How to Deal with Workers Comp Doctors

In a perfect world, employees injured on the job, their employers, and doctors would be working together to a common goal: Getting the employee healthy, fully rehabilitated, and back on the job, all in complete and enduring harmony. But, almost by design, the process of workers compensation can create tension and mistrust, with the doctor-patient dynamic often at its root.

The workers comp arrangement is fraught with friction. Employers want workers back on the job. Insurers want to limit payouts. Doctors want to keep their contracts. And workers don’t want to be under-diagnosed or rushed back before they’re ready.

If only employees injured (or sickened) at work could choose their doctors. That simple act could generate a level of trust that suggests our perfect world is possible.

Which brings us to a riddle: How is workers compensation like real estate? It all comes down to three things: location, location, location.

In the United States, half the states and the District of Columbia allow employees with workers comp claims to shop for a doctor. (More or less, as we shall see.) Nineteen states — including, at opposite ends of the political spectrum, California and Alabama — let employers do the doctor-choosing. Six, including a goodly portion of the Southeastern Conference (Georgia, Florida, Kentucky) have employer-specific workers comp laws that determine how doctors are selected.

What Not to Say to a Workers Comp Doctor

No matter how your doctor is chosen, as someone seeking ongoing medical treatment for a work injury, you’ll have to talk to your physician(s). The process is not without risk, especially for patient-employees who attempt either to be cagey or defensive by exaggerating, withholding information, or simply lying.

Unlike typical doctor-patient privilege — protected by tradition, professional code, and HIPAA — no such privacy exists under workers compensation. Among the first documents you sign, notes Atlanta attorney Natalie Elkins, is a medical release that provides for full disclosure of information that passes between the injured/sickened worker and the treating physicians.

“I would not,” Elkins says, “put a comment in there that you wouldn’t be comfortable, quite frankly, with your employer reading or with a judge reading, because it’s all admissible.”

Let’s have a look at common mistakes injured workers make in conversations with their doctors.

Don’t Lie about Your Injury

Be honest with your physician(s). This will not be their first knee injury, their first back strain, their first dislocated elbow. Generally, workers comp doctors will want to trust your report, but like President Reagan regarding the Soviet Union, you can bet they will verify.

“If there’s anybody in the entire world that you’re going to be truthful and honest with, it is your physician,” Peoria, Ill.-based attorney Todd Strong says. “You want to be 100% honest.

“The doctor is listening to you, to those subjective complaints of pain to assist him in formulating the working diagnosis and formulating the treatment plan.” That’s Reason No. 1.

Reason No. 2: If you fudge the truth to your doctor and you wind up in court, those statements — all admissible — will come back to bite you, hard.

Don’t Exaggerate Symptoms

Again, be honest. Be upfront. These are not medical students you’ve gone to for care. They’re professionals whose research into your injury will be augmented by assorted exams and tests — such as diagnostic imaging — to verify your complaints.

If the evidence persuades the doctor you are exaggerating your condition, the insurer may cite that in a denial of your claim.

In extreme situations, the insurance company may even have you surveilled. Attorney Strong still burns when he recalls the client who presented a forceful case for being totally and permanently disabled, only to be caught on video at home lugging an air conditioner up a ladder to a second story window.

“Literally two hours earlier, he’d been at the doctor’s office crying in pain,” Strong says. “That video came out, and so I had to immediately withdraw from the case. He had misrepresented himself to everybody.”

If he’d known, Strong says, he would have urged his client to settle his workers comp case. Instead, he ended up being prosecuted for fraud.

Don’t Hide Prior Injuries or Pre-Existing Conditions

Remember that medical release you signed? Your history will get a careful review by everyone representing your employer: insurer, doctor, and, if needs must, lawyer. You can’t hide a knee surgery or the six months of physical therapy for the back injury you suffered in that moment of ESPN-worthy athletic heroism.

Just because you saw a chiropractor last year for an old back injury doesn’t mean you couldn’t have aggravated your condition at work. You’re still covered by workers compensation.

You can describe how you felt before the workplace incident, and how you feel now, attorney Elkins says: “It’s only going to cause problems if you’re not honest about” old injuries.

Don’t Omit Details about the Accident

Alert readers will have detected an emerging theme. Just as you must not fudge, overstate, or camouflage, you also must be forthright about the incident linked to your injury. Withholding details is also known as lying by omission.

Your report must be complete and consistent, including the parts you might not be proud of, or everything you tell your doctor will be suspect.

Don’t Speak Negatively about Your Employer

If you’re harboring ill will for your employer or your workplace, tell your partner, tell your friends, tell your trusted uncle, tell your counselor covered under your regular health insurance, tell your lawyer.

But do not vent to your workers comp doctors. It will get back to the bosses.

“It is important to be talking about your employer to your physician in the context of return-to-work issues,” says attorney Strong. “But just to approach it in a very honest and forthright and try not to speak negatively or speak ill of your employer. It doesn’t do any good. There’s no benefit to doing that.”

Don’t Arrive Late or Miss Appointments

Missing appointments or habitually arriving late sends unfavorable signals to your doctor(s). Being late or missing an appointment with a worthy excuse is understandable — as long as you report the reason to your doctor’s office as quickly as feasible.

Know this, however: Every deviation — even those with a solid reason — from the appointment schedule gets reported to the insurance company. But if your tardiness and/or skipped appointments becomes routine, doubts will be raised about how seriously you take your condition and your recovery.

