Worker's comp rules limit injured man's recovery options, he says

At 26, Sam McGinnis was an energetic workaholic with a day job at Time Customer Service in Tampa and a part-time gig at a CVS in Carrollwood. A lanky 6-foot-3, he enjoyed riding motorcycles and working on cars.

On Nov. 29, 2008, long before dawn, a gunman in a clown mask walked into the drugstore, shot McGinnis twice, and ran out with $80.

The second bullet entered McGinnis' chest and traveled through his liver, stomach, bowels, colon and lumbar nerve.

McGinnis, now 29, has not worked since. By day, the pain in his legs keeps him in a wheelchair; by night, it keeps him awake.

His doctors have told him they can do no more for him than prescribe medications for his pain. McGinnis doesn't want to accept that.

But he may not have a choice.

Since he was hurt at work, McGinnis' medical needs are covered by workers' compensation insurance, not the health insurance he had through his day job. And that, he and his family contend, could be standing in the way of his recovery.

Years ago, Florida's workers' compensation system was costing employers so much money, business advocates said they were losing out to competitors in other states. So in 2003, the Legislature clamped down, slashing premiums significantly more than even business and insurance lobbyists had sought.

Among other things, new rules restricted patients' ability to choose doctors or hire lawyers.

Today, the average compensation paid per claim has been cut by about half. This has been good for business, advocates say, who add benefits were driven up by workers who weren't seriously hurt gaming the system, and lawyers scoring big fees.

Workers' comp lawyers say the changes went too far, and now shortchange workers with catastrophic injuries.

Caught in the middle are people like McGinnis. He and his family contend that changes to the system have made it more difficult to get the medical and legal help he needs.

"There are people out there that have been hurt, that need the system," Sam McGinnis said. "I want to be well enough to work."

• • •

An ambulance rushed McGinnis to nearby St. Joseph's Hospital after the shooting. From there, he was transferred to Tampa General for rehabilitation.

Doctors saved McGinnis' life, but recovery has been slow and difficult.

He underwent physical therapy for several months, and began a regimen of powerful painkillers including fentanyl and oxycodone.

He is not paralyzed, but the pain is so severe he cannot walk. McGinnis was tested to see if he would be a candidate for a spinal cord stimulator, an implant that uses electrical impulses to control or relieve chronic pain. His doctor determined it would not help him.

McGinnis says he understands it's possible another doctor won't be able to do more for him. Still, he is determined to get better and wants to explore options.

Under the 2003 law, he is permitted to seek a change of doctors. But he can make that request just once, and he would have to accept the insurer's choice of physician.

"Who am I going to get?" McGinnis wonders.

In a statement to the Times, CVS Caremark said it has provided McGinnis compensation and benefits that "meet or exceed" legal requirements.

"These include the covering of related medical expenses, numerous modifications to his home and vehicle, compensation for lost wages, and vocational training and placement services," the statement read.

Tim Jesaitis, a St. Petersburg lawyer specializing in workers' compensation, said the rule allowing only one change of doctors was meant to discourage doctor shopping, in which an injured worker goes from one doctor to another to maximize benefits.

"In 90 percent of cases, that's fine," he said of the limit. "It's in the more difficult cases, the catastrophic cases, where it would seem that the rules ought to be a little different."

McGinnis says the only thing he's trying to maximize is his ability to function.

• • •

Back when workers' compensation was being revamped, insurers and businesses pushed for about a 20 percent reduction in premiums, arguing that Florida's were among the highest premiums in the nation.

Legislators gave them more. Premiums have fallen by about 60 percent.

"To see the 60 percent reduction was beyond our expectations," said Tamela Purdue, general counsel for Associated Industries of Florida, the business lobbying powerhouse.

Paul Anderson, a Tallahassee lawyer who serves on the board of the workers' compensation section of the Florida Bar, thinks the changes went too far.

"They've clearly overreached in terms of limiting the rights of injured workers," he said.

In addition to limiting patients' choices of doctors, the law placed a cap on what attorneys can collect in legal fees. The cap does not apply to attorneys who represent companies and insurers.

Since the 2003 overhaul, the number of Florida claimants receiving benefits has decreased by 36 percent, from 77,594 to 49,625. And the average benefit paid per claim has dropped by nearly half, from $30,696 in 2003 to $16,276.

Perdue says much of the costs of claims prior to 2003 were driven by attorneys' fees. And several factors have contributed to the drop in claims — such as fewer workplace accidents, and more people working from home. Plus, the recession has meant fewer people working overall.

• • •

McGinnis, who rents a home in Holiday, supports himself with his workers' compensation and Social Security disability.

His workers' compensation benefit of about $480 a week is due to expire sometime in the next year.

A possible next step is to try and have McGinnis classified as a permanent total disability case, which could give him benefits up to age 75.

L. Gray Sanders, an attorney who is helping the family at no charge, said McGinnis doesn't want to consider that. He would rather keep trying to get well enough to work.

Gene McGinnis has spent the past two years helping his son and writing to elected officials. He created a website, samslaw.org, which details the family's experiences, and advocates for allowing catastrophically injured workers more medical options.

Sam "should have the ability to see the doctors he needs," Gene McGinnis said. "Sleepless nights taking painkillers and being left in the dark is just plain wrong."

Richard Martin can be reached at rmartin@sptimes.com or (813) 226-3322

Florida workers compensation declines

Since a system overhaul in 2003 , benefits have been paid to fewer claimants, and the average benefits per case have plummeted..

YearClaimants receiving benefitsAverage benefit per claimant
200278,925$35,502
200377,594$30,696
200476,133$26,871
200577,714$25,916
200675183$25,657
200767,565$25,975
200860,521$25,563
200954,118$22,872
201049,625$16,276
Source: Florida Department of Financial Services


Florida workers' compensation declines

Since a system overhaul in 2003 , benefits have been paid to fewer claimants, and the average benefits per case have plummeted.

YearClaimants receiving

benefits
Average benefit

per claimant
200278,925$35,502
200377,594$30,696
200476,133$26,871
200577,714$25,916
200675,183$25,657
200767,565$25,975
200860,521$25,563
200954,118$22,872
201049,625$16,276
Source: Florida Department of Financial Services

Worker's comp rules limit injured man's recovery options, he says 07/30/11 [Last modified: Saturday, August 6, 2011 11:23pm]

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