July 22–28, 2005

My back! My ankle! My lost file!

by John Metcalfe

Tales of torture in D.C.’s Disability Compensation Program

What would you rather have, a severed limb or a sprained back?
Chances are you’d go for the back. That would be a good choice—unless, of course, you happen to work for the D.C. government.

The city’s Disability Compensation Program, which covers all D.C. employees save for firefighters and cops, has never really had a problem diagnosing and redressing dismemberments and other major maladies. A Public Works employee who loses a leg to a street sweeper is entitled to 288 weeks of wage benefits plus medical expenses. A road worker gone deaf in both ears from a manhole explosion gets 200 weeks plus medical. These workday horrors are both assigned fixed values in the official D.C. compensation schedule.

But anything that’s not discernible by its absence or spraying gouts of blood short-circuits the compensation system. Sprains, ruptures, back cricks—if you are afflicted with any of those, prepare for battle with an unsympathetic bureaucracy. That bureaucracy is supposed to pay for the injury until a doctor says you’re fit for duty. In reality, the response has been: “What injury?” Though it’s never that succinct.

As a matter of public record, D.C. workers’ compensation undercompensates workers. During fiscal years 2002 and 2003, 85 injured workers who felt stiffed by the government got their day in court; administrative-law judges sided with the government’s decision to cut benefits in only 33 of those cases. But that didn’t mean people got compensated: Many continued to live without wages and medical treatment, sleeping in weird positions and using other people’s pills.

The arduous compensation process is great for weeding out hypochondriacs, of whom the system definitely attracts a few, but bad for people with actual problems. “I had to borrow water from a [neighbor’s] water hose…so that my children would be able to wash up and take a bath,” says Muranda Willis, a schoolbus driver who couldn’t pay her utilities bill after the government denied her compensation for a neck injury. Willis just won her case, five years after her accident. “You just don’t know how low and dirty these people are,” says Willis. “I mean, they put my file in a corner. The [claims representative] told me, ‘Oh, your file was in a corner. It had dust on it!’ Laughing. And I didn’t think that was funny.”

A handful of injured workers, also unamused, took their allegations of massive due-process violations to federal court and last September won a suit against the District. Elizabeth Lightfoot, et al. v. District of Columbia orders the reinstatement of benefits to thousands of employees who were cut from disability from 1998 onward and will probably end up costing the city millions. Whether the judge’s decision will reform the Disability Compensation Program is anybody’s guess. “The proof is in the pudding,” says Amy Vruno, a lawyer with the D.C. Employment Justice Center, a nonprofit involved with the suit. In the meantime, there’s a freeze throughout city government on the termination of benefits.

Court relief comes a bit late for a class of workers who spent years in vain complaining to the D.C. comp office. Pummeled and cracked, ignored and undercomped, these folks have made valuable leaps of knowledge in respect to what the D.C. government thinks poisonings, lumbar strains, and loose bone screws in its employees are worth.

Sandra Mitchiner
Physical Affliction: achy leg, back, skin, lungs
Compensation: permanent disability benefits
Bureaucratic Affliction: benefits not permanent

Sandra Mitchiner kicked off her career of office injuries in the early ’70s, when, she says, she inhaled asbestos at work in the U.S. Office of Personnel Management.

Then, in 1979, a file cabinet fell on her while she was in her chair, folding her into a screaming human taco until fellow workers could pry it off. Four years later, while attempting to embark on an elevator, Mitchiner got her foot snared in the machine’s closing doors. She was hauled into the air upside down and slammed against the elevator doors. Three years after that, she slipped and fell on a wet floor at the Reeves Center.

In 1990, Mitchiner arrived at her office early to find herself enveloped in a white fog. She discovered later that another employee had set off roach bombs. “I was coated,” she says. She went to the hospital for a toxic reaction.

By this time, the long-suffering worker had accrued an unbeatable combination of damages: a torn rotator cuff, a wrenched right leg, carpal-tunnel syndrome in both wrists plus nerve damage throughout her body, and hypertension, which she pinned on “excessive pain.”

“I guess I just felt that I lived Murphy’s Law, you know,” the 62-year-old Mitchiner says. “If something could go wrong, it did.”

