Category Archives: Workers’ Compensation

Talking points for injured workers who want to see their own doctor

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Talking points for employers looking to undermine rights of injured workers to pick their own doctor

I was sitting in a conference call when I screen captured the email that is the photo for this post.

The email came from an occupational medical clinic in Omaha. It used the occassion of an updated doctor choice form from the Nebraska Workers Compensation court to distribute talking points for management when injured workers balk, rightly, at being sent to an occupational medical clinic.

Injured workers have the right to pick their own doctor in Nebraska. But that doesn’t mean that the insurance industry and self-insured employers aren’t going to try to control medical care to their advantage. Insurance companies spend money on “nurse case managers” and self-insureds usually have in-house nurse case managers, who in my view, try to persuade doctors to write medical records and reports that are favorable to the employer. The use of occupational medicine or “occ, med,” clinics is another tactic used by emplyoers to get favorable outcomes for themselves in workers’ compensation claims.

These talking points overcoming employee objections to going to an occ, med. clinic are an example of how employers/insurers try to work around rules that allow injured workers to see theiir own doctors in Nebraska.

I am going to break down these talking points one by one.

1.“We want the best care for you.” If an employer wants the best care for their employees, it would stand to reason they would let the employee go to a doctor who has treated the employee previously and knows their medical history. Treatment would be more effective and efficient without having to re-invent the wheel with a new doctor.

A lot of injured workers end up at occupational health clinics because they don’t have a family doctor because they don’t have health insurance. If a company doesn’t offer affordable health insurance, I would question whether the company really wants what is best for their employees.

2. See you right away – If the injury is acute, an employee will be sent to the emergency room rather than an occupational medical clinic that is more or less an urgent care clinic. While there can be delays in getting to see a family doctor, many family doctors or general practitioners will hold back appointments for urgent cases like work injuries. Injured workers need to be assertive with medical office staff in insisting that they be seen that day.

Of course, this point is moot if an employee doesn’t have their own doctor. See the previous paragraph. That’s why I support the initiative to expand Medicaid in Nebraska.

3.You don’t have to pay if you go to an occ. med. clinic – Under the Nebraska Workers’ Compensation Act, an employee doesn’t have to pay out of pocket for medical care – period – it doesn’t matter who they see. There is an element of truth that some doctors don’t accept workers’ compensation insurance. But if the case requires a referral to surgeon, that surgeon will almost certainly accept workers’ compensation insurance.

By the way, if an employee does get stuck at an occ, med. clinic and they get a referral for a surgery, they can pick their own surgeon even if the employee agreed to let the employer pick the doctor at first.

4. You have to go to this clinic to get drug tested clinic anyway – This isn’t so much a talking point as it is an assertion of power by an employer. It’s a thinly veiled threat that if the employee doesn’t go to the cliinic the employer wants, then they are going to be in trouble. The use of occupational health clinics to perform mandatory post-injury drug testing is a way from employers to cleverly work around Nebraska law on doctor choice under the cover of state and federal law about drug testing. Employee drug testing is as much about employers asserting control over employees as it as about employee safety.

OSHA regulations have recently been revised to allow employers more clarity — or latitude — to drug test emplyoees after a work injury. I will post on this in the near future, but take a look at this post for now,

In short, some employers are going to do their worst to cajole and coerce injured workers into undermining their workers’ compensation case by not letting employees pick their own doctors. Employees in such a situation ought to call a lawyer to get advice and help with their workers’ compensation case.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Doctor Choice, Medicaid, Nebraska, nurse case managers, Workers' Compensation and tagged , , , , .

Somebody get me a doctor: Nebraska rules against P.A reports in workers’ compensation

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Somebody get me a shot! (Sorry no appropriate Diamond Dave images to go with this post)

The Nebraska Supreme Court held recently that a written reports from a Physician’s Assistant or P.A. are inadmissible into evidence under the Rule 10 of the Nebraska Workers’ Compensation Act.

The decision resolves what amounted to a “circuit split” among the seven judges of the Nebraka Workers’ Compensation Court as to whether P.A. reports were admissible into evidence.

