Although employers and insurance adjusters often advise injured workers that they must abide by this “90-day rule,” this mandate could not be farther from the truth. In fact, one could reasonably argue that speaking this untruth to an injured worker constitutes fraud.
One of the most common misconceptions when dealing with work injuries is that the injured worker must treat with a provider on the employer’s panel list for the first 90 days. Although employers and insurance adjusters often advise injured workers that they must abide by this “90-day rule,” this mandate could not be farther from the truth. In fact, one could reasonably argue that speaking this untruth to an injured worker constitutes fraud.
In reality, the Pennsylvania Workers’ Compensation Act only dictates that employers/carriers can escape liability for paying for medical treatment during the first 90 days off panel under certain circumstances. By no means does the act require the injured worker to treat somewhere in particular. Furthermore, even if the employer/carrier wants to avail themselves of the provision to not pay for treatment “off panel,” there are very strict guidelines they must follow.
Our law firm has had many incidents where the insurance company has denied an injured worker’s entire claim on the sole basis that he refused to commence or continue treatment with a panel provider. We have seen this basis for denial even in the face of an extremely obvious and disabling work injury. However, such claims handling is entirely inconsistent with and in violation of the law.
Under Section 306(f.1)(1) of the Pennsylvania Workers’ Compensation Act and Pennsylvania Code Sections 127.751 through 127.755, employers are given the option to establish a list of designated medical providers for their employees to treat with for the first 90 days after suffering a work-related injury. However, employers are not allowed to direct their employees to treat with any specific medical provider listed. They also cannot preclude their employees from switching providers or seeking a second opinion with a different provider on the list if they are unhappy with the care they are receiving.
It is extremely important to understand that this provision only speaks to responsibility for payment. It is not a directive on where an injured worker must treat. Therefore, denying a claim on the basis that an injured worker treats “off panel” is highly inappropriate and illegal behavior. In ACF Industries v. Workers’ Compensation Appeals Board (Brown), 471 A.2d 173 (Pa.Cmwlth. 1984), it was further established that failure to treat with a panel provider on the employer’s designated list does not result in injured workers forfeiting their entitlement to workers’ compensation benefits. The myth that an injured worker is required to see particular doctors during the first 90 days of their claim is just that—a myth.
With respect to the panel list itself, there must be at least six medical providers for an injured worker to choose from with at least three of those providers being actual physicians. In addition, the list cannot contain more than four providers that are coordinated care organizations and each provider must be geographically accessible to the injured worker. The panel list must also include the names, addresses, telephone numbers and medical specialties of each designated provider. Moreover, employers may not include health care providers on the list who are employed, owned or controlled by the employer unless that relationship is specifically disclosed on the list.
If the list of panel providers fails to include this requisite information, the insurance carrier is legally responsible for payment of all medical treatment that was reasonable, necessary and causally related to the work injury immediately following the injury date.
Employers are also required to post their list in prominent and readily accessible areas at the worksite, which include places used for treatment of work injuries and informational bulletin boards. Obviously, if the list is not readily available for injured workers to review at their place of employment, they would be entirely clueless as to whom they can treat with to ensure their medical bills are covered for the initial 90-day period. These lists are typically posted in common areas workplaces such as break rooms or cafeterias.
Nevertheless, it is not enough for employers to simply establish a list of designated medical providers and post this list in the workplace. In fact, employers remain liable for payment of medical treatment provided by non-panel physicians if written notice is not provided to the injured worker that treatment with the panel is required for the first ninety days. In Pennsylvania Department of Corrections/SCI-Somerset v. Workers’ Compensation Appeal Board (Kirchner), 805 A.2d 633 (PA.Cmwlth. 2002), the court took it a step further and found that employers are also required to obtain written acknowledgments from employees both at the time of hire and immediately after a work injury indicating that their rights and responsibilities were explained to them.
Employers, insurance adjusters and even defense attorneys are frequently mistaken that they can avoid payment of nonpanel treatment when a written acknowledgment by the injured worker is completed either at the time of hire or at the time of injury. However, the law is clear that an employer must obtain both written acknowledgments or else it fails to satisfy the requirements under the act. Hence, if the employer has dotted their i’s and crossed their t’s, they may only be responsible for payment of panel doctors’ medical bills in the first 90 days. It is worth noting that this circumstance is rare. However, once again, as noted above, these laws only speak to payment. The injured worker is free to treat wherever they wish after a work injury. This cannot be stressed enough.
Work injuries are unpredictable and place individuals in vulnerable positions. The last thing workers should be concerned about following a work injury is whether they can trust their treating physician and whether their medical bills will be covered by the insurance carrier. In most circumstances, employers either fail to create a proper list of panel providers, fail to post the list in an appropriate place in the workplace, or fail to obtain the injured worker’s written acknowledgment at both the time of hire and time of injury.
Therefore, despite what employers and insurance adjusters may lead people to believe, employees may treat with any physician of their choosing after a work injury. In all likelihood, all outstanding medical bills incurred during the first 90 days will be paid by the workers’ compensation insurance carrier.