Helping Injured Workers Fight Insurance Companies

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Derek Tokaz interviews a worker's compensation lawyer whose practice focuses on administrative processes related to workplace injuries.

Derek Tokaz:

We're joined today by Royce Bicklein, a 1998 graduate of St. Mary's School of Law, Royce Practices Workers' Compensation in his firm in Odessa, a small city in west Texas. So Royce, you joined this firm, I understand, just after law school, although you started in their San Antonio office. So how did you end up making the move from San Antonio to Odessa?

Royce Bicklein:

When I started with the firm I was hired on specifically for workers' compensation, which up until that point I had never had any exposure to. The firm at that time was about 50% workers' compensation, 50% general personal injury practice. They had kind of grown a little bit, so they needed another associate. So I was hired specifically just to kind of help with the overflow of workers' compensation. After being there about just short of a year, we had decided that we would open up a West Texas office and I was essentially offered a partnership if I moved out to West Texas. So I agreed to do that. I had just gotten married very recently and it was kind of an adventure for my wife and I. You might ask why West Texas? The reasons are twofold. One of my partners is from the area and the second reason is because it was an underserved area, and so the competition would've been significantly less than it is in the big bigger cities.

I enjoy the practice of law in Odessa and so my business partner and I both live in the San Antonio area and we travel out to West Texas on a weekly basis and we kind of run that, the two of us together. Four offices sounds like a lot. They are really run at a skeleton crew. In the entire West Texas region, if you count me, we essentially have four employees in those three offices. One of the offices, the Abilene offices, isn't even staffed. There's not enough business there. We have an office, we go out, we meet people, we close the office when we're not there. So it sounds huge. It's not as huge as it sounds or looks on paper.

Derek Tokaz:

So not knowing a ton about Texas geography, the one thing I do know is it's really huge.

Royce Bicklein:

Yes.

Derek Tokaz:

Having these several different offices with all the travel, is that taking up a lot of your time, just sort of traveling between the offices?

Royce Bicklein:

Yeah, it can. When I travel, we have an apartment in West Texas that my partner and I share. So when I go out, I usually spend a couple of days, three days. It's a plan thing. I can usually plan my schedule out a month at a time, and so I go out almost every week and I spend the night. I do spend a lot of time traveling. It is taxing in terms of it takes time away from my ability to do work. And when you get in at 10 o'clock at night or get up at four o'clock in the morning to drive, it's not a lot of fun.

Derek Tokaz:

So let's talk about your practice a bit. With personal injury tort the theories that when someone's injured, the person who caused that injury has to compensate them for that. So worker's compensation insurance was introduced to change this process. Can you explain a bit how it's different from just a regular personal injury tort?

Royce Bicklein:

In Texas, at least pre-1989, it operated very much the same as a regular personal injury tort would. You had the right to sue your employer, really wasn't any different than an automobile accident or a regular negligence case. In 1989, they passed a sweeping a change, probably the biggest change in workers' compensation in the country. If your employer chose to have workers' compensation, then you as an injured worker had no choice but to be covered by that policy. It wasn't the employee's choice, it was the employer's choice. The employers did that specifically because if they had worker's compensation insurance, they were relieved of any liability on a negligent standard and could not be sued in district court for any negligence actions. They could have violated every OSHA law in the book. They could have done things almost on purpose and still not be sued.

So since 1989, that's the system that we've had in Texas. In Texas, we don't care how many people you have, they have to opt into the system. I have not looked at the numbers recently, but I would say you're probably looking at about 40% of the workforce in Texas is not covered by workers' compensation. If you choose not to have workers' compensation insurance as an employer, you have a choice, you can either have nothing, which would be very, very unusual except for your small construction companies might go bare, but any reasonable size employer is going to have some type of coverage. If you don't have workers' compensation, we call that a non-subscriber policy. They do not subscribe to workers' compensation, they subscribe to something else. The reason employers have those is because the rules and the policy is 100% controlled by the employer, and so the premiums are usually negligible in terms of what they cost the employer to purchase.

