Can I Go to the Emergency Room (ER) for Workers Comp?
How to Determine if Your Employer Must Pay for ER Visits for Work Injury Treatment
Under workers compensation, your employer has a duty to provide all reasonable and necessary medical treatment incident to your work injury.
But various statutes and judicial precedent limit the employer’s liability for specific types of medical care.
This article discusses one treatment type often at the heart of workers comp medical treatment denials and disputes: payment for emergency room visits for work-related symptoms.
I hope the information below educates you on when your employer (and its insurer or claim administrator) must pay for ER treatment for workplace injuries. An emergency room visit can cost tens of thousands of dollars or more. And we do not want you stuck with the bill when your employer may have to pay for the ER visit as one of the available workers comp benefits.
Keep reading to learn more.
And contact us if you have questions about workers comp law in Virginia. Our firm has helped hundreds of injured workers like you win at trial or negotiate favorable settlements. And we are ready to prosecute your claim.
Treatment vs. Payment in Workers Comp
First, I want to clarify the difference between the right to treat and the right to hold the employer liable for payment of such medical care.
You have the right to seek treatment for your work injury from any medical provider.
But treatment differs from payment.
And your employer may refuse to pay for specific medical attention, including ER visits, even if it is undisputed that the treatment is related to the work injury.
Why Does the Payment of Emergency Room Treatment Result in Workers Comp Disputes?
Two factors explain why employers and insurers often refuse to pay for emergency medical care related to a work injury: the case law and costs.
Case Law on the Payment of Authorized Medical Treatment
If your claim is approved (by stipulation or trial) and you have a workers comp award letter, you will choose a physician.
This health care provider, which may be a specialist such as an orthopedic surgeon or neurologist, becomes your authorized treating physician.
Usually, but not always, you will choose a doctor from a list offered by the employer or its claim administrator.
The case law states that when you seek medical treatment without authorization from the employer or the Workers Compensation Commission or a referral from your treating physician, the employer has no duty to pay for this treatment.
Hospital emergency departments do not serve as primary care providers or authorized treating physicians in work-related injury cases. Indeed, I have not seen an ER on an employer’s panel of physicians.
Emergency room treatment, therefore, is often unauthorized or sought without a referral from a treating doctor. Of course, exceptions exist, such as an authorized physician sending you to the hospital immediately if they suspect severe traumatic brain injury/concussion or spinal cord trauma. But these situations are rare.
And this status is why your employer, insurer (Travelers, Hartford, Liberty Mutual), or claim administrator (Sedgwick CMS, ESIS, Gallagher Bassett, CorVel) may balk at paying an emergency room bill.
How Much Does an Emergency Room Visit Cost?
Emergency medical treatment is expensive, even if you have private health insurance or Medicare or Medicaid.
An ER visit usually requires multiple health care services, such as:
- Diagnostic testing costs (CTs, X-rays, MRIs, Urinalysis, Blood panel)
- Facility costs, including charges for using the specific emergency room
- Physician costs, such as the emergency medicine, orthopedic, or radiology practice groups
- Transportation costs, including ambulance or medical evacuation (medevac) transportation
One survey found the average cost for an ER visit exceeded $1,000.
On average, emergency room visits resulting in surgery cost more than twice that amount.
For example, Emergency Room Treatment in Workers Compensation by Mitch Wiemer and Carolyn Wise reported that:
- More than 10% of ER visits for workers comp injuries involved a same-day surgery, such as amputating one or more fingers.
- ER visits leading to surgery cost about 2.6 times the of nonsurgical emergency room visits.
- Most ER visits for workers comp injuries require only minor surgeries or procedures.
- The average cost of an ER visit requiring major surgery is almost $7,500.
In my experience, catastrophic injuries may result in emergency room bills totaling more than $100,000.
These costs also explain the frequency of fights over emergency medical attention in workers comp.
What Does the Law Say About Emergency Treatment for Work-Related Injuries?
In Virginia, Code Section 65.2-603(A)(3)(C) addresses emergency medical care in workers comp cases.
This statute provides:
If in an emergency or on account of the employer’s failure to provide the medical care during the period herein specified, or for other good reasons, a physician other than provided by the employer is called to treat the injured employee, during such period, the reasonable cost of such service shall be paid by the employer if ordered so to do by the Commission.
Judges have interpreted this statute to mean that an employer must pay for emergency medical treatment when an employee reasonably believes an actual emergency existed.
What is an Emergency?
An emergency is a sudden, urgent, unexpected event requiring immediate action or need for help.
How Do I Prove an Emergency Existed So the Employer Must Pay My ER Bills?
You have the burden of proving that an actual emergency exists, whether real or perceived, to recover for unauthorized treatment with an emergency department or other medical practitioner.
The evidence needed to prove the employer should pay for ER bills differs depending on whether you visit the ER for initial treatment after a work accident or after establishing care elsewhere.
Payment of the Initial Visit to the Emergency Room for a Work Accident
Wiemer and Wise’s article indicates that one in four injured workers visit the ER for initial treatment after an occupational accident.
In my experience, workers comp will cover the initial visit to the emergency room if the accident is found compensable.
Recovering workers compensation benefits requires you to prove by a preponderance of the evidence an injury by accident arising out of and during your employment.
In Virginia, the law defines an injury by accident as a sudden mechanical or structural change.
This definition, therefore, qualifies as an emergency in that it is sudden and unexpected.
Payment of a Return Visit to the ER for a Work Injury
Problems getting the employer to pay ER bills often arise when you have established care with an authorized treating physician but return to the emergency room.
In these situations, you must persuade the deputy commissioner that you acted in good faith in seeking unauthorized emergency medical treatment.
No bright line rule exists for proving your conduct was reasonable. However, the case law suggests what types of evidence can help you recover for ER bills.
For example, you may want to:
- Introduce into evidence the medical records from your ER visit (read this for advice on requesting your medical reports)
- Ask the ER doctor or your authorized treating physician for a disability letter stating you were reasonable in seeking emergency medical care and that there is a causal relationship between the ER visit and the work accident. But be warned that getting this type of narrative from emergency room physicians unfamiliar with occupational health and safety litigation can be challenging.
- Testify about:
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- The number of times you contacted the authorized treating physician to make an appointment with no success
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- How long you typically waited for an appointment with the treating physician
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- Whether you feared for your life
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- Whether you contacted your physician after the emergency treatment
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- Whether you contacted your employer, claim adjuster, or nurse case manager before going to the ER.
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- How your symptoms differed at the time of the emergency
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- Whether you had sought ER treatment for the work injury previously
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- How your prescribed treatment or diagnosis changed after the ER visit
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- The consistency of medical care before the emergency
The Commission determines claims for the payment of emergency medical treatment bills on a case-by-case basis.
However, the more evidence you can present on the items listed above, the more likely you succeed at trial.
Contact a Workers Compensation Attorney for Help Getting Emergency Medical Treatment Paid For
Contact our firm today if you have questions about your medical treatment, including the payment of emergency room care.
Seeking a legal opinion is smart because an emergency room bill can set you back thousands of dollars, sometimes resulting in bankruptcy.
We help auto accident victims, disabled adults and children, and injured workers in negligence and tort claims. And we are here for you.
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