Storrs, CT
Interview
July 15, 2003

"Would it not be more productive to work together in common cause to make our work environments safer and to make Workers' Compensation what it was meant to be: a mutually beneficial form of protection for both the employee and the employer?"

How did you find Channing Migner?

I worked as a technical writer and had been on a Workers’ Compensation medical-only claim for several months due to repetitive strain injuries (RSI) related to my work at a computer. Despite medical treatment and physical therapy, my condition continued to worsen as I worked. I was not sure what to do, so I wanted to discuss my situation with an attorney who handled Workers’ Compensation cases. I called several referred by the Bar, but most who I spoke with were either discouraging because of the legal difficulties surrounding RSI cases or would not talk to me because I had not lost an arm or leg in an industrial accident—and therefore would not have had an easy “slam dunk” case. Desperate, I saw an advertisement in a local phone book. What caught my eye was “repetitive strain injuries.”  This was the first attorney ad that went out on a limb to advertise for such hard and specialized work.

I called Channing and to my surprise, he was very encouraging and helpful. With his calming voice, he took the time to listen and to explain the WC system and process of filing claims, and he did not seem put off in the least about repetitive strain injuries. In fact, he seemed to relish the challenge of helping workers such as I.

Soon, I found myself talking to Channing regularly and visiting him in person, as my condition worsened and as I found myself less and less able to continue working. Therefore, when my Occupational Health specialist told me I should not return to work and put me on disability leave, having retained an attorney I felt confident to take this difficult step and follow my doctor’s orders so that I could regain my health or find another occupation more suited to my disabilities.

Did you ever consider going it alone, without an attorney?

Yes. I am a fighter by nature, am highly educated, and have an interest in the law, so I had considered not retaining an attorney, since this is an option for claimants in the WC system. However, after considering all my options, I felt that with a condition that was already complicated and poorly understood—even by most doctors—and with all the stress I already had, as well as my health to consider, and with filing a difficult claim involving the poor ergonomic work environment at a huge international corporation hostile to such claims, hiring an attorney who specialized in WC would be prudent, if not imperative. Without Channing, I am sure that I would have been overly emotional or passionate and would have blundered in one way or another. To maneuver the WC system effectively, one needs expert advice and someone who knows the ropes from inside out. One also needs an advocate who can see the larger picture and who can provide a compassionate but detached perspective. Also, Channing’s office staff does an amazing job of keeping you up on all dates and paperwork, all the while offering pleasant and professional assistance. Sue, Channing’s paralegal and assistant is both efficient and caring. Her attention to detail and her knowledge of the WC system and process is both helpful and comforting. Like Channing, she can offer words of encouragement when things seem confusing or when they seem not to be going well.

How did your case proceed and work out?

In early 2002, I was ordered out of work by my Occupational Health doctor, and went on disability leave. The WC insurance company immediately denied my claim, saying that my conditions were not work-related--despite having approved the claim for medical-only benefits for the same work related injury a year earlier, thereby creating a contradiction, to a large degree, since they had already admitted the work-related nature of my claim by paying for my medical needs.

I had expected to receive income from a Short Term Disability policy I had at my work, but I discovered that my employer, who was self-insured, refused to pay wage replacement benefits to me since I had filed a Workers Compensation claim. Likewise, since the insurance company denied my claim, I was forced to live on savings and accumulated vacation time until we had a conference with the Department of Industrial Accidents judge, which did not happen until late 2002.

Immediately before the conference, Channing and I were asked by the insurance company attorney to review videotape that had been made of my wife and me. I was shocked, to say the least. I had seen such tactics reported on news magazines such as 60 Minutes or Dateline NBC, but had never imagined that I would be subject to the same indignity. The videotape documented my wife and me driving to a nearby shopping center. I drove initially, and at one point carried a light box for her and put it into the truck while shopping. On the way home, we stopped at a liquor store to buy wine for dinner, and then she drove because my injuries were beginning to bother me. The entire video was, however, irrelevant and clearly designed in bad faith to cast aspersions on my character and doubt on my disability claim. But it had nothing to do with my condition, which prevented me from working at a computer. I had had some restrictions with long-distance daily commuting to work, but was not restricted from driving to the store occasionally. And as to the lifting and bending, such activities were actually prescribed by my doctors and therapists as part of my therapy. In this regard, the video, if properly critiqued, actually undermined the insurance company position. The video again validated my belief that insurance companies will do anything, whether underhanded or not, to win a case and keep one from the rightful benefits of one’s claim. Clearly they twisted facts and took my limitations out of context in order to produce a video that they hoped would cast me in a bad light and make the judge think that I was a fraud. Fortunately, the judge was wiser that they thought and he refused to view the video, when presented.

Three management employees appeared with the insurance company attorney at the conference. Ironically, they would not be allowed to testify or speak, and none of them had direct knowledge of my work or my condition. They barely knew me—or even what I did. My manager, I found out later, was no longer with the company. Obviously, this was a ploy to intimidate me and a ruse to make the judge think that the people I worked with all supported the insurance company and felt that there was certainly nothing wrong with me. It is amazing to what lengths some insurance companies will go to deny a rightful claim. I am sure that the insurance company had to pay these people for their day off, and their presence at the conference was irrelevant to the case.

