January 31, 2019 BY Dana Schwartzenfeld
Requests for Medical Treatment in Workers' Compensation
Petitions for Medical Treatment
Let’s consider the simplest possible workers’ compensation scenario. An employee is injured on the job. There is a clear incident. There are several witnesses. The incident is immediately reported to the employee’s supervisor, and an incident report is completed. The employee takes and passes a drug screen. The employee is shown a valid panel, circles and signs next to her choice, and is scheduled to see the provider that same day. Everything is going great. Then the unthinkable happens. The authorized treating physician recommends treatment that the insurance company does not deem necessary, and thus does not want to pay for. The insurance company denies the treatment. The employee hires a lawyer. The previously smooth process comes grinding to a halt.
Prior to July 1, 2017, the insurance company could sit on a request for treatment without formally authorizing or controverting it. It could wait on the employee to file a hearing request, without any real incentive to make a decision one way or another. Once a hearing request was filed, the discovery process would begin, which would further prolong the time before an employee would get a final decision regarding whether or not the treatment would be paid for. Written discovery would be submitted, depositions would be taken, and much time and effort would be spent by all involved parties.
As of July 1, 2017, however, the Workers’ Compensation Board amended Rule 205 to add subsection (c) authorizing use of the new form WC-PMT, a petition for medical treatment. This form was created to use when an employer/insurer has failed to respond to a request for authorization of treatment or testing by an authorized medical provider within five business days of the request. The employee and/or the employee’s attorney may file a WC-PMT, which acts as a request to the Board to issue a notice of a “show cause telephonic conference” before an administrative law judge within five business days. The purpose of the conference is for the employer/insurer to show cause why the treatment or testing at issue has not been authorized. Failure of a party to participate in the conference does not preclude a ruling by the judge.
In lieu of participation in the telephonic conference, the employer/insurer and/or the employer/insurer’s attorney may use this form to authorize or controvert the recommended treatment or testing. If the employer/insurer does this, the telephonic conference is automatically cancelled. Following the telephonic conference, the ALJ may issue an Interlocutory Order regarding the authorization of the treatment/testing at issue. If the ALJ determines that it should be authorized, the Order will require the employer/insurer provide written authorization to the medical provider. Any party may object to the Order by requesting a hearing within 20 days. The absence of a hearing request within that time acts as consent to payment for the treatment/testing.
Statistics from the State Board of Workers’ Compensation shed light on how this process has worked since it was implemented. As of September 15, 2018, the State Board had received 1,661 petitions for medical treatment. Of those, 82% of the cases were resolved prior to the conference call. Of those, about 67% of the requests were authorized prior to the conference call and 33% of them were controverted. The remaining 291 petitions led to conference calls, of which 140 resulted in orders authorizing treatment. An additional 55 calls invitably led to authorization, and 32 led to controverts. The remaining petitions were withdrawn, which meant that a hearing was likely needed in those cases to further flesh out the facts. This seems to indicate that the process is having its intended effect. It is leading to quicker decisions, one way or another, regarding authorization of medical treatment.
- Recent Example
A recent Published Award from the State Board shows this process in action. State Board of Workers’ Compensation, 2014007438 Trial. The claim involved an accepted, compensable knee injury. The authorized treating physician recommended a total knee replacement, which led to the filing of a WC-PMT. A telephone conference was held with the ALJ, who ordered that the medical request be authorized. Within the 20 days following the order, the employer objected to the order by filing a hearing request. Because the employer’s position was that the need for surgery was not causally related to the compensable work injury, the burden of proof was on the employee. Based on testimony from the authorized treating physician that the claimant’s condition could have been caused by an arthritic condition unrelated to the work injury, the ALJ found that the employee did not carry his burden.
This simple example demonstrates that the results of a conference call may not carry the day, and it is certainly worth it for an employer/insurer to request a hearing if the results of a conference call are unfavorable. Then the parties will have the chance to fully defend their positions, using expert and witness testimony. While a favorable outcome is never guaranteed, it does seem that the process is achieving its intended purpose.
Requests for Preauthorization of Medical Care
Before the addition of the WC-PMT, Board Rule 205 already included a process for advance authorization for medical treatment. Although advance authorization for the medical treatment of an employee by an authorized treating physician is not required, some physicians may request preauthorization for treatment or tests. In that case, the physician may submit a Board Form WC-205 via e-mail or fax to the employer/insurer. The employer/insurer then has five business days to file a responsive Form WC-205 either authorizing or controverting the treatment. Neither the request nor the response is to be filed with the Board, unless otherwise requested. Board Rule 205(b)(4) mandates that failure of an employer/insurer to authorize or controvert a written request for preauthorization by an authorized treating physician may result in the waiver of any defenses to payment related to a compensable injury.
In the event that the employer/insurer files an initial refusal to authorize, then it shall, within 21 days of the receipt of the initial request, either authorize the requested treatment, or file a Form WC-3 controverting the requested treatment or testing and setting forth the grounds for controversion.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley