By Steve Pomper
Happy New Year! Well, it could be happier for this cop who continues to be a warrior and to see herself as blessed despite what’s being done to her. Since November, I’ve been documenting the cruel workers’ compensation system gauntlet Washoe County (NV) has run one of its former sheriff’s detectives, Kim Frankel, through for over three and a half years. I’ve done so from various viewpoints, though not without scattering a few of my own editorial barbs. But now I want to vent more specifically. I want to share some personal, though admittedly limited, views of this travesty.
We’ve heard from Lt. Randy Sutton of The Wounded Blue and Leslie Bell, Kim’s workers’ comp advocate provided by the Washoe County Sheriff Deputies Association (WCSDA). We’ve viewed this disgrace through the words of Kim Frankel, whose life has been most directly affected. And most recently, we spoke with Kim’s fellow deputy husband, David Frankel. And tucked in there was also the heartrending testimony their teenage son provided to Nevada Governor Joe Lombardo, whose office has also yet to respond to a request for comment (but, again, it was the holiday season).
So, rather than accusatory, which it’s hard not to be, I will try to put my concerns in the form of questions when appropriate. For instance, something like, aren’t they a bunch of assclowns? Okay, maybe not as indelicate as that, but you get my point. Framing sentences as questions can make people think rather than my coming off as solely critical, which can make some people react less thoughtfully.
Frankly, what Washoe County (WC) appears to be doing to this remarkable cop family pisses me off. This story has so many nooks and crannies, and keeps growing, partially because of what I see as Nevada’s flawed workers’ compensation law and the questionable motivations of the people running it.
But it’s worse than just defective. This particular system appears designed to work only if managed by pious people. The checks and balances appear flaccid with employees suffering and government employers reaping the benefits. And the officials running this system sure ain’t saints.
These items stand out and, honestly, have caused frustration trying to wrap my head around this debacle, just trying to answer the question, why are they doing this to Kim?
- CCSMI accepted Kim’s claim but rejected the diagnoses (even of the county’s doctors), which blocks anyone from saying CCSMI has denied her claim—but, apparently, has allowed them to prevent Kim from receiving proper medical care.
- In the 1990s, the legislature removed the “bad faith” clause from the workers’ compensation law. Since then, apparently, acting in good faith is presumed. Someone recently quipped that the axing of the “bad faith” clause turned the system into quasi-legalized racketeering (RICO). Remember, Kim is not the only Nevada cop or employee to have medical treatments delayed or denied.
- And there’s that irritating legal scheme called “exclusive remedy.” This law says that the only remedy that the injured worker has against an employer that is insured for workers’ compensation is the workers’ compensation administrative remedy.”
- In other words, in Nevada, in exchange for workplace injured employees receiving (supposedly) mandated employer medical care, you’re not allowed to sue your employer (insurance) except under rare circumstances.
So, this exclusive remedy provision might sound acceptable to employees—on paper: guaranteed medical care in exchange for not being allowed to sue. That might be fine, but only if you actually get the prompt and proper medical care you need.
But what if the employer does not provide the mandated medical care—for whatever reason? With bad faith eliminated and good faith implied, aren’t they forcing workers to accept that any denial of medical care is appropriate because the law says the people running the system always mean well?
Although I haven’t seen anything explicitly stating it, does CCSMI believe Kim’s immediate on-duty injuries stemming from the DUI driver hitting her and those more severe consequences that manifested subsequently are not associated? If they’re not saying that, what are they saying? And why aren’t they providing the medical care the system promised its employees? Can the system intentionally balk on its obligations, but workers still cannot sue? It seems so, but does that make any sense?
Every bit of information to date seems to point to Kim getting progressively worse, in varying degrees, from the point of the original injuries on, with no other injury incident to point to other than her original on-duty injuries.
Wouldn’t it be quite a coincidence that her eventual catastrophic nervous system-related diagnosis of Dystonia, signaled by the delayed symptoms that appeared within months following the collision, weren’t directly connected to her initial nervous system-related injuries?
Why else would they have been so eager, as noted in several articles, to get a diagnosis of something other than Dystonia,? But the docs agreed on their diagnoses and the recommended treatment. Are we to believe these neurologists are Kim’s co-conspirators in insurance fraud to get her a brain surgery she didn’t need?
Here’s more about the nervous system connection from initial injury to onset of Dystonia. According to Yale Medicine, “you probably don’t spend much time thinking about how to control your muscles. That’s because your brain and nervous system are working smoothly together.” Dystonia disrupts that harmony. Ask Kim; she knows.
They also note, “Acquired dystonia (not inherited) can be the result of brain damage through an injury, such as lack of oxygen at birth, stroke, or another type of trauma” . Wouldn’t a concussion (brain), lumbar strain (lower spine), and whiplash (back/neck) amount to “an injury…” or “another type of trauma?”
