WORKERS' COMPENSATION QUESTIONS

QUESTION - 6/4/04

Melissa, a Business Agent for Local 911 asks:

Do you know of any reason why a member's primary doctor would refuse consultation/treatment of a work related injury?

ANSWER

I can only think of a couple of not really well reasoned reasons, such as if the doctor did not feel qualified to provide occupational treatment or if the doctor was hesitant due to concerns over reimbursement practices.  These are not  valid reasons however because Doctors and DO’s licensed as Physicians and Surgeons in CA, are licensed to do everything…not just their specialty areas, and in light of all of the pricing and reimbursement reforms which have been undertaken over the past couple of years the reimbursement issue isn’t valid either. 

 We have heard that some employers are advising doctors that they have to fill out a form attesting to specified facts such as licensure and record retention.  This may be scaring some doctors off, so if you hear your employers are doing this, please let us know.  I do want to point out that while the new law does say a doctor has to agree to be the pre-designated physician, the law does not place the onus on the Doctor, the employee or even the employer to prove that acceptance has occurred.  Further, contrary to what some employers are trying to assert, the law does not provide for an employers ability to negate the employee’s pre-designation based on a lack of confirmed acceptance by the doctor.  Long story short, we haven’t heard of any problems with doctors refusing, but please let us know ASAP if you do hear of anything like that.

QUESTION - 5/25/04

Reverend Brown, Recording Secretary for Local 85 asks:

What is the exact language for the pre-designate doctor?

Roadway Express is sending out a letter to the pre-designate doctor asking if they agree with being named the pre-designate doctor and that they have the full medical history of the member.

ANSWER

The employer form appears to be quoting the new law accurately as it pertains to the questions they are requesting the doctor answer. It should be pointed out that while both the law and the employer form speak to retention of "medical history," employees should not be concerned that that means that their doctor does not qualify if he has not been their doctor from birth--as there is no qualifying "entire" or "complete" associated with "medical history." The exact language may be found on-line at www.senate.ca.gov . It is part of SB 899 and amends labor code 4600(d)(2).

There is one glaring inaccuracy in this employer form however, and that is the provision which advises the doctor that the pre-designation will be deemed invalid if the doctor fails to verify the information.

The only requirement in existing law is that the doctor agree to be pre-designated. The law does not place the obligation on either the doctor or the employee to verify any of this information. Nor does the law provide for an invalidation of the pre-designation BASED ON ANYTHING. Accordingly, if the employer invalidates a pre-designation in this manner, they are not in compliance with an employee's right to pre-designate his treating physician under SB 899.

QUESTION - 5/24/04

Dan, a member of Teamsters Local 150 asks:

Is there is a 30 day waiting period on the pre-designate doctor form?

ANSWER

There is no 30 day waiting period in regards to pre-designation.  What that means is so long as you provide your employer with your pre-designation form prior to your injury you may be treated by that pre-designated doctor immediately. [It is important to remember that in order to pre-designate your employer must offer you a health-plan and the employee must have a prior relationship with that doctor (i.e.  the employee must have had an appointment with the doctor prior to pre-designating him.)]

Where the 30 day rule comes into play is if the employer has not set up a network, and the employee has not pre-designated, then the old rule applies, wherein the employer directs the course of the employee's treatment for the first 30 days and then the employee may select his treating physician thereafter.

If the employee has not pre-designated, and the employer has established a network, the employee must go to the employer selected doctor for the first visit, and then may select another doctor from within the network for subsequent visits.  The employee may only get out of the network after three in-network denials, from three different in-network doctors, and an approval by an independent medical review doctor.

QUESTION - 5/17/04

Nick, a member of Teamsters Local 896 asks:

The most important thing I need is the complete information of being able to pick your own doctor. Many of our members have Kaiser, and in the past we did not name an individual doctor, we put down a Kaiser medical facilities, due to the fact that numerous times you cannot get in to see an individual doctor, and are giving to another doctor at Kaiser. Any information you can give me would be appreciated.  On the form the AFL-CIO has, it has physician name, office, clinic, or hospital.

ANSWER

The new law specifies that workers who have employer provided health care may be treated by their personal physician from the very first visit and thereafter, so long as they pre-designate that physician.  If they fail to pre-designate, the employer is allowed to determine who the employees workers’ compensation physician is for a minimum of 30 days, and potentially for the life of the claim if the employee fails to pre-designate.  The law says that a pre-designated physician, must be an MD or DO, with whom the employee has a prior relationship (i.e. the employee has to have seen the treater before) and who has control of the employees medical records.  Further, the doctor has to agree to be the employee’s treater (although the law is unclear about who bears the burden of proving this, so all you and your guys need to worry about is that the employee fills out the form and that the employee has seen the doctor before.)

Now on to your question about whether you must pre-designate a doctor or if you can just pre-designate the health care facility.  We feel the law is pretty clear that you must pre-designate a specific doctor, but that your specific doctor has the ability to refer you to other doctors within the health plan.  That being said, of-course if the injury is an emergency, you should be seen by, and have the right to be seen by, any available doctor, not just your treating doctor. 

All that being said, as long as you all put the name of your treating physician on the form, I don’t think there would be any problem with you putting - ”or, in the case of emergency, any other Kaiser doctor, until such time as my pre-designated physician is available” next to the Doctor’s name.

Please make sure that all employees (1) turn in their forms to their employers as soon as possible; (2) keep a copy of the form for themselves; and (3) give another copy to their shop steward.  Also, please keep us apprised if you are hearing of any problems employees are having with their employers having alternate interpretations of the law.