Keefe, Campbell & Associates, LLC

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

1. Any and every doctor or healthcare giver selected by the employer;
2. Any doctor the injured worker “chooses” for care plus anyone to whom that physician formally or informally refers them to;
3. 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

1. Completely discard the “two-doctor-rule” concept as a method of containing medical care;
2. Always refer patients to the best possible providers on every claim and have that doctor provide care with a  beginning, middle and end’ and
3. 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.

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 50^th 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.