Worker’s compensation is a conspiracy and insurers and employers routinely conspire to defeat the claims of injured workers.
Where Does It Start?
The conspiracy begins with the law. Wealthy insurers and big business lobbied your government for laws favorable for them that reduce the amounts an injured worker can win if they are successful in their case. Under workers’ compensation laws, money is only awarded for disability (based on what I call a “meat chart”) and your real harms and losses — like the pain and suffering one goes through — are never fully paid for by an employer even if you win your hearing. We could talk all day about the legislative issues which harm workers’ rights, but I only bring it up to point out that employers and insurers are cheating in a game already rigged in their favor.
After a work injury you are immediately trapped in “The Workers Compensation Conspiracy” – a complex system of insurance companies and large employers who routinely cheat and lie to avoid paying claims. And, to make matters worse, insurance companies and employers have the right in Missouri to direct medical care. This lets their adjustors and smart defense attorneys find and pay medical doctors large sums of money to join with the defense team to defeat claims and cheat even the most seriously injured workers. As a result, your work comp doctors have an inherent conflict – they took an oath to help their patients, but they know who is paying their bills and they want to keep that business.
More Details Behind Worker’s Compensation
To add insult to your work injury, while the insurers and doctors and lawyers are being paid handsomely to defeat your case and send you back to light duty as soon as possible, you are getting paid a fraction of what you usually earn. To discredit your claim, your employer’s human resources department or your supervisor will obtain written and audio statements from you, and will use them against you every chance they get. You will be drug tested as a punishment for getting hurt. You will be followed, investigated and sometimes video-recorded – even if you hired a lawyer to represent you. I see these egregious practices happen nearly every day.
I have personally fought these cheaters for 27 years before the Division of Workers Compensation, the Labor and Industrial Relations Commission and, less frequently, the Missouri Court of Appeals. Because cheating harms my clients and destroys our justice system, when I catch an employer cheating, I always want to take the case to trial and make a record of the misconduct in an effort to prevent it from recurring. And I have. I tell people about it, like I am doing here, because cheating angers me, and because I like my clients. They work hard, suffer an injury, and try to support themselves and their families on the pittance the law requires they receive. This article will outline specific types of cheating I have found, cite cases that prove it, and prove to you that there is a workers’ compensation conspiracy.
- MEDICAL DOCTORS ARE HIRED BY INSURANCE COMPANIES AND WILL LIE TO DEFEAT CASES.
- Dr. Mirkin Lies in the Case of Dale Wieda vs. Stupp Brothers Bridge and Iron
I have a current client who I have represented for over 20 years and whose case I tried and won. I am proud to represent Dale Wieda and he has given me permission to tell his story.
Why You Can’t Recover Pain and Suffering
Unfortunately, you cannot recover noneconomic damages such as pain and suffering in a Missouri workers’ compensation claim. Since employees can recover workers’ comp benefits without having to file a lawsuit against their employer, they lose the right to noneconomic damages.
The Case of Dale Wieda
Dale herniated a disc at L4-L5 in his lumbar spine that caused damage to his spinal column while pulling a c-clamp in the course of performing his job at the Stupp Brothers. In his case, the employer authorized the medical provider and chose Dr. Peter Mirkin who performed an unsuccessful surgery that left Dale in pain. While Dale was still recovering, the defense sent private investigators in cars with tinted windows to secretly video him and when the surveillance people found nothing they tried not to produce the videotapes to us. Ultimately, I only received some of the videos, but I did use them at trial because they helped our case.
Anyway, I eventually deposed Dr. Mirkin and Dr. Mirkin’s sworn testimony was that Mr. Wieda was not healing because he was diabetic and he was not compliant with his diabetic medication. I had Dr. Mirkin testify clearly about the diabetes and how that diabetes prevented the healing. The defense offered us less than ten thousand dollars to resolve the case after the deposition. I held back my laughter and I knew the problem with that testimony is that Mr. Wieda did not have diabetes. I call that a lie. The Court of Appeals said it too but a bit differently, calling Dr. Mirkin “biased, uninformed, and not credible.” And Dale’s case is routinely cited and has been used to prevent these lies from harming others. After Dale’s case came other cases that said similar things about Dr. Mirkin. Several other law firms have written briefs that cite and rely on Dale’s case. Here is an excerpt from one of them:
Missouri Courts have found that Dr. Mirkin has a reputation for altering his examination findings and testimony…. The commission in Abodi took judicial notice that “Dr. Mirkin has previously materially changed his testimony to suit his employer and has fabricated medical conditions in order to suit his indefensible opinions.” Abodi at p. 4. The commission in Ottinger found the testimony of Dr. Mirkin to be “laden with falsehoods” and “utterly unworthy of belief.” Ottinger at p. 2.
