ROUND ROCK — After spending most of her professional career handling insurance claims and managing personnel issues for employers, 73-year-old Jane Hays got to learn the ins and outs of the Texas workers’ compensation system.
Never did she imagine she’d one day make a work injury claim herself.
Never in her wildest dreams did she see herself fighting a denial.
But when she had a head-on collision on her way home to Temple from a work meeting outside Houston this summer, Hays’ world was literally and figuratively turned upside down. After her Jeep Grand Cherokee flipped and came to a stop roof-side down on State Highway 105 near Navasota, she was stuck for 45 minutes, her legs trapped under her car’s crushed front end, before first responders could cut her out.
Now, as she recuperates from a leg amputation and awaits more surgeries for other injuries in a Central Texas hospital, Hays says she is finding out first hand what many critics of the workers’ compensation system have been saying for years: It’s stacked against the injured worker.
“I now understand what they feel like,” she said in her hospital room in Round Rock, a suburb of Austin. “We just need to have a workers' comp system that is fair to the workers, the injured workers.”
Ironically, Hays was critically injured while attending meetings called by the very insurer that’s now denying her claim. The claim was turned down on the grounds that she was not considered to be at work while traveling back home when she got hurt.
Hays, who makes about $75,000 a year as director of employee benefits and risk management for the Temple Independent School District, sits on the board of the Texas Political Subdivisions (TPS), a non-profit entity that is the insurance carrier administering the workers’ compensation benefits and other liability insurance for local governmental entities, including Temple ISD.
The head of the entity said he feels terrible for Hays but believes her claim falls into a gray area of the law and had to be denied so that the Texas Division of Workers Compensation and possibly the state courts can rule on whether TPS should pay the claim.
“I have to follow the law,” said TPS executive director Randal Beach. “I have to treat it like another claim. It doesn’t matter how much I love Jane, and I do.”
Hays was returning home from a meeting of the TPS board in The Woodlands when a car crossed the highway and hit her at an estimated speed of 70 miles per hour.
Hays can’t remember the impact — or much of what happened later.
“The next thing I knew was this man’s face was right here in my face and he was telling me, 'Don’t move, you’ve been in a very bad accident. We’ve called 911. We’ve got to get you out of here but we can’t get your seat belts undone,’” she recalled.
She went in and of consciousness as emergency responders removed her from the demolished car, but she remembers looking down at her leg before they put her in the ambulance. Sitting in a wheelchair last week in her hospital room in Round Rock, Hays pointed down to the beige bandages covering a stump where the bottom of her leg and foot used to be.
“I could see that the foot on this leg and part of the leg dangling off of the stretcher and the foot was all twisted and going back and forth like this,” she said, moving her hands while she talked. “And I thought, 'That’s not good.'"
She was right about that. Doctors told her they could attempt to save the leg, but warned her that a piece of her tibia was missing. They told her she faced multiple surgeries and a years-long recovery with no guarantee that she’d be able to walk on it again.
“He said the other option is amputation,” Hays recalled. “I said, 'Amputate it.'”
Hays’ steady composure broke when she explained the gut-wrenching decision. Choking back tears, she said she just wants to get back to work and return to the life that took a catastrophic detour in July. She thought that amputation, and a prosthetic leg, would allow her to recover more quickly.
“I’m a very practical person. That was the practical thing to do, the right thing to do. I couldn’t be laid up for several years for something that there was no guarantee,” she said.
Hays also suffered multiple broken bones and a shattered pelvic ring.
On the day before her amputation surgery, Hays’ family got another jolt: word from TPS notifying her that that the claim would be denied. The formal denial was issued in a letter on the day doctors cut off her lower right leg, according to her daughter, Susan Hays.
“It is our position that the claimant did not sustain an injury in the course and scope of employment,” the letter said.
Under the original workers’ compensation law drafted in the early 1900s, an employee is deemed to be in the “course and scope” of employment when he is performing any work-related activity in “furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.”
Under the state’s Labor Code, an employee traveling for business reasons using transportation paid for by his or her employer is generally presumed to be at work. TPS reimbursed Hays for her travel expenses, using standard IRS mileage rates, under the board’s travel policy that calls for board members to be “reimbursed for actual reasonable and necessary expenses incurred during the performance of their duties.”
Hays was attending a three-day TPS board retreat in The Woodlands, and her employer marked the reason for her absence as “SCHBUSINESS (DIST),” or school business, in computer logs. She was returning home after the board concluded its last meeting on Saturday, July 11, at around noon. The accident occurred at approximately 1:30 p.m.
Her lawyer, Brad McClellan, who has successfully argued two “course and scope” cases before the Texas Supreme Court, says it’s a slam-dunk case.
“They've paid for lodging, they've paid for mileage, and she's on the clock for the school district. There's nothing to take her outside the course and scope for employment," McClellan said. "It's one of the most absurd denials I've ever seen."
Beach, the director of TPS, disagrees. He says it’s not so clear — and notes that three lawyers gave him three different opinions: One said it was covered, one said it was not, and a third said it could go either way.
Here’s the rub: When a person travels to and from his or her place of employment — as one might in a standard daily commute from the suburbs to a downtown office — that employee is not covered under workers’ compensation. Employees on company-directed travel generally are covered, however.
Though TPS is headquartered in Dallas, the entity is essentially arguing that The Woodlands Resort & Conference Center, site of the meetings, was the place of employment for the purpose of the workers’ compensation coverage.
“I just feel like I have an obligation, a fiduciary duty to the fund as a whole, to treat this by the book,” Beach said. He could not rule out taking the case into state court, as allowed, if the Division of Workers’ Compensation does not agree with the denial.
The circumstances are somewhat similar to the case involving the husband of Tyler homemaker Crystal Davis. Wayne Davis, a traveling sales coach for Burger King, died in a car crash in 2012 on his way to one of the company’s restaurants.
The insurance company claimed Wayne Davis, who spent most of his time traveling from his home office to Burger King restaurants in his multi-state region, wasn’t at work while he was on the road. The insurer sued Crystal Davis and her young children to take away her duly awarded workers’ compensation death benefits.
After The Texas Tribune reported on the lawsuit against them, the insurance company quickly dropped it. And a few months later, the Division of Workers’ Compensation levied a $250,000 fine against the insurer, ACE American Insurance Company, for dragging its feet on paying the benefits she was owed. It’s believed to be the largest workers’ compensation fine on record at the state agency.
Workers and their families, however, don’t get any fine money when insurers are penalized. And, thanks to a landmark 2012 ruling from the Texas Supreme Court, they are specifically barred from suing the workers’ compensation insurance carriers for so-called “bad faith” dealings over claims.
Hays says she had read stories about workers’ compensation woes but they never seemed real until now. The Tribune reported last year that in the previous five years, insurance companies had denied in whole or in part about 45 percent of claims, and when they went into the dispute resolution process, employees were losing to insurance companies in overwhelming numbers.
Hays is just at the beginning of her dispute with TPS, which could drag on for years. An initial meeting between the two sides is scheduled for Wednesday at the Division of Workers’ Compensation.
In the meantime, Hays, who is afraid she might have to sell her house if she can’t get back to work or receive income replacement benefits under her workers’ compensation coverage, said she’s ready to take her message to the Texas Legislature that the system is badly broken.
“You need to be looking at the lives and the impact this has on the injured worker. Have some compassion. And I’ve already thought about testifying,” Hays said. “Whatever they may have in the next session, I plan on being there. Whether mine gets paid now or not, I will be there.”