Raise your hand if you enjoy going to the doctor or hospital.
We are willing to bet that most of you kept your hand down. And for good reason. Receiving medical treatment can be stressful and frightening.
Sometimes an injured employee or current workers’ compensation client asks us if they have to have the surgery recommended by their authorized treating physician. Other times they ask us if they have to undergo injections or other forms of invasive pain management for their work injuries when injections have failed in the past. And many are concerned about adverse reactions to medications.
We get it. Surgeries, injections, needles, medications, and many other types of medical treatment have risks or may offer a low chance of success. If you have had surgery in the past, you probably know this already. And even if you haven’t had surgery in the past, your workers’ compensation doctor has likely discussed the risks of the recommended surgery with you. In fact, your doctor will ask you to sign an informed consent form that acknowledges that you were aware of the risks prior to surgery.
This article discusses when an injured employee can refuse medical treatment in a workers’ compensation case. As you’ll see, there are risks associated with refusing medical care for a workers’ compensation injury. Because this is a major decision, we recommend contacting an experienced workers’ compensation attorney to discuss the facts of your case before you make a decision that affects your health, body, and workers’ compensation benefits.
Yes.
Virginia workers’ compensation law addresses situations where an injured employee refuses medical treatment that is recommended by an authorized treating physician.
Virginia Code Section 65.2-603(B) states:
The unjustified refusal of the employee to accept such medical service or vocational rehabilitation services when provided by the employer shall bar the employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless, in the opinion of the Commission, the circumstances justified the refusal. In any such case the Commission may order a change in the medical or hospital service or vocational rehabilitation services.
As you can see, the insurance company can stop your temporary total disability payments if you do not have surgery or some other medical care recommended by your doctor. Specifically, the insurance company may file an Employer’s Application for Hearing alleging that you are failing to cooperate with medical treatment. The Workers’ Compensation Commission will then refer the application for a workers’ compensation hearing before a deputy commissioner.
The question in these situations is not whether the recommended medical procedure or treatment is justified and reasonable, but whether an employee’s refusal to undergo the recommended medical treatment is justified. Let’s take a look at how the Commission determines whether an injured employee’s refusal of medical treatment or surgery is justified.
Virginia workers’ compensation laws require an injured employee to accept reasonable and necessary medical treatment related to his or her work injury. The purpose of the code section discussed above is to penalize employees who unjustifiably refuse reasonable and necessary medical care.
If, however, an injured employee can show that the refusal of treatment is justified, then the Commission will not penalize the employee. Whether an employee’s refusal to accept recommended medical treatment is justified must be considered from the employee’s point of view and in light of the information available to the employee. This does not mean that an employee’s refusal is always justified. The reason given must be objectively reasonable and not due to an individual quirk or paranoia about medical care.
Here are some situations where the Commission found the refusal of medical care to be reasonable and justified:
1. ABF Freight Sys. v. Johnson, No. 0788-97-3 (Ct. of Appeals Aug. 5, 1997): The injured employee was justified in refusing to undergo surgery recommended by the treating neurosurgeon when the employee’s first surgery was unsuccessful and the second surgery was recommended as an option that had risks.
2. 7-Eleven v. Fore, 2013 Va. App. LEXIS 93 (Mar. 26, 2013): The injured employee was justified in refusing to undergo a second surgery that her doctor described as brutal and for which he could not guarantee a probability of success when the employee had experienced debilitating pain following the first surgery.
3. Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 348 S.E.2d 420 (1986): The injured employee’s decision to seek more aggressive medical treatment for work injuries did not constitute a refusal of medical care.
4. Holland v. Virginia Bridge & Structures, Inc., 10 Va. App. 660, 394 S.E.2d 867 (1990): The injured worker’s refusal to undergo a bone scan was reasonable based on the manufacturer’s warnings and disclaimers regarding the possible effects of radioactive material being injected in the worker and the inadequacy of the explanation of the benefits of the procedure by the treating physician.
5. Hunsucker v. Coal Processing Corp., 29 O.I.C. 15 (1947): The injured worker’s refusal of medical care was justified when the treatment was life threatening.
6. Nance v. Fuqua, 34 O.I.C. 562 (1952): An injured worker’s refusal to undergo an operation is justified if the outcome is problematic or if the operation comes with real dangers to life or limb and may not be successful in reducing the employee’s disability.
As you can see, you have a better chance of proving that your refusal of medical treatment is justified if you can show one or more of the following:
1. That you had a bad outcome from a prior surgery or procedure.
2. That the treating physician cannot guarantee a high likelihood of success.
3. That you are seeking better medical treatment for your work injuries.
4. That the treating physician has not provided an adequate explanation of the benefits of the surgery or medical procedure.
Usually the Commission will not consider being nervous or anxious about a procedure as a reasonable justification for refusing medical care. Discuss your background and thoughts with your attorney though. For example, if you’ve had a family member who had a bad outcome from a similar surgery, you may be justified in turning down a recommended surgery for your work injuries.
There can be no refusal of medical treatment under Virginia workers’ compensation unless the treating physician has recommended the treatment plan officially.
This is why it’s so important to talk to your workers’ compensation doctor. Get as much information as you can about the medical treatment. Ask all the questions that you have. And if the doctor cannot answer your questions, ask the doctor to find out the answers before recommending the surgery or treatment.
You should tell the doctor all your concerns about the surgery or treatment, no matter how embarrassing. If the doctor has all the information from you regarding your concerns, then he or she may propose an alternative treatment plan so that you can avoid the insurance company threatening to suspend your wage loss benefits based on a refusal to cooperate with medical treatment.
We have helped hundreds of injured employees navigate workers’ compensation medical issues in Virginia. And we want to help you.
The Workers’ Compensation Commission will not force or order an employee to undergo surgery or any other type of medical treatment. Nor will it require the employer or its insurance company to continue to pay an employee wage loss benefits for disability during the period where the employee refuses to accept recommended medical treatment that may allow him or her to return to competitive employment. As such, the decision to refuse medical care is a major one in your workers’ comp claim. It will be difficult to get your medical benefits or wage replacement benefits reinstated after you have refused medical treatment.
If your doctor has recommended surgery or medical treatment that you are hesitant to accept, tell the doctor that you will think about it and call Corey Pollard right away. We’ll explain all your options and how your decisions about medical treatment can affect your entire case.
Looking for answers to frequently asked questions about workers’ compensation in Virginia? Need help negotiating a top-dollar workers’ compensation settlement? Help is just a call, text, or email away. Contact Corey Pollard, voted one of the top workers comp lawyers in Virginia the past three years, for a free consultation. We help injured workers and their families maximize the value of their case so that they can move forward with their lives.