Preparing for Treating Doctor Network Fights - Part 3

Sunday, August 15, 2004 | 0

TREATING DOCTOR NETWORKS: HOW THE DEFENSE MUST PREPARE FOR THE FIGHT

By Michael Sullivan, Esq.

Ed. Note: This is the third in a series of three articles. The prior two articles can be accessed by clicking on the titles in the side bar at right.

5. Applicant attorneys will use the Dispute Resolution process to get out of the network.

Applicant attorneys will of course try to raise issues of treatment, and specifically claim that the employer controlled treatment is inadequate. They will then cry out that a new and different doctor is necessary. In anticipation of this move, the legislature created Labor Code section 4616.3, the dispute resolution process. This requires that any dispute over medical care with the network be subject to two independent opinions with the network, and afterwards by a "super doctor", or Independent Medical Review. That last opinion is dispositive.

This should deter a lot of game playing in this area. The question now becomes: if the super doctor gets the applicant out of the network, can we get her back in?

On the face of it, our position is solid. Labor Code section 4616.3 provides only that in the event of employee victory, she is entitled to "seek the disputed treatment or diagnostic service from a physician of his or her own choice . . ." This is not a change of physician. This is a license to go outside the network for a specific treatment or service. It seems clear that if the applicant is successful in her efforts to secure an MRI, she will not be suddenly able to treat with a physician of her choice from that point forward.

Things might be different if the treatment awarded is involved or difficult. If the applicant is awarded a spinal fusion, it is hard to believe that the original surgeon will not be able to direct the follow up care, and ultimately issue a permanent and stationary report. Again the Zeeb case comes to mind regarding the importance of continuity of care. The debate will rest on how broadly the "disputed treatment" is defined, and definition will be made by the courts in light of the competing interests of saving costs through employer control and the proper care of injured applicants, the latter being the most important.

It should be noted that the "super doctor" has the right to order diagnostic tests as part of the exam. So if a diagnostic test is disputed, he or she will probably just order it if he thinks he needs it. One is given to wonder just how important it will be to contest this sort of thing.

My ninth recommendation is that we consider carefully just how important it is to contest a test or treatment regimen, especially if there is a legitimate dispute under the ACOEM Guidelines or subsequent Administrative Director publication. A fight here could lose us more than that particular issue.

6. Applicant attorneys will switch treating physicians within the network to an abusive extent.

The applicant has long had the right to change treating physicians. Labor Code section 4601 gives the absolute right to one change of treating physicians. When the request is made, the defense must provide the name of a new proposed treating physician within five working days. This request does not need to be in writing. Furthermore, case law does seem to allow for multiple requests to change treating physicians, as long as they are reasonable.

There is a line of cases which stand for the proposition that a failure to tender a new physician within the five days when requested results in a loss of medical control. In U.S. Flowers v. WCAB (Carranza) (1997) 62 CCC 244, the Court found that the defense was liable for the cost of medical treatment by the applicant's physician. The defense had been notified of the request but had not responded. In the case of Pinkerton v. WCAB (Samuel) (2001) 66 CCC 695, the applicant was not given a sufficient response when she requested a change of treating physicians. The WCJ held that the applicant's newly selected physician was the primary treating physician, and was upheld on appeal. The principle that failure to properly respond to a request for change of physician results in loss of medical control was also affirmed in Hunt-Wesson Foods v. WCAB (Ortiz) (1997) 63 CCC 85.

This could spell real trouble for the defense, especially if responsiveness is a problem. This leads me to my tenth recommendation. It is essential that the defense find a way to review mail from the applicant's attorney every day. Requests for a change of treating physician must be viewed and responded to promptly.

I also note that 4601 entitles the applicant to request a change to a chiropractor or acupuncturist in a "serious case". Such an animal may not be present in the established network. Subject to what a serious case is, this could lead to at least some limited treatment outside the network.

Thus are my thoughts on the battles to come on the issue of employer controlled medical treatment. This article would be remiss, however, if I did not offer one further, if somewhat tangential, recommendation. My final recommendation is that the defense take great pains to ensure that the treating doctors in the network be required to train for and produce medical-legal reporting.

The new law will launch us into a world of difficulty when it comes to obtaining medical evidence. In fact we are already having trouble. Labor Code sections 4060 through 4062 now make reference in unrepresented cases to section 4062.1, which has already taken effect. This requires the use of a panel physician for medical legal reporting in every unrepresented case. It is complicated by the new Labor Code section 5402(c), which demands provision of medical care in delayed cases, and encourages us to expedite discovery on the denial issue. A panel physician can take unwarranted time and produce inadequate reports. We are limited in what evidence we can send that physician for consideration. What to do?

The medical-legal process will not be any better for represented cases with dates of injury on or after January 1, 2005. We will then be forced to use either an AME or panel physician in accordance with Labor Code section 4062.2. It seems the AMEs will get even more backed up than they already are. Also, we may have reliability issues with panel doctor reporting. What to do?

Competent reporting by treating physicians is the answer. We should require that the networks can both administrate workers' compensation reporting requirements and produce well-reasoned and knowledgeable reports. Thus we can put ourselves in a position to resolve cases expeditiously and smoothly. This should be done at the formation stage of the relationship with the network.

There are a lot of changes coming our way. Careful thought will make us prepared to take advantage of what SB 899 has to offer, and to anticipate our opponent's moves.



Article by attorney Michael Sullivan. Mr. Sullivan can be reached by e-mail at mike@mikeslaw.net, or by phone at (310) 337-4480.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.