Rather than risk further harm with full-time duty, Mitchiner retired from the government in 1991 as permanently disabled. She enlisted in the District’s disability program, then settled down to tend to her various ailments with compensation-bought pills, surgery, biofeedback therapy, acupuncture, and prescription shoes. “Everything was straightened out with compensation,” she says, “so that it was indicated…‘We will take care of you for the rest of your life.’ ”

In the late ’90s, as the D.C. public-worker compensation program was shifting from government control to a private contractor, Mitchiner got a letter from the city asking for documents she and her bosses had supplied years ago. She reconstructed her medical history as best she could and then moved to California; doctors promoted the dry climate as beneficial to her emerging asthma. Around 2000, she got another, similar letter. Again she sent in what she had. Another contractor took over the program in 2001; Mitchiner received two more requests for ancient paperwork. Then demands came for her to report for independent medical evaluations. Mitchiner moved back to D.C. to sell her house and get a closer look at what was going on with compensation.

What was happening was mass confusion as contractors and government agencies played hot potato with the troubled program. From the late ’90s to the present, seven different authorities had the unpleasant duty of managing cranky invalids: Contractors Mell Brownell & Baker, Computer Literacy World/Creative Disability Management (“emphasis on ‘Creative,’ ” says one lawyer), and Aon Corporation and current contractor Comp Management at different times reported to the Office of Personnel, Employment Services, and the Office of Risk Management (the latter two agencies now share administrative duties).

The bureaucratic bedlam resulted in the issuing of checks to dead people and overpayments to others ($68,815 to one lucky worker, $108,720 to another), as well as great piles of “misplaced” files. Arthur Bjorlykke, program director for Creative Disability, admitted as much in his 2004 testimony before the D.C. Council, though he stopped short of taking the blame himself. “As a result of the mismanagement of the prior [contractor],” he said, “many of the files had significant gaps, or were completely lost.”

Today, the location of these files is something of a folk legend. Could they be buried in an old whiskey barrel beneath the Potomac? Stuffed into the cap of the Washington Monument? Circling the Beltway in the back of a chuffing Volkswagen van, stopping only for refueling? One lawyer says they’re at the old D.C. General Hospital, though no prospecting worker has piped up to corroborate the theory. Mitchiner certainly had no idea—and apparently neither did the Disability Compensation Program.

In 2002, the reigning contractor terminated her benefits for not aiding in the restructure of her file. She complained to Ward 5 Councilmember Vincent Orange and was reinstated more than a month later. That’s when she decided to make yearly pilgrimages to the compensation office to physically review her records. On her first visit, “they didn’t have anything,” she says. “I provided them with copies again.” Dropping by in 2004, Mitchiner discovered another person’s medical reports in her file. “It wasn’t even like our names were close where you could do an alphabetical thing.” Also, “it was a man.”

The File o’ Mystery was just the beginning of her problems. She found out that bills dating from years past hadn’t been paid. And the compensation program was reluctant to pay new bills, including a 10 percent co-pay on a $162,000 surgery she’d had to improve her lung capacity. Mitchiner’s credit rating plopped into the toilet, she says, just as her health was making a similar dive. Her doctors told her the 1990 poisoning had altered her cellular chemistry, giving rise to allergies and outlandish reactions. Mitchiner drained her savings account, then the savings accounts of her three grandchildren, trying to figure out what was happening to her body. “If I get a scratch, it’s a scratch forever. It doesn’t go away,” she says. “Even right now, I have things growing on me. They’re absolutely not moles.”

A couple of years ago, the program put her back on wage compensation, though she says she’s waiting to see who’ll pay her collection of old medical bills, which totals around $100,000.

“I used to cry all the time…I used to consider suicide,” she says. “I said, ‘At least if I were dead, my kids would have money.’ ” But she’s bucked up since then and is now prepared to fight for collection from beyond the grave. It’s in her will: “If I die before all these bills are paid…my children are to continue this case.”

Monica Brown
Physical Affliction: broken ankle
Compensation: surgery to fix ankle with screws and plate, incorrectly calculated lost wages, therapy
Bureaucratic Affliction: no surgery to remove wandering screws

The excitement in Moten Elementary’s special-ed program began when a boy skipped his meds and started to fight with other students. Monica Brown, behavior technician, approached the boy to see what was up. That’s when he bolted into the hall.