In Wieda v. Stupp Brothers, Inc., Injury No. 98-073505, Missouri Labor and Industrial Relations Commission (2000), the Commission found that “Dr. Mirkin, the defense medical expert, relied on erroneous facts that were not contained anywhere in the record.” Wieda at p.6. “In this case, Dr. Mirkin is a biased and uninformed witness. His opinions are rejected.” Wieda at p.7. The Missouri Court of Appeals affirmed the Commission’s decision in Weida, holding that the employee was entitled to temporary total benefits and continuing medical treatment. The court of Appeals held that “Employer’s medical expert, Dr. Mirkin, was found to be biased, uninformed and not credible.” Wieda v. Stupp Brother, Inc., 52 S.W.3d 602, 603 (Mo.App.E.D. 2001).
In Allen v. Grasser Electric Corp., Injury Nos. 96-124441 & 97-083569 (2002), the Missouri Labor and Industrial Relations Commission (2000), the Commission found the following:
We are not persuaded nor are we impressed by Dr. Mirkin’s opinions. The Commission has previously determined that Dr. Mirkin parrots the opinions of whoever is paying him and he is unworthy of belief. He was the only doctor to state that claimant was fine and did not need any further treatment. Because his opinion on the claimant’s need for further treatment was so incredulous, we give not weight to his opinions on which accident is responsible for claimant’s disability. Allen at p.5.
As you may have surmised, Mr. Wieda and I won his case despite Dr. Mirkin’s testimony that diabetes prevented him from healing. The Employer was required to pay benefits in a temporary award. We also won attorney fees and costs as sanctions. The employer/insurer did not agree with our victory, and appealed the case in an interim hearing with the Court of Appeals, which is how Dale Wieda v. Stupp Brothers, Inc. Eastern District 78612 came before that court. Unfortunately, the idea for this article comes out of the same case. After 14 years the insurer recently sent the file for an “Independent Review” to have some doctor that never examined Mr. Wieda write a medical opinion that the medications Mr. Wieda takes for pain are no longer required. However, because we secured an award in the case we are in a great position to fight this new opinion and demand both the medical care as well as reasonable attorney’s fees and costs if they violate the court order.
It is now February 2018, and the Employer is still demanding that Mr. Wieda see their doctor. This is an outrage, but is an example of the conspiracy built to assist large employers and their insurers to defeat an injured worker’s benefits.
- Dr. Collard misses a rotator cuff tear and Charter’s attorney withholds medical information from their own doctor in G O vs. Charter.
Another example of the medical conspiracy can be found in a hardship trial we had against Charter Communications. My client was a good and loyal employee of Charter who was hurt at work when he threw a heavy ladder onto his truck and tore his rotator cuff. Charter sent him to Dr. Collard, who reviewed an MRI, found a tear, and recommended surgery to repair it. Unfortunately, when Dr. Collard did the surgery he did not locate the tear and sewed my client back up without fixing the damage. Then, the doctor sent G.O. to physical therapy, which he tried to complete but was unable to because the tear in his shoulder was never fixed. When the injured worker complained of intense pain, the physical therapy folks called him a malingerer – a fancy term for liar. Dr. Collard could not understand what was wrong and wanted to perform additional studies to find out, but Charter refused to pay. So, I sent my client to a doctor who said a surgery was required to fix the rotator cuff based on the MRI that everyone – including Dr. Collard – had previously seen. Unfortunately, Charter and their attorneys never told Dr. Collard of the new doctor’s opinion, so Dr. Collard was unable to fix the problem rather than fight the case. By the time Dr. Collard was deposed, Charter’s lawyers still had not provided Dr. Collard with the operative report from Gabe’s second surgery. To top it all off, while my client was recovering from his second surgery, Charter stopped paying him his weekly benefits and sent him a letter firing him.
