Thank you for visiting the web log of Steven J. Picardi, Esq. For 20 years I have specialized in the representation of Colorado's largest self-insured employers in defense of workers' compensation claims. This web log is designed to keep workers' compensation professionals informed about recent developments in workers' compensation law and practice. It is updated twice monthly, to provide you with the most recent information for your success in defending your cases.
If you have any questions you would like addressed in this blog, please don’t hesitate to Contact Me at the Law office of Steven J. Picardi, P.C.
OSHA Releases Workplace Injury and Illness InformationPosted by: Steven Picardi
March 8, 2010
Topic: Picardi Web Log
Every year since 1996, the Occupational Safety and Health Administration (OSHA) has collected work-related injury and illness data from more than 80,000 employers, which it uses to calculate injury and illness incidence rates to guide its strategic management plan and to focus its Site Specific Targeting (SST) Program, which the agency uses to target its inspections. For the first time ever, For the first time, OSHA has made this data available in an online database searchable by establishment or industry-specific injury and illness data. Information available includes: an establishment's name, address, and industry; associated Total Case Rate (TCR): Days Away, Restricted, Transfer (DART) case rate; and the Days Away From Work (DAFWII) case rate. The data is specific to the establishments that provided OSHA with valid data through the 2008 data collection (collection of CY 2007 data). This database does not contain rates calculated by OSHA for establishments that submitted suspect or unreliable data.
To access the searchable database, click here.
If you have any questions or would like to discuss this information further, please feel free to contact me.
Medical Only Admissions - Practice Pointer
Posted by: Steven Picardi
February 28, 2010
Topic: Picardi Web Log
I have seen a number of General Admission of Liability lately which have admitted for medical benefits only but have not taken any position on temporary disability benefits or Permanent Partial Disability benefits. Remember that Colorado Workers' Compensation Rule of Procedure 5-5(B) provides that an admission filed for medical benefits only "shall include remarks outlining the basis for denial of temporary and permanent disability benefits." Therefore, all medical only admissions should contain some type of statement explaining the reason for denying disability benefits. A very general statement explaining the basis for denying benefits (e.g. "Claimant has not lost any time from work as a result of the injury and is not at Maximum Medical Improvement") is sufficient to satisfy the requirements of Rule 5-5(B).
There is no requirement to attach a Supplemental Report of Return to Work or wage records if temporary disability benefits have not yet been admitted or paid. However, if Temporary Total Disability benefits or Temporary Partial Disability have been admitted or paid, then respondent must comply with Rule 6.
If you have any questions, please feel free to contact me.
$60,000 Lump Sum applicable to all dates of injury
Posted by: Steven Picardi
February 23, 2010
Topic: Picardi Web Log
In a previous post I discussed the case of Nelson v. Industrial Claim Appeals Office, 219 P.3d 416 (Colo. App. 2009), where the Court of Appeals reversed the Industrial Claim Appeals Office's interpretation of Senate Bill 07-258 (amending § 8-43-406(2) increasing the lump sum amount to $60,000), and found that the $60,000 lump sum applies retroactively to any date of injury. The respondent did not appeal that Order and the Court of Appeals decision became final.
A separate panel of the Court of Appeals recently reached the same decision in Navarette v. Industrial Claim Appeals Office, ___ P.3d ___, (Court of Appeals No. 09CA0794, January 28, 2010). In Navarette, the Director denied a $60,000 lump sum based on a 1976 Court of Appeals' case holding that, in the absence of express legislative intent to the contrary, the increase in the maximum lump sum payment applied only to injuries occurring after the amendment's adoption. The claimant appealed, arguing that Nelson, decided in 2009, controlled the issue and the Director should have followed Nelson. The Court of Appeals agreed that Nelson controlled, despite the employer's argument that "Nelson was incorrectly decided and [the Court of Appeals] should disregard it because the substantive rights of employers could be affected by an unanticipated increase in the amount of a lump sum payment." The Court of Appeals was not persuaded to deviate from the reasoning in Nelson, and remanded the case to the Industrial Claim Appeals Office to enter an Order awarding the $60,000 lump sum. Thus, unless the Supreme Court grants certiorari to review the decision, the $60,000 lump sum statute will be retroactively applied to all claims, regardless of date of injury.
