That doctor said the MRI didn’t reveal any evidence of an acute injury that could be causing the pain and instead showed a wearing of her rotator cuff caused by aging.
Jenkins is 32.
“What’s age got to do with anything?” she asked. Until the incident, “I didn’t have no problems with my shoulder at work.”
Workers’ lawyers in Oklahoma also noticed that many companies, including ResCare, were using a Dallas physician, Dr. Melissa Tonn, as the medical director responsible for managing workers’ care.
Tonn, they learned, not only once shared an office with PartnerSource, she was Minick’s wife.
The situation had been an open secret in Texas, where lawyers grumbled privately for years. “Melissa Tonn has a vested interest in PartnerSource making more money,” said James Grantham, a Houston lawyer who has handled about 700 opt-out cases in the last few years.
As medical care is often the most expensive part of a claim, Tonn can greatly influence how much claims cost. And that ultimately affects how much money PartnerSource saves employers, allowing it to keep clients happy and recruit more business.
“So if Melissa Tonn says you don’t need back surgery, PartnerSource will profit from that,” Grantham said. “It’s absolutely rigged.”
Tonn insisted her assessments were based on workers’ conditions and were unaffected by the interests of employers or PartnerSource.
“The decisions I make are not based on how much money is going to be saved,” Tonn said.
Minick said his wife stood on her own credentials as the former director of two hospitals’ occupational health programs and as past president of both the Texas College of Occupational and Environmental Medicine and a national organization of physicians who evaluate disabilities.
The couple were already independently successful, Minick said, when they met at a workers’ comp opt-out conference. As their businesses grew and they started having clients in common, they took steps to keep them separate, he said. Tonn moved to an office one floor up in the same building. And Minick discloses the relationship in client contracts.
“They can visit with whatever vendor they want to,” Minick said. And Tonn is “one of them that they should consider.”
While opt-out plans have to be submitted to Oklahoma’s insurance commissioner, there is little review.
ProPublica and NPR obtained more than 2,000 pages of internal emails between the Oklahoma Insurance Department and companies that wanted to opt out.
The emails regarding a chain of long-term care facilities are typical. An insurance department lawyer notes that a paragraph is missing a period, causing a run-on sentence. But he fails to point out that the paragraph promises “no interference” with the doctor-patient relationship while at the same time warning workers that seeing their own doctor “may result in a complete denial” of benefits.
Gordon Amini, the department’s general counsel, said the insurance commissioner doesn’t have the power to question such provisions and can’t reject plans under the law.
“We are supposed to confirm; it never uses the word ‘approve,’ ” he said.
The law also states that settlements must be voluntary. But our review of Oklahoma plans written by PartnerSource showed that nearly every one contains a section titled “Mandatory Final Compromise and Settlement,” which instructs workers that “no further benefits will be payable” if they refuse the company’s offer.
After being made aware of the inconsistency by NPR and ProPublica, Amini said the insurance department “immediately took action” and contacted PartnerSource to revise it.
“The reality is, under the current scheme there is no regulation of these plans,” said Bob Burke, a longtime Oklahoma workers’ comp attorney. He said it’s setting a dangerous precedent. “We can’t as a society say, ‘Okay, employers, write whatever plan you want to write, provide what benefits or lack of benefits you want to, set up whatever scheme you want to award those benefits, and by the way, no one is looking over your shoulder.’ ”
‘Where Else Can We Do It?’
Studying the map in PartnerSource’s office, Minick surveyed the country like a commander strategizing the next offensive.
“Tennessee,” he said. “There’s more dots there than anywhere else. You get all these Tennessee companies that know what it’s like to have better care, lower costs. So then they start saying, ‘Where else can we do it?’ ”
In 2012, Tennessee seemed primed to allow employers to opt out of workers’ comp. For the first time in at least a century, Republicans controlled both legislative chambers and the governor’s office. Employers were already pushing for major changes to the workers’ comp system. And the new governor’s family owned Pilot Travel Centers, which had opted out in Texas.
But after a series of public meetings, the state workers’ comp division hired consultants who produced a scathing report, raising concerns that letting companies opt out would shift costs to government programs.
“Giving firms this option would have potentially significant consequences on some injured workers, other Tennessee employers, and the state taxpayers generally,” the consultants wrote.
The legislature passed an overhaul of workers’ comp in 2013, but it contained nothing about opting out.
Despite the defeat, Minick started pulling together employers and others. In December 2013, they formed a group called the Association for Responsible Alternatives to Workers’ Compensation.
