Correction 11:15 a.m.: Texas Alliance of Energy Producers Workers' Compensation Self-Insured Group Trust is the insurance carrier for Bennett's employer, Hercules Transport, not the Texas Department of Insurance Division of Workers' Compensation. In an email to the Houston Press Monday morning, TDI spokesman Ben Gonzalez, said: "The injured employee’s dispute is with the insurance company. The Texas Department of Insurance, Division of Workers’ Compensation regulates the Texas workers’ compensation system. Earlier in the process the Division’s role would have been to hear disputes and attempt to find resolution." Following those Division hearings, hearing officer Marilyn J Allen ruled that Bennett was not entitled to the benefits and the insurance carrier did not have to pay him.
Since the accident, John Bennett has lived in a sea of paperwork, and rarely does he come up for air.
The papers have become like furniture in his home, living mostly in eight boxes stacked next to his dining room table where more unstapled sheets are scattered and out of order. There are little piles of documents from doctor’s office visits neatly laid out on his bed, X-Rays on his dresser, more boxes in the TV room, where Bennett passes his time.
He hasn’t worked since the night a drunk driver hit him while he was driving a semi-truck for Hercules Transport—August 30, 2006, the date that the former truck driver lost his health, his job, and himself. He hates talking about it. Refuses to, in fact, for a while at least, except to say that it led to two neck surgeries, post-traumatic stress disorder, and a crusade against the Texas Department of Insurance Division of Workers’ Compensation that has both consumed Bennett and gotten him out of bed every day.
The Division The insurance company for Hercules Transport, Texas Alliance of Energy Producers, owes him over $100,000. And since 2008, it has refused to pay him—even after a court order in August 2014. They say there is nothing wrong with him.
A visit to John Bennett’s home in Liberty, Texas, says otherwise. The 52-year-old man walks with a slow limp because of a baseball-sized lump on his ankle, which developed after the first neck surgery. He leaves the comfort of his TV room only to smoke a cigarette on his front porch, or to go to doctor’s appointments. His esophagus is marginally curved, because of the second surgery, and it’s hard for Bennett to eat hard foods. He has lost roughly 40 pounds since 2011. He still has nightmares. He doesn't drive at night.
The mountains of paperwork make what happened to him seem complicated, but at its core Bennett's story is really quite simple: It's about a large, sophisticated insurance company fighting over money against a troubled, disabled man who, even with the support of judges and a dozen doctors, can't win. A man who hasn’t been able to get a job at McDonald’s, Burger King, Popeye’s, Dominoes—anywhere in eight years—because the screws holding his neck to his body are starting to loosen, meaning one slip on a freshly mopped fast-food floor could be fatal. His attorney, Colleen McClure, said no one will take up the liability. And even if he felt he could work, the limitations that one doctor set for him—no heavy lifting, no overhead reaching, required breaks every 20 to 30 minutes—led even a workers' compensation doctor, Dr. Bonnie Lammers, to say that finding a job would be "impossible."
After hearing the facts of Bennett's case, Liberty district court Judge Chap B. Cain told the insurance company's attorney they had acted unfairly, and that, "I hope y'all do the right thing and pay this gentleman his benefits."
The attorney replied: "That's not going to happen, Your Honor."
Bennett's case revolves largely around a letter that the Division of Workers' Compensation sent him on August 12, 2008, when the Division said it would help him: "Dear Injured Employee," it read, "the Division finds that you are entitled to supplemental income benefits.”
Up until that point, workers' comp had been paying Bennett $750 per week while he was trying to recover, and also paid for his neck surgery (along with the second in 2011). When the two years of benefits were up, Lammers, the designated doctor selected by workers' comp, found Bennett to be permanently disabled with a 19 percent impairment rating—enough to qualify Bennett for continued income benefits for the maximum 401 weeks. He was to receive $1,643 per month.
Division’s insurance carrier, Texas Alliance of Energy Producers, had ten days to dispute this impairment rating and request what's called a benefit review conference, if they believed Bennett didn't qualify for benefits. Ten days went by, and the insurance carrier didn't dispute Bennett's rating. But the money still didn't come. Texas Alliance wouldn't officially contest Bennett's case until November 2010, when doctors hired by the insurance carrier—Dr. Martin Steiner and Dr. Andrew Brylowski (who has never examined Bennett)—argued to the Division that Bennett has no disability, that nothing is wrong with him either mentally or physically.
