COMPENSATION AND YOUR PATIENT -- WHAT BOTH NEED TO KNOW

 BASIC PROCEDURE:

Unlike some states which do vocational evaluations in order to determine disability, New York relies upon a medical assessment provided by a claimants physicians. Providing opinions about this is a condition of your license to accept compensation cases and the failure to do so can result in withdrawal of that license. Unlike Social Security, a specialist’s opinion is given greater weight than a general practitioners opinion unless it is clearly against the weight of evidence. To assist doctors in making these determinations, the Board has distributed "Guidelines" which I will be glad to provide if you can not locate the copy the Board sends to each coded physician in the state.

You need to file reports per Section 13 of the Compensation law, inter alia:

• 1) You are required to transmit copies of reports to the claimants attorney.
•  2) Each time you treat a compensation problem you must bill only the carrier -     disputes go to arbitration - you must apportion a bill between carriers and injuries/conditions if there are more than one problem or cases but in all events you may not double bill.

(YOU MAY NOT BILL THE PERSON OR THE PRIVATE HEALTH INSURER UNLESS THE COMPENSATION JUDGE HAS RULED AGAINST THE CASE; THE CARRIER'S REFUSAL TO PAY MEANS NOTHING.)

• 3) You must file your reports every 45 days ("recent medical rule")and within 15 days of service. The patient will not be paid if the medical is not current!.
• 4) Please keep in mind that once a carrier raises the issue of apportionment between injuries that your opinion will in part determine how much a claimant receives to live on.
• 5) Please also keep in mind that if subpoenaed by a Court, failure to appear - and excuses are liberally granted for good reason - can result in suspension of rights to treat compensation patients. The appearance fee is usually $400.00 plus for about 20 minutes.
• 6) You should report and may rely on the patients verbal history to see if the injury/condition was reasonably cause by the work or if the condition was previously asymptomatic which means that comp is responsible for the entire injury or condition.
• 7) The Board’s guidelines include guidance about when the guidelines do not apply!
• 8) Often the carrier’s IME’s, in their exams try to apportion to preexisting conditions. This is hogwash and done solely to take advantage of claimants and lessen the weekly wage supplement or settlement. By Law, if the claimants condition did not result in loss of work or did not need medical treatment, the carrier is responsible to pay for asymptomatic conditions. You may rely upon the history your patient gives you - unless something is obviously untrue - when saying that apportionment is not warranted. A fully healed fracture or arthritis that did not result in loss of work The test is in the compensation injury is what converted the person from being able to work or able to work with restrictions.
• 9) Another IME trick is to say that overuse syndrome’s are independent in nature. If you honestly believe that overuse of one wrist (let say the right) because of a compensable loss of use to the other wrist or arm (left), the effects on the right are fully compensable.
• 10) As a condition of your license to accept compensation patients you are required to provide opinions about degree of disability and apportionment when requested!

HISTORY

AWARDS

Scheduled awards:

Classification awards:

CARRIERS' GAMES

DOCTORS PROBLEMS -COMMON MISUNDERSTANDINGS

Some Doctors:

• 1) don't understand that employers want the protection of Compensation,
• 2) don't understand that they are presumed by law to be able to assess if a medical condition renders a person unemployable or partially disabled,
• 3) don't understand that your opinion that the work is the "competent producing cause of the disability is prima facia evidence and in all but the most unusual of cases, such as some affective psychological disorders, will establish the case - in forming your opinion the patient history may properly be part of the basis of your opinion. A clear narrative consisting of a few lines is required in hard cases,
• 4) don't remind their billing departments that it is criminal to charge a patient directly or charge them for the required patient copies of medical reports , and
• 5) don't realize the importance of having a specialist behind them if the carrier is fighting the degree of disability with a specialist's opinion. almost always necessary.
• 6) Don’t understand that the law presumes the causal relationship to the job, if you report a relationship to the injury or occupational condition - scientific certainty is not required; reasonable medical belief that work is a "competent producing cause" based upon your medical experience and the patient history is the standard. If you don't report the link - as required by Compensation when you find one - it will never be established.

