CHARLESTON, W.Va. --  Some state lawmakers are questioning why injured workers can't hire lawyers to represent them when BrickStreet and other insurance companies deny them the right to receive medical care.

On Tuesday, the Joint Senate-House Judiciary Subcommittee plans to discuss the issue in the Senate Judiciary Room at the Capitol at 6 p.m.

The denial of legal representation for these appeals was one of the "reforms" included in 2005 legislation that transferred the administration of Workers' Compensation claims from a state agency to private insurance companies. Earlier this year, the House of Delegates passed a resolution (HCR123) that called upon the Legislature to study the workers' compensation system.

"The existing law does not allow any compensation for attorneys when they represent injured workers in their protest and/or appeals of a denial of medical benefits and, as a result, those workers do not have a realistic or meaningful opportunity to challenge the denials," the resolution states. "Insurers who deny authorization for treatment routinely have legal representation to defend denials against unrepresented claimants."

The resolution's sponsors were: Delegates Carrie Webster, D-Kanawha; Bill Wooton, D-Raleigh; Mike Caputo, D-Marion; Alex Shook, D-Monongalia; and John Shott, R-Mercer.

Today, 150 private insurance companies are authorized to sell workers' compensation insurance to West Virginia employers.

Pat Maroney, a Charleston lawyer and a former chairman of the state Democratic Party, said, "A large percentage of the workers' compensation cases in litigation this year are about medical issues. Workers cannot get lawyers, because lawyers cannot get paid for cases involving medical issues."

Maroney often represents workers and unions.

BrickStreet president and CEO Greg Burton said the resolution asks legislators "to study whether or not attorneys can be paid. BrickStreet's position is that it is a policy issue. If the Legislature feels that should be changed, we would abide by any changes.

"Any time you add costs to the system, it will increase premiums in the state," Burton said. "But if that is what the Legislature feels need to be done, we will abide by that. I will leave it to the Legislature to determine whether attorneys should be paid."

Burton also said that workers denied benefits can follow an established appeals process from the state's Office of Judges to the Board of Review and to the Insurance Commissioner.

Maroney, who is scheduled to speak during Tuesday's hearing, believes legislators should also change a new rule he says allows "a treating physician to prescribe treatment and medication, then have it denied by some clerk."

"I find it abhorrent that someone, sometimes hundred of miles away, can overrule a local doctor who says a treatment is necessary," he said.

Maroney believes the new legislation also makes it more difficult for patients and medical providers to fill out the forms they need to get help.

"Today, some doctors throw up their hands and say, 'We don't want to treat workers' comp patients anymore. The procedures are just too much.'

"Then the claimant gets worse and his or her condition, instead of being cured, progresses to the point where it may not be able to be corrected," Maroney said.

Sue Howard, a Wheeling lawyer who handles workers' compensation appeals, said her client Jeff Billeter, who injured his back working at the Lanam Foundry in New Martinsville, is a good example of problems created by the 2005 law.

"Billeter's [case] is good illustration of difficulties physicians face in implementing their treatment plans for patients," Howard said. "Doctors are opting out of the system because they are not able to exercise their professional judgment."

Several medical specialists, Howard said, recommended surgery to fuse Billeter's spine. BrickStreet denied coverage and hired Jackson Kelly, a Charleston law firm, to defend its denial of medical help.

"Billeter's treatment has been interrupted. It is enormously frustrating for everyone involved," Howard said. "His employer then sought help and found another specialist to restore his functions and get him back to work.

"BrickStreet denied the requested surgery. Mr. Billeter worked in a foundry where he did very, very heavy lifting. Since he was injured, he is limited to sedentary work, which is difficult for him."

Steve Moser, vice president of Lanam Foundry, believed Billeter needed medical help and sent him to still another physician.

In a March 2008 e-mail to Howard, Moser said that company-recommended physician concluded "Jeff needs a fusion to fix his back and ... is highly confident the surgery will eliminate his pain. This surgery has been denied by BrickStreet."

Moser specifically criticized the report filed by Dr. Rebecca Thaxton, hired by BrickStreet to review Billeter's claim, stating it "looks like Thaxton picked and chose only the information to support denying the fusion procedure."

Billeter's continues to appeal BrickStreet's denials.

Charleston lawyer Tim Bailey, president of the West Virginia Association for Justice, said, "An insurance company can hire as many medical experts and lawyers as they want. And injured workers have to go see a company's doctor.

"How many injured workers, who are not working, have enough money to pay another doctor hundreds of dollars an hour for a medical visit and to prepare a report?

"Workers are not receiving treatments their own physicians say are necessary. They are denied access to medical care and legal representation," Bailey said.

"Whether that was an oversight or whether it was done on purpose, the result is unacceptable. Fighting a bureaucratic mess makes people give up. The Legislature needs to address that."

Reach Paul J. Nyden at pjny...@wvgazette.com or 304-348-5164.