Phil Cohen War Stories: ‘Jessie’ Fights Corruption in Workers’ Comp System - Part 2 - Chaos!
WAR STORIES By Phil Cohen
Editor’s Note: Here’s the link to Part I of this special “War Stories” series.
Jessie called during December 2019. “I got notified I got to go see Dr. Yates, who did my surgery. I was wondering if you could come with me.”
I asked why and she said, “There’s things I need you to see.”
I agreed to the unusual request and the appointment was scheduled for January 2. I told her to present me as an old friend, accompanying her for moral support. The doctor would be on his best behavior if he even suspected I was her union rep.
A couple of weeks later, I met Jessie in the parking lot of a small shopping center where the physician had his office and she took a seat in my car.
“He treats me like a piece of garbage sometimes,” she told me. “I wanted you to see how he does me. I also want to show you this.” Jessie lowered her shirt exposing a large bump over her right shoulder where she’d had surgery.
Dressed in jeans, boots and a leather jacket, I assumed an ignorant nobody persona as we walked toward the building on a cold, windy afternoon. Jessie set her phone to record.
Company doctors are bottom feeders of the medical profession. They’re usually not good enough to succeed in private practice or become hospital staff. Their client companies designate them as the required source of treatment for injured workers. A minimal diagnosis and when possible, determining the injury wasn’t work related, is obviously in the employer’s interest. These medical hacks know which side of their bread is buttered.
We entered the reception area of Dr. Mark Yates and within several minutes were ushered into the office of a middle-aged man with grey hair and a heavy build. Jessie introduced me as planned and Yates bought it. He examined her shoulder and Jessie asked about the bump.
“Hmmm, that’s interesting,” he commented. “Well, tell me how you’ve been feeling”
Jessie explained her severe pain levels were the same as before surgery and interfered with routine activities like housework or even opening a bottle.
The doctor had her repeatedly move her right arm side-to-side and overhead. Jessie complained of pain but he had her continue.
“You’ll just have to learn to live with the pain,” he told her. “I’m giving you a 10% disability rating.”
A few minutes later, Jessie and I were again sitting in my car with the heat running.
“This really sucks,” I said. “But we can appeal his findings to the Industrial Commission. You’re legally entitled to a second opinion. I’ll call Hank as I’m driving home. He’s networked with medical professionals who actually care about their patients.”
Jessie was visibly shaken. “This feels like more than I can handle. You know I’ve had a really hard life. Sometimes, I even think of killing myself.”
“I’ve had a hard life too…and that’s why I know you’re not going to kill yourself. You have a good heart — but you’re also tough as nails. You’re a survivor, just like me.”
Dr. Yates prepared his formal evaluation following our departure, but we didn’t get to see it for three weeks. He described the surgery as a success and noted:
“No further diagnostic studies are indicated and she is released for work activities without restrictions.”
Hank Patterson called me on February 9. He’d earned a reputation as one of the South’s most competent workers comp attorneys. He was in his early eighties and still worked seven-days-a-week, driving all over North Carolina to interview injured workers.
Hank informed me the insurance carrier had filed a motion with the Industrial Commission to terminate Jessie’s benefits based on the doctor’s release. He would be paying for Jessie to get her second opinion from a physical therapist.
I explained there had been a partial layoff at the plant in response to lack of customer demand for certain products, and Jessie’s department had been eliminated. However, the union had negotiated a severance package for senior employees who wanted early retirement, resulting in three open creel hand positions in another area. Though Jessie had an active bid for these jobs on record, two were filled with less senior employees. Despite the doctor’s evaluation, management had placed her on layoff.
The company couldn’t have it both ways. In reality, her injury hadn’t been remedied and she wasn’t fit to work. But management was violating the contract and state law by not giving her a chance. We agreed I should file a grievance. “If Jessie returns to work and can’t perform because of pain, our position will become that much stronger,” the lawyer told me.
Hank was having a difficult time communicating with his client as the case became more complicated. Jessie often couldn’t comprehend his explanations and he was having trouble understanding what she wanted.
Jessie had texted:
“I just got off the phone with Hank. It’s all so confusing!!”
This wasn’t an unusual dilemma. Lawyers and factory workers speak two different versions of English. Fortunately, I speak both and from there on became the translator every time they had a lengthy conversation.
The following week, Jessie texted she’d been informed by Hank that the company wanted to discuss settlement for a lump sum, and she requested my advice.
I responded:
“Hey Jessie, this is way too early to think about price. Our focus now is building leverage to jack up the price. Your appointment with the physical therapist and the grievance are part of that. The fact the company is asking to settle this soon means they’re nervous. We should keep building leverage and not even start to negotiate yet. We make them sweat and come to us.”
On February 17, Jessie was evaluated by physical therapist Thomas Gilbert, who performed a far more extensive examination than Yates. His seven page report concluded:
“Her right hand grip strength is 38% of the non-dominant left hand…and falls below normal limits for age and gender…Active range of motion activities demonstrated limitation in right shoulder flexion, abduction, and external rotation,...She experiences extreme burning pain and weakness with material handling activities.”
I discussed the results with Hank that evening. The hearing before the Industrial Commission was scheduled for the following afternoon. The attorney felt that under normal circumstances, we would have had an easy win regarding Jessie keeping her benefits. But the commission was now staffed by right-wing Republicans…Part III Next!
Phil Cohen spent 30 years in the field as Special Projects Coordinator for Workers United/SEIU, and specialized in defeating professional union busters. He’s the author of Fighting Union Busters in a Carolina Carpet Mill and The Jackson Project: War in the American Workplace.