If you have any questions regarding this or any other workers' compensation issue, please fee free to contact me.
DWC Issues Updated Impairment Rating Tips for Physicians
Posted by: Steven Picardi
February 2, 2010
Topic: Picardi Web Log
Last fall the Division of Workers' Compensation convened a Focus Group (consisting of physicians and other medical practitioners, claimant and defense attorneys, officials from the Division of Workers' Compensation) to discuss some proposed revisions to the Division of Workers' Compensation's "Impairment Rating Tips." The update contains significant changes to the previous Impairment Rating Tips, and serves as a good refresher on impairment ratings for adjusters and attorneys.
The document contains new tips addressing the following areas:
- Partial Shoulder Joint Replacement (recommended to rate at 20%)
- Recommendation on "Grover Meds" and Impairment
- Rating Abdominal Hernias (just some reminders)
- Musculoskeletal Cumulative Trauma Disorders (written in tandem with the preceding existing section, "Peripheral Nerve Injuries Resulting from Cumulative Trauma," which is now slightly modified)
- Diagnostic Tests and MMI (In the section for DIME Doctors (page 7))
The document also changes or adds to the following existing sections:
- Rating Extremities Using the Contralateral Joint (differentiating apportionment);
- Peripheral Nerve Injuries Resulting from Cumulative Trauma: slightly modified in connection with the new section, Musculoskeletal Cumulative Trauma Disorders
The new Division of Workers' Compensation Impairment Rating Tips can be found here (scroll down to Desk Aid # DK11).
If you would like to discuss this document further or have any other questions, please feel free to contact me.
2010 Proposed Statutory Amendments to Work Comp Act
Posted by: Steven Picardi
January 26, 2010
Topic: Picardi Web Log
As always, the Colorado General Assembly has proposed a number of bills affecting the workers' compensation system. Some of these bills may have a significant impact on the claims handling process.
The most concerning bill is House Bill 10-1012, which would prohibit an insurer or employer from conducting surveillance of an employee who has submitted a workers' compensation claim unless the insurer or employer has a reasonable basis to suspect that the employee has "committed fraud or made a material misstatement concerning the claim." The vague language very well might prohibit the employer and insurer from obtaining surveillance in a multitude of situations where surveillance previous has been a useful tool in the adjusting of a questionable claim.
Senate Bill 10-012 proposes an increase in penalties for violations of the Act, from the current maximum penalty of $500 per day to a new maximum of $1,000 per day, and would permit the Administrative Law Judge to apportion the award between the claimant, medical provider or other aggrieved party. If passed, this amendment to the statute would increase the incentive of claimants to file for penalties against the insurer, including penalties for late payment of medical bills.
The bills and the current status of the bills can be viewed here.
If you would like to discuss these bills, please feel free to contact me.
Penalties for filing FAL before MMI for "all conditions"
Posted by: Steven Picardi
January 20, 2010
Topic: Picardi Web Log
On January 7, 2010, the Court of Appeals affirmed the Administrative Law Judge's award of penalties against the respondents for filing a Final Admission of Liability denying liability for a part of the condition which an authorized physician determined to be caused by the injury. Paint Connection Plus v. Industrial Claim Appeals Office, ___ P.3d ___ (Court of Appeals No. 09CA0598, January 10, 2010). A copy of the decision can be obtained by clicking here.
The respondent insurer filed several general admissions of liability admitting for medical and temporary disability benefits for a "right shoulder rotator cuff tear and right shoulder SLAP tear only." The claimant's surgeon referred him to another physician for an impairment rating to his right upper extremity. The physician found that the claimant had reached maximum medical improvement for that injury and provided an impairment rating. However, the rating physician further opined that claimant was suffering from a neck condition that was related to the original injury, and was not at MMI for that neck condition. Respondents filed a Final Admission of Liability admitting for the impairment rating to the shoulder condition but denying liability for the neck condition.
