After our KC&A Update last week about medical management, we wanted to be sure to give you the thoughts of veteran defense counsel.
Editor’s comment: It appears many Illinois WC adjusters, nurse case managers and other risk management folks continue to look at our very liberal “two-doctor” rule as a sounding point for medical cost control. As defense lawyers, we urge you all to stop, drop and discontinue that focus. For the average individual, we feel it doesn’t control costs, it encourages unnecessary care.
The two-doctor rule is from Section 8(a-3) of the Act and provides the injured worker can treat with
- Any and every doctor or healthcare giver selected by the employer;
- Any doctor the injured worker “chooses” for care plus anyone to whom that physician formally or informally refers them to;
- Another doctor they choose plus anyone to whom that second physician formally or informally refers them to.
Please also note the two-doctor rule is interpreted to allow the employee to choose a group of doctors and treat with any of them as a “choice.” If the worker is seeing one doctor in a group of doctors and that doctor drops out of the practice of medicine, retires or dies and the employee then sees another doctor in the group, it is still legally viewed as one choice of doctor.
If you aren’t paying careful attention, this rule allows for unlimited choice of physicians. As such, the rule doesn’t actually “control” anything. Yet, we still see many adjusters and others voluntarily teaching this rule to injured workers in this state for reasons we simply can’t fathom. We are actually aware of some defense folks who feel there is some unwritten duty to tell injured workers about the rule. Please stop doing so.
Several adjusters wrote to tell us they have a view of the rule to allow them to provide the injured worker a list of doctors from the adjuster or nurse case manager. They feel this makes any physician chosen from the list a “choice” of the employee. There is no case law, rule or regulation to support this concept and we have little confidence the Commission would adhere to this idea. With respect, veteran defense lawyers feel if you, acting as a representative of the employer, recommend one, fifty or five hundred doctors, claimant attorneys are going to assert any or all of them, if then selected by the employee from a small or large list, are the employer’s “choice of physician.”
And we feel the best follow-up article to last week’s lead article is to let you and everyone in Illinois WC claims and nurse case management understand the two-doctor-rule allows for unlimited medical care and doesn’t effectively or institutionally limit anything.
Please also understand the Petitioner’s bar knows the rule like the back of their hands and, upon signing up a new client, whenever and wherever possible, they carefully refer their clients to lots of doctors who are trained on the nuances of the rule. Such doctors know the ins-and-outs of being certain they are within the “two-doctor-goofiness” and then may over-treat in duration or type of care.
We have seen the Arbitrators and Commission deny care based upon the “two-doctor-rule” once every decade or so—they will make an end-run around the rule in any way possible. We have seen Arbitrators in pre-trial hearings openly advise claimant attorneys on the best strategy to bring medical care within the rule. It is a very easy rule to side-step but we are not going to tell anyone how to do it.
And if you were an innocuous claimant who wasn’t represented by counsel and had only seen an OccHealth provider for the company, if an adjuster or NCM innocently told you of the “two-doctor-rule”, wouldn’t you think it meant you were supposed to seek additional “legal” treatment to include second and third opinions from at least two more doctors?
Does any employer in Illinois want insurance adjusters or NCM’s to innocently tell injured workers of a rule that clearly encourages the worker go beyond OccHealth or company-selected physicians to seek more care from not one but two more doctors?
Our vote is to
- Completely discard the “two-doctor-rule” concept as a method of containing medical care;
- Always refer patients to the best possible providers on every claim and have that doctor provide care with a beginning, middle and end’ and
- Immediately move to global utilization review of all medical care within or without the “two-doctor-rule” as a much more effective medical cost containment strategy.
One of our best defense clients pointed out in some industries, OSHA regs require you to know where your employees will receive first aid and initial follow-up care. If you need the Reg, send a reply. They are always prepared in case of any injury to tell all their injured employees where to seek urgent or non-emergent care—you should have this as a company-wide goal. After OccHealth or other care, then maintain control of medical care whenever and wherever possible. We feel this is the best possible practice.
Please, please give us any thoughts you have that may be fit for publication.