The decision didn’t come as a shock to me or any of the other lawyers at this firm. The decision shouldn’t impact how we or any other lawyers develop evidence in Nebraska workers’ compensation cases.

But I believe the decision harms workers in rural areas whose only access to medical care is often a P.A. The decision also harms workers without health insurance whose only treatment for a work injury might be treating with a P.A. at an urgent care clinic. If an employer denies compensability, the only medical evidence that employee may have would be a report from a P.A.

Most lawyers “fix” P.A. reports by having the supervising doctor sign the report. I’ve had P.As take offense at that request. I’ve also had defense lawyers attack medical opinions on hearsay grounds by getting a medical doctor to admit that the P.A. is the one with first-hand knowledge about the injured worker.

Lawyers are stuck with two options if a P.A report is the sole source of expert opinion from a treating provider: 1) Call the P.A. live as a witness in the same manner as in a civil trial or 2) retain an examiner.

Neither of those is a great option. The best fix would be for the Legislature or the Nebraska Workers’ Compensation Court to amend Rule 10 to allow P.A reports into evidence.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Nebraska, Rule 10, Workers' Compensation and tagged , , .

Nebraska, Iowa switch spots in workers’ compensation premium ranking; both states in middle of pack nationally

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Are Nebraska and Iowa taking different roads on workers’ compensation?

Nebraska moved from the 32nd most expensive workers’ compensation insurance premium rates to 26th, while Iowa moved from the 24th most expensive to 30th most expensive workers’ compensation insurance premium rates, according to the 2018 Oregon Workers’ Compensation Premium Ranking produced  by the Oregon Department of Consumer and Business Services.

While Nebraska and Iowa both remained in the middle of the pack nationally, Iowa workers’ compensation insurance rates decreased from 101 percent of the national median from the last study in 2016 to 96 percent of the national median in the current study. In contrast, Nebraska’s workers compensation insurance rates increased from 91 percent of the median rate in 2016, to 100 percent of the median rate in 2018.

In short, workers’ compensation insurance became comparatively cheaper in Iowa while it became comparatively more expensive in Nebraska when compared to other states.

Iowa made many changes to that state’s workers’ compensation laws in 2017, that could explain the relative decline in the cost of workers’ compensation insurance in that state. If the relative price of workers’ compensation insurance in Nebraska and Iowa continues to diverge, I would expect a strong push for workers’ compensation reforms in Nebraska similar to those enacted in Iowa.

In other measures, Nebraska remains a friendly legal jurisdiction for business. According to the pro-tort reform Institute for Legal Reform, Nebraska has the seventh least costly legal system for business.

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Iowa, Nebraska, Workers' Compensation and tagged , , .

A new season for the Shameless economy?

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What’s going to happen on the next season of the Shameless economy?

Amazon made big news on Tuesday when it announced it was implementing a $15 minimum wage for all employees. 

Part of the story was why Amazon raised wages. Some pointed to low unemployment  while others pointed to popular criticism of Amazon’s labor practices. That criticism was expemplied by the Stop BEZOS Act targeting Amezon that was introducted in the Senate by Bernie Sanders.

The author of this blog falls into Amazon critics category. Last November I coined the phrase “Shameless” economy, based on the show Shameless, to describe how Amazon misclassifisied delivery dirvers as contractors.

While Amazon may win applause for raising the wages of employees, by classifiying workers as contractors they are excluding those workers from the benefits of emplyoees like unemployment and workers’ compensation. Amazon annouced this summer that it was expanding its own inhouse package delivery services and looking to contract  with “entrreprenuers”. Contractors aren’t covered by unemployment or workers’ compensation which are beneifts that are mandated by the government.  In other words, Amazon is growing its ranks of contractors which reduces its labor costs while receiving good publicity for raising wages for workers they classify as employees. 

If you watch Shameless you know the character Frank Gallagher. Frank is a terrible drunk and overall person. But occassionally Frank will seem to get his stuff in order only to fall back into his usual antics. Amazon’s labor practices are like Frank Gallagher’s behavior, every once in awhile he will get his stuff together and demand all sorts of credit. But sooner or later, as the millenials say on social media, he is back on his bulls***.