Claimant objected to the Final Admission of Liability and set the matter for hearing on the issues of the validity of the FAL and penalties. The Administrative Law Judge found that because the rating physician found Claimant was not at MMI, the FAL was invalid because it did not comply with Rule 5-5(E), which requires that the carrier file a Final Admission of Liability "consistent with the physician's opinion" within 30 days of receipt of an impairment rating from an authorized Level II accredited physician. The Court of Appeals, relying on the line of cases holding that MMI is not divisible, held that respondents were not at liberty to disregard the determination by the rating physician that the neck injury was caused by the original compensable industrial original. The Court, therefore, affirmed the determination that the Final Admission of Liability was invalid because it did not comply with the rating physician's determination that the neck condition was caused by the industrial injury. The Court went on uphold the award of penalties based on the failure to comply with Rule 5-5(E).
This case now makes it very clear that the respondents cannot file a Final Admission of Liability when an authorized physician determines that a particular condition is causally related to the injury and has not reached MMI for that condition, even when the respondents previously have admitted for only particular components of the injury. If Respondents disagree that a portion of the injury is compensable, they must challenge the determination of causation and MMI by setting the matter for hearing for a judicial determination of the causal relationship of that condition, obtaining an 18-month Division IME pursuant to §8-42-107(8)(b)(II), or some other procedure.
The requirement to challenge the determination of causation and MMI necessarily will result in delay before a Final Admission of Liability can be filed. If the claimant is entitled to Temporary Total Disability benefits while the process proceeds, the respondents may be required to pay substantial Temporary Total Disability benefits. If the rating for the admitted portion of the claim entitles the claimant to a significant award of Permanent Partial Disability benefits, challenging the condition through hearing or Division IME probably will not create a problem, as the respondents can claim any overpayment of Temporary Total Disability benefits against the award of Permanent Partial Disability benefits. However, if the rating for the admitted portion of the claim does not entitle the claimant to a significant award of Permanent Partial Disability benefits, the insurer faces the possibility of a significant overpayment of Temporary Total Disability benefits while the Division IME or hearing is pending.
If you would like to discuss the impact of this case on one of your claims, please feel free to contact me.
The Division of Workers' Compensation announced the new compensation rates effective for injuries on or after July 1, 2009.
Posted by: Steven Picardi
June 22, 2009
Topic: Picardi Web Log
The maximum rate for Temporary Total Disability benefits, Permanent Total Disability benefits or death benefits is $807.24.
The scheduled impairment rate is $254.06.
The disfigurement maximum is $ 4,286.00, or up to $ 8,572.00 for extensive facial or body scars, burn scars or stumps resulting from the loss of limbs.
The Memorandum from the Division of Workers' Compensation and the Order from the Director establishing these rates can be found at http://www.coworkforce.com/dwc/Notices/Other_Notices/AWW_Order_2009.pdf
Industrial Claim Appeals Office lump sum payment decision reversed
Posted by: Steven Picardi
June 22, 2009
Topic: Picardi Web Log
You will remember that one of the legislative changes found in Senate Bill 07-258 included an amendment to § 8-43-406(2) increasing the lump sum amount to $60,000. The statute was silent on whether the increase applied retroactively, to claims with a date of injury before the effective date of July 1, 2007. The Director had interpreted the statutory amendment as a procedural change having retroactive effect, and granted lump sums up to $60,000 even when the statute in effect at the time of the injury limited the maximum lump sum to a lesser amount. The Industrial Claim Appeals Office reversed the Director's order in Nelson v. Specialty Restaurants Corp., W. C. No. 3-987-235 (May 2, 2008), and denied the Director's award of a lump sum up to $60,000, as the statute in effect at the time of the injury did not permit lump sums in that amount.
Claimant appealed the decision to the Court of Appeals, which just reversed the decision of the Industrial Claim Appeals Office and held that the statute can be applied retroactively to grant lump sums of up to $60,000 for all dates of injury. Nelson v. Industrial Claim Appeals Office, ___ P.3d ___, 2209 WL 1477557 (Colo App. 2009). The Order was released only a few days ago, so we will not know if Respondents will appeal the Order for some time.
