LEGISLATION 2009
March 23, 2009
No bills have yet been passed.
Four have been introduced:
Choice of doctor to treat injured employee under workers' comp. SF 155 - HF 530 - HF 795 la. - all similar.
Worker's compensation for employee's injuries caused by willful acts. HF 115.
Require annual cost-of-living adjustment for weekly worker's compensation benefits for veterans. HF 525.
Additional workers' compensation payments for scheduled injuries that result in reduction in injured employee's earning capacity. HF 775 la.
MEMO Regarding SF 155
I foresee unexpected consequences from the bill if it is enacted as it now stands. I do not know if these are intended by the backers of the bill. There are conditions and terms that provide complexity, uncertainty and many matters to litigate. Here are a few:
A. If the employee chooses the care, the employer is not required to hold the employee harmless from the cost of the care, a benefit workers currently enjoy. This Bill appears to expose the worker to risk of collection efforts for unpaid bills and for charges that exceed what the employer paid.
1. The employer will be free to deny payment by challenging whether the care provided is causally related to the injury.
2. The employer will be free to deny payment by challenging the reasonableness and necessity of the care that was provided.
3. The employer will be free to deny payment by challenging the reasonableness of the charges made for the care.
B. The predesignated physician must be a “primary care provider” and the bill also contains a unique definition of “physician”. The bill appears to not permit the worker to predesignate a specialist, chiropractor, dentist, therapist, etc.
C. The predesignated physican must have previously provided “treatment” to the worker and retained the records. This raises several questions.
1. Is an annual physical examination ”treatment” or does “treatment” mean only care for an ailment?
2. Does the provision mean that a worker who has relocated cannot choose his/her own care unless and until the worker has established a physician-patient relationship and received “treatment” in the new location?
3. Does the retention of records requirement apply to the time of the predesignation, the time of the injury or the time of treatment for the injury or all three?
4. If the “treatment” records from a predesignated physician are ultimately found to not be available, is the employer relieved from paying for the care?
5. What if the physician had not actually provided “treatment” when the predesignation is made but does so subsequently, yet prior to the injury occurring?
6. If treatment is provided pursuant to a nonconforming predesignation, is the employer relieved from paying the cost of the care?
D. There will likely be an increase in the DWC workload due to increased case complexity of disputes concerning the matters in A and C above. More contested cases will have issues that deal with expenses of treatment, something that is seldom seen currently. This will place an added burden of proof on workers and will likely lead to frequent decisions that deny claimed expenses due to the failure to carry the burden of proof. There will also be a demand to enact a prompt, efficient means of resolving disputes surrounding the reasonableness of the cost of care. Funding needs to be provided.
E. para (3) b. (1) and (2) prompt several questions and comments.
The worker apparently does not have the right to choose care “in response to a life-threatening emergency”. Since few workplaces have an on-site physician this will likely require someone who is not a physician to decide whether a circumstance is “a life-threatening emergency”. Does this permit the employer to choose the hospital and ER and other emergency care? Does the employer have an obligation to transfer care to a “predesignated physician” and if so, how soon?
What is the intended time period for “periodically” giving employees notice of the right to predesignate? Is it monthly, annually, every 5 years or what?
Once an employee predesignates a physican, is the employee permitted or required to change the predesignation and if so under what terms or frequency?
After an injury, how promptly must the employer notify the worker of the right to predesignate a physician?
Why have the requirement to predesignate if the employer must repeat the notice after an injury is reported?
Does the requirement to report an injury “as soon as practicable” conflict with or have an impact upon Section 85.23?
Why is an obstetrician, gynecologist or pediatrician considered an appropriate choice to be a predesignated physician for treating a workplace injury?
Why are chiropractors ineligible to be a predesignated physician even though they routinely treats injuries, refer patients to other specialists when needed, and are expressly included in Section 85.27.1 as covered services?
F. Para (3) c. Why not make the type and place of hearing discretionary with the Commissioner?
G. Medical providers might not get paid until the case is over, thereby discouraging providers from providing non-emergency care to workers in workers’ comp settings.
H. A larger portion of claims (both indemnity and medical) will likely be denied from the outset if the employer does not have the advantage of controlling the care. Workers who do not have health insurance will be on their own, as will some who do have health insurance that excludes coverage for workers’ comp matters.
Mike Trier