Unfortunately for Charter, their strategy of denying necessary medical care backfired when I filed a hardship petition. After the hardship hearing, the judge not only ordered Charter to pay for a second surgery, but also ordered Charter pay an additional 25% as sanctions for their unreasonable defense of the claim. Charter was ordered to pay $73,344.55, which included $19,362.21 payable to Mark Cantor as sanctions for attorney fees and expenses. Charter must also pay the weekly benefits that Charter terminated plus 25% as sanctions each week.
- Dr. Harbit puts forward an outrageous position to deny a sexual assault in T.H. v. Sonic Drive-In of High Ridge.
Worker’s compensation doctors are hired to testify to outrageous positions that are carefully crafted by the employers, defense lawyers, and insurance companies. A prime example of this tactic is evidenced in another case – T.H. v. Sonic Drive-In of High Ridge.
A Case Regarding Sexual Assault
A few years ago, I represented a young woman that was raped in the men’s bathroom of the Sonic where she worked. I successfully tried the case before the Division of Workers Compensation in Crystal City Missouri, the Labor & Industrial Relations Commission in Jefferson City, Missouri and The Eastern District Court of Appeals in St. Louis. At every level, the judges agreed that my client was raped at work. Nevertheless, the Employer/Insurer defended the case with the outrageous position that T.H. was not raped — even though the offender had pleaded guilty to five counts of child molestation, sodomy and other heinous sexually devious crimes. After his guilty pleas, I went to his jailhouse in Jefferson County and made him testify for his deposition in the workers compensation case where he denied the rape and started screaming obscenities at me.
Throughout my work on the case, the employer maintained their outrageous position that my client was not raped. The employer even went so far as to hire Dr. Melissa Harbit – a “forensic psychiatrist” – to testify at trial. Dr. Harbit swore within a reasonable degree of medical certainty that if there was a rape, the rape did not cause any permanent psychiatric disability. The trial was necessitated by the extreme fact pattern and the employer’s unreasonable defense, and we prevailed at her hearing and at all appeals.
The case is regularly cited in Missouri for a significant procedural victory as well: the employer in a work comp case has a limited time to file an answer, and when Sonic failed to file in time — probably because they were busy concocting their disgraceful defense — they effectively admitted every fact alleged in T.H.’s claim. That included her average weekly wage, which was pleaded as the maximum allowable under Missouri law. So, even though my client’s PTSD prevented her at trial from remembering how much she was paid, Sonic’s late answer cost them: the Court of Appeals found that since no evidence of wage had been presented, and wages are factual allegations, my client was entitled to the maximum weekly rate, and not the minimum of only $40.00 per week. So, T.H. received nearly $65,000 more due to Sonic’s blunder. Now, every injured worker can allege they were paid the maximum weekly wage, and a late answer binds the employer to that amount.
While the Worker’s compensation claim was being tried and won, we concurrently filed a civil lawsuit against Sonic for premises liability and secured a separate policy limits recovery for our client for her injuries relating to the sexual assault.
These are just a few stories to illustrate what can occur in a Workers’ Compensation case even with vigilant representation. At Cantor Injury Law, we have represented thousands of injured workers and routinely help people who have been injured at work. You likely need our help if you see the following common fact patterns in your case:
- Workers’ Compensation accepts the claim and pays for your surgery. Your surgeon evaluates your disability at 1%., and the insurance adjuster and the lawyer offer you 5% disability to resolve your case. You are probably being cheated and the adjuster and lawyer tandem are deceiving you by offering more than the paltry rating, but much less than the full value of your claim.
- Workers’ Compensation insurance accepts your claim and pays for your surgery. The surgeon provides the surgery and then issues a final opinion that your condition is not related to work, but was caused by pre-existing conditions (like arthritis or degeneration) and rates your disability at 0%, and you are being cheated. You are entitled to permanent partial disability – and if your employer paid for your surgery, they know that already.
- A nurse case manager goes to each of your medical appointments and asks the doctor to release you from medical care. You feel the nurse and doctors are working against you. Under Missouri law, an employee is entitled to bring his own physician to any examination by a work comp doctor, which helps to keep work comp doctors honest. Also, we can stop the nurse from speaking to you at all or being there for your examination.