Brown, then 46, started to run after him. Pumping her legs, she felt her left ankle separate itself from the rest of her leg. “I went down,” she says. “I went to get up and my ankle turned as far as it could go, because my skin didn’t break. I’m figuring if my skin broke, maybe my body would’ve been one place and my foot another.”

That was May 11, 2001. Brown’s co-workers and boss, Principal Herbert Boyd Jr., witnessed the accident, and Boyd later wrote a report for compensation. Brown went to Howard University Hospital, where surgeons rejoined her ankle with a metal plate and nine screws. She spent the next several months in therapy. The Compensation Program eventually scheduled her for an independent medical examination and a month later sent her this dispatch: “The patient can currently return to work in a full duty status. The patient does not require any further medical or surgical treatment.”

Of course, the comp folks didn’t have to stand on Brown’s ankle, which was tender and aching. But she returned to work in January 2002 because she needed the money to raise her two children at home in Riverdale, Md. In school, she tried to walk as little as possible. When she did move around, she shuffled like Frankenstein. And creaky monsters can’t collar little kids, as her students quickly ascertained. “They was saying things like, ‘Ms. Brown, you can’t catch me!’ ”

In April of that year, her ankle’s steady buzz of pain became a scream. She could feel something scraping under her skin. Brown left work and crashed at home, where her husband, Robert Brown, did his best with hot and cold compresses. On April 29, according to compensation records, Brown visited a doctor who judged that “the plate and screws needed to be removed since they appeared to be very sensitive.” Brown also saw an orthopedic specialist, who determined the metal needed to go.

But workers’ comp, then handled by Creative Disability, needed that ever-critical third opinion. It directed Brown back to Dr. Steven Hughes, the physician who had released her for work in 2001. Hughes found that Brown didn’t need surgery or pain management. “He did not check me,” says Brown. “That man didn’t have me in his office not five minutes.”

Hughes did not return calls to his office.

Brown shuffled back to work, where she traded catching and pinning students for administrative duties. Principal Boyd, watching her hobble around his hallways, wrote Creative Disability, pleading for the contractor to fix her up. “Clearly, the injury has altered her activities in such a way that her quality of life is adversely impacted,” he argued. “It is hard to understand or accept how basic medical treatment can be withheld from an individual who so clearly demonstrates a need.”

By now, Brown was staying home one or two days a week to nurse her throbbing ankle. She enlisted Employment Justice Center lawyer David Colodny, who got her a hearing before an administrative-law judge.

Brown came prepared with X-rays she’d had taken at Howard University Hospital. The scans showed, in good detail, one screw pinioned in her leg at a weird angle and another detached from the bone altogether. The hardware was floating in her leg muscle.

After Brown waved the same X-rays at a hearing before Councilmember Orange in October 2003 and received the judge’s ruling in her favor the next month, Creative Disability paid to remove the metal gear. It also sent her a check for two-thirds of her wages for the two months she was out—the standard rate in temporary disability cases. These wages amounted to $1,581, a figure that struck Colodny as low—Brown made over $1,581 in a single month. Examining the math, Colodny found that Brown’s claims examiner had under-comped her by about $850. When he pointed this out, the examiner redid the math and came up with an even lower number.

The examiner promised to mail Brown a collection notice for $175.98.

William Workcuff
Physical Affliction: damaged lower spine
Compensation: -$5,076, old wages, sporadic therapy and treatment
Bureaucratic Affliction: having to sleep on Mom’s couch

A perusal of William Workcuff’s hospital records reveals a damaging relationship with refrigerators.

The D.C. Housing Authority maintenance mechanic was hauling one up some steps in 2000 when his partner, “a little, teeny, small guy with a drinking problem,” lost his grip on the appliance. The fridge rammed Workcuff, knocking him down and injuring his back and leg. The next year, one of Workcuff’s supervisors ordered him to load seven broken-down fridges onto the back of a truck. Pleas for assistance disregarded, Workcuff did as he was told. Then he reported to the hospital for back pain.