Keep an eye on Amazon.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Amazon, worker classification, Workers' Compensation and tagged , , , , , .

Trump Policies Bad for Workers’ Compensation

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Dr. Richard Victor

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

Dr. Richard Victor, an economist who founded the Workers’ Compensation Research Institute (WCRI) 35 years ago, just presented a paper at the WCRI National Conference in Boston.  He indicated that federal policies on immigration and health insurance promise to make worse the challenges the United States faces by an aging workforce and a widespread labor shortage. He noted that workers’ compensation claims could double and overall costs could expand by over 300% in the next dozen years, without any increase in benefits to workers.  External forces could bring far more cases into the system because of a number of forces, including an aging workforce, labor shortage, slowdown in immigration, and more shifting to workers’ compensation claims that should be paid by group health insurance. Dr. Victor projected current claims out a dozen years to 2030 indicating that claims should actually be down to about ¾ of today’s numbers, but external factors will more than overtake that favorable percentage. Labor shortages caused by baby boomers retiring will increase injury rates.  Research indicates that the older workforce will mean an increase in lost work days and more injuries and a real impact on labor shortage as more baby boomers retire. Dr. Victor indicated “These labor shortages, which will be longer and deeper than anything we have experienced, will lead to significant increase in workers’ compensation claims and longer durations of disability.” During a period of labor shortages, employers relax hiring standards and hire workers they would not have hired in a normal labor market, including workers who are less capable. The overall labor shortfall leads to more workers’ compensation claims.

The Immigration Factor:

Economists have seen immigration as a factor that mitigates against the impact of the labor shortage. The Trump Administration, changing federal immigration policy, will further tighten labor markets and prolong the duration of a labor shortage. Moreover, Trump’s “anti-immigration rhetoric” also discourages people to come to America.  In health care, Victor noted that one in six health care workers is foreign-born including 27% of physicians and surgeons, 15% of nurses, and 22% of home health aide, each of which effects the workers’ compensation system.

Health Insurance

A shortage of people with adequate health insurance is also a problem for workers’ compensation. Health insurance deductibles have risen from the hundreds to many thousands of dollars, and this new reality causes more workers to go without or delay getting medical care for an injury or illness. When they can no longer ignore their condition, many claim it as a work-related condition and seek workers’ compensation (he cited a Rand Research study indicating workers with high deductible or co-insurance plan postponed care in over one-third of cases of the most common kind of workers’ compensation claims – soft tissue injuries.” As the number of workers who lose their insurance grows (since the Trump Administration and Congress ended subsidies and other aspects of the Affordable Care Act) case shifting form health insurance to workers’ compensation could have a major effect, ballooning workers’ compensation claims by as much as 35% in the next dozen years.

Victor’s conclusion: “You end up with a 300% increase in workers’ compensation costs without increasing benefits to injured workers.”

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Government, Legislation, Workers' Compensation and tagged , , .

Recovering From Injury – “Is Heroism the Standard?” Redux

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Judge David B. Torrey

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm. Judge Torrey’s comments have struck a nerve with lawyers who represent injured workers. They are worth a read.

My friend and colleague, Professor and Judge David Torrey, with whom I serve on the Board of the College of Workers’ Compensation Lawyers, recently posted this blog in response to an insurance industry speaker’s exhortation that injured workers should “ get off their asses” and get better. Here’s his moving response:

Many in the workers’ compensation community complain that seriously injured workers can develop a disability lifestyle, become dependent on drugs, and unreasonably extend their disabilities. Instead of falling into such a lifestyle, these critics argue, disabled workers should show “resilience.” This rhetoric, which I have written about before on this blog, has its genesis in progressive medical/rehabilitation thinking, Muscular Christianity (I think), and, realistically, employer/insurer cost considerations.