But the benefits offered are also negligible by comparison to what you would offer in a workers' compensation policy. So you pay less, but you get less. But for an employer, that's fine. And the growing trend has been to be a non-subscriber, if you're covered by workers' compensation insurance as an injured worker, you have to pursue workers' compensation. It has a state driven system of administrative rules that govern how much you get, when you get it, how long it lasts, how the medical care is delivered. And that is what I do as I deal with that administrative component. It's a no-fault system, so we don't prove who's responsible for anything, it's just whether or not it happened at work. And there are, of course, there's some exceptions, et cetera, et cetera.

Derek Tokaz:

If an employer doesn't have insurance, are those also the types of cases you would handle?

Royce Bicklein:

When you're injured at work and you don't have workers' compensation, that's a completely different scenario because now you're back into a negligence analysis and so you're analyzing it from a tort perspective. My office does that as well. A lot of attorneys in the state of Texas who do workers' compensation because it's so unique in such a niche area of the law, a lot of attorneys don't do both. We do both, primarily because my office kind of bifurcates the way things are done. We have lawyers that do just worker's compensation at the administrative level, and then we have lawyers that do negligence actions, regular tort cases, regular plaintiff's personal injury cases. So if you come into my office and you have that type of an injury and you're covered by a non subscribership policy, we'll still consider taking the case, but it's now on a tort angle that we look at the case and determine whether or not there's any liability or coverage there.

Derek Tokaz:

So you mentioned before that employers would be on the non-subscriber model because it's cheaper for them because they're getting less benefits out of it. Can you talk a bit about what that means for the employees?

Royce Bicklein:

If you're at an employer who has no workers' compensation, the policy drives 100% of what you're entitled to. There is no state law, there's no rule which requires minimum coverage or minimum payments or anything. They are literally written for each individual company and they from one company to the other can be completely different. So you have no way of knowing what the benefits that you're entitled to are without actually seeing the policy itself.

Derek Tokaz:

And I imagine those are probably pretty hard for a regular employee to read through.

Royce Bicklein:

Yeah, and they're actually really hard to get ahold of. Even when we represent people, we have a right to get the policy of course, and they hold onto those things like they're the Holy Grail. So they're very difficult to actually obtain, but the commonality between them is the benefit is minimus. I mean, they are very heavily regulated so that you have very little control over what doctors you see your reporting times or how much you get or whether you can be off work or not off work. And then almost always, although there's never an absolute in the law, but nearly every time, the policy's also going to have an arbitration clause. So you have to analyze those cases on a negligent standard and determine whether you've got anything in terms of pursuing toward action. However, you are not going to be able to file suit because it's almost always going to be covered by an arbitration clause.

And if you've ever done any arbitration or if you ever look at arbitration, the way arbitration's done in most of the country is there's a very finite number of arbitrators. They are essentially bought and paid for by the employers or by the people who are enforcing the arbitration clauses. And you're kind of then stuck litigating the case in front of a judge that is not going to even look at it very fairly. And that's been my experience. If they make a ruling that is just seems unfair, and if I asked 12 people, 11 of them would agree with me that it's unfair, that still not appealable to district court, that's still, that's that's going to stand as it is.

Derek Tokaz:

So even though the arbitrators, they aren't quite employees of the company, they still have to, they're essentially like their customer and if-

Royce Bicklein:

They're getting their business from the same place all the time, so there's not an agreement, there's not an employee/employer relationship but it's like a company doctor situation. If I'm getting all my business from Bob, I'm not going to rule against Bob a bunch or Bob's not going to use me anymore. And so that's what an arbitrator basically looks like and that's why it's not a favored system and in some states you have a right to appeal that to a district court, in Texas you do not.

Derek Tokaz:

But this is not the type of work that you handle yourself. This is what your partner in the firm works with?

