HEB’s injury benefit plan not such a benefit to employees

By: Attorney Robert Ranco

I got my work ethic from my mom. Don’t get me wrong- my dad was a great man and provider for our family. A Korean War Veteran, he went to college on the G.I. Bill and worked for years as an accountant at Diamond International. Quick with a smile and a kind word, my dad was awesome.

But my mom was a rebel who couldn’t (and still can’t) slow down. Contrary to the norm at the time, “Mother May” graduated high school, worked her way through cosmetology school, and a beauty shop in her own apartment by the time she was 21. Keep in mind, this happened around 1956.

Following this model, my three brothers and I were all working by the time we were 14 years old. Our first job? Scrubbing dirty golf clubs at the local country club for $3.35/ hour.  The youngest (and smartest) brother had the bright idea of putting up a tip jar, so he made a little more money. It was dirty work, but it was a job. We all took pride in being able to buy our own lunch, sneakers, and stereos.

I now have three children, ages 19, 14 and 12. I try to model my parents’ work ethic and instill pride in accomplishment and celebrate their attempts at independence. Sometimes I even think its working. In this age of teenage entitlement I was very proud last year when my youngest handed out fliers around the neighborhood advertising her willingness to pick up dog poop for anyone willing to fork over $5. “That one’s going to make you rich,” said a friend. Maybe so. The middle child is counting the days until she can legally work. The oldest, a college student, works during the summers as a host and busboy at a restaurant.

I only have one rule when it comes to my kids and working: You are not allowed to work at HEB.

Sounds crazy, right?  Your “friendly neighborhood HEB.” What could I possibly have against such a wonderful store? My problem with HEB is that they too often treat their injured employees like dirt.

I have handled a few HEB non-subscriber cases in the past, and have been surprised about how the company has treated its employees after they are injured. My most recent case, which is currently being arbitrated, is by far the worst, and illuminates the conflict of interest created by the HEB Work Injury Benefit Plan.

As most lawyers know, Texas employers are not required to carry workers compensation insurance. Any company can choose to be a “non-subscriber” to the comp system. Companies like HEB can save millions of dollars in premiums by opting out of the comp system.

However, as a non-subscriber, negligence against the company is much easier to prove for plaintiffs. In litigation, non-subscribers are precluded from alleging common law defenses, including contributory negligence. As long as the plaintiff can prove that HEB or its employees were a proximate cause of the damages the plaintiff can recover, even if the plaintiff was 99% at fault. There is no reduction for the employee’s contributory negligence.

HEB doesn’t just opt out of comp, however. They offer a sort of replacement plan that only vaguely resembles comp insurance: Their “Work Injury Benefit Plan.” All new employees at HEB are forced to sign their agreement acknowledging that HEB does not subscribe to comp, the employee agrees to be bound by the terms of the benefit plan, and the new employees further agree to have any disputes settled through arbitration rather than in Texas courts. The employees are coerced to sign away these rights without a proper explanation or the benefit of legal counsel.

This is the “sign your rights away” department at your local HEB 🙂

Why is it a problem? The benefit plan actually does pay for some medical treatment (so long as you follow the rules and see HEB approved providers). For employees without health insurance it might be a good thing to get some basic, immediate medical care. Not every non-subscriber provides medical coverage to its employees. So why am I so upset?

There are serious downfalls to this plan for employees that HEB has orchestrated. The most egregious situation I have encountered occurred last year when my client, Corinne, came to see me. This is her story:

Corinne is in her fifties. Her children are now grown, so she decided to make a little extra money as a cashier at HEB. After working at HEB for just a few months she was injured at work when her co-workers, unbeknownst to her, created a wet floor and she slipped, injuring her back badly. She reported the injury as required After all, failure to report an injury immediately can bar all benefits under the benefit plan. HEB “handled” her claim. They took statements, investigated, created reports, and arranged treatment for Corinne with their doctors.

Corinne was examined; they took X-rays and provided some physical therapy. The X-rays showed that Corinne had degenerative changes in her lower back (as we would see in any 50 year old), but she had never been to a doctor to report lower back pain prior to this incident.

After about six months of non-invasive treatments, Corinne was not getting better. In fact, she was getting worse. One of the HEB approved doctors made a suggestion: “Corinne, you need an MRI. We need to find out why you’re still in pain.” The doctor then submitted the required forms to HEB’s Benefit Plan, seeking approval for the referral to an MRI.

The request for the MRI was denied by the HEB benefit plan. Corinne’s injury adjuster determined that because the X-rays showed degeneration, then all of her issues were pre-existing, and HEB would not pay for additional diagnostic testing.

Consider the dynamic that HEB has created: HEB is the potential defendant in the lawsuit for injuries. They are also the gatekeeper to treatment. They can and did (initially) prevent Corinne from discovering the true extent of her injuries in an attempt to limit their own exposure in a work injury suit. Shockingly, HEB injury adjusters frequently attend medical appointments of injured employees and actually go into the examination room to watch the doctor examine the employee and participate in discussions regarding additional treatment.

Who would voluntarily give the defendant the right to regulate their healthcare in a liability case? Sounds crazy, but every HEB employee has done exactly the same thing.  Can you imagine that happening in a car wreck case? In any other kind of injury case?

Fortunately for Corinne, we were able to help. Once she was out of the HEB treatment system, no longer subject to their oversight, she was able to get an MRI. They discovered that she had two herniated lumbar disks and she needed surgery. In August, 2016 she received a two level lumbar fusion and discectomy, and her prognosis is very good.

Most know that the work comp system has flaws. However, at its root, this sort of conflict (gatekeeper and defendant) does not arise. Any company that subscribes to comp is then protected from litigation by the “comp bar” and also turns over to the comp carrier the responsibility of approving or denying treatment for related injuries. HEB purposefully keeps control of treatment under the same roof as the Risk Management Department, the group in control of paying out claims. They use that conflict to the benefit of the company and the detriment of the injured employee.

And that is why my children are not allowed to work at HEB, ever.

Robert Ranco

Robert Ranco is a personal injury attorney at The Carlson Law Firm in Austin, TX. He also specializes in civil rights litigation. Rob is a proud family man, as well as an adjunct professor of paralegal studies at Austin Community College.

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