The right to lifetime medical benefits is a central part of workers compensation. Without it, you may face bankruptcy because of the high cost of health care or a delayed recovery because you cannot get the treatment you need. The longer it takes you to get the care you need for your work injury the greater the likelihood that you will develop chronic pain, arthritis or degenerative disc disease, or permanent loss of use of the injured body part.
But workers comp medical benefits come with strings attached. You must choose a “treating physician” from a panel of doctors put together by your employer and its workers compensation insurance carrier or third party administrator (TPA). If you seek treatment with a different health care provider whom is outside of your treating physician’s referral chain, you may have to pay for those medical expenses out of pocket.
Some of you may have concerns about the first doctor you treat with after your work injury. For example, you may feel that the doctor does not support your workers comp claim, is treating you different because you had a work injury, or is failing to provide the right medical care or referrals to help you recover and return to work.
Or you may feel that your physician is allowing the nurse case manager to dictate what type of treatment you receive and when you are capable of returning to light duty or full duty.
Whatever the reason, loss of trust in a panel physician is a common experience for injured workers.
When you lose trust in your doctor, it is time to make a change.
But changing doctors under workers compensation is a difficult.
I am here to help.
The purpose of this article is to explain your right to change doctors under workers compensation. And what procedural steps you must take with the Workers Compensation Commission to switch treating physicians with no out of pocket expense.
Keep reading to learn more about changing your treating physician after a work injury. Then call me for a free consultation: 804-251-1620 or 757-810-5614. Come see why fellow attorneys and past clients have voted me one of the Best Workers Compensation Lawyers in Virginia. I can help you get fair settlement value for your workers comp case by making sure you receive appropriate medical care for your injuries.
You have the right to seek medical attention from any doctor or hospital in an emergency. So, for example, the insurance carrier must pay for treatment rendered by Emergency Medical Services (EMS) or a local hospital’s Emergency Department if you suffer a traumatic injury requiring immediate attention, such as a back injury or a herniated disc in a fall on the job or whiplash or a head injury in a work-related motor vehicle accident.
But your right to seek treatment with any health care provider you want ends when the emergency ends and your work injury stabilizes.
In Virginia the insurance company has a lot of control over medical treatment in your workers compensation case. You must pick from a list of three physicians offered by the insurance company. If you fail to do so, you may have to pay for treatment out of your own pocket, even if there is no dispute that the treatment is related to a compensable work injury.
This lack of control – and options – over your own medical treatment often contributes to the desire to change workers comp doctors. In my experience insurance companies will not put a doctor on the panel of physicians unless that doctor is considered “conservative,” or employer-friendly, on issues of causation, disability, and permanent impairment. And some doctors do not even try to hide their bias, making patients frustrated, uncomfortable, and even depressed. Inadequate medical care adds insult to injury.
So you want to switch doctors for your work injury.
Now what?
You have several ways to try to change physicians in your workers comp case. These include:
Ask Your Treating Physician for a Referral to a New Doctor
The easiest way to change doctors under workers compensation is to ask your authorized treating physician to refer you to a new doctor.
Under the Workers Compensation Act, your employer and its insurance carrier are responsible for the payment of medical care within your treating physician’s referral chain. If your doctor refers you to a different medical provider, then the employer must pay for it in most situations.
I recommend speaking with a workers comp attorney before asking your treating physician for a referral to a new doctor. There are two reasons for this.
First, an experienced attorney can tell you which local doctors provide good results – both medically and legally. When you have a workers compensation claim, you not only need a good doctor but also a medical provider who will advocate for you if the insurance company denies your right to medical treatment. Not all doctors are willing to advocate for their patients and deal with the workers comp litigation process, even though they are great physicians.
Second, it is better to ask your treating physician for a direct referral to a specific physician. If your treating doctor refers you to someone specific by name, then the insurance company will have a difficult time denying the referral. If, on the other hand, your treating doctor simply gives you a generic referral that says you need to see someone else but does not list a specific doctor, then the insurance carrier has the right to offer you a new panel of physicians. And the insurance company’s control over which doctors are on the panel is a main reason you are now looking to switch doctors for your work injury.
