“…very plausible schemes, with very pleasing commencements, have often shameful and lamentable conclusions.” — Edmund Burke
Nevada’s workers’ compensation system is Kafkaesque. Literally.
In one way, it’s simply because workers’ comp systems virtually everywhere — despite their asserted necessity — trigger feelings of senselessness, disorientation and helpless alienation, resembling those so famously evoked by Franz Kafka’s tales.
But it goes deeper: Kafka — highly intelligent and exceptionally sensitive — was himself drenched in the workers’ comp milieu, spending each workday, himself, as a functionary at the Worker’s Accident Insurance Institute in Prague, Bohemia.
Then, after 2 p.m., he would go home and write his evocative tales. “Out of his experience of paternal tyranny and decadent bureaucracy,” said novelist John Updike in a forward to a collection of Kafka’s stories, “he projected nightmares that proved prophetic.”
“A sense that Kafka epitomized,” said Updike, was “a sensation of anxiety and shame whose center cannot be located and therefore cannot be placated; a sense of an infinite difficulty within things, impeding every step.”
That, in fact, is a pretty accurate description of many experiences of Nevada’s injured workers — once they’ve found themselves subject to work comp’s tender mercies.
“They make you feel like a criminal, workers’ comp does,” a career firefighter told Nevada Journal. “They make you feel like you’re less than” other employees.
That firefighter’s knee had gone out during a mandatory training exercise — which the fire department later canceled for other firefighters. Then the county’s workers’ comp operation denied him the surgery his doctor recommended.
To him, it didn’t make sense — at least not according to the so-called “grand bargain” industrial insurance scheme that Nevada, like virtually every other state in the union, has ostensibly adopted.
How he was being treated seemed totally arbitrary, he said. Other firefighters — those within the department’s “clique” — had no such problem. Surgery for them was routinely approved, even when “everybody knew” their injuries had really happened at home or at a sideline business or at a party on the road.
“It makes you feel like you’re a leper,” he said, describing what seemed to him clear discrimination, aimed at forcing him to retire. “I mean — I can’t get the same coverage that this other person got?”
This fireman’s journey into the work-comp adjudication process with Clark County’s hired third-party work-comp administrator (TPA) at the time, Sierra Nevada Administrators, is amply documented by medical and legal records he turned over to Nevada Journal.
Those records reveal how mysteriously arbitrary — and thus litigation-inducing — the actual administration of Nevada work comp can be.
When this firefighter — who asked not to be identified publicly by name, and whom we’ll call “M” for the moment — went to UMC in mid-July 2012, he explained that two weeks earlier, when climbing through a mock window in a firefighter training exercise, he had “twisted [his] left knee and felt it come out of [the] socket.”
Now, he reported to the examining physician, it wasn’t working properly. Instead, it “locked up.”
The physician’s diagnosis, stated multiple times on the UMC claim forms, was: “internal derangement, left knee.”
The county TPA’s automatic response to the claim, however, was to say that M’s request for benefits “is denied at this time pending medical investigation,” and that “an orthopedic consultation for your left knee” will be scheduled with a doctor with whom the TPA had arranged an appointment, Kirk T. Mendez, of Bone & Joint Specialists. Mendez, after examining x-rays of the knee, reported back to Clark County’s work-comp adjuster that the x-rays did not show “any new anatomical derangement” and that the osteoarthritic degeneration seen in the knee was “not a direct cause of his reported injury.”
The Mendez statement, however, immediately raises questions. Since “derangement” of the knee had been identified by the first examining physician in mid-July, the exact meaning of Mendez’s term, “any new anatomical derangement,” is unclear. Does “new” here mean in the three weeks since the UMC mid-July examination, or is it challenging the original diagnosis altogether?
Similarly, if the osteoarthritic degeneration seen in the knee was not a direct cause of M’s injury, does that not lend weight to the hypothesis that the injury resulted naturally enough in the context of a fireman’s training exercise to be covered by workers’ compensation?
Yet another report oddity occurs in the entry under the heading “Chief Complaint.” In an instance of the inattention to detail frequently seen in work-comp doctor reports, it immediately contradicts itself, stating: “The Chief Complaint is: Right knee pain. Mr. [M] is being seen with a chief complaint of left knee pain.”
While M “would be a candidate for total knee arthroplasty,” said Mendez, “this would not be due to any workers compensation injury.”
Citing the report, Sierra Nevada Administrators notified M that his claim was denied. Approximately a week later, M requested a hearing before a state work-comp hearing officer, insisting, “I feel that this injury is a direct result of my job, and [I] was injured while in the course of training in my job.”
At the hearing some 10 weeks later, the attorney representing Clark County and its TPA not only cited the Mendez opinion but argued at length a highly significant proposition: that, under Nevada law, a “work-related injury” does not, in itself, warrant the award of workers’ comp medical benefits: In attempting to prove his case, the claimant has the burden of going
beyond speculation and conjecture. That means that the claimant must establish the work connection of his injuries, the causal relationship between the work-related injury and her [sic] disability,the extent of disability, and all the facets of the claim by the preponderance of the evidence. To prevail, a claimant must present and prove more evidence than an amount which would make his case and his opponent’s evenly balanced. Maxwell v. SIIS, 109 Nev.327, 849 P. 2d 267 (1993). …the employee is unable to show a causal connection between his pain and the workplace conditions. The claimant’s work environment did not
cause his knee to lock up, nor did it make his workplace conditions “any different from or any more dangerous than those a member of the general public could expect to confront in a non-work setting.” (Abel v. Mike Russell’s Standard Service, 924 S.W. 2d 502,504 Mo. 1996). (Emphasis added.)
Next week: The Craziness of Workman’s Comp in Nevada Continues; “M” Sees Another Doctor, and Yet Another