By Robert J. Sherwin
LEWIS, MARENSTEIN, WICKE & SHERWIN
Reprinted from The Los Angeles Firefighter, Jan/Feb 2005

I have tried to bring UFLAC members up to speed on the horrendous effects of the work comp legislation passed by the legislature and signed by theGovernor on April 19, 2004. Past articles have dealt with the new limitations on medical treatment for a work related injury. All treatment is now subject to “utilization review” by the insurance carrier for the city. This means that all treatment recommendations from a treating physician are reviewed by a nurse or doctor employed by a private company that determines if the treatment recommendations are reasonable and appropriate according to nationally established guidelines adopted by the administrative director of the workers’ compensation appeals board. Currently, guidelines published by the American College of Occupational and Environmental Medicine (ACOEM), which are extremely limited, are being used and consequently, many of you are seeing your treatment requests being denied. I have been advised that effective January 1, 2005, guidelines from the North American Spine Institute will be used for all spinal injuries. These guidelines are more liberal and may result in certain treatment recommendations being approved. More importantly, the new law is retroactive for all dates of injuries so even those firefighters with prior awards for “future medical care” are affected.

Medical Network Providers

Another significant aspect of the new law is the creation of “medical network providers” for employers. Effective January 1, 2005, all employers may create a medical network provider to treat all work related injuries. As to what constitutes or makes up the medical network provider, that is uncertain and is left to the discretion of the employer. It could mean a medical group such as Kaiser Permanente or it could be the group of physicians that make up the Blue Cross group the city offers. The employer could also simply designate several medical facilities or physicians they have contracted with and utilize these as their “network”. Since all of this is a new concept, it is unclear who will become the network providers. What is certain is that when the employer does create a network provider, an injured worker is required to treat within the network for a work related injury. The injured worker may select their own treating doctor within the network and if they are not satisfied with the treatment, they may then select a second treating physician within the network. If they become disenchanted with the second doctor, they may select a third and final doctor, again within the network. After the third doctor, the worker may only change physicians by requesting an “independent medical review” from the Administrative Director of the Workers’ Compensation Appeals Board. The Administrative Director would then appoint a physician to examine the worker to determine if any further or alternative treatment is necessary. Once that it is determined, there is no further review.

What does this mean for you as an injured worker?

I fully anticipate the city will create a medical network provider for work injuries but I am uncertain who or what network will be. Can you escape or avoid the network? Yes, if the city doesn’t act timely in granting your requests for a second or third doctor, it’s possible you may be able to then treat outside the network. Further, the law still allows an employee to “preselect or predesignate” a treating physician who automatically becomes your treating doctor if you are injured. While the Labor Code has always allowed you to predesignate a doctor, the requirements for doing so have now been tightened.

The physician you intend to predesignate must be one who has treated you in the past and is your personal treating physician.

The Labor Code defines personal physician as the employee’s regular physician and surgeon who has previously directed the medical treatment of the employee, and who retains the employee’s medical records, including his or her medical history. It would therefore seem questionable if you attempt to designate a doctor whom you have only seen once rather than a doctor who has treated you regularly.

Doctor must agree to predesignation

The new law also now requires that the doctor you designate must agree to the predesignation. Many physicians do not want to be involved in the workers’ compensation process or accept the limited fees they may charge (also a result of the new legislation) for treating work related injuries. Thus you should discuss this with your personal physician if you intend to designate that doctor.

Select doctor carefully - In Writing

Another dilemma arises as to employees with more than one personal physician (i.e.-internist and an orthopedist or chiropractor). In those cases, you should select the physician who is most willing and capable of working within the workers’ compensation system. Whoever you select may in turn refer you to a “secondary” treating doctor for appropriate treatment. Thus, an internist could refer you to an orthopedist and vice versa. In either case, the doctor must be somewhat knowledgeable of the reporting requirements in workers’ compensation and willing to “battle” on your behalf to obtain appropriate treatment when necessary. In order to properly predesignate a treating physician, it must be done in writing.

UFLAC has created an excellent pre-designation form which you may obtain from their website: www.uflac.org

Make certain the form is also signed by your doctor stating that he/she consents to be your treating doctor. If the form is not signed by the doctor, it may not be valid. Once completed, it should be submitted to your department, most likely through medical liaison and on file at your station. I would urge all of you have a competent personal physician that you trust to predesignate that doctor if he/she agrees to the designation. This will allow you to control your treatment in the event of a work related injury. Without predesignation, you will be at the mercy of the city and the network they create. Just what that means remains to be seen. In the meantime, stay safe and healthy!

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