Employers and employees alike are often confused about the many issues surrounding medical treatment for injured workers under the Workers' Compensation Act. Perhaps the most confusing of these issues are the so-called "90 day rule," involving the requirement of an injured worker to utilize panel physicians for treatment, and the necessity of pre-approval of medical treatment.
The 90-day rule is frequently misunderstood by both injured workers and employers. The general rule is that an employer is required to conspicuously post a list of "panel physicians" with whom an employee injured at work must treat for the first 90 days after he or she is injured. If an employee goes to a doctor not on the panel list within the first 90 days after her injury, the workers' compensation insurance carrier can properly refuse to pay that doctor's bill. People often think that the rule prohibits the employee from seeing their own doctor, or that doing seeing their own doctor will somehow jeopardize their claim, but in fact the rule only affects the carrier's obligation to pay for non-panel treatment.
The employer must take specific steps if the rule is going to be enforced as well. First, the employer must list the panel physicians in a place where the employee will see them. This is usually done in a break room or similar place where employees usually congregate. Next, the employer must make the employee sign off regarding his knowledge of the obligation to use a panel physician in the first 90 days when the employee is hired and after the injury occurs. This second signature is rarely obtained by employers, but often employers continue to tell their employees that they must continue to go the panel physicians. Many employees do not know that once their claim is accepted by the insurance company, they can treat with any doctor of their choice after the 90 days, and even during the first 90 days if the employer does not satisfy its requirements. Many injured employees (unrepresented by counsel) continue to think that they are obligated to go to the panel physicians even after the first 90 days, when, because of their employers' failure to conform to the law, they have no obligation to treat with panel physicians even during the first 90 days.
In all cases, after the first 90 days following an employee's work injury, he or she has the right to choose any licensed medical provider who seems appropriate. So long as the provider, whether it be a doctor, chiropractor, or physical therapist, is providing treatment that is reasonable and necessary, and related to the work injury, the employee is free to choose. Employees often think that they need to get an approval or recommendation from the insurance carrier, when no such obligation exists. However, there can be a very serious issue when the provider asks the carrier to pre-approve some type of treatment (usually surgery), and refuses to treat the patient without the pre-approval.
The general rule in workers' compensation law is that an insurance carrier is not obligated to pre-approve treatment. However, the carrier can not unreasonably deny an employee treatment by simply failing to pre-approve treatment when it is reasonable and necessary. In clarifying these obligations, our Commonwealth Court, in McLaughlin v. W.C.A.B. (St. Francis Country House), 808 A. 2d. 285 (Pa. Cmwlth., 2002), imposed a burden on insurance carriers to file a prospective Utilization Review to determine the reasonableness and necessity of such treatment. Thus, while insurance carriers often take the position that they do not have to pre-approve treatment, they may be putting themselves at risk for the imposition of penalties for violation of the law.
A Utilization Review is the method for either the employer (and its carrier) or the injured employee to challenge or establish the reasonableness and/or necessity of medical treatment. In general terms, the review consists of the Workers' Compensation Bureau appointing a third party to evaluate the treatment under review. Generally, the third party will have the same license and specialty as the provider that is under review. The process usually consists of a records review, a telephone conference with the provider under review, and a statement from or phone conversation with the injured employee, and usually takes about 30 to 45 days. Once the third party makes a determination, either side can appeal that determination to a Workers Compensation Judge. This "U.R." process is supposed to be the method for either side to either prospectively, concurrently, or retrospectively challenge the necessity of treatment, however, many employers and carriers simply deny payment for services or fail to pre-approve treatment because the case is in litigation. The courts can impose penalties in these situations and carriers should be aware of this threat.
This very situation frequently arises in workers' compensation cases when an injured worker attempts to have surgery scheduled while the insurance carrier is attempting to have his benefits terminated. Many adjusters have the mistaken belief that they can refuse to pre-approve the treatment based on the fact that they have an independent doctor who believes that the employee is healed from his injury. Carriers who are properly informed will file a prospective U.R., instead of simply denying treatment or failing to pre-approve scheduled surgery, and thereby avoid what could be thousands of dollars in penalties.
Like most workers' compensation issues, the intricacies of liability for the payment of medical treatment can be fraught with pitfalls for the unwary. Employees and employers are well-advised to seek competent counsel before making decisions which could have significant repercussions down the road.