Tuesday, June 14, 2016

A Simple Method for Expeditious Care

I ran across a workers' compensation case years ago. The worker had developed a mass or cyst on the top of her hand. She was fortunate to work for a company that provided benefits, and therefore she had access to a generous health insurance plan. She was also fortunate (or not) to be covered by workers' compensation.

She was not certain why that cyst had developed, and eventually went to a family physician with that question. After an examination and some medication for symptom relief, she was referred to a specialist, and the recommendation was surgical removal. The specialist also opined that the mass or cyst was related to this workers' employment. One of the "check-mark" boxes (section 10) on the standard HCFA-1500 medical billing form asks the physician to check-mark if an injury is related to work or a motor vehicle accident. This is a cue to the insurance company that some other insurance company may share the liability for treatment. 

When the specialist's bill was submitted to the health insurance company, the opinion of "work-related" was noticed. The health insurer notified this worker that it would not pay for the recommended surgery. Worse, it informed her that it would not pay for further care with the family physician. And, to add insult to injury, it asked that she pay the health insurer back for the care it had already provided, since it was work-related and not the health insurer's responsibility. 

The health insurance carrier was seeking reimbursement from the worker. It might also have sought payment from the workers' compensation employer or carrier, which is called "subrogation." When an insurance company thinks someone else is responsible for something, it can pursue legal action to collect the money it has spent. In many instances, their investigations and demands for information are illogical, and in some cases absurd. In many instances these subrogation disputes are battles fought between two or more large companies; they should be sophisticated and able to make analytical and logical decisions about their liability and the advisability of persisting in dispute. There is often no "little guy" in subrogation disputes.  

The worker with a cyst therefore presented at her employer and informed them that she had a work-related medical condition that needed surgery. By this time, the cyst had existed for months, treatment had been ongoing, and it was the first notice the employer had. The employer referred the matter to its workers' compensation insurance company ("carrier"), which sent the worker to a "workers' compensation doctor." This doctor viewed the same mass/cyst, asked the same questions about her work, and concluded that the condition was not related to her work. The carrier then denied that the condition was compensable under workers' compensation, and refused to provide care. The employee thus found herself in between a rock and a hard place.

Caught between the opinions of two expert physicians, and between two large insurance companies (group health and workers' compensation), this worker decided to consult a third expert, a workers' compensation attorney. The attorney performed no physical examination. He, like the majority of us attorneys, lacked formal medical training and expertise. Granted, we  know how to read records, evaluate explanations and logic, form opinions. But we are not doctors. The attorney concluded that the first doctor must be correct, and filed a claim for workers' compensation benefits. It has never been explained why the attorney did not believe the second doctor or file a claim against the health insurer. 

After relating this story at a conference years ago, a risk manager cynically reminded me that attorneys cannot obtain attorney fees for a successful claim for care against a group health carrier and so it would not pay to adopt that second opinion and pursue care in that direction. I found that explanation curious. It seems like the attorney has an obligation to pursue the client's best interest. I think most attorneys appreciate that role and act accordingly. While it is plausible that some might be driven by the fee outcome, is it practical to presume that is the driving force?

That claim (or petition) should have been adjudicated within 210 days; the Florida workers' compensation law says so. But it was not. For various reasons unrelated to the merits of the claim, that claim did not get heard for years. The worker, who ideally would like to have the mass/cyst removed, but who also would appreciate some symptom relief in the meantime, suffered for years. She was unable or unwilling to pay for medical appointments, symptom relief, and surgery herself, and neither group health or workers' compensation would pay for care during the long period of finger-pointing. 

The case was finally tried in the workers' compensation system. A variety of legal arguments were made, and the ultimate decision was this was not an injury/illness for which workers' compensation was responsible. Within days of the worker/attorney submitting that final decision to the group health carrier, surgery was authorized by group health and was performed. When I ran into the workers' attorney months later, I was assured that the worker had undergone the surgery successfully and was much better, effectively "symptom free." 

A relatively minor condition was eventually corrected. No condition you suffer personally is "minor," and I do not minimize this cyst condition and its symptoms. But, the point is it was not a herniated cervical disc, torn meniscus, or other more serious condition with daily impact on mobility or function. The worker returned to work symptom-free (or much improved). In some respects a reasonable outcome. 

What was unreasonable, however, is that it required years to accomplish. Much has been done in Florida to assure that no one waits years for a hearing anymore. Despite this, there are cases that require a year to proceed to trial. Evidence and due process are required, doctors' calendars are congested, depositions are sometimes hard to schedule. Time passes. This can happen despite the due diligence and best efforts of the parties. There are other cases that have simply fallen through the cracks. There was a time when Florida had some judges who were simply less than diligent in managing a docket. I am thankful that era has ended. Our current generation of judges, for the most part, are frankly exemplary in their dedication, focus, and timeliness. 

I was reminded of that case as I sat in Dallas last month at the 2016 Workers' Compensation Summit. A similar anecdote was related by another attendee, and a solution soon followed. One state has regulated such disputes

Maine has regulated the treatment of the "little guy," the patient when there are disagreements like this. Maine's workers' compensation law has §222, titled "PROVISIONAL PAYMENT OF CERTAIN DISABILITY BENEFITS." This law provides simply that 

"Payment of benefits due a person under an insured disability plan or insured medical payments plan may not be delayed or refused because that person has filed a workers' compensation claim based on the same personal injury or disease."

So, in a dispute such as the one described above, the worker would have had the mass/cyst removed from her hand years earlier, and been back to work. Group health would have provided this care and the required after-care. The fact that she had a claim for workers' compensation would not have allowed her group health insurer to delay or refuse the surgery to remove that mass/cyst.

The law goes on to provide for repayment, or subrogation. It says that if the person later prevails on a claim for workers' compensation, the employer will not have to pay the worker for what group health provided. So there will not be a "double recovery." And, essentially, the group health insurance can still collect its money back from the employer or workers' compensation carrier after the condition is deemed to be workers' compensation. So, eventually, the responsible party will ultimately be the one that pays the financial cost. I stress "financial."

This leaves the responsibility dispute where it is perhaps more appropriate, between the two insurance companies. It leaves the injured worker, the "little guy," out of the dispute, and perhaps expedites the provision of care for the injury. History repeatedly demonstrates that patients who receive prompt care are more likely to enjoy rapid and "full," or approaching "full," recovery. This Maine statutory provision facilitates that prompt care, before the litigation has run its course. 

The point, according to Maine, is "to ease the financial burden on injured employees whose workers' compensation claims are controverted and who are awaiting board determinations on their claims." That seems to make a great deal of sense. In the world of personal injury it is perhaps inevitable that there would be disputes about who is responsible for a given condition. Maine's approach for keeping the employee out from between the rock (group health) and the hard place (workers' compensation) is admirable. Perhaps other states will read this post and agree. 

Adopting such an approach today is easy, just copy Maine. As a great attorney once told me "plagiarism is the highest form of flattery."


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