“I was the lowest of the mechanics,” he would later say in court, “but I did all of the big work.”

On Feb. 21, 2002, Workcuff found himself again facing a two-person job alone, group efforts apparently being for pussies at the DCHA. A main sewer line had clogged in the basement of some projects at 645 46th St. SE. Workcuff brought out “the 1500”: a torpedo-shaped drainbuster that can run a football field’s length of cable and typically takes two people to operate, one steering the cable and the other unraveling and rewinding the spool. With about 280 feet of snake in the drain, Workcuff got caught on something. The snake jerked him off balance.

“It twisted me,” the 51-year-old Workcuff says. “My legs stayed one side, but my back twisted another way.”

The attack from the sewer snake, combined with his fridge-related strains, was enough to put Workcuff in serious pain. When he woke up in the morning, his back was as stiff as a 2-by-4. He went to work nonetheless, because “my job was so funny about calling in,” but his supervisor told him to go home. Later, Dr. Alan Schreiber diagnosed him with acute lumbar strain. He put Workcuff on physical therapy and OK’d him for light-duty employment—meaning no lifting, bending, or hauling fridges.

But Workcuff says his supervisors told him they had no light duty—a DCHA human-resources officer confirmed as much to him in a 2003 letter—following what seems to be an unwritten policy.

“I don’t know that we actually have light-duty positions,” says department spokesman Zachary Smith. “We’re trying to hold onto every dollar we have so we can keep people housed.” In the case of temporarily hobbled laborers, he says, “we would just ask that they stay on workman’s comp.”

Workcuff worked out in compensation-bought therapy, which he says followed an erratic schedule. “Apparently, they are stopping therapy again,” wrote Schreiber in a June 12 report. “He has been out now for 2 months and if we keep him out much longer he’s going to have difficulty getting back to any type of work.”

The next day, Workcuff visited Dr. Steven Hughes, whom the compensation program had hired. During the independent medical examination, Hughes asked Workcuff to move his left foot, move his right foot, and bend over as far as possible. He also poked his back and asked if he was all right. Workcuff’s response: “No.”

Hughes shook Workcuff’s hand and said he’d get in touch with him in two weeks. “This exam lasted two to five minutes,” claims Workcuff.

A week later, workers’ comp denied his claim for lost wages. The physician found that Workcuff did indeed have a lumbar strain but that it didn’t impede his return to full, unrestricted duty.

The bend/poke/deny-benefits procedure seems to be universal to the independent medical examination. Deborah Bernal, a licensed physical therapist who once served on the D.C. Board of Medicine, says she performed a few independent evaluations for companies and the city—“but not for long, and one of the reasons is…I demanded my payment up front.” That way, she says, the people behind the evaluation couldn’t renege on providing the cash when they disagreed with her opinion. “They’ll contact me after my evaluation and say, ‘Well, this really didn’t say what we wanted it to say, and we want you to change X, Y, and Z,’ ” she says. When Bernal declined to edit her reports, the requests for independent evaluations stopped coming.

In contrast to the heartbeat-quick independent examinations, says Bernal, her typical first exam takes an hour-and-a-half and features basic medical inquiries into lifestyle, family and personal history, and muscular and skeletal function. That exam might cost $450, she says, a steal considering the average cost of a compensation-related independent evaluation is between $450 and $1,800. Those figures come from D.C. claims-bureau manager Phyllis Dailey, who pointed out in an internal study that the “practice of assigning an IME without medical records or adequate reasoning/reference for the IME has cost the District in disability medical and compensation payments.” The worth of an independent evaluation in many cases becomes evident in compensation court hearings, when administrative-law judges swat them down in favor of the evaluation of an injured worker’s family physician.

Workcuff waited for his own day in court. He flipped through the Yellow Pages, trying to find a lawyer, but it was months before he got one who would commit; lawyers treat comp cases like kryptonite. To date, the D.C. Bar for the most part has relied on one guy when referring these cases, a Rockville-based lawyer named Harold Levi. Levi has some ideas why his peers run like mad when injured workers come limping to their offices. “The frustration level of dealing with this never-ending succession of bodies and change and people who don’t do what they’re supposed to do is one thing,” he says. “Money, money, and money” are the other three. The D.C. government isn’t required to pay the opposing side’s fees when a plaintiff loses a case, and workers are often too poor at the end of the compensation process to do it themselves.