Royce Bicklein:

Exactly right. So when you come into my office, if it's a non-subscriber case, I will screen it, I'll interview it if I give those to my business partner and he handles those types of things.

Derek Tokaz:

Okay, so what's the process like for the types of cases that you handle?

Royce Bicklein:

The focus of my practice is on the administrative process that controls workers' compensation.

Derek Tokaz:

I'm really going to show my ignorance here. What do you mean by the administrative process?

Royce Bicklein:

The workers' compensation system is governed by state statute, Texas Labor Code, which governs all of the rules and regulations regarding an administrative dispute process using administrative law judges to determine everything there is to determine under a worker's compensation claim.

Derek Tokaz:

What would be the types of things that have to be determined and then how is that different from the determinations you would have in a personal injury suit?

Royce Bicklein:

It's like comparing apples and oranges other than the fact that they both involve injuries, that's pretty much where the comparison stops. We analyzed what's needed from the injured worker and then what we can do to benefit. And that ranges from a dispute of the claim is in its entirety to they're being paid incorrectly to certain triggers within the dispute process or within the claim process haven't been done correctly or they've been done to the disadvantage of the injured worker. And then we step in to try to change the flow of that system.

Derek Tokaz:

Can you sort of walk me through what happens when a client comes in and you realize this is a case where they're covered under compensation? What do you do to evaluate the client's case to see if this is somebody that you're going to be working for and figure out what you can do for them?

Royce Bicklein:

Two questions that have to be asked when somebody walks in the door, it's A, can I help them and B, can I get paid? Because we work on a contingent fee agreement that is also driven by a billable hour rule. There are cases where I have people come in my office where I could technically get paid because there's money to be had, but I can't really benefit them and so I don't want that client. But on the other end of the scale, there are people who need help and I just physically can't get paid and there's enough of those files that I have already on my desk that also is problematic. So when you walk into my office, that is an overriding question that we ask on every case and sometimes you take a case that it doesn't look like you're going to get paid just because the heart's still the heart and the brain sometimes doesn't get to override the heart, but you're running a business and so it still matters.

If you've got worker's compensation and you come in to see me for an interview, we look to see at what stage of the claim that you're in. I have people walk in my office all the time. They say, "I was in an accident yesterday and I need some help." And so we will actually just file the claim for them. We will figure out who the insurance company is and we'll skip over the employer and we'll file directly with the insurance company and then walk them through the process of filing the claim. The most obvious type of case we work on is where the insurance company has denied the claim in its entirety. They're saying, "You are not going to be covered by workers' compensation for any number of a few hundred reasons." The most common is we don't think it happened at work or maybe you were intoxicated or any number of affirmative defenses that also exist in Texas because insurance companies, whenever there's a red flag, they sometimes will just kick a denial.

If it's been denied, if we believe the facts are that it should be compensable, then that's a case we take and we go through the administrative process to get a judge to look at it, to reverse the decision. And after the compensability decision that is, let's say we're beyond whether the claim has been accepted or denied and now you're having am accepted claim, but other disputes have arisen. The majority of my work is actually involved in those other disputes. Those involve disputes over what the proper pay is, but are they paying it correctly? Is it the right amount? Is it the wrong amount? We sometimes will go through that process. The number one thing that we have become involved in. This wasn't the case when I started 16 years ago. This has been a new development probably, oh, five to 10 years now. The majority of what we see and do involves what we call extensive injury disputes. It is very common and in fact it seems almost encouraged for insurance companies to accept the claim. They'll say, "Yes, you got hurt. We agree you were hurt when you picked up the 400 pound weight. We agree that you had a back injury."

