• Employer Choice: Choose the Provider, Not the Treatment

    The provision of medical treatment pursuant to the Indiana Worker’s Compensation Act may well be the most valuable benefit available to an injured employee. Such medical treatment is not subject to an employee paid deductible or co-payment. The statutory medical benefit is unlimited in dollar amount and, under certain circumstances, may be available to an injured employee for the remainder of his life.

    Indiana is an “employer choice” of medical state, meaning that the employer selects the attending physician for an injured employee. Thus, the employee is not free to obtain medical treatment at the employer’s expense (that is, unauthorized treatment) except in an emergency, where the employer or insurer has failed to provide an attending physician, or where there is other good reason.

    If an employee believes that he has a good reason for medical care other than that being provided by the employer, then the employee must give the employer notice as to that belief and give the employer an opportunity to provide that additional care. Also, an employee must notify the employer of referrals from one physician to another, so that the employer may authorize that additional treatment.

    Over time, many employers, or their worker’s compensation insurers, have come to believe that they are entitled to completely manage the employee’s medical care. Such management has taken many forms, including nurse case managers, “independent” medical evaluations, unilateral “redirection” of medical care, peer review, utilization review, and other “cost containment” techniques. Yet, the language of the Worker’s Compensation Act rather clearly and simply mandates that the nature of the care to be provided is that which “…the attending physician or worker’s compensation board may deem necessary” (Indiana Code 22-3-3-4(a)).

    A recent Court of Appeals of Indiana case made it clear that “employer choice” refers to the attending physician, not to the medical care. In Young v. Marling, the employer’s worker’s compensation insurer selected the attending physician for the treatment of the employee’s work-related injury. But, the insurer decided to prohibit and refused payment for certain aspects of the attending physician’s care and the Court of Appeals concluded that the insurer’s action was inappropriate. The Court of Appeals held that “there is nothing in [the Worker’s Compensation Act] to suggest that it is the insurer, rather than the authorized treating physician, that determines, treatment.”

    The right to select the attending physician is a valuable right for the employer. A wise employer will make a choice which assures timely, competent and efficient medical care for the employee. But the right to select the attending physician does not go so far as to grant to the employer or its insurer complete control of the employee’s course of treatment. Employers, insurers, and case nurses should work with the attending physician, not against the attending physician, to establish an agreed-upon and appropriate course of care. The unilateral denial of a treatment recommendation made by the employer’s chosen physician can create a dispute, alienate the physician and fails to recognize the difference between choosing the physician and choosing the care.

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