The housing authority eventually fired Workcuff for his continued absence. But Workcuff was listening to his new doctors at the Veterans Administration Medical Center, who cautioned him against heavy lifting. Beginning in July 2002, he went to the Vet Center for therapy and medication about two or three times a month. At home, he invented his own pain-quelling treatment: lying on the floor. “That’s when I get my comfort,” he says.

Workcuff filled his time doing odd jobs for his mother, whom he had moved in with after he could no longer afford his Southeast apartment. He sent his two children away to live with their mother while he bunked on his own mom’s sofa. “It’s no fun being home,” he says. “I can tell you what come on the TV and what don’t come on the TV.”

It took him two years of channel surfing from the time of injury to get a decision from an administrative-law judge, who awarded Workcuff past wages and medical expenses. The city government is also supposed to find him a light-duty job.

Workcuff spent five months trying to make the city obey the ruling. This chore took the form of confronting the city’s chief risk officer at various public meetings. “I chased James Jacobs all over the city,” says Workcuff. That unscheduled therapy eventually netted him his first lost-wage check in June 2004. He was allowed a comp-covered doctor visit in October. Workcuff got back to his life, which by this time consisted of obsessive rumination about his post-injury existence.

“It broke up a family. I’m not stable no more,” Workcuff says. He goes to counseling. He has arthritis spreading through his body, which he blames on his years of inactivity. Creditors are hounding him about an unpaid bill for $5,076 from Georgetown Hospital. He’s got other problems, too, if you ask. “I can’t no longer live with my mother, because I just buried my mother the third of [June].”

Workcuff recently moved into an apartment inBarry Farms. In his spare time, he visits the building whose pipes he last unclogged. “I’m so lonely…I just go over there where I was injured, talk to some of the workers who were there,” he says. “It gives you something.”

Brenda Day
Physical Affliction: temporary paralysis
Compensation: none
Bureaucratic Affliction: nuked credit rating

“Compensation is not what I would recommend for anybody,” says Brenda Day. She speaks from experience: After going through the program, “[I] can never probably buy a popsicle.”

The 50-something former drug-treatment counselor wasn’t always broke—just hurting. In 1985, she slipped on the icy steps of the Department of Human Services building, clobbering her neck vertebrae. An MRI later revealed disc hernias and other degeneration of the spinal column.

Every once in a while, the injury would flare up, interrupting Day’s schedule of house visits and urine transportation. Government compensation stepped in and paid for physical therapy and nerve-blocking medication. After treatment, Day would go back to work. “I was a workaholic,” she says. “I worked overtime, undertime, and some-more-time.”

In 1999, Day’s doctors began to push for surgery to correct the growing impairment of her spine. It would be done with lasers, they said, and wouldn’t entail much of a recovery period—only about three months. Day never managed to convince her compensation representatives of the benefits of this surgery.

“They denied it,” she says. “Their doctor said I had missed my call for Hollywood.…They wrote it in my report.”

Gradually, Day’s left extremities became numb. She saw her doctor again in 2002, who let her know she was “deteriorating rapidly” and needed a more invasive form of surgery than lasers. Day called the compensation program, then run by Creative Disability. She was told by her claims examiner to continue physical therapy while the program looked into the situation. “I really wasn’t having any feeling on the left side,” she says. That October, she gave up therapy, got out her insurance card, and scheduled an appointment at Georgetown University Hospital.

Surgeons cut through Day’s throat to get to her spine. Marlene Jackson, her sister, was in the waiting room when doctors proclaimed the procedure a success. In this case, success left her immobile and useless for nearly a year.

Jackson, a retired federal worker, helped move Day in her neck-to-waist cast from Georgetown to the National Rehabilitation Hospital to a nursing home in Maryland, where Day learned to feed, dress, and bathe herself all over again. She emerged with a walker and a cane and moved in with her aging mother, because she hadn’t paid the rent on her apartment. She declared bankruptcy and hasn’t been back to work since 2002.