- Your employer tells you not to file a claim and that you should use private insurance and he will pay your co-pays. The employer reminds you that he pays your health insurance and encourages you to use your own health insurance rather than to use your workers’ compensation claim. You finish treatment and the employer takes the position that you had no work injury. Here, you are being deprived of other benefits afforded to you, like temporary total disability (if you are taken off work) and permanent partial disability (the lump sum awarded based on your injury).
- You injure yourself at work, and you are worried that if you file a claim you will be fired as a result of pursuing your workers’ compensation claim. Many people have this fear, but the only way to protect yourself is to actually file the claim. Missouri law protects workers who pursue their rights under the workers’ compensation law, so unless you file a claim you are not covered by this law.
- The employer argues that you violated a safety rule and that the violation caused your injury. Employer alleges that you were high on drugs or alcohol at the time of the injury. Missouri’s employer-friendly laws allow severe penalties against workers for safety violations, but barely punish employers who routinely place their workers in unsafe situations.
- You have a severe injury of a delineated body part, such as an amputation of the end of your first finger. Your pointer finger is valued at 30 weeks of pay, and employer tells you that is all your injury is worth. Your employer is being dishonest: a complete amputation is worth 110% of the body part; and I have never seen anyone lose a part of their finger without it affecting their entire hand or causing disfigurement, pain, or additional psychiatric disability. Don’t underestimate the value of psychiatric permanent partial disability – it is real and compensable.
- You are injured in a car collision case while at work and someone tells you that you only have a civil law suit. That is not true – you also have a workers’ compensation claim and that workers’ compensation claim should be filed first. When you win your comp case, and later win your civil case, you may have to pay back some money to the work comp insurer, but there is nevertheless an advantage to filing both claims.
- You are friends with your employer and you are worried if you file a claim they will not be able to get insurance. That is not true: Missouri has insurance available for any employer who has five or more employees, and employers are required to comply with workers’ compensation laws.
- You are released to light duty and the employer assigns you a job that seems abusive or unfair or wants you to work beyond the medical restrictions. These employers are jeopardizing your health and well-being, and you are not required to work beyond the restrictions. If no work is available within your medical restrictions, you are entitled to weekly benefits while you recover from your injury, and the worker’s compensation insurer knows that law so don’t be cheated.
Other Types of Conspiracy
State law requires employees who have suffered injuries to take a drug test immediately after reporting the workplace accident. If you test positive for drugs, you are subject to a 50 percent penalty on your worker’s compensation benefits.
When you visit the doctor, you may be required to go with a nurse case manager. Although the goal of the case manager is the help you get better, they are also encouraging the doctor to release you from medical care and send you back to light duty.
If you are eligible for light-duty and accept this limited role when you return to work, failure to do your new job or failure to have a doctor release you from light-duty can lead to termination. If you get fired, your employer no longer owes you benefits.
It is not uncommon for employers to threaten termination if an employee wishes to file for workers’ compensation claim and fortunately you are protected against this type of retaliation. However, if you have a pending claim and commit a work penalty (e.g. being tardy or calling out without a valid excuse), you could lose your claim.
If you are eligible for the burial benefit and you have no dependents or family, Missouri law pays you up to $5,000 for passing away.
If you suffer an injury while not wearing a safety device to prevent such injury, the insurer will only give you 50 percent of what you would’ve received if you were wearing that device. However, if your employer doesn’t provide you safety equipment, they will only be penalized 10 percent, which makes the law extremely disproportionate.
When it comes to trips back and forth from your medical appointment to your home, Missouri law will compensate you for your travel if you drive 100 miles or more. That means if you drive a total of 99 miles, you don’t get to receive payments for mileage.
How to Win a Workers’ Compensation Case
The following are several ways to obtain the most favorable outcome in your case:
- Determine if you have a real injury (permanent or partial disability).
- Hire an experienced workers’ compensation lawyer who can protect your rights and best interests against your employer, its insurance provider, and its doctors.
- Hire a lawyer who can refer you to their own doctor.
- Don’t lie to your lawyer and provide him/her with as much detail about the injury as possible.
- Follow all your medical care but remember these doctors work for the insurance companies.