Asking your treating physician for a referral to a new doctor comes with some risk. Your doctor may get offended that you want to treat elsewhere, which can result in decreased cooperation from your doctor during litigation.
Ask Your Doctor for a Referral for a Second Opinion
If your doctor is unwilling to refer you to a different medical provider to establish care, ask for a referral for a second opinion.
Some doctors are willing to refer their patients to another doctor for a one-time examination. The second opinion doctor will not treat you, but can give recommendations on future medical care you may need and work restrictions you have currently.
The second opinion serves two purposes.
First, if the second opinion doctor agrees with your treating physician, it can restore your confidence that you are receiving appropriate medical treatment.
Second, if the second opinion doctor disagrees with your treating physician, you can use this new report to convince your treating doctor to refer you to someone else or to seek a change in treating physicians with the Workers Comp Commission.
In Virginia there is no right to a second opinion. But usually the Commission will force the insurance company to pay for a second opinion if your treating physician recommends it.
Those of you with private health care coverage may be able to use your private health insurance to get a second opinion in your workers comp case.
Ask Your Doctor to Send You to a Functional Capacity Evaluation (FCE)
If you are ok with the medical treatment you are receiving, but not happy with your doctor’s opinions about your work capabilities, I recommend asking your doctor to refer you for a functional capacity evaluation (FCE).
A FCE is a series of tests given over the course of one or two days to determine your work capabilities.
Generally I am not a fan of FCEs because I think they overstate what a person is capable of doing 40 hours per week, week in week out. But if your treating doctor refuses to give you work restrictions that accurately reflect your impairment, an FCE may be a good option.
Change Your Doctor by Agreement with the Insurance Company
If your authorized treating physician refuses to give you a referral to a new doctor, either to treat or to get a second opinion, another option is to ask the insurance company if it will allow you to treat with a new doctor.
Usually the answer is no. But there are some exceptions.
In my experience the insurance company will authorize a change to a new workers compensation doctor if:
If the insurance company is quick to agree to a change in treating physician, I recommend re-considering whether doing so is the right decision for your case. Your insurance company is looking out for itself and its profits, not you. Usually it will agree to switch your workers comp doctor only if it thinks doing so will save money.
Once you decide to change doctors and the insurance company accepts your request, put the agreed change in treating physician in writing.
Change Your Doctor if You Have Moved to a New Residential Address
If you move after filing a workers compensation claim and establishing treatment with a physician, the insurer may have to offer a new panel of physicians.
This is true even if you move out of state.
Generally the insurance company must offer a new panel of physicians from which to choose if you move more than 50 miles from your treating physician’s office. Just make sure you file a change in address with the Workers Compensation Commission and a change in condition claim seeking a new panel of doctors.
In my experience, insurers are able to offer a new list of doctors quickly if you stay in Virginia.
If, however, you move to a different state, it may take the insurance company longer to put together a panel of physicians because fewer doctors may accept out of state workers comp.
This difficulty in finding a new doctor for you does not take take the insurer off the hook for paying for medical care. If it takes too long for the insurer to offer a new list of doctors, you can start treating with anyone you choose and file a claim seeking authorization and payment of that treatment.
Change Your Doctor if You are Released from Care
In Simmons v. County of Stafford School Board, VWC File No. 203-42-59 (March 25, 2002) the Commission quoted with approval the following language from Hensley v. Marshall’s, VWC File No. 156-96-57 (Oct. 6, 1994):
Where the treating physician states that he has nothing further to offer the claimant and will not continue to treat the claimant, the employer must offer the claimant a new panel of treating physicians. Otherwise, the claimant is free to select a treating physician.
If your treating physician puts in writing that you are released from care and do not need to return, the insurance company must offer you a new panel of physicians if you continue to have symptoms and request the panel.
If the insurer denies your request for a new panel after being released from care, you may treat with any doctor you choose and file a claim seeking payment by the insurer.
File a Motion to Change Doctors with the Workers Compensation Commission
If your doctor refuses to refer you to a new physician, and the insurance company refuses to pay for treatment with a new physician voluntarily, you have one more option: file a motion requesting a change of physician with the Workers Compensation Commission.
