Choice of Physician – Right & Responsibility

One of the most critical rights an injured worker has in Washington State’s workers compensation is the right to choose the medical provider who will treat the industrial injury or occupational disease.  Imagine if you could only treat with the ‘company doctor’. Would that medical provider be looking out for your health and welfare, or would the provider be more interested in shielding the employer, or minimizing the injury?  The answer is so obvious it is not really worth debating.

 

So, this entry is not about why the right is important, that is a given. All rights come with responsibilities. The right to choose your medical provider when you have a work injury is no different.  As the person who is injured you have the right to choose your medical provider, you also have the responsibility to choose a qualified provider. While you may have a primary care provider who you consider your ‘regular’ doctor, that person may not necessarily be the best qualified specialists to deal with your particular injury or disease.  It is your responsibility to get to the right medical provider. 

 

You might need an orthopedic specialist if you have a low back or neck injury. You might need a podiatrist if you have a foot or ankle problem.  A chiropractor may be best to evaluate and treat a strain or subluxation, but if you have neurological symptoms you may need a consultation with a neurologist.  To further confuse the issue, there are specialties within specialties. An orthopedic specialists who primarily treats the spine, might be a lousy choose for a hand or arm injury, and visa versa. The type of medical provider you need may evolve over the life of your claim.  If you initially treated with an orthopedic surgeon, post surgery you may be better served by a Physiatrist who specializes in rehabilitation and physical medicine.

 

The point here is not to scare you with the wild and confusing world which is the medical profession. The point is to encourage you to open your eyes and be proactive with your medical treatment, beginning with your choice of physician. How to start? Well, you initially reported your injury to a medical provider.  In Washington an L&I claim is started with an application for benefits completed in part by a medical provider.  Ask questions of that provider, whether it was your ‘regular’ doctor or an emergency room physician. Ask what kinds of physicians evaluate and treat the type of condition or injury you have. Ask for names or referrals. Write it down and follow up.

 

What if the initial physician who evaluated you doesn’t know yet what your diagnoses is? Often additional tests or studies are necessary before you can get an understandable diagnoses and responsibly choose an attending medical provider. That’s ok. Follow up as instructed by the provider who is ordering the tests. When you do have a diagnoses, then ask about the type of specialists you should be seeing. 

 

What if over the course of your treatment the type of medical provider best suited to treat your injury changes? No problem.  You can change your attending medical provider by simply notifying your claims manager. What if it turns out you just simply don’t care for the physician who is treating you? Again, no problem. Find a medical provider you are more comfortable with, and notify your claims manager of the change. Be aware of “doctor shopping”- a phrase thrown about to describe the patient who bounces from doctor to doctor. You may have a legitimate reason for changing physicians, if so you shouldn’t hesitate. However, beware of changing doctors repeatedly because you aren’t getting the answer you want. Physicians can only give you their best answer, it might not be the one you want.

  

Which brings me to part two of your responsibility with respect to medical treatment. Follow-up. It is so easy in a busy physicians office to get dropped through the cracks. You had your MRI and the office was suppose to call you to schedule a follow-up appointment but you haven’t heard anything yet? Call and ask to schedule an appointment. You’re given a referral for physical therapy? Please call and schedule the initial appointment. It seems like your are not getting any better? Ask what’s next or what other treatment options are available. You have a responsibility to get the treatment you need for your work injury. Sadly, no one is going to walk you through this part of the maze. The good news is most medical providers, be they orthopedists, neurologists, physiatrists, physical therapist,  chiropractors, podiatrist or psychiatrists are genuinely nice people who are interested in getting you better and back on your feet. If you ask, they’ll get you an answer. They want to help, let them.

  

It is safe to say there is nothing in the workers compensation world which has more rules, regulations and policies than medical treatment for work related injuries or diseases. It is a huge cost driver of the entire system. I expect there will be a number of posts on this blog about medical issues. For instance, what types of treatment are allowed; what requires pre-authorization; issues surrounding pain medication; what to do if treatment is denied; treatment for conditions not allowed on your claim which are retarding recovery; the department’s responsibilities; the medical provider’s responsibilities, the list is almost endless. So, for now, take away this thought. You have the right to choose your attending medical provider. Don’t squander that right, choose responsibly.

What if someone besides my employer causes my work injury?

What if someone besides my employer causes my work injury? I noted in a previous post that I would answer this question. We’ve already discussed the restriction against suing your own employer for your work related injury.  But sometimes a work injury is caused by someone, or something, not associated with your employer. In this situation you may have what we refer to as a “third-party” claim. That is, a claim against a third-party other than your employer. 

