The Story #19: VA Workers Compensation Claim
I received an email the other day from a friend who suggested I seriously consider filing a medical malpractice suit for failure to diagnose, medical errors and uninformed consent. She referenced a website advertising free assessment of cases anywhere in the U.S.
I had already contacted a dozen local law firms to file a medical malpractice suit on a contingency basis. They were all looking for slam dunks. They weren’t interested in my case because it involved too many doctors and hospitals and would require — in their estimation — considerable upfront time and money.
The one thing I learned about attorneys is that they operate much like doctors in that you have to put the case together for them. I figured that I’d have a stronger case if I could first find doctors willing to treat me for what I believe I have.
Even if I get better, I have irreparable damage to my spine and have incurred substantial monetary damages to justify a $2 million award. You’d think a $600,000 contingency fee for a negotiated settlement would be attractive to a smart attorney.
I haven’t had much luck with attorneys in the past. Take my 1983 Workman’s Compensation suit, Anna Czupryn v. U S Health, handled on my behalf by Ashcraft & Gerel.
On January 19, 1983, while working as a sales rep/fitness specialist for Holiday Spas (Bally), I managed to impale my left hand with part of a Nautilus weight pin that had separated from its shaft. The exercise machine had frozen with the weights engaged as a club member was exercising. This left the selected weight elevated.
Typically, you could disengage stuck Nautilus weights by lifting up or pressing on the machine pads. But that wasn’t working this time. Plus after a busy 10-hour day that included teaching three aerobic classes, I wasn’t thinking clearly. I had clocked in at 9 a.m. It was after 8 p.m. when a member approached me insisting the Nautilus exercise machine weight pin was stuck.
I remember thinking “What do you mean, the weight pin is stuck?” and without assessing the situation, only half paying attention to what I was doing, I proceeded to pull the pin out from under the elevated weights. As I pulled, the cap of the pin separated from the shaft and flew up within close reach.
In a reflex action, I caught the cap, palm facing up, just as the 40 pounds of weight came crashing down. My left hand ended up sandwiched between the weights. The hollow cap, now impaled in the middle of my left palm below my middle finger had kept the weights from crushing the bones in my hand.
As a small group of women began to form around me, I slipped the index finger from my right hand into the space separating the weights and lifted the upper weights high enough to slip my left hand out. In a haze, somewhat amazed, I stared at the hollow cap impaled in my left hand for a moment before I proceeded to pull it from my hand.
I expected to see a circular cut. I hadn’t considered that the cap would retain the impaled flesh from my hand as I pulled much like a cookie cutter extracts cookie shapes from dough. The hand began to bleed considerably.
Afraid that I would faint, women near me pushed me onto the carpeted floor. I assume they hadn’t intended the blow to be so abrupt and were simply reacting to the sight of blood. One member retrieved paper towels, which I used to wrap the wound. Another member ran to a nearby Roy Rogers and grabbed a cup of ice for my severed flesh. My boss drove me with my cup of iced flesh to the nearby emergency room at Fairfax Hospital.
I was seen right away. My hand was x-rayed and examined. The ER diagnosis was a puncture wound of the left hand and laceration of the flexor tendon and digital nerves. I was given a tetanus shot, prescriptions for Keflex and Tylenol #3, and was discharged with instructions to see Dr. William Dempsey, a hand surgeon, the next day.
In a letter dated December 6, 1983, Dr. Dempsey wrote: “On January 21, 1983, under general anesthesia, lacerations of the flexor sublimis tendon of the left long finger and flexor profundus tendon to the left long finger as well as a puncture donut wound to the palm was performed.”
The letter goes on to describe rehabilitation progress at follow up visits. The major problems indicated were lack of pullthrough of the profundus of the long finger and a build up of scar tissue at the donut wound in the palm of my left hand. In other words, the joint at the tip of my middle finger wasn’t working due to binding of scar tissue at the base of the finger. This gave my middle finger the same stilted and stiff appearance you’d expect to see if the finger was in a splint. Put more graphically, the finger all too often appeared to be making a politically incorrect statement as if I was giving someone the finger. And that wasn’t the only problem with the hand.
The large amount of scar tissue that had accumulated at the base of the middle finger was preventing me from forming a closed grip. That meant that I dropped things with my left hand often, that change would fall from my left hand… I had no grip. The scar tissue in the middle of my palm felt like I was holding a rod that prevented my palm from closing. When I tried to force a grip, it hurt just as if I was trying to bend an iron rod in my hand. My left hand was substantially weaker than it had been before the accident, and the prospect for developing severe arthritis from inflammation had grown exponentially.
In a December 9, 1983 letter, Dr. Stephen Shaffer, medical director of Northern Virginia Hand Surgery and Rehabilitation Center, wrote: “She has not recovered fully from the injury and the surgery, and now complains of having no grip, stiffness and loss of strength and use of the hand and loss of some hand control.”
Dr. Shafer’s impairment rating, per AMA tables, was as follows: “The patient may be considered as having 45% permanent physical impairment of the left middle finger for loss of motion, which equates to 9% of the hand, to which another 3% of the hand may be added for loss of coordination, giving her a total of 12% permanent physical impairment of the left hand.”
Another surgeon, Dr. Bruce Butler, Jr. had similar findings.
In a February 17, 1983 report, Clare Wagner, a physical therapist for H.A. Fontana, described the problem this way: “The profundis and superficialis tendons of the long finger apparently are now bound together, and this is preventing normal faster gliding of the profundis tendon, as demonstrated by an inability to flex the distal phalanx.”