Caution on Final Admissions of Liability
Posted by: Steven Picardi
May 1, 2009
Topic: Picardi Web Log
The Industrial Claim Appeals Office recently announced a holding with potentially significant ramifications for reopening a claim. In Barfoot v. XCEL Energy, W. C. No. 4-540-676 (April 16, 2009), the ICAO held that the statute of limitations for reopening a claim was tolled because Respondents' Final Admission of Liability failed to properly identify the date when claimant's Permanent Partial Disability benefits would be paid out in full.
The reopening statute provides that a case may be reopened to award additional compensation or medical benefits at any time within two years of the last payment of temporary or permanent disability benefits become due or payable. § 8-43-303(2)(a) (emphasis added). In Barfoot, the Benefits History on respondents' Final Admission of Liability incorrectly calculated the date when the last payment of Permanent Partial Disability benefits would be paid (the benefits were paid out in full in April 2005, but the Final Admission of Liability indicated they would be paid through May 2006). Claimant filed his Petition to Reopen within two years of the date the last benefits would be paid pursuant to the Final Admission of Liability, but more than two years from the last date the Permanent Partial Disability benefits actually were paid. Respondents argued that claimant's Petition to Reopen should be dismissed because it was not filed within two years of the date the last payment of Permanent Partial Disability benefits because due and payable. Claimant argued that the two year statute of limitations should be equitably tolled because the Final Admission of Liability put him on notice that the last benefits would be due and payable in May 2006. ICAO held that, because claimant testified that he relied on the incorrect date in the Final Admission of Liability in calculating when he needed to file his Petition to Reopen, the matter must be remanded to the Administrative Law Judge to determine whether the incorrect date in the Final Admission of Liability equitably tolled the statute of limitations.
This case emphasizes the importance of correctly calculating the date through which Permanent Partial Disability benefits will be paid, so that claimants cannot argue they were not properly informed of the date they needed to file a Petition to Reopen. In addition, the case may require companies to reconsider their methods of admitting for Permanent Partial Disability benefits in the Benefits History section of Final Admissions of Liability. Many carriers or TPAs admit for Permanent Partial Disability benefits from the date of MMI through "payout". This case may allow claimants to argue that using the term "payout" did not give sufficient notice of the date that a Petition to Reopen needed to be filed, such that the statute of limitations should be equitably tolled. This may require reconsideration of the use of the term "payout" on a Final Admission of Liability. Given the uncertainty and potential to lose the statute of limitations defense, it probably would be wise to calculate the date through which benefits will be paid in order to put claimants on notice of the date a Petition to Reopen must be filed.
CMS's Standards for Acceptable Proof of Rated Age
Posted by: Steven Picardi
April 23, 2009
Topic: Picardi Web Log
Effective April 21, 2009, submitted rated ages that do not conform to CMS's standards for acceptable proof of Rated Age (which requires an independent rated age on the letterhead of an insurance carrier or settlement broker, and includes a statement from the submitter that all rated ages obtained on the claimant have been included in the MSA proposal), will be priced using actual age. CMS will not consider re-pricing the workers' compensation case using the new or corrected rated age information provided by submitters. Therefore, make sure all MSA proposals include independent rated ages on the letterhead of an insurance carrier or broker.
Governor Ritter Signs Amendment to Workers' Compensation Act
Posted by: Steven Picardi
April 15, 2009
Topic: Picardi Web Log
On March 24, 2009, Governor Ritter signed Senate Bill 09-070 into law. The intent of this bill is to amend the Workers' Compensation Act in an effort to clarify several workers' compensation procedures. The most important for adjusting purposes is the change to § 8-42-105(2)(a), which previously provided that the first payment of compensation was due no later than twenty days after notice or knowledge of a lost-time injury. The new statute requires payment of compensation at the time an admission of liability is filed. The statute "shall apply to workers' compensation claims (not injuries) on or after the effective date of the Act (which probably will be August 4, 2009, unless a referendum petition challenging the Act is filed, which is extremely unlikely).
