Getting Back To Work The Law Provides Plenty Of Reasons Not To Abuse Workers’ Compensation

Among the most important concerns of an injured worker is to receive quality medical care for an injury or illness sustained on the job. For most injured workers, obtaining adequate health care is critical to speed recovery and resume work.

 

Unfortunately, there are currently many obstacles which stand in the way of employees receiving — and doctors providing — good medical care in Massachusetts’ workers’ compensation system. Access problems cause delay (or the complete deprivation) of medical care, which usually prolongs disability.

Contrary to the misperceptions of some, the vast majority of injured workers genuinely seek a speedy but reasonable return to work. A true understanding of workers’ compensation law would lead one to conclude that there really is no ‘pot of gold at the end of the rainbow’ for any injured worker who engages in malingering. There are few incentives for a worker to exaggerate disability, but severe costs are associated with being away from the job due to injury.

For example, an injured worker receives 60{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of his or her average weekly wage while totally disabled. Often, this financial reality alone causes great distress in the family of an injured worker. In addition, once an employee is away from work for more than 12 weeks, his or her job security and health insurance may be jeopardized. Though a worker has the right to continue health insurance coverage after a qualifying event such as termination, the right is usually illusory since few employees can bear the entire cost of health-insurance premiums.

All in all, there is much to motivate the vast majority of employees to return to work as soon as possible; good quality medical care and a speedy recovery are the means by which an injured employee may safely resume productive employment.

On the Mend

Under the Massachusetts Workers’ Compensation Act, “the insurer shall furnish to an injured employee adequate and reasonable health care services and medicines, if needed, together with the expenses necessarily incidental to such services.” Since 1992, provision of medical care has been subject to ‘utilization review.’

An amendment to the Workers’ Compensation Act in 1991 required the Department of Industrial Accidents to develop treatment guidelines by which requests for medical care can be measured for adequacy and necessity. The amendment provides that any material departure from the treatment guidelines will be presumed to be an inadequate or unreasonable provision of health care services. Any health care provider who fails to obtain utilization review or provides treatment that is not in accord with treatment guidelines runs a risk significant risk that costs of care will not be paid by the insurer. Thus, health care providers must devote substantial attention, resources, and time to ensure that utilization review is accomplished prior to affording injured workers necessary treatment.

Though the Workers’ Compensation Act requires the insurer to provide adequate and reasonable health care, rates of payment by insurers for health care services are established by the Department of Industrial Accidents. The so-called ‘board’ or ‘DIA’ rates are, in some cases, substantially below rates otherwise paid to health care providers for treatment of non-work-related injury or illness.

Taken together, utilization review and payment at board rates effectively limit access by injured workers to quality medical care. Many physicians are apprehensive to accept board rates for their services when such rates barely cover expenses and overhead, particularly during this period of escalating malpractice insurance costs. Some physicians expressly refuse to treat injured workers for these reasons. It may well be that low rates, in combination with greater administrative requirements associated with utilization review and the adversity which sometimes accompany a workers’ compensation claim, dissuade these physicians from becoming involved with an injured worker. It is safe to say that low rates are a major stumblingblock for access.

On paper, utilization review appears to be a streamlined, speedy process by which physicians obtain pre-certification of services they seek to provide. In reality, utilization is managed care, with all that entails. It is common for physicians’ offices to wait weeks for a response to a request or to require repeated inquiries to a utilization review provider or insurer. Though the regulations require notice of an adverse determination by a utilization review agent within two business days of the receipt of request for prospective review, compliance with that standard appears not to be the norm. As a consequence, injured employees wait to receive service, and physicians are thwarted with delays and administrative burdens.

The Workers’ Compensation Act was originally enacted as a humanitarian measure. The law was created to provide security to the injured employee and to make the expense of work injuries part of the cost of doing business. Implicit in those objectives is the creation of a safety net of quality health care with controlled costs.
At this time, despite our slowed national and state economies, reforms of the Workers’ Compensation Act are required. Among them are improvements directed at increasing rates paid for medical care. Administrative burdens associated with utilization review must be decreased. Disincentives for delay in the implementation of managed care must be created.

Toward those ends, the AFL-CIO actually filed legislation in 2001 and again this year which included language drafted by the Alliance for Injured Workers, a Western Mass.-based support group. The provisions of the bill which dealt with medical care sought to establish that any rate for health care set by the Rate Setting Commission must not be less than 80{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of the usual and customary fee for any such health care service.

The bill directed the Department of Industrial Accidents to streamline or curtail the applicability of utilization review to the five most common industrial injuries or illnesses, otherwise leaving the determination of whether any provision of health care service is reasonable or adequate to an administrative judge. A provision was also included which would hold that any insurer who fails to comply with utilization-review time limitations will be bound to a determination that the requested health care services shall be deemed approved.

Finally, the bill included a request for medical benefits among those actions which, when “brought, prosecuted, or defended by an insurer without reasonable grounds,” shall be subject to sanction.

Though hearings occurred with respect to the proposed bill and further proceedings are scheduled for this summer, it is not clear that the Legislature will see the need for this curative legislation.

Need for Change

Increasing access to quality medical care is an issue upon which injured workers, physicians, and even the insurance industry ought to agree. Unfortunately, until those entities involved see that there is common ground on this issue, there will be frustration with ‘the system.’ And, until change occurs, the injured worker, for whom the beneficent purposes of the Workers’ Compensation Act have long been intended, will continue to suffer.

Charles Casartello is an attorney specializing in workers’ compensation law with the