else, Wilson says, because she has never been afraid of hard work. With nothing more than a high school diploma and sheer grit, Wilson worked her way up to district manager for a national restaurant chain, and once owned and operated two craft stores in California.

She was selling floor coverings in a St. George carpet outlet in 1995, when she twisted wrong and shredded the cartilage in her knee. She went back to work on crutches, because she didn’t want to go on workers’ comp and give up what was a decent salary, she said. But after two months as a hobbled carpet saleswoman, the knee just locked up, and Wilson had to get surgery.

None of the subsequent operations have been stellar successes. And it was a hard-fought battle getting the fund to approve each one. But what’s worse, somewhere along the way Wilson picked up a pain syndrome, Reflex Sympathetic Dystrophy, which now afflicts both legs.

Wilson’s “lack of recovery,” she says, is a result of the fund’s reluctance to pay for her medical care. The fund cut off Wilson’s benefits several times. And for a couple of years she and her teenage daughter lived on welfare and student loans. A combination of methadone, sentinel patches and about three to four hot baths every day wards off some of the agony. The knee is due for replacement, but doctors worry that another operation could exacerbate the pain condition, even kill her, she says.

Wilson’s legs continue to atrophy; still the fund refuses to pay for her physical therapy. Living vicariously on credit cards, she recently put her car up for sale.

“The irony of this system is that if they prove me fraudulent, I can go to jail, but there is no way I can prove them fraudulent,” Wilson said.

Suspicions that her voc-rehab counselor was in fact just another tool of denial for WCF were confirmed for Wilson a few weeks ago. At a Labor Commission hearing on her claim for permanent total disability benefits, the counselor was on hand to testify as an expert witness—against Wilson.

Despite the prognosis on her knee, and despite conceding that Wilson would require extensive accommodations at any job—unlimited breaks for an unknown duration, frequent days off, a reclining chair or bed from which to work, and the ability to elevate her legs for half of any given workday—Wilson’s voc-rehab counselor testified she was readily employable in at least 71 jobs.

“I could go out and find jobs tomorrow,” Wilson explained. “That’s not a problem. It’s the fact that I’m not physically capable of doing the jobs.”

When asked on the stand if she had ever testified that an injured worker was incapable of returning to the work force, the counselor replied that she had not.

Perhaps Director Havas got it right when she explained that first and foremost, her counselors “work for the Workers Compensation Fund, so of course we’re testifying on behalf of the insurance company.”

Or it could be that first and foremost, the fund’s counselors are advocates for injured workers, as Havas also explained.

Whatever the case, one thing’s for certain— the fund signs the checks.

 
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