Here’s the thing. Why hasn’t and isn’t the detective’s employer providing all the care doctors say Kim needs? So far, they’ve only provided the limited care they chose—or felt pressured—to allow her. Why did they ignore the doctor’s recommendations that she receive specific care (such as deep brain stimulation (DBS) surgery) within three years, or her disability may be permanent? It was three and a half years on Christmas Day.
Here are some general thoughts on the legal situation. One of the exceptions to exclusive remedy is if an employer directly causes an employee’s injuries. According to Nevada Insurance Law, “The only other exception to the exclusive remedy doctrine appears to be where the employer intentionally injures the employee. Barjesteh v. Faye’s Pub, 106 Nev. 120, 121, 787 P.2d 405, 405 (1990). In that case, the employee was allowed to sue the employer where the employer intentionally injured the employee by slamming her arm in a refrigerator door…. Fanders v. Riverside Resort & Casino, Inc., 126 Nev. 543, 245 P.3d 1159 (2010).”
But what if an employer didn’t directly cause the initial workplace injuries but is directly causing an employee’s further injuries by failing to provide prompt and proper medical care? Aren’t they causing new preventable injuries?
Even if some lawyer proved the employer is “legally” allowed to deny specific care to a worker, wouldn’t that only confirm that Nevada’s workers’ compensation law has massive flaws and needs fixing. If the system won’t fix an employee who can be fixed, then something ain’t right, right? Kim has already started the effort to fix the system with the passage of Senate Bill 274, which she spearheaded.
As noted by Nevada State Senator Richard “Skip” Daly (D-Sparks), who republished an article by Jessica Hill from the Las Vegas Review-Journal on his website. “The legislation [Senate Bill 274], sponsored by state Sen. Skip Daly, D-Sparks, is the brainchild of former Washoe County sheriff’s Detective Kim Frankel, who, like Varty [another injured officer], was injured on-duty when a drunk driver hit her. She won her case, but the third-party administrator is still denying her treatment.”
Still, should the absence of a “bad faith” clause, assumption of “good faith,” and exclusive remedy provide legal cover for negligence, recklessness, or intentional unlawful acts? Just like other waivers you sign or that you are subject to by implication (laws like “exclusive remedy),” are workers’ comp providers exempted from consequences even if they are guilty of criminal bad acts? For example, if I sign a waiver at a sporting event and am injured during the normal course of the activity, the promoter is not liable for my injuries.
However, they are liable if I get injured because the promotors were negligent by unintentionally but improperly setting up a piece of equipment. Isn’t this also true if they learn they’d wrongly set up the equipment and then failed to repair it before competitors used it? And aren’t they responsible if they deliberately attempt to cover up improperly set up equipment (or intentionally fail to provide medical care that inflicts further injuries), which could indicate criminal intent? Wouldn’t this void any signed or implied waiver?
While I believe Nevada’s workers’ comp system appears severely flawed, am I the only one who finds it hard to believe that any legal system would allow this apparent injustice to happen to any employee supposedly guaranteed proper medical care for on-duty, workplace injuries? Since Kim, according to her and the county’s doctors, could have recovered if she’d received prompt and proper medical care, isn’t that prima facia evidence the medical care was deficient? Not to mention, she could have been back on the job today.
In a previous article, I floated a possible two-part solution. However, these days, legislatures don’t seem interested in one prong of my suggestion: increasing criminal penalties. I suggested the system should default to providing medical care as doctors diagnose and prescribe while also increasing the criminal penalties for those tried and convicted of committing workers’ compensation fraud. Make the penalties prohibitive and fewer people will attempt to commit the crime. I know… I’m thinking like a cop again—so sue me.
According to some law firm websites, bad faith can occur when the tactics used are unfair, and there are, without good reason, denials or delays to a valid workers’ comp claim and medical care. In other words, “the employer and third-party administrator acted unethically.” Doesn’t unethical seem like a low bar for what WC and CCSMI have evidently done to the Frankels?
Let’s say you’ve read only one article or saw some other media report on Kim’s case. Isn’t it reasonable to believe the employer used unfair and unreasonable tactics to delay and deny proper and timely medical care?
As to whether the public pressure on the county and support for Kim is having an effect, she reminded me of this recent concession from WC’s third-party administrator, which I alluded to earlier.
Kim wrote me that on “November 16, 2023, CCMSI claims adjuster Lisa Jones approved the start of CBT treatment. CBT is one of the repeatedly recommended treatments even by their own IME Neurologist, Dr. Quaglieri.”
Disgustingly, it doesn’t appear to be CCMSI officials realizing the error of their ways and coming to their senses. Between March 2021 and October 2023, for a claim that began in June 2020, “It took a total of three court orders; a 3rd Administrative Hearing Officer court order…, an Administrative Court Appeals officer court order…, and a District Court Order…, [and] my workers compensation legal team’s repeated requests” to make it [CBT treatment] happen.”
