03:37 PM CDT on Friday, May 12, 2006

By BRETT SHIPP / WFAA-TV

WFAA-TV

Robert Frederick called the revised workers' comp system "a farce."

A farce.

A mess.

Medical gridlock.

Those are just a few of the phrases being used to describe the workers' compensation system in Texas.

Nine months after an overhaul of the system, the early reviews are not promising. Many doctors and their patients are calling the new law a failure.

Changes in the law were prompted, in part, by a series of News 8 Investigates reports.

Robert Frederick of Dallas fights through flashes of pain he has endured since hurting his back while working as an auto mechanic four years ago.

But from his hospital bed, he can finally see a light at the end of the tunnel—a spinal fusion operation he hopes will end the constant suffering.

"This is a dream come true for me," Frederick said.

It's an operation his doctor has been fighting for; a procedure the workers' comp insurance carrier has refused to pay for since 2002.

Frankie Dutcher of Azle gingerly walked toward a workers' comp hearing room. He hoped that a judge would finally award him medicine and benefits.

Dutcher's doctor determined he was exposed to harmful chemicals while repairing power lines 10 years ago. He said he suffers from symptoms including blackout spells, constant dizziness, extreme nausea and severe headaches.

Both men's hopes are pinned on sweeping reforms adopted by the Texas Legislature last year. Lawmakers abolished the old workers' comp commission and handed over operations to the Texas Department of Insurance.

"This is a new agency with a new approach, with a new culture," said Albert Betts, the state's Commissioner of Workers' Compensation. "We're still, for all intents and purposes, in the baby stages of getting up and running."

"I haven't noticed any difference so far," said Dr. Robert Henderson, who performed Robert Frederick's surgery.

That's because everyone in the operating room for Frederick's $100,000 procedure—the doctors; the nurses and assistants and specialists—were all working for free.

Why?

Because Frederick's insurance carrier still refuses to pay his claims, saying his injury is imagined—not real.

After four years of frustration, Dr. Henderson had enough of seeing his patient in pain, so he performed the surgery for free.

"Virtually every surgery we do gets denied once, gets denied twice and then we have to take it to some type of a hearing," Dr. Henderson said.

Frankie Dutcher said doctors diagnosed his injury as being job-related almost a decade ago—on May 21, 1996.

His workers' comp claim continues to be denied.

The insurance company said Dutcher didn't report the injury until Nov. 15, 1996, failing to meet the 30-day reporting deadline by five months.

But Dutcher said his own cell phone records show a call to his supervisor in Decatur, Texas, on May 22—one day after his doctor's diagnosis.

"The evidence is all there," Dutcher said. "I don't know why they won't act upon it."

After nearly one year of workers' comp hearings, Dutcher and his wife are growing tired fighting the old and new systems. "They put you through all these hoops with the hopes that you will either die or go away," said Dena Dutcher, the injured worker's wife.

Unfortunately, under the new system, it may be the doctors who are going away.

"The reform has done nothing other than drive good doctors completely out of the system," said Kym Grant, a patient advocate who is trying to lure doctors back into the new system.

She said very few North Texas physicians are showing an interest. The problem: Proposed low reimbursement rates and continued slow or no pay.

"I've knocked on these doors and begged these good surgeons to listen to me and to help us come up with a solution," Grant said. "They don't want to hear it; they don't want to participate in it, and why should they?"

If there is hope for the injured worker, it may rest with Norman Darwin, who was appointed by Gov. Rick Perry to head the new Office of Injured Employee Counsel. "It has not been a level playing field, there is no question about it," Darwin said.

Darwin's charge is to beef up the ombudsman program and to hire lawyers to help represent injured workers who have disputes.

Yet Darwin offered a sobering admission when asked if his office could make life better for injured workers. "I can in some cases," he said. "I can't necessarily say that I could in all cases."

That leaves injured workers like Dutcher and Frederick at the mercy of a system so broken that compassionate doctors are giving away care.

"There's no way to describe it," Frederick said from his hospital bed. "The system is totally a farce."

Insurance industry officials said it is too early to judge the success or failure of the revised Texas workers' comp system, a system that is supposed to work like managed health care.

Many injured workers we talked to said they would settle for any kind of care.

E-mail bshipp@wfaa.com