There are may common situations where a third-party may be responsible for your work injury.  You may have been injured while using equipment which was faulty. If that equipment was manufactured, installed, owned or maintained by a company other than your employer, you may have a claim for your injury.  You may have been injured on a construction site due to the actions of an employee from a different contractor, or by the actions of the General Contractor on the site. You may have been driving as part of your job and been involved in an auto accident. All of these situations may result in a potential third-party claim. 

If you have a potential third-party claim it is worked up the same way any other injury claim or lawsuit is developed. The responsible party or entity must be identified. There must be duty owed to you by that defendant. There must be evidence the defendant breached or violated that duty,  proximately causing your injuries. These are the basic elements of a negligence claim. While fault or negligence is not a factor to be considered in your underlying workers compensation claim,  it is at the very heart of a third-party claim. Without factual evidence of negligence there can be no recovery. 

If you have a potential third-party claim you must still file your workers compensation or L&I claim. You are still entitled to benefits under that claim. You do not have to choose between workers compensation benefits and damages from a third-party claim. You can still collect all of the benefits you would expect to receive because of your work injury through your L&I claim. These benefits are important because they will be paid quickly, and will assist you in the weeks and months immediately following your work injury. At the same time, you may also file a lawsuit and seek damages for your injuries from the third-party defendant.   

At first blush this may sound like a windfall because the injured worker is obtaining payments from two sources for the same injury. Of course, there is a provision built into the workers compensation statute which prevents any double recovery. The Department or the self-insured employer has a lien, or right to recover, what it has paid on your workers compensation claim out of the damages you may collect on your third-party claim.  This keeps the worker from getting a double recovery. 

What good is it to get damages from the third-party if you just have to pay back the L&I benefits you received in your workers compensation claim?  Remember the benefits you can get under your workers compensation claim are spelled out and limited by the language in the statute. A regular personal injury type lawsuit, like a third-party claim, does not have these limits. In a third-party claim you can recover your full wage loss, including future loss of earning potential. You can recover general damages like pain and suffering, inconvenience, changes in lifestyle. Your spouse may have a loss of consortum claim for the loss of love and companionship flowing from your injury. All of these elements of your damages are not recoverable in your workers compensation claim. The recovery from a third-party claim can quickly exceed what has to be reimbursed or paid back to the Department on your L&I claim, particularly if your injury is serious and keeps you away from work for an extended period of time.  

How can you tell if you have a potential third-party claim? Sometimes the Department will send a letter letting you know you may have a potential third-party claim based on information about how you were injured. Whether you get this letter or not, if you think someone other than your employer may have caused or contributed to your injury, you should talk with an attorney. We can ask the who, what, when, where, why, and how questions about your work injury and assist in determining if there is a potential third-party at fault.  If there is, we can assist in investigating and documenting that claim, and filing a lawsuit if necessary. It helps to hire an attorney that is familiar with both workers compensation and regular personal injury claims. One office can handle all the questions or issues which may come up in both claims. If an attorney represents you in a recovery from a third-party, the Department or self-insured employer’s lien will be reduced by a proportionate share of your attorneys fees and costs.  

Not all work injuries will be the fault of a third-party other than your employer or a coworker. But, where you suspect something or someone other than your immediate employer may be responsible for your work injury you should talk with an attorney to make sure your rights are protected.

Alphabet Soup

 

If you are dealing with a workers compensation claim you probably feel like you are swimming in alphabet soup. Everything, and I mean EVERYTHING, has an acronym. So here are a few translations, with very basic definitions – hope they help.

 

L&I – Labor & Industries. The Washington State Agency charged with managing workers compensation claims. Often referred to as the Department.

SI or SIE – Self-Insured or Self-Insured Employer. Some employers are self-insured. They must still follow the same law, and the Department has oversight and can help resolve any problems or disputes.

TL – Time Loss. The benefits you receive while you can not work because of your injury.

LEP – Loss of Earning Power Benefits. The benefits you receive if you are able to return to some work, but not at your full earning power. These benefits are paid only while your claim is open.

KOS – Kept on Salary. Some employers may choose to continue your regular pay, and benefits, instead of placing you on time loss (TL) when you can not return to work because of your work injury.

AP – Attending Physician. Your treating medical provider under the claim. You have the right to choose who will treat your work injury, although all providers must have an L&I provider number to bill the Department for treating you.

APF – Activity Prescription Form. The form sent to your medical provider by your claims manger to gather specific information about your condition, treatment plan and work limitations.

MMI – Maximum Medical Improvement. When your medical condition is fixed and stable, and there are no additional curative treatment recommendations.

PPD – Permanent Partial Disability.  The permanent loss of  function or use of  a part of your body because of your injury. Called a ‘partial’ disability because you are able to return to some type of gainful employment.

PTD –Permanent Total Disability or Pension. The inability to return to reasonable continuous gainful employment in any capacity because of your work injury.

CM- Claims Manager. The person in charge of managing the day to day activities on your claim.

