Can an insurance adjuster “direct” medical care in Illinois? Can a risk manager for a company? Can a nurse case manager?
Editor’s comment: We were asked this question by a veteran adjuster who is learning claims practice in Illinois but is not familiar with the nuances of Illinois workers’ compensation and our unusual system. Our answer to all three questions above is yes, you can all direct medical care to the extent you can. In a world where it is legal to do things that aren’t illegal, there is no provision of the Rules or Act that prohibit or even discourage such practices.
When we say “direct” medical care, please understand you can legally recommend, advocate, propose, cajole, push, press, encourage or endorse physicians/surgeons. But, if the employee doesn’t accept your recommendations, there is nothing you can do about their eventual choice of care in Illinois. But the adjuster is typically the first place an injured worker will go to for advice on a different treater or second opinion. Please don’t deflect that recommendation to anyone else—be ready with a list of preferred providers who have great resumes and experience dealing with similar claims. If you need a list, send a reply.
Our client was advised by a nurse case manager the nurse case manager couldn’t make recommendations for treatment because they would have malpractice liability to do so. To avoid such liability, they typically advised against making any recommendations, ever. When pressured, the nurse case manager would provide not one but recommendations for at least three different treaters. The nurse case manager also feels it important to advise all claimants of their right to select “two doctors” of their own choosing.
Ah, well. Our advice to all of our readers who are claims adjusters is to “take advantage of your advantage.” Direct treatment whenever and wherever you can. The practice should work the vast majority of the time. When and if an injured worker looks to you for advice, give them the best advice possible and direct them to the very best medical consultants you know.
We have never heard of a single lawsuit in Illinois or anywhere in which anyone sued someone for recommending a doctor. If the doctor commits malpractice, the injured worker may or may not sue the doctor but we have no knowledge of anyone suing someone who recommended that physician or surgeon. If anyone out there has heard of such a suit, please send a reply with details.
And we don’t agree at all with telling an injured worker of three different recommendations for doctors to let them blindly pick—if someone did that for us, we would question how good any of the recommended doctors might be. We recommend making up your mind and sending them to the best of the three.
We also consider it a very bad idea to feel an insurance adjuster or nurse case manager has an affirmative duty to tell someone of their right to go to “two doctors” or five hundred doctors if they follow the arcane Illinois rules. Trust us; this rule is very hard for even veteran attorneys to understand. Don’t go there and give free and unnecessary legal advice. Don’t lie to any one but never, ever tell the injured worker they have a right to a 2d or 3d or 50th opinion of their own choosing. After you discuss and agree there is a problem and a need for another opinion, tell the injured worker if they want a second opinion you will set it up for them.
Are you going to have to pay for medical care for referrals to your recommended physicians? As a general rule, the answer is yes. It is very difficult to “overrule” your choice of doctors. There is a recent ruling which indicates such physicians are not your “agent” but you are almost always going to be required to pay for such care. If you don’t like the care being provided or disagree with your recommended physician, the best cure is to stop recommending them.
Please understand just about every claimant lawyer in this state tries to get claimants to go to doctors of the attorney’s choosing. Some of the attorneys look for doctors who will cut and cut and keep everyone off work as long as they can. We assure all of you the attorneys could care less about remote malpractice liability for referring someone to a physician.
We also assure all of you part of the job of an adjuster is to use UR and IME’s to stop possible overtreatment. If you think we are kidding, you haven’t been working Illinois claims long enough. The best tool to rein in the “two doctor” rule is utilization review. If you need recommendations on the top UR providers in this state, send a reply.
Please reply to give us your thoughts and comments on directing claimants to preferred providers for ongoing care or second opinions.
