Written by Nick Marrone, Esq.
Edited by Bob McAdam, Esq.
Jurisdictions differ as to who controls medical treatment in workers’ compensation claims. In Virginia, when an employee is injured in a compensable claim, the burden is on the Employer and Insurer to furnish a panel of three physicians from different facilities/or practice groups for the Claimant from which to choose. If two or more of the physicians are from the same facility or practice group, even if they practice out of different locations, the panel will be invalid. Unfortunately, as practices have consolidated across the Commonwealth creating valid panels have become more difficult.
The panel must be provided to the Claimant in writing. Posting it in the break room or putting it into the employee’s handbook will not suffice. A panel will also be invalid if a doctor refuses to treat workers’ compensation patients. Employers and Insurers, therefore, should be sure to have proper panels drafted prior to any report of accident and they should be sure to regularly update them to avoid the issues noted above that can result in an invalid panel.
Once selected that provider becomes the treating provider. If a panel is not properly offered to the Claimant, or if the claim is denied, the Claimant is permitted to see the doctor of their choice. It is best to avoid this outcome, of course, as Claimants’ attorneys will often send their clients to Claimant-friendly providers.
However, even if a panel is not provided or if a claim is denied once the Claimant establishes a course of treatment – typically at least three visits – with a particular provider the Commission will deem that provider to be the treating doctor. Furthermore, if the parties agree to a treating doctor without a panel that doctor will be deemed the treating doctor even if he or she was not selected from a panel. Once the treating provider makes a referral, for example to a specialist, the Employer and Insurer are required to furnish another panel of three physicians of that specialty for the Claimant to choose from unless a direct referral to a specific provider is made who will become the treating provider.
The Employer and Insurer cannot direct the medical treatment of the treating provider, but if the treating provider agrees the treatment recommended by the Employer and Insurer is medically necessary or if a release to light or full duty is medically appropriate the Commission will likely authorize the treatment or find the release to be valid.
Independent medical exams are often a litigated issue. The Employer and Insurer are allowed one exam per specialty per year as of right. Any more than one exam per specialty per year either requires consent of the Claimant or leave of the Commission to proceed unless a chance of condition claim is filed. If so the Employer and Insurer would be permitted to proceed with another IME with consent of the Claimant or the Commission in order to defend the claim.
There is one exception to this rule. If an IME has already been performed, and the matter has been litigated, another IME may be conducted without leave of the Commission, if either party files another application.
The Commission typically gives greater weight to the opinion of the treating provider over that of the IME doctor, but there are situations in which the Commission may defer to the IME doctor’s opinion. If an IME doctor is better specialized for the condition (a spine specialist vs. a primary care physician for a spinal injury, for example), the treating doctor is unsure of the diagnosis, treating doctor is unaware of a pre- or post-accident injury or illness impacting the alleged work injury or illness, the Claimant has been untruthful when it comes to their medical history, and/or surveillance that calls into question an alleged injury or illness tend to be situations in which the Commission may afford greater weight to the IME doctor as opposed to the treating doctor.
It is a very expensive proposition to create the appropriate panels of physicians for each specialty. It is an even more expensive proposition to maintain these valid panels.
The most effective way to handle the treating physician issue is to reach out to the Claimant (or the Claimant’s attorney) to see if you can agree on a treating physician. We suggest that you reach out to your attorney or nurse case manager to find out the best physicians to treat the Claimant and then contact the Claimant to see if the Claimant will agree to be treated by that physician. Usually the treating physician issue is raised and decided before the Claimant retains an attorney. A good working relationship with the Claimant will result in a favorable treating physician. To ensure that the treating physician is locked in, be sure to send the necessary agreement forms to the Claimant once the decision is made to accept the claim.
We would be happy to answer any questions that you might have pertaining to this issue.