Can Nurse Case Manager Controversy be Cured with Agreed Rules?

Thursday, April 25, 2013 | 0

Illinois employers/defense attorneys view nurse case managers as a resource to maintain up-to-date information on the status of treatment and progress with recovery on the more difficult workers’ compensation claimants. Conversely, the Illinois workers' compensation petitioner’s Bar has grown suspicious of nurse case managers and view them as “spies” for the employer/respondent.
 
The whole concept falls into a legal netherworld—there are no true rules or requirements for any of the component players to abide by. Some claimant lawyers assert they “control” the assignment of a nurse case manager and can “pull” the nurse off the case. We feel the more accurate approach is claimant lawyers control medical privacy rights of their clients and can thereby use those rights to block nurse participation in medical care. However, nurses do bring value to both sides of any workers' comp claim—they can obtain medical bills and records which provide adjusters the basis for paying/approving temporary total disability and medical care. When everyone can readily use the skillful nurse’s reports to track progress of a major claim, everyone benefits.
 
The debate has raged back and forth for decades over whether onsite or telephonic nurse case managers may continue to participate in Illinois workers' compensation claims and provide the strong value they have for all sides of a claim. Many NCMs vehemently object to random and sporadic controls/rules asserted by just about every claimant lawyer from Waukegan to Carbondale—some nurse case managers tell us of almost comical, extraordinarily complex and even ethically questionable requirements by such lawyers to simply do their jobs. Nurse case managers across Illinois are tired of being pawns in the continuing controversy over what their role can realistically be in any challenging claim.
 
We propose the bipartisan Illinois workers' compensation lawyers group to set “ground rules” which will allow the nurses to provide information to both the employer/claims adjuster as well as the attorneys for both parties.
 
1.    Transparency is the most critical component: Petitioner’s attorneys are cautious to allow a nurse to “shadow” doctor appointments, talk to treating doctors, talk to the injured workers and then document their conversations, all without sharing this information with the Petitioner’s legal counsel. There must be an agreement for complete transparency with nurse case manager reports and all updates should be provided simultaneously to both parties and their attorneys. Most, if not all attorneys on both sides of a claim, have email access on their computers and smart phones, allowing immediate receipt of all reporting.
 
2.    One of the most important elements of nurse case manager reporting should be the transmission of updated medical records/reports to document progress with treatment and disability status. This will greatly reduce the likelihood for suspension of benefits due to lack of medical documentation and in turn, reduce litigation.
 
3.    If the nurse perceives malingering or documents lack of compliance with a therapy or recovery program, all parties should be advised as soon as possible to address those concerns with the claimant and his/her attorney. This will avoid the perception of arbitrary suspension of benefits and when addressed promptly, it will likely reduce the amount of litigation on a claim as well.
 
4.    Any discussions with physicians should be in the presence of the claimant, allowing the claimant to hear and understand the questions raised by the nurse. As an example, a nurse may ask a surgeon whether a claimant is capable of returning to light duty two, four or six weeks after a surgery and what level of work can be performed safely. A nurse should understand the specific details of any light duty work available and communicate this to the doctor for proper consideration.
 
If the solid lawyers at Workers' Compensation Lawyers Association don’t want to tackle this tough task, perhaps the Illinois Workers' Compensation Advisory Board, under new Chairman Latz, could take up the issues and propose a fair middle ground. However it is done, we hope all component interests, including NCMs, lawyers on both sides, arbitrators/commissioners and the public might be asked to give input in creating the rules.
 
John P. Campbell Jr. is an attorney for Keefe, Campbell, Biery and Associates, a workers' compensation defense firm in Chicago. This column was reprinted with permission from the firm's client newsletter.