In part, the doctors' opinion is based on an undercover video that workers’ comp investigators took not of Bennett but of his cousin, who is significantly shorter and darker skinned, who was walking Bennett’s dog on the sidewalk with no problem. But mostly, the insurance carrier's case is based on Dr. Steiner’s belief that the surgery to fix Bennett’s neck, ordered by neurosurgeon Thomas Mims, had nothing to do with Bennett’s accident. In an interview with the Houston Press, Steiner said he believed Bennett’s only injury that night was a shoulder contusion, originally diagnosed by ER doctors, and that he walked away “very lucky.” This was before an MRI found Bennett had a ruptured disc in the back of his neck, pushing up against his spine. Steiner (who said he never looked at the MRI himself, then later said he "maybe" did) told the Press he believed those findings were just “degenerative.” Bennett was 43 at the time of the accident.
As for the mental anguish and PTSD, Steiner wrote in 2009: “Since Mr. Bennett refused to speak about any psychological symptoms surrounding the incident in question, it is my opinion that posttraumatic stress cannot be considered as an impairable result of the incident in question. Furthermore, the [Official Disabilities Guide] indicates that posttraumatic stress disorder would be expected to resolve within a few months of onset.” (He ultimately changed his opinion to a 5 percent impairment rating in 2010—which would still entitle Bennett to nothing.) Steiner told the Press that Bennett’s unwillingness to discuss the accident had made him wonder, “What kind of game are you playing? When given the opportunity to talk about it, why not talk about it?”
Other doctors not associated with the insurance carrier, however, arrived at far different conclusions.
Independent psychological exams have consistently showed that Bennett suffers from acute PTSD and a major depressive disorder. Even five years after the accident, a neuropsychologist recommended that Bennett continue to seek treatment for his injuries, both mental and physical, and not work. In the months after the accident, doctor’s reports indicate that he was sometimes only sleeping one hour a night, for fear that sleep would bring him back to the scene.
That's why Bennett doesn't want to discuss the night of the accident. It means talking about how he looked down at the side-view mirror to find the pickup truck smashed beneath his axles. How he tried to rescue the dead man inside, slumped behind the wheel, already bloated with internal bleeding. And how the dead man's sister came over to him after the ambulance came and police circled the scene, and didn't blame him, but asked, “Are you okay?”
Bennett has blamed himself anyway, no matter how many psychiatrists tell him he couldn’t have seen this coming, that it could have happened to anyone. He disagrees. Something told him to pull over that night, Bennett says. He’d run out of cigarettes once, felt hungry twice. But he kept driving.
In a letter from Lammers addressed to the
workers' comp insurance claims adjuster in 2010, Lammers writes, “He has refused to let himself go on, including not having a Christmas for himself and his family, because the children of the other driver would have no Christmas.”
None of the letters such as this one—and none of the other reports from six psychiatrists and seven medical doctors and surgeons—has appeared to matter to the Division of Workers’ Compensation. The only doctor whose opinion appears to have had any leverage in this case is Dr. Steiner, who, today, maintains that had he been the one prescribing treatment, it would have been “reassurance and getting back to work.” With his guidance, the Division ruled in its own hearings that Texas Alliance wouldn’t need to comply with the district court order until it became a final, non-appealable ruling (i.e., until the Texas Supreme Court says so). The case is currently pending in the Texas Ninth Court of Appeals.
"At the end of the day," Bennett says, "I feel like workman's comp don't give a damn about nobody."
Bennett sometimes thinks about taking all of the papers, the permanent fixtures in his home, and burning them in a field, so all of this would just go away. But he chooses not to because to Bennett letting this go would mean letting the Division of Workers’ Compensation win—"and what about the next time someone gets hurt in Texas?" he says. "When is this gonna change?" He says it is not about money anymore, but is instead about making sure the next person doesn't have to wage a decade-long legal battle like his.
Sometimes he wonders if the dead man had the better deal.
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