One of the questions that I am asked as a Workers’ Compensation attorney the most after meeting with a new client is, “do I have to see a workers’ comp doctor?” In other words, if an employee is injured at work, does he or she have to go to a particular doctor? The answer to that question is often “yes.” However, the rules governing where the injured employee gets treatment are a little more complicated.
Generally, the Workers’ Compensation Act provides that an injured worker must treat with panel physicians chosen by the employer within the first 90 days of being injured. This is often referred to as the “90-day rule.” With the passage of Act 57 in 1996, Section 306(f.1)(1)(i), 77 P.S. §531(1)(i), employees are required to treat with a medical provider on the employer’s list of designated physicians for the first 90 days after the date of injury. However, this rule only applies if the employer provides written notice to the employee that treatment with a designated physician is required. The employer is required to notify the employees that treatment with a panel provider is required, and obtain a signed acknowledgement of that notification at the time of hire and immediately after the injury or as soon thereafter as possible under the circumstances of the injury. Pennsylvania Department of Corrections Somerset v. WCAB (Kirchner) 805 A. 2d 633 (Pa.Cmwlth. 2002). So, what exactly does that mean?
First, the employer must notify the employee when he is hired that if he is ever injured on the job, the employer has designated a list of doctors that should be used. Keep in mind, employers are not required to designate doctors and if they do not designate any doctors to treat a work-related injury, the employee is free to treat with whomever he wishes. Second, after the injury occurs the employer is required to get written authorization that it has notified the employee of the list of designated physicians, often called panel physicians. This is usually done by presenting the injured worker with a one-page document with the list of doctors that has a signature line at the bottom. If this is all done, then the employer and its insurance company are required to pay for only doctors who are on the list. If the injured worker chooses to treat with a provider who is not on the panel list, the insurance carrier can refuse to pay for any such treatment within the first 90 days after the injury. So, for instance if the injured employee first goes to his family doctor after being presented with a panel list and signing the same, the workers’ compensation insurance carrier can refuse to pay for that treatment.
If the injured worker, despite being presented with a designated physicians list, decides to treat with a doctor of his own choosing, this action alone does not result in a forfeiture of weekly benefits or medical benefits. The insurance company who is on the risk at the time of injury simply does not have to pay the bills for that doctor. However, treating with a doctor not on the panel list can often be the very reason that a claim is denied. Whether it is because the employer does not trust a non-designated physician, or perhaps the non-designated physician might not submit the bills properly to the insurance carrier, going off of the designated physicians list can result in the claim being denied. Thus, it is certainly in the injured workers’ best interest to try to use the doctors on the designated list.
More often than not, the employer does not actually have a designated list but simply gives the injured worker one choice of a particular doctor. The employee may still be best advised to use the doctor designated by the employer, but it is certainly not a requirement. If the injured worker decides to get a second opinion with a doctor of his choice this would not be any bar to future benefits, nor be a true reason to deny the claim. Further, doctors designated by an employer are often biased towards the employer’s needs. The designated doctor often knows that the employer wants injured workers back at work as soon as possible. Further, the designated doctor knows that the employer is a good source of patients and therefore cooperation in pushing the injured workers back to work as fast as possible might be in the doctor’s best interest, but not necessarily in the best interest of the injured worker.
The part of the law that employers miss most often is getting the injured worker to sign the designated positions list after the injury occurs. If this requirement is missed, the insurance carrier cannot later argue that non-designated physicians will not be paid as part of the claim.
Another issue that often is confusing for injured workers is whether they need to continue to treat with a designated physician after the 90 days expires. The answer to this question is certainly “no.” If the injured worker feels that the designated physician has offered good treatment, he is welcome to continue that treatment, but is not required to continue there. Without representation, injured workers are often told that they need to go to the doctors that the carrier picks. However, this is far from the truth. After 90 days, the injured worker is free to treat with whomever he wishes. Further, the injured worker is not required to ask permission from the insurance carrier to see a particular doctor. Once the 90 days has expired and the claim has been accepted by the insurance company, the injured worker is free to choose whatever provider he or she wishes. The insurance company’s role at that point is only to pay the bills so long as the treatment is reasonable and necessary and related to the work injury. Injured workers are often told by the carrier that all treatment must be set up by a nurse case manager assigned to the case. However, the injured worker is always in charge of his own treatment, and while a nurse case manager can be helpful, the injured worker always has final say as to what treatment he or she wants and receives, as long as the worker is not refusing reasonable treatment which is likely to make him or her better.
So, is it still in the injured worker’s best interest to treat with designated physicians even if written authorization after the date of injury has not been obtained? In other words, should the injured worker treat with the doctor the employer has chosen even if the employer doesn’t follow the rules? Generally, insurance companies may be less likely to deny the claim if the doctors who are reviewing claimant’s injuries are doctors with whom they are familiar with and whom they trust. So, this author would certainly recommend that a claimant treat with designated physicians for the first 90 days to make it that less likely that the claim might be denied. However, once the 90 days is up, it is very rare that I would recommend my clients treat with any designated physicians.
Daniel E. McCabe, Esq., is an associate in the law firm of Wolf, Baldwin & Associates, P.C. He and managing attorney Levi S. Wolf are two of about 200 lawyers across the state who have been certified as specialists in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court. His practice, located in the firm’s West Chester office, concentrates on the representation of injured workers and medical providers. He can be reached by phone at 610.436.8300, or by e-mail at firstname.lastname@example.org.