Getting Timely Medical Care If Injured at Work, Why is it Difficult?
We at Agnelli Law Offices, P.C. are frequently faced with situations in which our clients find it difficult to get timely and appropriate medical care after they are injured on the job. Under the Massachusetts workers’ compensation system, as with most other states, our law mandates that an insurer must provide the injured worker the ability to obtain suitable medical attention with a doctor of his/her choice. Section 30 of the Workers’ Compensation Act provides the controlling language regarding their responsibilities for such care. In other words, the insurer is responsible to approve and pay for any such medical services which are deemed reasonable and related to their specific injuries.
Table of Contents
- An Historical Perspective on the Workers’ Compensation System
- The Long Term Impact to Injured Workers as a Result of The Workers’ Compensation Act
An Historical Perspective on the Workers’ Compensation System
Since its beginning in 1912, the workers’ compensation system had as its primary purpose to provide a smooth and prompt means to adequately replace lost wages and provide competent medical care for those employees injured on the job. For many years, an injured worker could seek out medical attention from any provider they chose. Provided the treatment was medically reasonable, necessary and related to their injury, the insurer was obligated to pay for same. In the event the insurer disputed or refused to pay for any treatment, the injured worker could file a claim with the Mass. Department of Industrial Accidents and seek a judicial ruling.
Until the late 1980’s, an injured worker could essentially treat with any medical specialist of his/her choosing. Although prior approval for treatment was not specifically required under the system, many doctors would seek authorization from the insurer, especially if surgery was required in order to guarantee payment for their services. Of course, if the proposed treatment was not authorized, the injured worker would file a claim with the DIA. In the interim, the doctor had the option of providing the treatment (in the hope a claim would be successful) or delay the treatment until such time as a favorable ruling could be obtained. This meant the injured worker’s recovery from his/her injury would be significantly delayed.
Additionally, any disputes over the payment of “reasonable fees” for medical services would also be decided by the DIA.
As part of the major reform to the Workers’ Compensation Act in 1991, the legislature added language to the medical portions providing more stringent guidelines for the authorization of all work-related medical care.
Chapter 152, Section 13 of Massachusetts General Laws was amended to read:
Section 13. (1) The rate of payment by insurers for health care services adjudged compensable under this chapter shall be established by the executive office of health and human services under chapter 118E or a governmental unit designated by the executive office; provided, however, that a different rate for services may be agreed upon by the insurer, the employer and the health care service provider.
Except as provided above, no insurer shall be liable for hospitalization expenses adjudged compensable under this chapter at a rate in excess of the rate set by the said executive office, or for other health services in excess of the rate established for that service by the said executive office, regardless of the setting in which the service is administered;
The specific rates for almost every possible medical procedure have been set out in the following regulation, 114 CMR 40.00.
In addition, the new law also implemented a new pre-certification policy for all medical treatment, called Utilization Review (UR). Section 30 of the Workers’ Compensation Act included the following language:
On or before July first, nineteen hundred and ninety-three, the commissioner shall promulgate regulations regarding the provision of adequate and reasonable health care services. In doing so, he shall utilize the treatment guidelines developed and endorsed under the provisions of section thirteen. Any provision of health care services in material compliance with such regulations shall be presumed to be adequate and reasonable. Any material departure from said regulations shall be presumed to be either an inadequate or unreasonable provision of health care services.
Plainly speaking, after 1992, all medical providers, be it doctors, hospitals, clinics, physical therapists, etc., are now subject to the rates for any treatment rendered to patients for their work-related injuries. Additionally, since 1993, all recommended treatment must be pre-certified as medically reasonable and necessary by the insurer’s UR agent. If these rules are not followed, there is a possibility the insurer will not pay, or be responsible for, any related expenses.
The Long Term Impact to Injured Workers as a Result of The Workers’ Compensation Act
As the last 30 years have shown, the overall impact of these sweeping reforms resulted in many an injured worker having difficulty in obtaining timely and adequate medical care after an industrial injury. Although most workers injured on the job will be sent, or recommended by, their employer for some form of immediate medical attention (e.g., hospital emergency ward, urgent care centers), many problems arise after that initial treatment.
Can I see my own doctor?
More often than not, many workers are advised to follow up with a specialist depending on the nature of their injuries. In many cases, they are “directed” by an agent of the insurance company to see a doctor/clinic of its choosing. They are not advised the law allows them to seek out their own doctor for treatment. Section 30 of the Act provides that “… the employee may select a treating health care professional other than any provided or agreed to by the insurer and may switch to another such professional once.”
The injured worker may also change to a different physician within the same medical specialty one time without the insurer’s express permission. Of course, the new medical provider is still required to get a approval from the insurer’s UR agent.
What if my doctor does not accept “Board” rates?
Many times, an injured worker will seek out a doctor for treatment, but that doctor does not accept the specific rates for certain treatment, such as surgery. The so-called “Board rates” in Massachusetts for most medical procedures have not been adequately updated since 2009. Because of that, the rates for most procedures are well below those paid by most health insurers. It has become financially unfeasible for doctors to accept pennies on the dollar for surgeries, injections and the like.
In many instances, a doctor will agree to negotiate or compromise his/her fees provided the insurer is also willing to do so. Unfortunately, neither party is legally obligated to compromise or negotiate the rates. In that case, the injured worker is forced to seek out another medical specialist, especially after receiving treatment from the former doctor for some time. This results in further unnecessary delays in obtaining much need care. Consequently, the worker runs the risk of a less-than-favorable outcome and a much longer recovery period.
What Do I do of the UR agent disapproves my treatment?
The regulations found in 452 CMR 6.00 spell out the UR process. Once a medical provider recommends a specific course of treatment (be it surgery, injections, diagnostic testing, physical therapy, etc.), the request must be submitted to the insurer’s UR agent.
If UR denies the initial request, the provider must appeal that denial within 30 days and request a peer-to-peer review with a specialist retained by the UR agent. Typically, this is done by a phone conference arranged by the UR agent and takes place between the treating doctor and the UR’s own specialist. If the treating doctor can convince the UR physician the proposed treatment plan is both medically necessary and reasonable, the treatment will be approved, and the insurer will be notified. In most instances, the adjuster will abide by the UR determination.
There are circumstances in which an insurance adjuster will deny the requested treatment even though UR has approved it as being reasonable and necessary. Often, it is because they believe the particular treatment is not causally related to the work injury or they may wish to have their own physician examine the injured worker to determine whether the proposed treatment is necessary and related. This will be done in an Independent Medical Examination (IME).
If the appeal is denied, or the insurer disputes the treatment, then a claim must be filed with the Department of Industrial Accidents and a judge will likely rule on the medical request. Before a claim can be filed, your doctor will have to provide a written report that the requested medical treatment is both medically reasonable and the industrial injury is a major contributing cause for the need for treatment.
The Insurer is not paying for past approved medical treatment? What are my options?
On occasion, an insurer neglects or refuses to pay for medical treatment which had previously been approved. An attorney will usually contact the insurer and work to get the bills paid. If the insurer does not agree, a claim must be filed with the DIA. Your attorney will provide supporting documentation from the medical professional along with the bill and seek a date with an administrative judge.
Do I need an attorney to help me with my medical concerns?
Frequently, when insurers deny treatment, an injured worker will be left with little direction and understanding of his/her rights. An attorney experienced in workers’ compensation will assist you in either working with the insurer to get the issue resolved or will file the appropriate claim with the DIA and seek a determination from a judge. As with any claim an attorney files on your behalf, if the insurer is later ordered to pay, they will also be obligated to pay your attorney’s fees and expenses.
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