Kim also wrote, “But most importantly, I believe CCMSI finally approved me to start the minimum treatment because of the National public pressure they have received from people I’ve never even met from all over this Nation. THANK YOU!!!!!!”
And I cannot emphasize enough what makes this travesty seem so malicious. Kim added, “Unfortunately, I’ve also been informed… [as] documented by Neurologists that due to the lack of medical care over the last 3 ½ years, my functional dystonia condition is disabling and permanent, despite my proactive efforts to keep dystonia at bay and recover.”
In other words, doesn’t this mean it didn’t have to be a life sentence? Is her employer responsible for making sure it became one?
Maybe you don’t think this argument has merit. Then ask yourself why has the county worked so hard to deny a sworn, decorated deputy sheriff, who was working a case in the Crimes Against Children Unit at the time she suffered her injuries, the medical care she so desperately needed? How is this any different from intentionally refusing to provide proper care for a broken back, arm, leg, etc., that doesn’t heal properly and results in a lifetime disability?
It also seems the county is spending hardworking taxpayers’ dollars to prove this formerly upstanding law officer would suddenly attempt to defraud her employer—even while living under their electron microscope. They’ve also deployed private investigators to try to dig up dirt to smear this fine family with fraud allegations. In what world does that make sense?
They want to drop Kim’s claim so badly that it seems they’ve also been making provable false allegations against her. In one case, Kim said they accused her of receiving unauthorized medical treatments at Stanford University, which she easily proved she had not. In another case, an official accused Kim of committing fraud because she had used an alternate term for Dystonia, of which the official was ignorant.
And since no one from WC, including the sheriff, has commented on this situation, what are observers to conclude about their motives? I haven’t heard that they’ve refuted anything the Frankels or their supporters have asserted.
Regardless, why shouldn’t I be as creatively constructive with legal theories as WC has apparently been creatively destructive in not fulfilling their obligations to one of their own? When they accepted Kim’s injury claim but denied the injury diagnosis resulting from the claim, what is that about if not moving the goalposts?
And, adding insult to injury, despite being a WC sheriff’s deputy for about 17 years and married to a retired master deputy from the same agency, no one from the county, including her boss, Sheriff Darin Balaam, has ever contacted her. Not even to see how she was doing after the initial incident. That was 1,286 days ago.
Someday, these folks, especially the sheriff, will be retired, sitting on their rockers on the porch, sippin’ a whiskey or lemonade, trying to relax and enjoy their leisure time. But will the parts they played in what the county did to this lovely woman and her family haunt their thoughts?
If you take nothing else away from all of the media reporting, including this NPA article series, let Kim’s feasibly preventable but now sadly permanent condition convey the sad state of workers’ compensation systems and those bureaucrats in Nevada and other places across the U.S. No employee deserves what’s happened to Kim, especially a dedicated public servant who put her life on the line for the people of WC.
To this point, “also due to the National attention,” Kim also wrote, “several people (not Sheriff or County manager) have reached out in support just as friends, not officially, and under cover of darkness so they are not retaliated against.”
This brings up another troubling aspect of coppin’ these days: the concept of a “chilling effect” created by a public or private entity’s leadership who use their positions to retaliate against employees. A chilling effect occurs when an unethical law, rule, policy, regulation, or consequences for legitimate words or actions stifles free expression.
This is nothing new in police work. Some courageous cops who deal daily with the worst that humanity has to offer can still be intimidated into silence on important but not physically dangerous issues. Am I not correct to wonder if WC deputies have been intimidated into silence over how the county, including the sheriff’s department, has treated Kim, even though they could be next?
It’s shameful any agency’s leadership would make their subordinates feel this way. Especially when they want to support for one of their own.
I know what a “chilling effect” looks like from my time on the police department in Seattle. I was officially investigated for over seven months for writing an article in our union newspaper challenging the woke indoctrination they were subjecting cops to. Two cops, an officer and a sergeant, told me separately they’d written similar articles, which one had submitted and withdrawn, and the other decided not to submit.
However, I also understand how hard it is when your professional advancement or even source of income may be on the line. But there is value in what Dave Frankel told me during our interview about “being able to look yourself in the mirror.”
The leaders in my city got away with that violation of free speech, so I hate to see another department not only possibly inhibiting officers’ free speech rights but also getting away with destroying a good cop’s career by failing to live up to their promises to deliver guaranteed benefits.
As I mentioned earlier about regret, think about that someday after you’ve retired when you’re sittin’ and sippin’ on your own porch rocking chair, thinking about the good ol’ days, and thinking about what your agency apparently did to a fellow deputy. Will you look back on your career proud of your legacy. Or will you be haunted by a lingering regret that you didn’t find the courage to say or do that thing that needed saying or doing?
The other six parts of this series can be found here https://nationalpolice.org/wall-of-shame/