To view the statute please click here.
If you have any questions regarding the new Act or any other issue, please feel free to give me a call or send me an e-mail.
Review of MSA Proposals for Drug Treatment Costs/Expenses
Posted by: Steven Picardi
April 9, 2009
Topic: Picardi Web Log
The Centers for Medicare and Medicaid Services (CMS) issued a formal memorandum on April 3, 2009, announcing that effective June 1, 2009, all Workers' Compensation Medicare Set-Aside (MSA) proposals will be reviewed to ensure the adequacy of future drug treatment costs/expenses using average wholesale price (AWP). The CMS will not use or recognize any other pricing, discounting, or calculation methods when determining the adequacy of the prescription drug amounts in WCMSA proposals (including Colorado's Medical Fee Schedule).
The full memorandum can be found at http://www.nuquestbridgepointe.com/news/uploads/cms_memo_4-6-2009.pdf.
If you have any questions regarding this memorandum or any other issue, please fee free to give me a call or send me an e-mail.
2008 Legislative Changes
Posted by: Steven Picardi
June 30, 2008
Topic: Picardi Web Log
Senate Bill 08-241 was the only bill having any impact on the handling of workers' compensation claims this year, but the bill significantly changed the law on apportionment.
Section 8-42-104(2) regarding apportionment for Permanent Total Disability benefits has been repealed completely. The legislature enacted new procedures for apportionment of Permanent Total Disability benefits, which were codified at § 8-42-104(4).
Section 8-42-104(3) disallows reduction of temporary total, temporary partial or medical benefits to an injured worker based on a previous injury (which had been permitted by decision of the Supreme Court). Therefore, an employer no longer may pay only a portion of medical or temporary disability benefits, arguing that a percentage of those benefits should be apportioned to prior injuries.
Section 8-42-104(4) disallows apportionment of permanent total disability benefits when the disability is the result of (1) work-related injury; or (2) work-related injury combined with genetic, congenital or similar conditions. Permanent total disability benefits may be apportioned in cases where an occupational disease results from contributing factors both within and outside the workplace as set out in Anderson v. Brinkhoff, 859 P.2d 819, (Colo.1993). Therefore, if an injury aggravates or combines with a previous industrial or non-industrial disability to make an employee unable to earn any wages, the employer bears full responsibility for the Permanent Total Disability benefits.
Section 8-42-104(5)(a) allows for the reduction of a permanent medical impairment award (apportionment) when the employee has suffered more than one permanent medical impairment to the same body part and has received a previous award or settlement under a workers' compensation act. The permanent medical impairment rating applicable to the previous injury to the same body part shall be deducted from the permanent medical impairment rating for the subsequent injury to the same body part. Thus, in order to obtain apportionment under this subsection, the employer must show (1) a previous injury to the same body part; and (2) an award or settlement under a workers' compensation act of Colorado or some other state.
Section 8-42-104(5)(b) allows for the reduction of a permanent medical impairment award based on a non-industrial medical impairment to the same body part, only where the previous non-work related injury has been (1) identified; (2) treated; and (3) at the time of the work-place injury was independently disabling. If all these factors apply, the non-work related medical impairment percentage existing at the time of the work injury may be subtracted from the medical impairment rating for the work-related injury by the percentage of the non-work related medical impairment. The classic example of a non-industrial medical impairment is a degenerative spine. In order to receive apportionment for degenerative conditions, the employer must show that, at the time of the industrial injury, the employee was in treatment for the condition and it was, to some degree, independently disabling. If the condition is asymptomatic, then employers will not be able to obtain apportionment for the degenerative or non-industrial condition.
Section 8-42-104(6) permits employers or insurers to seek reimbursement or contribution by other employers or insurers for benefits paid to or for an injured worker, as long as the claimant's benefits are not reduced or affected by such contribution or reimbursement.
The statute applies to injuries occurring on or after July 1, 2008.
If you would like to discuss the statutory changes, please feel free to contact me.
