Front page of The Oregonian Business section, July 18, 2005.
Bill may ease job injury claims
An Oregon measure would order new standards for workers' comp medical exams that many say unfairly favor insurers
Monday, July 18, 2005
They're called "insurer" or "independent" medical examiners -- doctors hired by insurers or self-insured employers to review workers' compensation claims.
But many injured workers, and even a majority of examiners, say there's nothing independent about their examinations.
Following years of complaints from workers and attorneys, the Oregon Legislature appears poised to bring fairness, oversight and accountability to the system that most doctors themselves admit is biased toward insurers.
Senate Bill 311 requires the Oregon Department of Consumer and Business Services, which oversees the state Workers' Compensation Division, to set ethical and professional standards for the exams, adopt a process to investigate complaints and provide an avenue for workers to request more convenient appointments.
The bill, which passed the Senate late last month and was expected to be considered by the House this week, also would clearly establish the designation of participating physicians as "independent medical examiners," instead of "insurer medical examiners," as state law now refers to them. Employers of the examiners, often called IMEs, sought that change.
The bill provides some hope to frustrated injured workers such as Guynell Krzak. The 57-year-old flight attendant, previously based in Portland, will make her third trip in two years from her home in Cape Coral, Fla., to Oregon to undergo an independent medical examination ordered by her employer's claims manager.
Twenty-one months since Krzak injured her back during a flight, her compensation claims have yet to be fully accepted. She remains off work, uninsured and without income.
"It doesn't make any sense to me to have to go up there to see their hired guns," said Krzak, who is appealing a partial denial of her first claim to the Oregon Court of Appeals. "They can send me to somebody down here."
Insurers often ask workers injured on the job to undergo an examination. More than 10,000 such exams took place last year, state officials say, on 25,000 accepted disability claims. But the examiners have operated with little regulatory oversight.
The Oregon Board of Medical Examiners can pursue complaints against examiners involving unprofessional conduct or painful exams if witnesses or multiple complaints exist, state officials say. But the board considers complaints about an examiner's findings outside its legal purview.
"This is an area that's pretty much unregulated," said John Shilts, administrator of the workers' comp division of the state Department of Consumer and Business Services.
Worker advocates pushed for regulatory reforms to the system in 2003 with little success. But after the session, the state's Management Labor Advisory Committee -- a 10-member body that addresses workers' comp issues -- asked Shilts' division to study the medical exam system.
A resulting 271-page report, issued late last year, found that 53 percent of examiners surveyed believed the system favored insurers. In addition, nearly a third of doctors chosen by injured workers to care for their injuries said they felt pressured to agree with examiners' reports.
"The data supports there is bias in the system," wrote Jan Miller, the division's communications and training manager and head of the committee.
State officials also found evidence of inherent barriers to injured workers. One in five patients surveyed said they drove more than 100 miles for an insurer-requested exam. Yet the state has no method for handling worker complaints about the distance traveled or examiners themselves, who operate without state-adopted professional or ethical standards.
"There are credible and unbiased IME physicians in the system," the study found. "But the system has become tainted from historical incidents as well as IME physicians who rely on insurer medical examinations as their entire income."
Krzak injured her back in October 2003 lifting a beverage cart over a threshold during a flight from Ontario, Canada, to Portland. A magnetic scan a month after the incident found three bulging discs in her back. Doctors gave her repeated epidural steroid injections to ease her pain, excused her from work and limited her lifting to 10 pounds. But she has needed painkillers ever since, she said, though she's since regained motion and returned to swimming and yoga.
She filed a workers' compensation claim immediately after the injury that was at first accepted by her employer's insurance claims manager. But the management firm required her to fly from her home in Florida to Portland twice in 2004 for examinations.
Both times, at exams arranged by Oregon Medical Evaluations Inc., examiners contradicted her attending doctors in Florida, finding her back injury "mild" and Krzak fit to go back to work "at any time," according to reports provided by Krzak's attorney.
The second exam in April 2004 concluded she was suffering from "a pre-existing degenerative disease of the lumbar spine," a natural effect of aging, and suggested she could return to work as a flight attendant.
Krzak said the examiners arrived at their conclusion without taking X-rays or MRIs, asking her to bend her legs and back instead.
"It just didn't feel like a medical examination," she said. "It was more like being on a witness stand in court where they were just questioning you and questioning you. And if you tried explaining anything, they'd cut you off."
Later that April, her employer's claims manager accepted her claim, then, four days later, denied it to be retroactive effective January 2004, citing the finding of a pre-existing condition.
Claims managers with the Portland office of ESIS Inc., which handles claims for Krzak's employer, declined to comment. Lannitta Walden, president of Oregon Medical Evaluations, referred questions to the doctors.
"We are the facilitator," Walden said. "We are not the expertise."
Ernest Delmazzo, a worker advocate who has long pushed for workers' compensation reforms, considers SB311 a major victory, though he wanted more protections for workers, including a right to record the exam.
"This bill is far from what we feel should be appropriate," said Delmazzo, who operates a Web site, www.injuredworker.org. "But obviously, it's a huge step forward considering there's zero oversight."
The bill boasts an unusual coalition of support from both worker advocates and business lobbyists, following months of negotiations.
Aside from the "independent" name change, it includes a penalty for workers who fail to show up for exams.
"The outcome for the IMEs could've been . . . a lot worse," said J.L. Wilson, the Oregon director for the National Federation of Independent Business. "We actually think it's a good thing for business."
Brent Hunsberger: 503-221-8359; firstname.lastname@example.org