TPA – Third Party Administrator. If your employer is self-insured your claim may be managed by a third party, or private company, hired to manage claims.

VRC- Vocational Rehabilitation Counselor. The professional assigned to assist with early return to work, assess your ability to return to work when your medical condition stabilizes, and to assist with vocational retraining if you are found eligible.

VDRO – Vocational Dispute Resolution Office. The section of the Department in charge of resolving disputes about employability determinations or vocational services.

IME – Independent Medical Exam.  A medical exam done at the request of your claims manager. (We’ll debate another time whether these are truly “independent”)

DO – Department Order. The notice you receive from the department when they take action on your claim, including payment of benefits. Watch carefully, if you disagree with this order you have 60 days to file a written protest or appeal.

BIIA – Board of Industrial Insurance Appeals. The State agency charged with holding hearings to resolve dispute in a Labor & Industries Claim.

IAJ – Industrial Appeals Judge. Hearings are conducted by an Industrial Appeals Judge.

AAG – Assistant Attorney General. The attorney who represents the Department, and defends the Department orders in litigation.

 

If you are in the Longshore Arena you may run into some different initials:

 

OWCP – Office of Workers Compensation Programs. A subpart of the Federal Department of Labor, which has oversight of Longshore claims

TTD – Temporary Total Disability. Similar to time loss, the wage replacement benefit you receive while you unable to work because of your work injury.

TPD – Temporary Partial Disability benefits. Similar to Loss of Earning Power, the benefits you receive if you are able to return to some work, but not at your full earning power. Paid until your medical condition is stable.

AWW- Average Weekly Wage. The base rate used to determine the amount of your weekly benefits.

ALJ – Administrative Law Judge. Longshore hearings are conducted by Administrative Law Judges.

New Link – WSLC

I added a link in our Blogroll today. It will take you to the home page for the WSLC – The Washington State Labor Council. Our State Legislature is in session,  and although this is a ‘short session’, there are still many proposed bills of interest to workers in general and injured workers in particular. The WSLC does a terrific job working these legislative issues, and their website is a great place to go for summaries and updates.  Our office is active with WSTLA(Washington State Trial Lawyers) in working on workers compensation legislative issues with the Labor Council and its various affiliates. Some years are busier than others, but there are always a number of proposed workers compensation bills which  cover the range from good to bad to ugly.  Check out the WSLC site for an update on this years’ activity, and check back with us at the end of the legislative session for an update on any significant legislation in the workers compensation area.

When do you need an attorney?

When do you need an attorney to represent you when you have a workers compensation claim?  Not every injured worker will need an attorney’s help. If you never missed time from work due to your injuries, chances are you will not need our help. If you filed a claim, missed some time from work but received Time-Loss benefits, and were able to return to your regular work – again, you might not need an attorney. I tell the workers I talk to there are three situations where they should definitely talk to an attorney.

 

First, if a dispute develops a qualified workers compensation attorney will be able to help resolve the problem. By dispute, I mean any push point where there is disagreement.  Your feel you had an injury at work, and the claim is not being allowed; Your medical provider recommends a particular treatment, and the treatment is being denied; There is disagreement between medical providers on whether you can return to your regular work,  or disagreement about your physical restrictions; a vocational assessment concludes you are employable but you and your physician disagree. There could be a dispute about your monthly wage, and in turn your compensation rate. There could be disagreement about the nature and extent of your permanent impairment.  This is the short list, there are of course other points where there may be disagreement. Although the list may seem overwhelming, there will not be disagreements about all of these issues in all claims. You may face none, or several. The point is, when there is a dispute, an attorney can help, and that’s a good time to pick up the phone and call.

 

Second, if you can not get information or get a question answered by the Department of Labor & Industries or your self-insured employer, get in touch with an experienced workers compensation attorney.  Your phone calls to your claim manger should be returned, you should have access to all your claim information. It is your claim manager’s job to manage your claim, and that includes giving you information.  (Keep in mind, information is not the same thing as legal advise.) If you don’t know what is going on with your claim, and are not getting a response, get help.  We know the system, and we know how to get the information you need. You should not be shut out of your own claim.

 

Third, if and when you are at wits end, and just can not cope with your injury and the demands of your claim, an attorney can take some of the pressure off of you.  This breaking point is different for everyone, so there is no hard and fast rule. When you find yourself overwhelmed, frustrated, angry, or unsure what to do next, it is important to take action and call a workers compensation attorney. There are some important timelines and deadlines (another topic for another day) and you do not want to miss any of these because you were overwhelmed.

 Those are my rules of thumb. The most important thing to remember is to ask for help from an experienced workers compensation attorney whenever you have questions.  The consultation doesn’t cost you anything – and the piece of mind is more than worth a bit of your time.