Hurting For Work: Part 3
2:29 pm
Wed July 2, 2014

The Widow Vs. The Insurer: A Wife's Fight For Her Family's Future

TYLER — Crystal Davis was headed to the grocery store when the text message popped up on her phone. It was from her next-door neighbor.

“Can you come home?” it said. “Something has happened.”

Crystal lives south of Tyler in a tight-knit community called Flint, where neighbors watch out for one another. She headed home, wondering the whole way what trouble might be brewing.

When she pulled up to her house, Crystal noticed a police car parked across the street. Two state troopers got out and walked toward her.

It was about her husband, Wayne Davis, they said. He had been in a car accident outside of Jacksonville, about 40 miles southeast of Tyler. A distracted driver had crossed into his lane. Wayne tried to swerve, but the car was coming too fast.

They were very, very sorry.

It had to be a mistake, Crystal thought. They had left the house at virtually the same time that morning.

“I didn’t believe it was him,” she recalled later. “He wasn’t gone very long.”

Then she saw a black phone case smeared with blood in one of the trooper’s hands.

Nearly two years later, the mental image of her husband’s iPhone still brings her to tears. That was the moment Crystal discovered how fleeting life can be. On Tuesday morning, she kissed Wayne goodbye as he headed out the door to work. On Friday morning, she buried him.

If only her nightmare had ended there.

After Wayne died, the state ruled her husband’s death a workplace fatality and awarded her family benefits under the workers’ compensation system. But the insurance company is fighting the order in court. The lawyers have even sued her two young children to take away their half of the proceeds.

Crystal felt like they were adding insult to her husband’s fatal injury, like they didn’t know or care how hard he worked, or how much time he spent in that company car. She felt baffled and confused navigating an acronym-laden bureaucracy, which seemed to do everything but help her at her most vulnerable — precisely what the law says it’s supposed to do.

In Texas, where disputes in the workers’ compensation system tend to cut the way of the insurer, critics say she is not alone.

(Update: Davis’ lawyer, Frank Weedon, called to inform her early Thursday evening that ACE American Insurance had dropped its lawsuit against her and her children. Weedon attributed the sudden move to drop the lawsuit to the publicity the case generated.)

Discovering workers’ comp

Like most young couples, Wayne and Crystal discussed insurance coverage and retirement savings once a year or so, then quickly got back to their busy lives. If calamity struck, they figured they were covered.

Wayne, 28, had good benefits at Burger King Corp., where he made $60,000 a year as a traveling “Sales, Profit and Operations Coach.” He helped franchise owners in his southeastern U.S. territory boost their performance and adhere to corporate standards.

Crystal who had just turned 30, was a stay-at-home mom, taking care of their two young children, Cash, 5, and Lucy, 1.

That all changed the morning of Sept. 4, 2012. In an instant, she became the jobless head of a one-parent family. How would she keep the house they had bought a year earlier? How would she make a living and care for the kids the way she and Wayne wanted? How would she pay for his funeral?

Crystal’s mother-in-law came up with one possible answer: workers’ compensation insurance. Lynne Davis and her husband, Terry, own 16 Burger King franchises in East Texas, where their son had been initiated into the restaurant business as a teenager. Lynne thought the company carried workers’ comp.

Texas is the only state in the nation that doesn’t require private employers to carry the state-regulated policies, so Crystal felt a surge of relief that her husband’s company did. Under state law, all workers’ compensation polices offered by employers must include burial expenses and partial replacement income for families of employees killed on the job. In exchange for agreeing to the terms of the state-regulated plans, employers are shielded from workplace negligence lawsuits.

That coverage seemed like a godsend for Crystal, who was facing a $9,000 funeral bill, a Christmas holiday with no sure way to buy presents for her kids and a home with mortgage payments as far as the eye could see. Two weeks after Wayne died, she went to the workers’ compensation office in Tyler and filed a claim for his “fatal car accident while on the job.” Then she waited. And waited.

Unwelcome news came via certified letter in early November. Burger King’s insurer, ACE American Insurance Company, denied the claim. Crystal said the notice arrived one day before a deadline that would have stripped the insurer of its right to dispute the claim.

The reason the insurer gave for the denial: Wayne wasn’t in the “course and scope of employment” at the time. Translation: They didn’t think he was on the clock.

Crystal was stunned.

The Burger King job description for his position said he would travel “80-90 percent” of the time. Though he had a home office, he would be “assigned anywhere in the specified region based on business need.” While in the car on the way to work assignments, he often participated in conference calls on his cellphone. He practically lived in the charcoal-colored 2012 Chrysler 200 that Burger King acquired for him.

If he wasn’t on the clock when he died in that car, Crystal wondered, where was he?

“That’s one of the hardest things to kind of swallow,” she said. “They are saying he wasn’t working. You know, you’re talking about a man that worked and worked and worked all the time.”

Citing the pending litigation, both ACE American and Burger King declined to comment for this story.

Crystal didn’t know anything about workers’ compensation insurance before her husband died.