The complaint is legitimate, and one with which I have some sympathy. I also believe that some legitimately injured workers do indeed unreasonably extend their disabilities — if only waiting for a generous lump sum settlement. Many readers will know of the sharp critique of this type advanced by Dr. Nortin Hadler in his many books.

On the other hand, the “duty-of-resilience” critique can go too far, and is often articulated in overly simplistic terms. At my agency’s conference in Hershey, Pennsylvania (June 7-8), an articulate industry speaker, addressing an audience about medical marijuana, posited forcefully that the “choice between opioids and medical marijuana [for chronic pain patients] is a false choice….” What workers need to do, instead, is show some resilience and “get off their asses!” After all, a friend of his, who is partially paraplegic, has shown resilience and will often go hiking with him. If she can do it, so can others!

I believe the speaker knew his audience and thus took some pleasure in feeding these lions of the community some red meat, and indeed they rewarded this coarse declaration with a leonine roar of applause.

Yet, his panel partner, Dr. Michael Wolk, thereupon gently reminded the industry speaker — and the audience — that not all people respond to pain and other impairments the same way; indeed, he posited that science has shown that one’s genetic make-up can affect the ability to be resilient.

Dr. Wolk (my God, an astonishing speaker) might also have remarked, as have other physicians at our Pennsylvania conferences, that heroism is not appropriately considered the recovery standard in the first place. Commentators like the industry speaker, talking about resilience, often invoke exceptional individuals, like Christopher Reeve, but most of us realize that not everyone is Superman.

This point was vividly made two years ago in the memoir, A Body Undone: Living on After Great Pain (NYU Press 2016). The author, Christina Crosby, a professor at Wesleyan University, was rendered quadriplegic in a cycling accident, and has been left with chronic pain as well. She recounts in her memoir what life is like with such a catastrophic injury, shows that she indeed has great resilience — but leaves the heroism narrative behind. She makes clear that her circumstances, like education; a life of reflection and discipline; and the unflagging love and support of her family, make her ability to bounce back possible. Most of us know that not every injury victim will have these advantages. (My complete review of Professor Crosby’s book is posted at the research website www.davetorrey.info.)

Is all this not common sense? We have known for a century, after all, that young men respond differently to their traumatic wartime exposures. Some show a grim resilience; some are troubled for life, but are able to continue on; some are broken. In the modern day, most of us would not address such veterans with the admonition that they get off their asses. Injured workers deserve the same respect.

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Workers' Compensation, Workplace Injury and tagged , , .

Workers’ Compensation:  The Man-made Quagmire (Part 2 of 3)

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Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm. Paul has done a good job of describing the difficulties by injured workers.

This is the second part of a three-part series in which I explain why workers should claim their rights under workers’ compensation laws. The first installment explains how employers commonly and purposefully make it difficult for workers to claim comp. This second part explains ways in which workers’ compensation insurance companies (from here on our we’ll call them “insurers”) also throw up barriers to workers getting comp benefits.

It is worth noting that many employers – mostly large corporate employers – file for and obtain a certificate from the Iowa Division of Insurance to “self-insure” for purposes of workers’ compensation. These self-insured employers have offices filled with staff that carry out the same work and serve the same purposes as out-dwelling work comp insurers. They do the same things as out-dwelling insurers to bar coverage, also.  Thus, I will treat them as one entity – “the insurer.”

Our third segment will explain why other benefits and programs don’t come even close to providing what the worker receives in workers’ compensation. It’s unfortunate, but the best thing a worker can do is slog through this quagmire and make good on his or her rights in comp.