2008 Benefit Rates
Posted by: Steven Picardi
June 24, 2008
Topic: Picardi Web Log
The Division of Workers' Compensation has released the compensation rates for the 2008 fiscal year (July 1, 2008, through June 30, 2009). The new maximum rate for Temporary Total Disability benefits, Temporary Partial Disability benefits, Permanent Total Disability benefits and Death benefits for injuries occurring between July 1, 2008, through June 30, 2009 is $786.17. The maximum rate for Permanent Partial Disability benefits is $431.97. The scheduled rate is $247.42. The maximum payable for disfigurement is $4,174.00, and for "extensive facial or body scars, burn scars or stumps resulting from the loss of limbs" is $8,348.00. For a Desk Aid listing the yearly compensation rate for each year since 1980, click here.
Penalties for Late Payment
Posted by: Steven Picardi
June 16, 2008
Topic: Picardi Web Log
The Industrial Claim Appeals Office recently upheld an award of penalties of $200 per day for a 7-day late payment of a TTD check, in Twiss v. Advance America, W. C. No. 4-717-937 (June 11, 2008). The Director issued the penalty based on a letter from Claimant complaining that the check for TTD benefits was late, which the Director considered a motion for penalties. The Director requested a response from the respondent, who admitted that the check was late, expressed remorse and indicated that remedial procedures had been established to prevent delays in payment in the future. The respondent also requested a hearing if the Director did not believe that the response was sufficient. The Director granted $200 per day in penalties for seven days, primarily because the respondent admitted it had violated the Act and previously had been penalized for "similar conduct" in the same claim.
What makes the decision important is that it shows the relatively-new Director will grant significant penalties without a hearing based on relatively minor misconduct, and that he will do so without granting a hearing. Therefore, adjusters should be very careful when responding to letters from the Director concerning penalties.
Prior Authorization required for home health care
Posted by: Steven Picardi
May 14, 2008
Topic: Picardi Web Log
In a recent case, the Industrial Claim Appeals Panel has determined that a request for home health care or essential services is subject to the Rule 16-9 requirement of prior authorization. In Galicia v. Pietraszek Enterprises, Inc., W. C. No. 4-610-668 (May 9, 2008), ICAO determined that claimant's obtained home health care services without a prescription. Several years later the authorized treating physician opined that the home health care was reasonable and necessary. ICAO determined that the claimant did not seek prior authorization of the request for home health care services pursuant to Rule 16-5(A)(2) (which requires any provider not listed as a "physician provider" to obtain prior authorization under Rule 16-9 in order to provide covered services). ICAO found that the failure to obtain prior authorization for the home health care was a fatal defect to the claim for benefits, and dismissed the claim for services which were incurred prior to a contemporaneous referral (the services rendered after a third hospital stay, where the surgeon wrote a prescription for home health care upon discharge from the hospital, were found reasonable and necessary).
Increase in Lump Sum statute not retroactive
Posted by: Steven Picardi
May 07, 2008
Topic: Picardi Web Log
In a prior post I discussed the legislative changes found in Senate Bill 07-258, which included a provision increasing the lump sum amount to $60,000. The statute was silent on whether the increase applied retroactively, to claims with a date of injury before the effective date of July 1, 2007. As you probably know, the Director had interpreted the statutory amendment as a procedural change having retroactive effect, and granted lump sums up to $60,000 even when the statute in effect at the time of the injury limited the maximum lump sum to a lesser amount. The Industrial Claim Appeals Office recently reversed the Director's order in Nelson v. Specialty Restaurants Corp., W. C. No. 3-987-235 (May 2, 2008) (attached below), and denied the Director's award of a lump sum up to $60,000, as the statute in effect at the time of the injury did not permit lump sums in that amount. Since this case is so recent, it is not known whether Claimant will appeal the decision. Please keep this decision in mind if you receive a new Application for Lump Sum on your older cases.
New Office Address
Posted by: Steven Picardi
March 31, 2008
Topic: Picardi Web Log
The Picardi Law Firm has moved! The new address is:
Law Office of Steven J. Picardi, P.C.