The very next thing they will do is they'll say, "Well, the injury is just a strained sprain. It doesn't involve the torn ligaments in your knee. It doesn't involve the herniated disc in your back." And that sounds absurd, but I'm not talking about cases, that's actually stuff I've actually seen where you have horrific accidents where they will say, "No, no, those serious conditions are not related to this accident. They're related to your age or something else." Half or better of the administrative trials that I have are related to that question extent of injury. And so we try to prove that the injury extends to and includes whatever diagnosis it is the client and his doctors say is necessary. That has become increasingly difficult over the last several years because of recent Texas Supreme Court decisions, which haven't changed the burden, but they've changed the requirement of what kind of evidence has to be submitted to clear the burden. We have to prove with scientific evidence and we have to have narratives from doctors which are based on evidence-based medicine, which consider differential diagnosis and all sorts of little nasty little catch-alls that must be met in order for us to be able to prove that the injury extends to include the condition.

Derek Tokaz:

This actually sounds like what they do on House, because you mentioned the differential diagnosis. I'm actually curious how you go about proving one of these cases. What's actually involved in your end?

Royce Bicklein:

First and foremost, we see what doctor you're seeing. If we can get you to a doctor who we know is not a doctor who's beholden to the insurance company, we do that. If we can't, we look at what the doctors have said, what the surgeons have said, we have to have the cooperation of the doctors because they're the ones that can make a determination as to whether something's medically appropriate or not. I can't do that on my own. So we get reports from doctors or we ask the doctors to help our clients in terms of writing what we call causation narratives, which prove up what the extent of the injury is, and then we take that through the administrative process and get that in front of a judge so that a judge can rule on whether that's compensable or not. We then fight against the company doctor, if there is one potentially, and or the insurance company has a right to their own examination and they're almost always against us.

Basically it's a collision of experts and whichever expert makes a better analysis than can win. What we do to kind of affect that process is A, we help the doctors in terms of what they need to put in their narratives, what's important, but then there is a way that you analyze and it's mostly common sense. If you fell down a ladder from 12 feet in the air and landed on your buttocks, what makes sense in terms of what would be caused from that? And there becomes a pattern after you practice for just a very little short while you pick up on and those things that make sense are those that you pursue and those that don't or those that you kind of walk away from.

Derek Tokaz:

So this actually is a little bit like House. It's competing theories over what could have possibly caused a certain condition that the client has where there's arguably multiple possible causes.

Royce Bicklein:

Absolutely.

Derek Tokaz:

So you described this as a battle of experts and can you describe what that would actually look like? Is it where you're just submitting your reports to a judge or is it something that looks a little more like a traditional trial where you're in front of the judge and actually presenting a case?

Royce Bicklein:

Ordinarily, the dispute process in worker's compensation is a two-step process. First file for a hearing, the first step of that hearing is called the Benefit Review Conference or a BRC. It's a mediation. You sit across from the table from the insurance company's lawyer or an adjuster or whoever they happen to send, and you discuss with the help of a mediator whether there's a middle ground or resolution possible. Believe it or not, most cases actually are mediated. We resolve a lot of cases at that level. If we can't resolve it at that level, then we set it for a formal trial. In Texas, we call that a benefit contested case hearing. You appear in front of an administrative law judge. There is no jury. There's very often not even a court reporter. Frequently all we have is a little recorder so that it's recorded for the purposes of appellate processes and we then argue in front of that judge, the injured worker will testify.

Although not always depends on the case. My favorite thing to do is to cross-examine an insurance company's expert. I win cases a lot of times because the experts are doing so many cases, easy to get them caught in a mistake, and when they're caught in a mistake, now I get to throw their whole opinion out or at least they get to argue. Their whole opinion should be thrown out. We then introduce written evidence, which is in a form of the medical records, the history, witness statements if necessary, prove up an injury, those sorts of things. Those then get given to the judge. The judge then takes everything under advisement, kind of like you would do in a summary judgment hearing in district court. And then a couple weeks later, you get a decision in the mail where the judge is issued a decision. Once the judge issues that decision, that decision's binding on the party. So if we win at that level, your client gets paid at that time, at that level, or they get to go get their surgery or whatever the case that you're fighting for, you get to move forward based on that decision.

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