After he did, she threw herself into legal research and tried to navigate the bewildering workers’ compensation bureaucracy on her own. She was overwhelmed and outgunned, she said, against the deep-pocketed insurance company.

It’s a common scenario. Nearly half of all claims are initially disputed or denied wholly or in part, according to state workers’ compensation data. And the odds are stacked against employees when they formally dispute an insurer’s denial at the state’s Division of Workers’ Compensation, the agency within the Texas Department of Insurance that oversees such disputes, according to state data. Crystal couldn’t afford to hire a lawyer, so she sought help from the Office of Injured Employee Counsel. The state agency, which currently has a monthlong waiting list, assigned an ombudsman to her case. Together, they requested an informal benefit review conference with the Division of Workers’ Compensation, the first stage of a workers’ compensation dispute.

Wayne Davis' gravesite at the Bascom Cemetery in Tyler.
Credit Brandon Thibodeaux / Texas Tribune

"Hurt my heart"

The hearing was set for Jan. 3, 2013, which meant a meager Christmas for young Lucy and Cash.

“That’s what hurt my heart, that financially, I couldn’t give them that — give everything that I know we would have if he would have been home, had he been working,” she said.

Because Wayne had been working in and out of his family’s franchise business since he was 13, he qualified for Social Security survivor benefits even at his young age. With that and their long-term savings — plus some help with funeral expenses from her in-laws — Crystal was able to make ends meet while she fought the insurance company’s denial.

As she slowly pulled together the evidence and legal research in preparation for her battle with ACE American, Crystal saw a ray of hope.

Under the original state 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.”

That would be easy to prove, she thought. Wayne’s calendar showed he had planned to make an unannounced visit to the Burger King in Coushatta, La., on the day he was killed. An email from his supervisor, Debbie Salkill, indicated that he had scheduled phone calls from his car to other franchise owners in Louisiana.

“He was definitely in his workday,” Salkill, who no longer works for Burger King, told The Texas Tribune.

He was driving Burger King’s car, fueled with Burger King’s gas. Under the state’s Labor Code, an employee traveling for business reasons using transportation paid for by his employer is generally presumed to be at work.

It seemed like a slam-dunk case to Crystal and to the ombudsman assigned to her case.

At the Jan. 3, 2013, benefit review conference, the division sided with Crystal, ordering ACE to pay her a lump sum for the four months when they had paid nothing, then regular weekly payments of $787 for her and her children. (Crystal’s portion continues until she remarries or dies. Her children are covered through college, if they attend.)

Crystal Davis with her son, Cash, and daughter, Lucy.
Credit Brandon Thibodeaux / Texas Tribune

The insurer appealed the state agency’s ruling. ACE quibbled with the route Wayne took, arguing it wasn’t the most direct path to the store he was scheduled to visit. In its denial letter, ACE said Wayne’s employment location “varied day to day” — presumably contending that he wasn’t at work because he hadn’t reached the Burger King restaurant before he died.

The state agency didn’t buy the insurer’s arguments; the next month, it sided with Crystal a second time.

ACE made a last-ditch effort to cut off the payments before a workers’ compensation appeals panel, the final step in the administrative hearing process. On June 3, 2013, nine months after the accident, the panel upheld the previous decisions. Crystal had aced ACE at all three levels of the administrative dispute process at the workers’ compensation division.

She didn’t know it, but Crystal had defied the odds. When serious disputes arise at the Division of Workers’ Compensation, employees win less than a third of the time, according to data from the Office of Injured Employee Council.

Once the insurer began issuing her the weekly payments, Crystal didn’t have to worry about the mortgage anymore. She could take care of the kids the way she and Wayne had envisioned.

“I was very relieved that we did win and that, you know, Wayne would be proud and Wayne would know that he worked for something and that justice was served,” she said.

"You have been sued"

But on a quiet summer morning two weeks after the appeals panel decision, a man knocked on Crystal’s door in Flint and handed her a stack of papers.

“You have been sued,” the page on top said.

There were three citations in all — one each for her, Lucy and Cash. ACE had sued them in state district court in Tyler, hoping to stop the payments and get its money back. Crystal had to start all over again, and this time she’d need a lawyer.

She felt light-headed and sick.

“When you get papers that they’re suing your kids, that they’re suing your kids for anything they’ve paid you and anything that you would get in the future, your heart just kind of sinks and your stomach twists,” Crystal said. “I don’t know anybody who would do that to a 6-year-old and a 2-year-old, you know, to take that from them.”

The case has been set for trial in September, two years after Wayne’s death. Crystal’s lawyer, Frank Weedon of Longview, has told her not to expect a speedy resolution. He said the insurer’s attorney, Scott Skelton of Lufkin, informed him he would appeal the case as far as possible, and in an appellate court system in Texas with a pro-business track record, the outcome is uncertain at best.

Skelton declined to comment, citing the ongoing lawsuit.

Weedon said he would like to countersue Burger King’s insurance company for acting in bad faith — for allegedly dragging its feet on statutorily guaranteed funeral benefits and fighting clearly established liability. But about three years ago, in a controversial 5-4 decision, the Texas Supreme Court overturned years of common law jurisprudence in Texas Mutual Insurance Co. v. Timothy J. Ruttiger, essentially eliminating that legal avenue. The court’s argument: The state’s Division of Workers’ Compensation has the power to punish insurers that behave badly.