As I understood it from meetings with Dr. Butler and Dr. Dempsey, corrective surgery would entail removing a tendon from one of my ankles to replace the faulty tendon in my left hand. The surgery would be followed by more months of rehabilitative physical therapy, and there was no guarantee that the same amount of scar tissue would not form. Dr. Dempsey even went so far as to not recommend doing the surgery because the chances for improvement were so slim. The site of the donut-shaped puncture wound was in the part of the hand known as “no man’s land” because the prognosis for a positive surgical outcome in this area was poor.
A graft that could cause possible injury to my ankle in addition to the poor prognosis for hand improvement made the prospect for further surgery non-sensical to me. So, on November 2, 1983, Ashcraft & Gerel filed an application for a workman’s compensation hearing to the Industrial Commission of Virginia. My hearing was scheduled for December 14, 1983.
Injuries covered under the Workers Compensation Act provide the injured worker certain basic benefits. These include: 1) wage loss compensation; 2) permanent injury compensation; and 3) injury related medical expense coverage, which includes all doctor bills, hospital bills, physical therapy, prescriptions and necessary travel expenses.
Compensation for permanent partial or total loss of a body part covered under Workers’ Compensation is based on a schedule set by the state. I found Virginia’s compensation schedule among the country’s worst from the injured party’s point of view. Permanent loss of use of a listed body part entitles the injured worker to 66 2/3% of his average weekly wage at the time of injury for the number of weeks listed on the state schedule.
I.C. File: 108-08-11 Anna Czupryn v. U.S. Health, Inc. shows that on December 16, 1983 I was awarded compensation for a 55% permanent loss of use of the left second finger for a period of 16.5 weeks plus “necessary medical care for as long as necessary.” On January 16, 1984, I received a check for $3,114 for my partial disability. The amount is much less than what I would have received for the same injury in other states, such as Maryland.
Fast forward 11 years. I decided to investigate whether surgical technology had advanced enough to come up with an alternative to grafting as a way of removing scar tissue surrounding the tendons in my hand. I contacted Aetna, the insurance carrier for my former employer. Aetna arranged an examination with Dr. Alberto Borges on July 9, 1994.
In a letter to Aetna dated July 11, 1994, Dr. Borges wrote: “I feel at this time that she could benefit from further reconstructive surgery of the left hand, which has developed a contracted, fixed scar involving the flexor plantar tendon. She should have a tendon release, together with debridement of scar tissue on and about the involved tendon. After this she should receive extensive physical therapy.”
Aetna authorized Dr. William Dempsey, who had performed the initial surgery, to proceed with a tendon release and debridement of scar tissue on and about the involved tendon. This technique for improving my hand use differed from Dr. Dempsey’s opinion. He declined to do the surgery. In fact, I found many surgeons unwilling to do surgeries covered by Workers Compensation awards in Virginia due to the amount of difficulty getting paid by the employers’ insurance companies.
Aetna had scheduled my July 9, 1994 exam with Dr. Borges for the second opinion which the insurance company required. As of March 30, 1995, I was still receiving notices of non-payment from Dr. Borges despite having forwarded Aetna multiple invoices over the previous months. I don’t know if he was ever paid or finally surrendered.
The issue of insurance company late or non-payment of medical care for the injured worker under Workers Compensation is nothing new. Ashcraft & Gerel had arranged to have Dr. Bruce Butler, Jr. complete an assessment of disability for my hearing in 1983. At my July 12, 1983 exam, Dr. Butler had recommended the same tendon graft surgery that Dr. Dempsey had suggested. However, Dr. Butler said he would only agree to do the surgery after he was paid by the insurance company because he had not been paid at all for some previous surgeries done under Workers Compensation for other patients.
This haggling over payment between doctors’ offices and my employer’s insurance company not only impeded my access to necessary medical care, but also affected my relationship with my legal counsel.
Attorney fees in Virginia Workers Compensation cases are regulated by the Commission and are awarded on a case by case basis. Ashcraft & Gerel was awarded $100 for legal services representing my claim.
Generally speaking, the attorneys I’ve known clearly distinguished themselves from being confused with philanthropists. I could see how spending time corresponding between medical care providers and insurance companies over payments to ensure I received appropriate awarded care had become an irritation. Perhaps as a way to avoid having to write more letters, my attorney, Julia Butler, wrote in a March 1, 1984 letter to me that my employer’s insurance carrier was not obligated to pay for physical therapy treatments under the Workers Compensation award. This statement conflicted with the information in the Workers Compensation pamphlet I had as well as my understanding of what lifetime medical care constituted.
I never had additional surgery or therapy for my hand — not because it wasn’t needed, but because, with all of life’s other pressures, I just couldn’t deal with the trauma of fighting for what I was rightfully due. And I paid a price for that, too.
As my other underlying, undiagnosed illnesses progressed, systemic inflammation permeated my left hand and caused it to swell. This resulted in further lack of hand coordination and control that unintentionally led to what one could misconstrue as deliberate intent on my part to make an obscene gesture. It’s quite a coincidence that not long after my boss asked to examine my left hand that I was fired from my position as principal broker of a publicly traded real estate investment trust for the tri-state area.
UP NEXT: RECENT ATTEMPTS TO RETAIN COUNSEL FOR MEDICAL MALPRACTICE
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