Again, researchers determined years ago that many barriers are erected by insurers. The insurers’ barriers don’t stop after the worker applies for comp. In fact, in my experience the insurers deter workers by making obtaining comp benefits so unpleasant and frustrating, that the workers with future injuries will opt to not claim comp, but rather try to make do with other benefits, if possible. The biggest reasons workers give up on their rights in workers’ compensation are due to the insurers’ conscious effort to frustrate, confuse and delay every aspect of the claims process. That, however, is exactly what should not happen in comp. Why do I say that? Because the Iowa Supreme Court has repeatedly said that for decades. According to the Court it’s a basic fact of Iowa worker’s compensation law “that the injured claimant is compensated swiftly, fairly and with the least possible ‘red tape.’” DeShaw v. Energy Mfg. Co., 192 N.W.2d 777, 784 (Iowa 1971)(citing Cross v. Hermanson Bros., 235 Iowa 739, 16 N.W.2d 616, 618 (1944)). Besides being fast in result, the process is supposed to incline in favor of the worker. Again, as stated by the Iowa Supreme Court, “we keep in mind that the primary purpose of chapter 85 [ed. the work comp code chapter] is to benefit the worker and so we interpret this law liberally in favor of the employee. Stone Container Corp. v. Castle, 657 N.W.2d 485, 489 (Iowa 2003).

So what should you do to protect your workers’ compensation rights when the insurer is ignoring them?

Part I: Dealing with the Insurer’s Persuasion Tactics

  1. The Adjuster – The Insurers’ First Fortress in the way of Every WC Claim

    People used to ask why I do not like adjusters. The reason is that very few of them (something less than 5% by my best estimate) have any goal but cutting costs for the insurer, no matter what means are used to do so. In light of that I most commonly file the claim early on so as to deal with the insurers’ lawyers rather than the adjuster. How does the adjuster form a barrier – a tough fort – standing in the way of a legitimate work comp claim?

    1. The Various Types of Obstructive Adjusters
      Adjusters commonly do several things that occur so frequently that I believe that these things are learned and practiced forms of conduct, which are designed to frustrate any injured worker. What things?
      1. The Absent Adjuster – most commonly the adjuster may never answer the phone, instead letting all of your calls go to voice-mail. Then, the adjuster will not return your calls.
      2. The Rude Adjuster – nearly as common is the adjuster who denies a claim without explanation and will be demeaning and condescending in refusing to be willing to explain anything. In a system in which the worker is usually without any way to know things, being put down and denied without explanation is a very effective method of driving the worker out.
      3. The 100% Purposely-Ineffective Adjuster – the adjuster many times will promise action on a benefit and may even set personal deadline to do so. Then, the adjuster fails to get the action and merely extends the time for the deadline, again and again. Again, this is a very effective means to drive a worker from the system because the benefits (both medical and money) are usually promptly needed.
  2. The Adjuster’s Wingman – The “Nurse Case Manager” Commonly the adjuster/insurer will assign a “nurse case manager” (hereinafter “NCM”) to your claim. The NCM is a “confidence person.” She (the NCM is always a female in my experience) will tell the worker and family that she is there to get better and more prompt care. In fact, the NCM almost invariably seeks to interfere with the minimal care that even a company doctor renders. In most cases the NCM will also do anything to persuade that the worker should be returned to work, whether safe or not. The only effective remedy I’ve found for the NCM who acts unreasonably in denying my clients care is to file a complaint with the Iowa Board of Nursing.
  3. Employer’s Choice of Medical – “Paul McAndrew’s best friend” Why is it my best friend? Because if the law allowed Iowa workers the right to choose their own medical care, more than half of the workers who come in and need me would no longer need me. Why say that? Because about 75% of the workers who come to my office do so only because they’ve been delayed, denied, and frustrated in getting timely and proper care, so much by the company doctor (usually in conjunction with the adjuster and NCM) that they can’t get back to work as they must and they come to me to merely get medical care. They don’t even want the benefits much. They want only to get healthy so they can get back to work and earn a living to support their family. How does the adjuster/NCM/company doctor bar proper and timely care? By these means:
    1. The Company “Hack” (General-Practice Doctor)
      There are many company doctors who are well known to the practicing work comp bar as being dedicated to one thing: Maintaining that doctor’s share of the insurers’ referral of injured workers by almost any means. This leads the doctor to be little more than a mouthpiece for the insurer. This takes the form of:
      1. Stating some uncouth reason why the injury did not arise out of and in course of (commonly called “cause” but very different than) work (e. g., the court reporter, Smith).
      2. Minimizing or even ignoring the worker’s injury condition until the worker is discharged to her/his own doctor, or just leaves due to frustration.
      3. Carrying the worker along over months of periodic clinic visits without any real effort to determine a diagnosis and treat that diagnosis.
    2. The Company “Sweetheart” (Specialist Doctor)
      This specialist—-commonly an orthopedic surgeon or neurosurgeon—becomes the insurer’s favorite by always giving a favorable-to-the-insurer opinion. Again, the Sweethearts are well known to lawyers, but not to the worker.