TIPS

1) The written report, which must be filed with each visit by the patients MUST include statements indicating whether the disability is:

• a) causally related to work (first report);
• b) temporary or permanent disability - when you know;
• c) degree of disability (total or partial). If it you or the carriers doctors believes the condition is partial we will have to further define partial disability as above.
• d) have a report before each Court appearance even if you don't feel a visit is necessary as the Board will cut the reimbursement down to the "diplomas" more recent opinion. To be recent the reports must be within thirty days. Aggressive carriers will ignore requests for authorization for treatment and because you are waiting for authorization and not in need medically to see the patient, cut the wage supplement in the interim based on the IME.
• e) PLEASE list all complaints. THIS IS CRITICAL. Each area has to be separately stated and established within two years. Sometimes we can overcome this if the report was made in some employer document or if we are dealing with a progression of late developing disorder, but don't bet on it.                                         

2) Send a copy of your report to the claimant's attorney. The attorney often will not see your or your consultants report until the next time the claimant goes to court or, on occasion, several weeks after that. The carriers don't hand over anything easily as there is limited discovery in compensation. You must be sure to let the claimants lawyer know about any referrals - particularly while a claimant is treated in a hospital - as many carriers pay the bill but never file the report!

3) Simply sending your progress report is not enough - at least use the Compensation form and check the boxes or check to be sure the Boards questions (which I am routinely requested to transmit) are answered.

4) Many doctors (particularly surgeons) feel that they have not done their job for their patients unless the patient is totally well and, quite frankly, there is a tendency to state how well the patient is doing. The last thing a compensation claimant wants to hear is how well they are doing - particularly if they are not. Be sure to assess the residual injury accurately.

5) Often times, a patient will be treated by more than one doctor. It is the attending or general physician's duty to continue to assess all the reports from the various physicians!! The failure to coordinate those opinions can cost the claimant the case. ALSO WHEN YOU ADD all the disabilities together they may make the overall conditions MATERIALLY AND SUBSTANTIALLY greater and that must be assessed and reported.

I ran into one doctor several years ago who wouldn't integrate his consultant's reports despite 5 operations on various portions of the arm. He said his patient could frequently lift and carry 25 pounds even though his consultant's nerve conduction studies demonstrated that the lady had great difficulty lifting 3-5 lbs rarely. The problem for the client and the failure to adhere to the Hippocratic oath is obvious.

6) SIMILARLY claimants may have disabilities or injuries in addition to the one for which they are claiming compensation. That should usually be considered if it compounds the disability. If the Court requests that the injury be apportion between conditions that usually means the carries are fighting over who pays what. In all cases it is very important to know if the pre-existing condition was symptomatic. IF THE PRIOR CONDITION WAS NOT SYMPTOMATIC and/or caused no loss of time until and as a result of the work injury, the asymptomatic condition is part of the injury claim and is paid in full under the work related compensation claim.

7) Occasionally, the work injury puts the worker over the top - so to speak - and an evaluation of age, physical limitations, employability et al is appropriate. THIS IS CALLED TOTAL INDUSTRIAL DISABILITY AS OPPOSED TO TOTAL MEDICAL DISABILITY AND REFERRAL TO A VOCATIONAL REHAB COUNSELOR IS NECESSARY. Please notify the lawyer if you suspect this. Personally I have reservations - which my friends who represent carriers confirm - that rehab consultants which provide the rehab services almost always recommend their own services if only to "rehab the person so that if a job is located they may be further rehabilitated for that job". Since comp will not pay for rehab for someone who is totally disabled, rehab specialists usually say the disability is partial.

8) There are not longer any Board Doctors.

9) When using the Guidelines be sure to differentiate between active and passive tests. Objective and subjective complaints and if subjective the ability of the patient to consistently produce the subjective complaints they report or test at.

10) Carriers do not forward you reports to the Board even if you use the State Funds electronic reporting. You must do this yourself.

11) If you suspect total medical or industrial disability, let me know so I can file the Social Security claim. I can then let you know what tests are required to support the findings or arrange for the rehabilitation counselor if not all the test results are there or if the illness is one that does not carry a presumption of disability under Social Security Regulations, but alone or in conjunction with other conditions or in conjunctions with age, education, previous work, and physical limitations is actually totally disabling.

12) Keep in mind that carriers will get reports or bills from specialist consults - particularly when a patient in the hospital - and not forward this information to the Board. They are not required to do this. Be sure your report and any consultative report gets to the attorney. When you are given a release everything in your file should be be turned over. You can not assert another doctors claim to confidentiality - or any sort of doctor courtesy regarding records - for anything you possess regarding that patient and are liable for all bad results if you do.

Conrad F. Cropsey, Briggs Bldg., Albion, NY