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“Firefighter Claims a Public Relations Menace for TPAs” – A Note from Athens

A Note from Athens:

Recently, Athens Administrators was identified as a workers’ compensation administrator in a high-profile news story focusing on the utilization review system that put Athens at odds with an injured worker. Work Comp Central, a specialty media company providing professional news and data content to the workers’ compensation industry, wrote a thorough article exploring the claims and reported that audits found Athens to be aboveboard.

Athens Administrators and our clients have a common goal: to ensure that each injured worker receives necessary medical treatment as soon as possible. This allows the employee to make a rapid recovery and return to work. We take our role very seriously and endeavor to provide excellent service for each of our clients.

Following is the article in its entirety. You may also click here to read the full article on the Work Comp Central website.

Firefighter Claims a Public Relations for TPAs

By Emily Brill, Work Comp Central

In California, third-party administrators who deny firefighters medical care run the risk of losing their contract or defending themselves in lawsuits.

That has happened in three cities in the recent past: Rialto, Stockton and, just this week, San Jose.

The situations share a number of factors in common. In all three, firefighters upset about care denial retaliated against the city and its TPA. In all three, the Department of Industrial Relations has audited the TPA. And in all three, the audits have scored the TPAs highly. In San Jose, the auditor explicitly wrote that no pattern of denial of care had been found.

Nonetheless, news stories come out like this week’s report from NBC Bay Area about San Jose letting its contract with TPA Athens Administrators expire. The story characterizes the city’s relationship with Athens as “rocky,” despite Human Resources Director Joe Angelo telling the channel this summer that he thought “Athens has been a good partner with the city.”

The news reports quote several firefighters but no one from Athens. Several months ago, an NBC Bay Area investigative report stated that “injured firefighters are being failed by the state’s workers’ compensation system.”

Firefighters have public sympathy on their side.

“Firefighters and police officers routinely put their lives on the line to protect the citizens of their community, believing they will not be abandoned if wounded or injured in the line of duty,” attorneys for a group of firefighters from Rialto and Stockton wrote in a lawsuit accusing the cities of racketeering by conspiring with their TPAs to deny care.

“Those entrusted with caring for the needs of injured first responders bear a clear responsibility to do so in a supportive manner, and not to create obstacles bound to worsen the physical and financial conditions of these valiant men and women,” the attorneys continued.

But cities face a competing responsibility: to keep workers’ compensation costs low in order to pay for other city services.

A 2009 audit of the City of San Jose found that the government could do a better job of containing costs. In response, the city’s human resources arm launched a three-year pilot program attempting to better contain the costs of workers’ compensation claims. One of its first moves was hiring Athens Administrators to handle half of the city’s claims, according to NBC Bay Area.

Following state-sanctioned guidelines, Athens denied treatment requests in certain cases, finding the treatments were not medically necessary, the TPA’s executive vice president of workers’ compensation said this summer.

Heather Hornbrook

“The state put the guidelines in place to have objectivity,” Heather Hornbrook told NBC Bay Area in August. “So that decisions could be made based on science and evidence-based medicine, rather than subjective decisions.”

After firefighters started complaining, NBC Bay Area ran an expose on local nightly news this summer. The channel reported that 68 firefighters had complained to the city about medical care denials since late 2014.

Angelo defended Athens to the network, saying the TPA was only trying to ensure that the city didn’t waste tax dollars on unnecessary medical treatment.

After the expose, DIR audited Athens. It “did not find a pattern or practice of denial,” thedepartment said Monday, according to the NBC report.

Despite the audit results, San Jose City Council members opted to retain another TPA when Athens’ contract expires in January. The city will contract with InterCare, a 20-year-old California company.

In other California cities, firefighters took their complaints against TPAs to court.

In 2014, a group of firefighters filed a racketeering suit against the TPAs York Risk Services Group and CorVel Enterprises Inc., and the cities of Rialto and Stockton, alleging that they conspired to “hurl frivolous and legally unsound roadblock after roadblock to wrongfully deny care to Rialto and Stockton’s first responders.”

U.S. District Judge Jesus Bernal dismissed the claim this August after multiple appeals, saying that the plaintiffs failed to adequately plead an offense under the Racketeering Influenced and Corrupt Organizations Act.

An attorney for CorVel said the firefighters never should have sued the TPA under RICO in the first place.

“Plaintiffs are trying to federalize their claims for workers’ compensation benefits in an attempt to bypass the exclusive remedy provisions provided under the Workers’ Compensation Act,” attorney Gary Pancer wrote in an email to WorkCompCentral. “Not only has the court correctly
ruled that such allegations have no place in the federal courts in dismissing CorVel, there were no facts plead that supported any viable claims against CorVel.”

Firefighters say that when TPAs deny them care, it affects them deeply.

Being in pain without the ability to seek treatment “affects every aspect of your life,” retired San Jose fire Capt. Marty Hoenisch said this summer, according to NBC. “It changes your mood. You sulk; you’re in a bad mood all the time.”

Others say that firefighters file claims too frequently, draining a city’s coffers by seeking medical care for injuries that can’t be definitively tied to the job.

Los Angeles released a pair of audits in 2015 that said city firefighters and police officers work in a culture that encourages filing “excessive” workers’ compensation claims. These claims cost taxpayers $28 million per year for what amount to preventable injuries sustained not while in the line of duty but while maintaining equipment, preparing food at their fire stations and, in one instance, playing racquetball, the Los Angeles Times reported last year.

Writing in Stockton’s The Record newspaper in 2010, columnist Michael Fitzgerald said he understood that firefighters need to be taken care of, but the department as a whole was “overpaid” and “spoiled.”

“An injured firefighter on disability receives 100% pay and workers’ compensation. And the pay is tax-free. They are paid more not to work. Truly, the American Dream,” Fitzgerald wrote.

“Granted, not many stay out on disability. Most return to light duty. But still. C’mon,” he added.

Fitzgerald’s coworker at the Record Roger Phillips wrote about firefighter compensation in 2007. He received an email from retired Deputy Fire Chief Andrew Shapiro before his article came out, which Phillips posted on his blog.

“When the article comes out, some will say, ‘obscene,’ ‘hogs at the trough,’ ‘overpaid dinosaurs,’ and the like, but even with this public sentiment, my mind always comes back to a few of my friends… and many others who died early deaths, many long before they could enjoy any of their retirement benefits,” Phillips wrote.

“I retired with heart disease. Who knows if it is attributable to the job or not, however, in California, this and other diseases common to those who work in a hostile fire environment are deemed ‘presumptive’ in nature and sometimes qualify the employee for workers’ compensation benefits,” Phillips continued.

“In the retrospective viewpoint of an old firefighter, the pay, great schedule and good benefits are not worth ending up (with) heart disease, emphysema or cancer because of nasty environment you chose to work in.”

For more information, please contact: James R. Jenkins, President, Athens Administrators