Under Virginia law the Workers Compensation Commission will order a change in physician if you are able to prove some reasonable justification for the change.
There are several grounds upon which the Commission will order a change of treating physician. It may grant your request to change doctors when:
1. You are receiving inadequate treatment. For example, treatment by a physician’s assistant may be considered inadequate if you a medical doctor has never examined or assessed you.
2. It appears you need treatment by a specialist and your treating physician refuses to refer you to one.
3. Your health is not improving and your treating physician is unable to offer an adequate explanation.
4. Your treating physician is using alternate methods of treatment instead of conventional modalities of treatment.
5. Your treating physician refuses to provide a long-term plan of treatment.
6. Your treating physician refuses to cooperate with the workers compensation discovery process or to provide medical records upon request. For example, many doctors are hesitant to give depositions.
7. Your treating doctor suddenly changes their opinion on an important issue even though they have not examined you in more than six months. I recently won a case where a doctor changed his opinion even though more than two years had passed since he last saw my client. The Commission found the doctor was not credible and that he seemingly changed his mind only after meeting with the insurance company’s attorney.
8. Your treating doctor has abandoned your care. Whether a treating physician has released or abandoned his patient most often is determined by the express intent of the physician. Read my article, What to Do When the Doctor Tells You There is Nothing More They Can Do, for more information.
9. Your treating physician is unable to state what is causing your pain.
10. You are unable to communicate with your doctor because of a language barrier and would prefer to treat with a doctor whom speaks your native language.
You probably noticed that I did not mention poor bedside manner or rudeness as justification for a change in treating physician. That is because the Commission is unlikely to award a request to switch doctors for those reasons.
No matter the basis for your motion, you must show that you are complying with the medical care recommended by your treating physician. Otherwise the Commission will deny your request.
Having handled hundreds (if not thousands) of workers comp case, and reviewed judicial opinions from hundreds more, I can tell you that it is difficult to win a motion seeking a change in treating physician. These motions are not granted lightly. As the Commission has stated, “Once the selection of a treating physician is made, the employee is not at liberty to change therefrom unless referred by said physician, confronted with an emergency, or given permission by the employer and/or its insurer or the Commission.” So unless you take appropriate action, you may be left with expensive medical bills from unauthorized medical care.
I recommend asking the Commission to refer your case for an in-person workers compensation hearing at the same time you file your motion for a change of physician. That will allow you to explain to the deputy commissioner in person why a change in doctors is necessary.
In addition to asking for a hearing, you should also obtain evidence to support the request. This may include not only medical records from your current doctor but also a medical report from an independent medical examination (IME) doctor. In fact, one of the few times I think it makes sense to get an IME of your own is when you are unhappy with your treating doctor’s care and your progress. You can choose the IME doctor in this situation because you will have to pay for the exam out of pocket. You should ask the IME doctor to address causation and work restrictions, and to state which referrals and future medical care you need for your work injury.
Ultimately the Workers Compensation Commission will decide whether to grant your request for a change of physician. Either side can appeal this decision.
Convincing your doctor, the insurance company, or the Commission to allow you to choose a new doctor is just part of it.
For the change to be effective and to help you recover from your work injury or to get the benefits or treatment you need, you must choose the right doctor to switch to.
When selecting or recommending a new treating physician, I recommend considering the following:
Your new doctor should be someone whose medical advice you trust and who understands and is willing to help with the legal process.
If you are frustrated by your lack of progress and feel that your workers compensation doctor is not helping you enough, call me about changing physicians. Your doctor plays a critical role in getting all the workers compensation benefits to which you are entitled. And it is important that you have a good relationship with this person.
Unfortunately getting approval for a change of physician in your workers compensation case is difficult. You must follow the rules and procedures in Virginia before changing workers comp physicians. If you fail to follow the Rules of the Workers Compensation Commission when seeking a change in doctors, you may have to pay for medical care out of pocket. The Commission has stated that reimbursement for unauthorized medical care should be the rare exception.
Don’t make a decision that costs you tens of thousands of dollars. Call now. Your consultation is free: (804) 251-1620 or (757) 810-5614.