Spring is around the corner. And as routinely as one engages in the initial spring cleaning of one’s home, once again, the Pennsylvania Chamber of Commerce Workers’ Compensation Executive Committee has submitted its latest proposal to further limit the rights of injured workers. This week, we will look at the changes the chamber proposes to make in the managed care arena.
Put simply, the chamber’s proposal in the managed care arena is to extend an injured worker’s treatment with the insurance carrier’s panel doctors from 90 to 180 days. The chamber purports to prevent “doctor shopping,” but in reality doctor shopping is the chamber’s goal; get the injured worker to a hometown doctor who renders a minimal diagnosis and an immediate return to work, no matter the severity of the worker’s injuries.
Initially, it must be pointed out that the so-called “requirement” to treat with panel providers for the first 90 days following an injury is a misnomer. An injured worker is never required to treat with a panel doctor and may treat with a nonpanel provider at any time. Treatment outside of the panel only raises the issue of who is paying for the treatment if the carrier meets specific requirements.
Under the Act 57 amendments, the carrier may avoid payment for treatment rendered by a nonpanel provider following the first 90 days of the injury only if the employee signed a panel acknowledgement at the time of hire and immediately after the injury. Pennsylvania Department of Corrections/State Correctional Institution-Somerset v. WCAB (Kirchner) , 805 A.2d 633 (Pa. Cmwlth. 2002). Very few employers and carriers meet this standard.
Despite this, many claims adjusters routinely call injured workers and threaten to deny their claim if they go to a doctor outside of the panel. While a claims adjuster who follows this procedure is directly violating the act, at the same time, I want my client’s case to be accepted at the outset. It becomes a delicate situation. I want the easiest possible path for my client, yet any amount of experience with these panel doctors tells us that they generally do not and will not diagnose anything more serious than a sprain or a bruise.
In fact many, although not all, of these panel doctors have absolutely no practice outside of “occupational medicine.” They do not see any patients other than injured workers who have been falsely led to believe that these are the only doctors they are allowed to visit.
The panel doctors are, in essence, on the payroll of the insurance carriers. They are protecting the interest of the carrier, not a real person who has devoted years of his or her life to his or her employer and is now suffering from an often debilitating injury. I have countless stories of clients with terribly serious injuries in need of surgical intervention and panel doctors who refuse to order MRIs or refuse to show patients the MRIs so they can take it to a doctor who has their health at the forefront of their concern.
In a sense, I have to hand it to the carriers on the panel requirement. They have done an excellent job pulling the wool over everyone’s eyes and making almost everyone believe that the injured worker must treat with the panel in the first 90 days. Even doctors, especially primary care doctors, have been led to believe that they cannot see their long-time patients for a work injury because they are “not on the panel.”
The doctors have no reason to believe otherwise until we explain the true requirements for nonpayment for treatment outside of the panel. The primary care doctors, who are of critical importance, only know what the carrier is telling them and the carrier’s utter refusal to issue payment until an attorney becomes involved.
The carriers’ conduct gets even more egregious. The carriers routinely issue a denial of a claim and then call our clients and tell them they will pay for treatment if it is with a panel doctor. The first time this happened, I thought it was a mistake; the claim was denied so there is absolutely no need at all for anyone to treat with a panel. The claim was and is of course denied, but the carriers want to sneak in an early diagnosis of “contusion” so they can contrive a legitimate basis to defend the claim. Thanks, but no thanks.
On rare instances, the panel doctor will actually refer a client to an orthopedic surgeon who then performs a surgery. The patient chooses to go to post-operative physical therapy near his or her home as opposed to 45 minutes away with the “panel therapist” and guess what — the claim is denied. The reason? Surgery was for a pre-existing problem. This is of course in the face of 10 years of medical records without a single mention of a pre-existing condition.
It’s just another way to starve the hardworking people out of their lawfully entitled workers’ compensation benefits for a year or more until the WCJ issues a decision.
We must always be mindful to remember, the workers’ compensation system was set up to provide wage and medical benefits to employees in exchange for a relinquishment of the right to sue his or her employer for negligence. As the system is now functioning, the injured worker is being unfairly punished everywhere he or she looks.
I point out this conduct because the panel doctor situation is a complex game. It is nothing more than the carrier’s way of getting the most cost-effective diagnosis for a work injury. It is the carrier’s directive to deny payment for a necessary surgery. It is the manner in which the carrier can force injured workers to litigate their claims and wait over a year for benefits and surgery, which I must point out, is far more costly in the long run. A client who needs a simple arthroscopic knee surgery and is forced to wait over a year causes far greater damage to his or her knee and will have a much lower success rate after the long-awaited surgery. The same client develops a lumbar spine problem after walking with an altered gait for a year, again, making the overall situation that much worse.
The mental and emotional effect can be just as debilitating. Clients come in hoping to undergo conservative treatment and return to work very quickly, only to find out they have to participate in depositions and hearings all in the hopes that a WCJ will allow them the medical treatment they need to get better. These are people with families to support and no money coming in to pay the mortgage and tuition. It’s a frightening experience.
Of course, we know the chamber wouldn’t be proposing an extended panel period of 180 days if it were not wildly profitable for them. They have made this proposal countless times and failed (most recently, HB 808, which did not pass after a vote in the spring of 2011). The chamber alleges that injured workers without access to a panel were out 42 percent longer than those that have access to a panel. Unfortunately but not surprisingly, the chamber failed to tell us where that data is derived from. It makes sense, though; panel doctors misdiagnose injuries and force people to return to work. Panel doctors do not allow the injured worker even a moment to heal. When the panel doctor tells the insurance carrier nothing is wrong with a patient, the carrier denies the claim and the person has no choice but to return as he or she has a family to support. That is, of course, until the person simply cannot take it anymore and have to come out of work. Sit through a single deposition by a defense attorney and the standard line of questioning is like clockwork: “If the injury was as serious as you claim, why would you ever continue to work?”
The chamber and its supporters perpetually ostracize injured workers for coming out of work too early or trying to work through the pain for as long as they can; it simply does not add up.
Thankfully, our legislators saw through the chamber’s proposal for exactly what it was and HB 808 did not pass. We can see the chamber will stop at nothing to try to control the medical treatment of the injured worker for purely economic reasons. Ironically, the chamber aims to prevent “doctor shopping,” but isn’t a forced panel for 90 days, or even 180 days, exactly that: doctor shopping?
It seems to me the chamber wants to do the “doctor shopping” by directing the injured worker to a supermarket full of their own panel doctors. The chamber simply wants to direct injured workers away from good, quality doctors who have their patients’ best interests in mind, to doctors who will help grow the carriers’ bottom line. •
Sam Pond is a founder and managing partner of the workers’ compensation and Social Security disability law firm Pond Lehocky Stern Giordano and past president of the Philadelphia Trial Lawyers Association. He can be reached at 215-568-7500. Allison Wheeler is an associate at Pond Lehocky and concentrates her law practice in the area of workers’ compensation litigation. She can be reached at 215-568-7500.