12900 Stroh Ranch Way, Suite 110
Parker, CO 80134-7401.
Phone, fax and e-mail remain the same:
(303) 872-7461 - Local
(888) 781-0369 - Toll-free
(303) 778-8947 - Facsimile
steve@picardilawfirm.com - E-mail
Penalties for dictating medical care
Posted by: Steven Picardi
January 29, 2008
Topic: Picardi Web Log
Section 8-43-503(3) provides that employers and insurers "shall not dictate to any physician the type or duration of treatment..." The Industrial Claim Appeals Office just issued a very concerning opinion affirming the award of $14,000 in penalties against an employer for "dictating" medical care. Gianzero v. Wal-Mart Stores, Inc., W. C. No. 4-669-749 (December 10, 2007).
Dr. Quick, the authorized treating physician, referred Claimant to a hand surgeon, Dr. Hart. Claimant sought a change of physician to Dr. Conyers, a different hand surgeon. The attorney for the employer denied the change of physician, but also indicated that Dr. Quick and Dr. Hart were capable of determining whether an additional referral was warranted. Dr. Quick then referred Claimant to Dr. Conyers. A case manager, through an intermediary at Conentra, then contacted Dr. Quick and asked Dr. Quick to provide the medical necessity of referring Claimant to Dr. Conyers. Dr. Quick then stated that he would "hold off" on the referral until his deposition in the matter, so the appointment with Dr. Conyers was "deferred" until after Dr. Quick's deposition. Following Dr. Quick's deposition, the adjuster authorized treatment with Dr. Conyers.
The Administrative Law Judge found that the insurer "used written directives at Concentra to attempt to dictate to the authorized treating physicians the type or duration of treatment" and "interfered with Dr. Quick's care of the claimant by requiring pre-authorization of Dr. Quick's referral of the claimant ... and then refusing to pre-authorize the referral" until after Dr. Quick's deposition. The ALJ found a pattern of attempts to dictate medical care by the insurer, and awarded penalties of $400 per day.
While the rationale for awarding penalties is questionable and probably is based on the particular facts of the case (since, from what I can tell from the decision, it was Dr. Quick's decision to place the referral "on hold", not a directive from the employer), this decision clearly indicates the danger of questioning the authorized treating provider's referrals. I would caution any insurer or self-insured employer to be careful when attempting to keep referrals limited to particular providers, as an ALJ may interpret those attempts as "directing" medical care.
If you would like to discuss this case in more detail, please feel free to contact me.
Rule 8 - Report to Division
Posted by: Steven Picardi
January 02, 2008
Topic: Picardi Web Log
The Division of Workers' Compensation has published a notice reminding all insurers, employers, and third-party administrators that they must track how often employees request a change of physician under Rule 8's automatic one-time change of physician provisions.
Rule 8 hidden trap - change of physician request form
Posted by: Steven Picardi
January 02, 2008
Topic: Picardi Web Log
As addressed in my previous post regarding Rule 8, Rule 8-5 permits the employee to request a one-time change of physician within ninety (90) days of the date of injury (but before reaching maximum medical improvement). The employee initiates the change of physician request by completing the form established by the Division (which is set forth below) designating another provider on the initial Designated Provider List. However, there is a hidden trap in this form which creates a significant danger to employers.Technically, a claimant could insert the name of any physician into the form. While this does not meet the statutory requirements of the form, the burden is on Respondent's Representative to provide written objection to the request, setting forth the basis for believing the notice does not meet the statutory requirements, within seven (7) business days. Rule 8-5 specifically provides if the Respondent's Representative does not timely challenge the form of the request for a one-time change, the request for a one-time change must be processed and the new authorized treating physician appointed as of the date of the first appointment. Thus, the rule effectively changes the previous 20-day period to object to a change of physician down to seven (7) business days. All Respondents' Representatives need to be aware of the potential for a claimant to insert a "rogue" physician on the form, and must timely object to the request to change to the rogue physician.
If you would like to discuss this issue or any other issue with me, please feel free to contact me.