At conference, Channing had advised me to ask for alternately a partial or a total disability benefit, anticipating the judge would award me partial and to appeal for total. I would then have some money coming in while waiting for trial. As a result, I was awarded a partial temporary disability payment, and both the workers compensation insurance company and I appealed.

Shortly before we went to trial on the appeal, the workers compensation insurance company offered to settle my case. After Channing negotiated with them, the offer became reasonable and we accepted. At the time, I was also receiving some income from part-time work as a consultant and long-term disability income that coordinated with my workers compensation, so we felt that I would still have income until I was able to get back to full time work in a new occupation suited to my permanent restrictions.

What do you feel about the medical aspects of filing a claim?

I will say this is the crux of your claim. You need to find doctors who are both sympathetic and knowledgeable about workers compensation, who know how to fight for you while at the same time maintaining their integrity as medical professionals. Channing is great with knowing how to get a doctor—even one who is not experienced—to be more specific about your conditions and how to gather appropriate documentation. However, finding doctors who are experts in Workers Compensation and in Occupational Health—doctors who are not themselves biased or negative about work injuries or the WC system—is not always easy.

On the other hand, it can be very unsettling to be examined by a so-called “independent medical examiner” or IME doctor, who is paid by the insurance company. My experience was perhaps typical but nonetheless upsetting. I was sent to an orthopedic surgeon, a bone doc, to be examined for soft tissue and neuromuscular injuries that had nothing to do with bones. He, of course, found little wrong with me and then collected his $650 dollar fee for the fifteen minutes I spent with him. The second time I saw him, he was slightly more sympathetic and even said that he thought I should not return to computer work. My Internist calls these IMEs, medical prostitutes. In many regards, he might be right. They are not examining you as a patient, as a suffering human being, which is what medicine should be all about; instead, they see you as an object, out of the context of ongoing treatment; they see you in order to dismiss your claims, so from the start their opinions are biased and certainly not objective. In this sense, they are not doctors but indeed working merely for the money.

The Impartial Physician Exam (IPE) ordered by the judge after I had after the conference, and during the appeals process, was, unfortunately, little better—and no more impartial than the IME exams. The cost of his exam was shared between the insurance company and me. However, this doctor was hardly objective. He also had very little experience with my conditions and was indoctrinated in a school of thought that was pro-corporate and anti-worker, as well as anti-disability. He even said that insurance companies had to “protect themselves against the onslaught of claims filed by workers.” He was affiliated with a group of physicians in Boston who had close ties to corporations and insurers, and who managed back-to-work programs for them. He also knew my Occupational Health doctor and had a treatment philosophy diametrically opposed to his. During the exam he expressed negative feelings about my doctor, so I knew then that he would not provide an impartial report. I was right; the report he produced, in addition to being extremely sloppy, ungrammatical, vague and inaccurate, was less than favorable, although able to be countered with a motion challenging its adequacy, if we had needed this for the trial.

The lessons from the medical aspects of the process are these: get a good Occupation Health doctor on your side and follow Channing’s advice; take the reports of IME's and IPE's with a grain of salt. Sometimes you will luck out and get a good report—and a truly impartial doctor; sometimes not, but in any case, do not let this deter you from your course. As long as you know you are injured and your treating physicians support you, then don’t back down.

What are you doing now?

Currently, I am working as a business consultant and considering a legal career. I also am researching a non-fiction book on the Workers’ Compensation system.

Do you have any concluding thoughts?

Well, despite the many flaws in the WC system, despite the scales being balanced in favor of employers and insurance companies, and despite the need for reform, for legislation to make the process more fair and more of what it was originally intended to be—indemnity for injured workers, regardless of blame—the WC system is still manageable and maneuverable with a good attorney who is both ethical and creative—and who isn’t afraid of hard work and taking some risks. Of course, injured workers have to have fight and courage, and must be willing and able to see their claims through to the end, despite being made to feel like criminals by insurance companies and employers for filing claims.

While in the claim process, I witnessed workers with large families to support and obvious traumatic injuries on the job, whose claims were denied and who had to borrow money from relatives and go on food stamps to survive—sometimes losing everything. Contrary to their legal duties under state insurance and fair trade statutes that protect consumers against bad faith, the insurance companies seem to deny claims as a matter of course, as a form of harassment, in order to discourage and wear down claimants. Instead of paying rightful claims, insurers would rather pay their own attorneys to fight, all the while forgetting about their obligations to the suffering workers and their business purpose: to insure risks and to compensate the injured—not just make a profit. Too many companies still have the Enron Syndrome. What may be needed are more bad faith suits against insurers and large punitive awards from juries to cure them of their greed.

Finally, you can be willing but not be able to file a Workers’ Compensation claim. Many employees work while injured and continue to re-injure themselves, when it would be far better for them to go on disability leave and allow themselves to heal or find another form of employment. Unfortunately, this is not always possible, because insurers have made it so hard to file claims and to get temporary compensation, when in many ways it would be to their benefit and would reduce costs for claims to be paid in a timely manner, before injuries become more severe or even permanent. So the vicious cycle of injury and disability continues, not only to the detriment of America’s workers, but to the detriment of corporations and their insurance companies, as well—and to the detriment of us all. Would it not be more productive to work together in common cause to make our work environments safer and to make Workers’ Compensation what it was meant to be: a mutually beneficial form of protection for both the employee and the employer?