“She gets real sleepy sometimes…nods off,” says Jackson.

“If I could just do the three months and a less-invasive surgery, why wouldn’t [the Compensation Program] agree to that?” wonders Day. “I thought the thing was to get us well so we could get back to work.…Why do this to people?”

Robert Bandy
Physical Affliction: damaged lower spine
Compensation: -$613.29, plus attorney’s fees
Unexpected Bureaucratic Reward: being promoted in the union

There was no hot water at 4410 G St. SE, Apartment 21, so DCHA maintenance mechanic Robert Bandy dropped by for a look-see on June 20, 2000. Thinking the inside of the water heater had scaled up, he cut it loose from its copper-pipe moorings, grabbed it in a bear hug, and hauled it from its catch pan. His back went out while he had the heater in the air.

The apartment tenant, hearing a scream, came into the room to help Bandy drag the heater into the hallway. The next day, Bandy visited the National Rehabilitation Hospital, where he received a couple of days of therapy and Daypro. The treatment left him with a bill for $563.52.

“Bottom line is,” says Bandy, 53, “from there on, I just didn’t get paid.”

Bandy discovered his claim for compensation had been overturned on the recommendation of his regional director, Janice Gleaton, who told Creative Disability that Bandy never reported the back injury to her. It was true: Bandy made his claim with his immediate supervisor, the correct go-to person according to law. Though his back was more or less unpretzeled, Bandy fumed.

“It didn’t cripple me or anything,” he says. “I was just angry about it, felt mistreated and singled out.” Bandy says his bosses at the housing authority had a history of accusing injured workers of being wimps or fakers. He wasn’t having any of it. “That’s mainly why I went forward. I wanted revenge more than the money.”

Bandy refused to pay the bill. He scheduled appeals with workers’ compensation, using his own leave to go from work to comp appointments. He whiled away his spare time on the phone with various Creative Disability personalities. “You just want to go right to their boss just within a matter of minutes,” he recalls. “Rude and nasty.” The National Rehabilitation Hospital scheduled a date in small-claims court to make Bandy pay the outstanding $563.52. The bill eventually migrated onto his credit report, and Bandy says it screwed up the refinancing of his row house in Truxton Circle. But Bandy kept swinging.

In early 2001, Bandy says a government lawyer agreed by phone to pay the bill. Later that year, he unfolded one of his paychecks to find his wages had been garnished the amount of the bill, plus interest. Bandy now had $613.29 to recover.

“I was really pissed about that,” Bandy says.

He hired a lawyer, Harold Levi.

“You begin to wonder if the rest of the D.C. government, which I’ve lived through and with for the 30 years I’ve been practicing law, is as bad as this part is,” says Levi. “I hope to God it isn’t—that this is unique.”

Bandy got a hearing in August 2001. It was not the fierce matching of wits he had been gearing up for. The government produced Gleaton, who testified, then produced a DCHA minion with identical testimony, which the judge declined to hear. For his part, Bandy had the tenant who helped him move the heater. The tenant made Bandy take him to the liquor store before the hearing. On the witness stand, the man’s emotions got the better of him: “ ‘You know how it was, judge! You know how it is!’ ” Bandy recalls him pleading. “I said, ‘Oh Lord, he done blew the whole case.’ ”

In the end, the administrative-law judge found Bandy and his intoxicated witness more credible than the housing authority. The favorable decision came down six months after the hearing. Bandy was a proud man.

“It felt real good,” he says. “It felt like I won, even with everything I was out of.” The war deficit included about $1,800 in lawyer’s fees and the $613.29 bill. The compensation program to date hasn’t paid either bill.

The government, meanwhile, spent probably $11,820 fighting Bandy’s claim—“conservatively” the average cost of such cases identified by erstwhile D.C. Chief Risk Officer James Jacobs.

Bandy’s real victory came this year, however, when his union promoted him to shop steward. He gets respect from the men and women at work, who congratulate him on sticking it to the Man. “They love it,” he says. “Everybody has a problem where they’re getting screwed over.”

As to his own case, Bandy’s not letting it go.

“Every once in a while, I just get mad.…I start calling them twice a day,” he says. “If Iwaited five years, I can wait five more.” CP