K. Max Koonce, Walmart’s senior director of risk management became chairman. Nordstrom’s vice president of risk management was appointed president, Lowe’s vice president of risk management was vice president, and the chief executive of the Combined Group insurance company was treasurer. Minick became secretary.
The rest of the board was made up of top managers at Kohl’s, J.B. Hunt, Big Lots, Sysco, Safeway, Brookdale Senior Living and others in the insurance industry. Joined by Macy’s, Whole Foods and Brinker International (owner of Chili’s Grill & Bar), they paid as much as $25,000 each to finance ARAWC’s efforts, according to association webpages.
The group planned to go state by state to pass opt-out legislation, starting with the South.
The association’s address was the lobbying firm of Richard Evans, whom Minick had worked with at the Texas alliance. In addition, the group hired Edwards, who ran the successful Oklahoma effort. In each new state, they would team up with connected local lobbyists to navigate the politics.
In February 2015, a bill pushed by ARAWC was introduced in the Tennessee legislature that contained a mix of the Texas and Oklahoma laws. Like Oklahoma, employers had to provide a minimum level of benefits — up to three years of medical care, or $500,000. That was less than the benefits provided by the state’s workers’ comp law, which set no limits on medical care.
But, like Texas, catastrophically injured workers could sue for higher benefits. Their employers would face limited damages and have additional legal defenses that Texas employers don’t.
The bill stalled in April, after it failed to be endorsed by the state’s workers’ comp advisory council. But supporters plan to revive it in the next legislative session.
With the Tennessee push underway, ARAWC settled on its next target: South Carolina.
As lobbyists, it hired former political directors of the national and state GOP.
A bill was introduced in the state assembly in May, with the goal of generating discussion before the legislature reconvenes next year.
Rep. David Hiott, a small business owner frustrated with workers’ comp, said he sponsored it after receiving a synopsis of the bill from another legislator and ARAWC’s lobbyists. “They told me they would tell me more about it this fall,” he said.
The bill represented a new gambit for ARAWC and Minick.
The Tennessee campaign “drew so much criticism from employee advocates saying that we were trying to reduce benefits,” Minick said, “that we said fine, just to prove that’s not the point, the South Carolina bill was introduced to say we’ll pay benefits higher than workers’ comp.”
While workers’ comp replaces 66 percent of wages, South Carolina employers that opt out would have to pay at least 75 percent, albeit taxable. They would not be allowed to cap medical benefits and would have to match the state maximum of 500 weeks of death benefits. Burial benefits are three times as high.
“The intent of this movement is to pay better benefits,” Minick said.
But in Texas, where the movement began, people like Krystle Meloy are hard-pressed to say how it has made things better for injured workers and their families.
Meloy was 23 with a 4-month-old daughter when her husband, Billy Walker, fell 180 feet from a communications tower in 2012.
Under the company’s opt-out plan, she and her daughter, Kaylee, were entitled to $250,000 for his death. She tried to sue after federal investigators found the company had violated safety laws. But the company filed for bankruptcy a few weeks later.
Under workers’ comp, she would have received 75 percent of her husband’s wages until her daughter finished college and until death if she never remarried. Based on his wages in previous years, that would have guaranteed Meloy and her daughter at least as much as the opt-out plan and likely far more — potentially $1 million or more, depending on the circumstances.
On a recent day, Kaylee, now 3, climbed up on a cushy chair and flipped through a small photo album containing pictures of the day she was born.
“See, look, mama’s going to doctor,” she said in a chipmunk voice. Turning to a picture of her father cradling her in his arms, she giggled. “Look at him. Daddy Billy.”
Meloy receives Social Security survivor benefits and is applying for food stamps. She’d like to get a job, she said, but can’t afford daycare.
“I have to go through this for the rest of my life; I’m having to teach our daughter who her daddy is through a picture,” she said. “If other states are considering not having workers’ comp, I mean, look what happened to me.”
Hearing her story, Minick, who climbed radio towers when he was in college, paused reflectively.
“This is a difficult situation, it sounds like,” he said. “There’s no occupational injury system that we’ve found yet that will provide perfect results in a 100 percent of cases.”
What’s more important, he said, was which system would provide the best results in most cases. In an earlier interview, Minick described what drove him to launch his crusade to remake America’s system for caring for injured workers.
“All you can do is pray that the Lord gives you a calling where you can really do good for society,” he said. “That’s what gets me up every day, knowing that I’m getting better employee satisfaction and generating economic development. That’s as good as it gets.”
Update, October 15, 2015: After this article published, the Association for Responsible Alternatives to Workers’ Compensation released this statement.
NPR intern Courtney Mabeus contributed to this report. Produced by Emily Martinez.