This is a question we often hear from our clients, but unfortunately, it’s usually a question we hear after there is a dispute as to whether the proposed surgery is related to the accepted injury. What exactly does that mean you ask? Well, perhaps a little workers’ comp basics are in order, before we can answer that question.
The first thing to understand is that after an employee is injured at work, and gives notice of the injury, the employer’s insurance carrier has 21 days to either accept or deny the injury. The injured worker has 120 days to report the injury. Once the injury is accepted, the workers’ comp insurance carrier has to define the injury that is being accepted, which is called the “description of injury,” on a document that officially accepts the claim as compensable. The carrier is then responsible for paying for any lost wages and medical bills related to the “accepted” injury – including any and all reasonable and necessary treatment. So, if the injured worker needs surgery to address the accepted injury, the carrier should simply pay the bill. Sounds simple, right? Well, perhaps applying these principles to a to real case would help bring some of the potential issues into light.
An employee injures his lower back while picking up a 180-lb. steel ramp. The injury is reported right away and the workers’ compensation carrier accepts the injury and drafts the original document (usually called a Notice of Compensation Payable) with an injury description that reads “lumbar strain and sprain.” Lumbar refers to the low back, and strain and sprain is the most common and least encompassing injury possible – essentially acknowledging a soft tissue or muscle injury to the lower back. The injured worker, or Claimant, begins getting conservative treatment for his back such as physical therapy, chiropractic adjustments and injections. These treatments seem to help to some extent, however, the injured worker does not get better, obtains an MRI, and eventually is presented with the option of getting surgery. This is when it gets tricky.
Under the Workers’ Compensation act, the workers’ compensation carrier does not have to preapprove any type of treatment. This is exactly the opposite of how regular health insurance generally works. One of the problems that often occurs is that the medical provider is not aware that the workers’ compensation carrier does not have to preapprove and therefore looks for that very preapproval. So the provider will either get no response from the carrier at all, or it will get a response where the adjuster informs the provider that the “claim is open and it will pay for any reasonable and necessary treatment which is related to the work injury.” Depending on the provider, this spiel is often regarded as a denial. Further, even if the provider does not consider that a denial it may be unwilling to perform a potential $100,000 surgery with the hope that it is going to get paid. Who would?
One solution is to ask the claimant to provide backup health insurance just in case the workers’ compensation carrier decides to deny that the surgery is related. However, this can cause some other issues. If the healthcare carrier is aware that the provider is treating a work injury, it may deny payment as well. Many providers know this and will simply refuse to do the surgery unless the workers compensation carrier pre-authorizes the treatment. If the carrier takes a hard line on the issue, the claimant is put into a holding pattern that could last for well over a year.
The claimant’s attorney (assuming that he or she retains one after surgery is denied) can file what is called a Petition to Review Medical Treatment, which puts the relatedness of the treatment before a Workers’ Compensation Judge. Evidence from claimant’s treating physician is then presented to the judge to determine whether the proposed surgery is related to the work injury. The attorney can also file a Petition for Penalties based upon the carrier unilaterally refusing to pay for reasonable and necessary medical treatment. Such a petition would be based upon the McLaughlin v. W.C.A.B. (St. Francis Country House) case which states that the employer has an obligation to either pre-approve the surgery or file a prospective utilization review to determine whether the treatment is reasonable and necessary, in a surgical or hospital setting. Utilization Reviews are a way for carriers to officially question whether a particular treatment is reasonable and necessary. Despite this case law, most Pennsylvania workers’ comp carriers will still not voluntarily preapprove surgery. Usually this is based upon an argument that they are not questioning whether the surgery is reasonable and or necessary, but rather whether it is related to the accepted work injury – which is why the injury description discussed above is so vitally important.
In the example from above, when the carrier accepted a “lumbar strain and sprain” it was immediately taking the position that any disk pathology related to that injury was not related to the work injury. So, if claimant had herniated a disc while lifting that ramp, ideally the carrier should have accepted that herniated disk as part of the work injury. However, with back injuries like this, it is not often immediately apparent whether a disk is involved. While there are certainly some indicators (like pain shooting down one or both legs, for instance), the carrier will usually accept whatever is on the first medical record – and a majority of the time, the initial treating provider, without any diagnostic tests to confirm any disc pathology, will simply default to a lumbar strain/sprain. That first medical note is critical, setting the stage for an argument about whether a workers’ compensation carrier must pay for a later surgery.
One thing that an injured worker can do from the outset is to be vigilant about telling the first treating doctor all of the symptoms that he or she is feeling. Further, getting the proper treatment from the outset it is vitally important. And finally, when the injured worker receives the documentation regarding his or her injury, usually called a Notice of Compensation Payable, it is very important to pay attention to what is the accepted injury is. Of course, consulting with an attorney as soon as injury occurs is also very helpful. An attorney, especially someone certified as a specialist in workers’ compensation practice, can help guide an injured worker through the maze of choices and options as that workers seeks to recover as quickly as possible.
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 less than 250 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.