Injured workers have a responsibility to participate actively in their rehabilitation, attorney Strong says. But if the insurance company or employer can establish “an intentional or reckless failure to go to doctor’s appointments,” grounds will exist for cutting off workers comp benefits.

Can You Choose Your Own Workers Comp Doctor?

Who selects your doctor, or how your doctor is selected, depends entirely on which state has jurisdiction over the place of employment where you were injured or sickened.

Under workers comp law in 25 states and the District of Columbia, the injured worker gets to choose. Those states are:

1. Alaska
2. Connecticut
3. Delaware
4. Hawaii
5. Illinois
6. Kansas
7. Louisiana
8. Maryland
9. Massachusetts
10. Mississippi
11. Montana
12. Nebraska
13. Nevada
14. New Hampshire
15. New York
16. North Dakota
17. Ohio
18. Oregon
19. Pennsylvania
20. Rhode Island
21. South Dakota
22. Washington
23. West Virginia
24. Wisconsin
25. Wyoming
26. Washington D.C.

These states assign doctor-picking to employers:

1. Alabama
2. Arkansas
3. California
4. Colorado
5. Idaho
6. Indiana
7. Iowa
8. Maine
9. Michigan
10. Minnesota
11. Missouri
12. New Jersey
13. New Mexico
14. North Carolina
15. Oklahoma
16. South Carolina
17. Tennessee
18. Utah
19. Vermont

And these states have employer-specific rules:

• Arizona — If the employer is self-insured, the employer chooses. Otherwise, it’s the injured worker’s choice.
• Florida — Injured workers whose employer opts for a managed care network under workers comp must choose from within that network. If there’s no list, or the employer’s workers comp insurer doesn’t use a managed-care plan, the worker may choose.
• Georgia — Employers are expected to maintain a panel of approved doctors for injured workers to select among. If no list exists, the worker may choose.
• Kentucky — Much like Florida, injured workers in the Bluegrass State must select within their employer’s managed-care plan network. Absent such a network, workers pick their doctor(s).
• Texas — Texas allows employers to roll the dice, making workers compensation insurance absolutely optional. This makes for confusion aplenty when it comes to doctor selection. The Texas Department of Insurance has a website that can provide some insight.
• Virginia — Like Georgia, workers select from a panel of physicians maintained by their employers. Unless they don’t, in which case workers choose.

Can You Get a Second Opinion on Workers Comp?

Again, the rules for getting a second opinion — and, more important, who pays for it — varies by state.

Here’s how it works in Georgia:

Once your case is accepted and your benefits are underway, you may apply for a one-time second opinion. Two caveats: The insurance company is required to pay up to $1,200 for that appointment; the patient is responsible for anything above that. Additionally, the insurer is not obliged to approve the treatment prescribed by the second doctor.

Illinois relies on a chain-of-referrals method. The injured worker chooses the first doctor, who then refers to the next, who then refers to the next. This is not entirely unusual: As attorney Strong notes, when a workplace accident involves more than one area of the body, a dozen specialists may wind up in the mix before it’s all said and done.

The second-opinion part is where it gets tricky. Suppose, several referrals down the chain, you get to a doctor with whom you don’t see eye-to-eye. Rather than switch to the orthopedist recommended by your neighbor, you are obligated to track back to the first doctor you selected to keep the chain intact.

Confused? Who wouldn’t be? That’s why it’s rarely a bad idea to at least consult with a workers compensation attorney in your region, one who knows the local legal players, the local doctors, the insurance company representatives, and the local nuances.

Generally, consultations are free, and they involve no obligation. Elkins, for instance, guides potential clients through Workers Comp 101, then adds, “Just see how this pans out. Let’s see if your employer does right by you, and then we’ll see where you are. In a lot of cases, it can be premature to hire an attorney.”

But an early consultation gives the worker a sense of how things ought to go, and the attorney a chance to collect notes and preserve the details while things are fresh and uncluttered.

Finally, Elkins says, be careful what you bargain for. Asking for a second opinion without having a very good idea about what that opinion will be is risking damage to your claim. You could wind up with a second opinion that bolsters the original opinion you didn’t like, or finds you’re not as bad off as your treating doctor diagnosed.

Can You Change Doctors While on Workers Comp?

At the risk of being monotonous, your options for changing doctors depends on the jurisdictional state. That is, you may live in New Jersey, but if you report to a workplace in New York, Empire State laws apply.

Some states allow switching after mandatory waiting periods. Some states allow switching, but the insurance company does the choosing. Some states allow switching, but you have to choose from a list of authorized physicians; stray outside the list, and you may be on the hook for the doctor’s bills.

Some states allow you to sever ties with your original doctor and start over, without penalty, with another — but only once, and only by choosing from the prescribed panel. Additional switches require the approval of a workers compensation board.

All of which is to say, unless you are expert in all the nuances of workers compensation the state where your claim is being decided, you may not want to go it alone.

“One of the most important things your attorney can do is guide a client not only to a good surgeon, for instance, but one who who knows the system, who’s gonna treat them fairly,” Elkins says. “That is one of the reasons I beg potential clients, Please call me before you make a physician change or sometimes even your initial physician selection, because I can help you get to someone who is going to be best for you in this particular scenario.”

And even if you have been going it alone and events have not been going your way, don’t decide it’s too late to get legal help to get your claim straightened out.

Attorney Strong speaks for his profession when he says, “I have a lot of empathy for injured workers, and I’ll try to do my best to pick up the pieces. … A lot of times I feel injured workers have been manipulated or taken advantage of by sophisticated insurance companies or sophisticated employers who know the work comp system, and painted them a rosy picture that didn’t come true.”