Mike Doyle, the Houston attorney who represented the losing plaintiff in the Ruttiger decision, said the lawsuit against Crystal and her two minor children demonstrates how far insurers can take a dispute now without fearing repercussions.

“This is a good example of the floodgates for bad behavior being more fully opened by the Supreme Court’s rollback of protections,” Doyle said. “If you make it harder to penalize, you’re going to get more misbehavior.”

That’s not the view inside Texas Mutual Insurance Company, the state’s largest workers’ compensation carrier, which prevailed in the Ruttiger case. Without referring to any specific case, Senior Vice President Terry Frakes said misbehavior by carriers should be handled not in court but by the Department of Insurance administrative process set up to oversee such disputes.

When Texas Mutual does take claimants to court after losing at the agency level, it’s because the company believes there are far-reaching legal issues that could have “major effects” on the workers’ compensation system in Texas, he said.

“When we feel strongly like that, we don’t hesitate to go to court, but we don’t just go to court to screw somebody over,” Frakes said.

The implications of ACE’s lawsuit against the Davis family could be far-reaching.

If ACE is victorious and narrows the definition of “course and scope” to classic workplace settings, Texans who spend a lot of time working at home or in their cars could find their rights to compensation limited.

For Crystal, that threat is real.

About six months after ACE sued her, and more than a year after her husband’s death, the insurer finally sent her a $6,000 check — the maximum funeral allowance, which the workers’ compensation division ruled Crystal was entitled to receive. Weedon said he had to threaten legal action to compel the payment. The workers’ compensation division technically has the authority to punish companies for such delays, but officials could not produce any evidence that they have reprimanded the insurer.

“I can’t comment on this particular case, if that was handled properly or not,’’ said Workers’ Compensation Commissioner Rod Bordelon, who is stepping down from the position in August. “It sounds like there may have been some problems there. If there were, it’s something that we could absolutely investigate and take action against the carrier.”

A photograph of the late Wayne Davis; his wife, Crystal Davis; and their two children, Cash and Lucy, on a table at his parents' home in Tyler.
Credit Brandon Thibodeaux / Texas Tribune

A Burger King life

At Wayne’s childhood home in Tyler, it’s impossible to escape memories of the gregarious cut-up who loved to fish in the stocked pond behind the house, and who would climb up on the roof to install Christmas lighting displays that grew more elaborate each year.

Some of those lights now twinkle at night in the front yard, illuminating giant wooden letters spelling out his initials, W.D. His aging white lab, ’Bama — named after his parents’ home state of Alabama and his favorite college football team — still lumbers around the acreage. Pictures of Wayne dot the walls and countertops inside.

“We all live as though he could walk through the front door at any moment,” Crystal said. His parents had planned for Wayne, after his stint working directly for Burger King, to take over the family’s restaurant franchise business, to become an owner of their Burger Kings and a few other chain restaurants.

“Our whole life has been Burger King,” said Terry, Wayne’s father.

That makes the current dispute all the more emotional. The Davises still don’t know whether Burger King — which stands to lose money over Crystal’s claim since its workers’ compensation policy carries a $500,000 deductible — supports the insurer’s effort to deny benefits to Wayne’s family.

Burger King spokesman Alix Salyers refused to comment on the lawsuit, citing the ongoing dispute.

“Wayne was a valued member of the Burger King family,” he said in a written statement. “He is missed, and because no amount of time can make up for his loss, our thoughts remain with Wayne’s family and friends.”

In the meantime, the state of Texas is powerless to stop the lawsuit or to remove the uncertainty that hangs like a dark cloud over the Davis family’s future.

Until it happened to her, Crystal said she had no idea how hard it was for workers and their families to obtain the benefits that are supposedly guaranteed under state law — even when they win their cases at the Division of Workers’ Compensation.

“We’re a middle class family all the way, and for there to be such a gap and uncertainty in our income, that’s a huge, huge hole in the system,” she said. “I think the policymakers need to think more about the injured and what they actually go through — and their families go through — than all of the dollar signs that they see.”

Disclosure: Texas Mutual Insurance is a corporate sponsor of The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.

(Update: Davis’ lawyer, Frank Weedon, called to inform her early Thursday evening that ACE American Insurance had dropped its lawsuit against her and her children. Weedon attributed the sudden move to drop the lawsuit to the publicity the case generated.)

--by Jay Root with The Texas Tribune

The Texas Tribune provided this story.

ABOUT THE SERIES

This is part three of a series. Read part one. Read part two.

The Texas Tribune's Jay Root talked with KERA about the series. Listen to that conversation here.

The Texas Tribune spent six months investigating the Texas workers' compensation system and worksite safety regulations that are meant to protect workers who are hurt or killed on the job. Reporter Jay Root’s stories — in conjunction with research and reporting produced by several of his colleagues — chronicle the challenges thousands of Texas workers and their families face when tragedies strike at work.