Part II: The Insurers’ Tricks for Wrongfully Manipulating Care

  • Prompt Care/Unreasonable Delay in Providing Care
    This speaks for itself. It’s far and away the most common method of denying care—just delay it long enough and the worker’s life demands will cause the worker to turn elsewhere for care. This is easily overcome with the Alternate Care Procedure, briefly described here.
  • When the Authorized Doctor Recommends Care that the Insurance Company Denies
  • When the Authorized Doctor Refers to another Doctor and the Insurance Company Denies or tries to Refer, instead, to its “Sweetheart”
  • When the Authorized Doctor orders care and, Instead, the Insurance Company tries to “Transfer Care” to a Sweetheart Who Will Likely say what the Insurance Company Wants to Hear
  • When the only Care Offered is not Convenient Care. This is now standardized: if the care offered is more than 50 miles from the worker’s home and the same type of care is offered closer, then the 50+ – care is “inconvenient.” Remember the “convenience” requirement applies only to “care.” Unfortunately, it does not apply to the company’s right to send the worker for a medico-legal, one-time “independent medical examination.”

 


Alternate Care Process

The Iowa Legislature enacted in 1913 the comp’s system’s healthcare provision method. Iowa Code 85.27. 85.27 provides that the employer has the right to make the initial selection of care. In this regard, Iowa is only one of ten out of the fifty states and the United States (under FECA (Federal Employee Comp Act) and the Long Shore Act) that provide the employer with such unfettered power. For years, a worker had to wait months or more than a year to get to the final hearing to challenge the insurance company’s denial of care.

In 1992, however, Commissioner Byron Orton drafted a provision that was accepted by consensus of all interest groups and enacted into law, which create the “alternate care process.” This process allows the worker to obtain prompt relief for the denial of proper care. The process is relatively simple and designed to be carried out by a worker or union representative.

NOTE: While Section 85.27 gives the employer the right to select care, that right is qualified. The care provided must be (1) prompt, (2) reasonably suited to treat the injury and (3) without undue inconvenience to the claimant. Westside Transport v. Cordell, 601 N.W. 2d619, 694 (Iowa 1999). The failure of the employer to provide care meeting any of these three requirements gives the worker the right to bring an alternate-care procedure and have the Division of Workers’ Comp. order proper care be provided.

The Steps for Filing and Prosecuting ON YOUR OWN an Alternate Care Claim

  1. Before filing, the worker must communicate the basis of her/his dissatisfaction with the care (or lack of care) offered by the employer. If you don’t, the filing will be dismissed. Communicate dissatisfaction in writing or the employer will likely deny that there was communication.
  2. File on the form provided by the Commissioner. This form can easily be obtained at http://www.iowaworkforce.org/wc/publications.htm. There is no cost/filing fee. Make sure you send a copy of the form to your employer, also, as explained on the form.
  3. When filling out the form, ensure you state: (A) The specific medical treatment sought; (B) the grounds why what’s offered (if anything) is not proper (for example, “not prompt,” “not convenient,” or “not proper care for the injury condition,” etc.); and (C) that you ask for hearing by telephone.
  4. Alternative medical care proceedings are only prospective in nature. Bills for prior care will need to be adjudicated about a year later in the primary hearing.
  5. The grand majority of alternate care hearings are heard by phone.
  6. Alternate Care Procedures Yield Prompt Results. Why? Because by law the commissioner must both hear the alternate care matter by phone and issue the decision on the matter within ten (10) days of the filing of the alternate care petition.

Please join us next week for Part 3: Why it’s Important to Receive Comp.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Workers' Compensation and tagged , , , , .