Last October, Juan Boston received two letters at his Humble home — north of Houston — telling the out-of-work trucker something he already knew: After he injured his back in 2012, his insurance company should have recorded it properly.
Had New Hampshire Insurance Company documented his injury as state law requires, Boston might not have found himself on the losing end of a benefits dispute that pushed him to sell his pickup truck to pay for surgery. Perhaps his mother-in-law would not have needed to tap her retirement savings to help Boston pay the family mortgage.
The Texas Division of Workers Compensation is now promising to “take appropriate action on this matter” against the insurance company for its mistake, it wrote to Boston.
But whatever the state does now — whether a warning, fine or anything else — won’t help the 40-year-old pay the bills that have piled up in the years since McLane Foodservice Inc. fired him once he was too hurt to work.
Though Texas law says workers’ comp providers are liable for reported injuries they fail to document, state regulators say their hands are tied in cases like Boston’s. They have no plans to order New Hampshire Insurance, an AIG affiliate, to compensate Boston for the herniated discs and other spinal damage that he attributes to hoisting 40-plus pound boxes at work.
Boston, whom The Texas Tribune profiled last year in a story about how most on-the-job injuries go undocumented, is out of luck because his claim already wound through Texas’ complex bureaucracy for deciding workers’ comp disputes, where he lost at each level.
Texas regulators could fine the company, as they have when insurers have committed similar violations in the past, but the agency can’t revisit closed cases like Boston's, even if it later discovers their outcomes hinged on inaccurate or incomplete information.
The case illustrates how state actions against rule-breaking insurers don’t typically benefit workers harmed in the process, critics of the system say.
“I just feel like it’s a broken system. It’s not working. There’s no remedy for the injured worker,” Boston said. “All they can do is investigate the complaint after the fact.”
An AIG spokesman did not comment on Boston’s case specifically but said the company “is obligated to follow and strictly adheres to Texas workers’ compensation laws.”
“We base decisions regarding necessity of medical treatment and compensation on these laws and the facts of individual cases,” Matt Gallagher, the spokesman, said in an email.
Texas regulators say privacy rules bar them from answering specific questions about Boston’s claim. But they said Texas’ multi-rung bureaucracy for resolving compensation disputes gives workers plenty of chances to make their case.
"There are multiple opportunities for the parties to resolve their dispute through informal and formal procedures, including a formal hearing where they may present evidence and challenge the evidence offered by the other side," Ben Gonzalez, a division spokesman, said in an email. "Once the case reaches the end of the administrative dispute resolution process, the Division’s decision is final."
What's more, AIG and the state point out, Texans unhappy with the outcome of their injury disputes have one last remedy: an appeal in state district court.
Boston is using that last-ditch option, seeking relief in Harris County District Court. There, however, the married father of three has racked up about $30,000 in legal fees that he can’t really afford, he says.
Lawyers who represent workers in such disputes see a double standard in cases like Boston’s, and they say it illustrates how state penalties for rule-breaking companies rarely benefit the workers who lose out in the process.
“If my client doesn’t file their paperwork timely, they lose their claim. If the carrier doesn’t do what they’re supposed to do, they get fined,” said Michael Sprain, a workers’ compensation lawyer in Houston. “The injured worker doesn’t get that fine. It goes to the state.”
Boston said he’s frustrated that division hearing officers paid little attention to a recorded statement from 2012 — the same information he later sent division investigators — showing that he told an official for New Hampshire Insurance the details of his struggle to have his injury properly documented.
Like many workers’ comp disputes, Boston’s quickly turned complicated. Various arguments spanned three separate division hearings in 2014, where he faced some challenges beyond the reporting issue.
Recent Texas Supreme Court rulings, for instance, have made it particularly difficult to prove the type of “repetitive trauma” injury Boston argues was tied directly to work, experts say.
But this much is clear: Texas law says insurance carriers must “immediately create a written record” when they first learn of a reported work-related injury, even if an employer has failed to document it. And a carrier “waives the right to contest compensability of or liability for” injuries if it does not deny the claim within 60 days.
Texas regulators, in their correspondence with Boston, said the trucker’s recorded statement served as a notice of injury — information that the insurer never wrote down. The carrier also failed to contact McLane, which had not documented the injury report in question, according to the division’s letters to Boston.
As the Tribune reported in October, Boston, as his back pain worsened, said he made several reports to his employer, which did not document some and improperly documented others, helping to torpedo his claim.
If state regulators ultimately fine New Hampshire Insurance, it wouldn’t be the first time.
The division fined the company seven times from 2011 through mid-May of 2015, according to data it provided to the Tribune. None of those violations were for failing to document an injury, but several involved shortchanging workers on benefits or paying them late.
New Hampshire’s fine total of about $193,600 was second highest among carriers. In all, the division issued $5.7 million for 668 violations during the period covered in the data.
Neena Satija contributed to this report.