By Christopher D. Vanderbeek
In Missouri, an employer has the right to direct and control medical treatment in workers’ compensation cases. This means that when an employee injures himself on the job, the employer has the right to direct the employee to a specific medical provider for treatment, and the employer thereafter has control over where the employee treats until the employee is released.
This may not seem like a big deal, but it is. An employer who seizes and proactively manages this dual right (first to direct treatment, and then to control it) will keep medical costs much lower than an employer who flouts them. And as all employers know, the less the insurance carrier pays for work-related medical treatment, the lower the work comp insurance premium will be.
In the vast majority of cases, the employer will ultimately defer to its workers’ compensation insurance carrier to handle medical care for an injured worker. After all, one of the functions of a work comp insurance carrier is to do just this – manage and pay for work-related medical care until the injured worker is released from care.
However, in most cases, medical treatment decisions need to be made before the insurance carrier is even involved. The most common example is where an employee is injured and tells his supervisor, and the supervisor tells the employee to go to a specific provider – usually an urgent care or occupational medicine clinic. This is an important step, because it constitutes the employer’s exercise of its right to direct and control medical treatment. (Additional discussion of the importance of exercising this right is contained below.)
In some cases, more critical treatment decisions need to be made very quickly. For example, consider an employee who occasionally makes deliveries as part of his employment. If he is in a work-related car accident and suffers injuries, odds are he will end up in the emergency room. Emergency treatment is considered work-related as a matter of law, so there is no way around the fact that an employee with this sort of injury is going to get compensable (i.e. work comp-covered) treatment in an ER.
In this case, once the employer finds out that the employee (a) had an accident that appears to have been work-related accident, and (b) went to the ER as a result, it is time for the employer to be proactive about medical treatment going forward. If a representative of the employer is present in the emergency room, he or she will immediately be able to consult with physicians and nurses about what treatment and exams are necessary given the apparent injury. In this sense, the employer is able to exercise a certain extent of control over the expenses that will ultimately be charged to the insurance company.
If possible, a supervisor should check on the employee at the hospital and monitor the situation, including what tests are being done. If the supervisor ascertains that the employee is merely banged up, and the injuries are not at all life-threatening, the supervisor can ask for the employee to be released to be transferred to a private (i.e. non-hospital) physician. This is best-case scenario; needless to say, it is not always possible for a supervisor to run over to an ER at the drop of a hat.
The next best thing is for the employer to immediately find out what was done in the ER and to get the employee transferred from the ER to an urgent care or occupational health clinic. These types of clinics are much cheaper than hospitals, both with regard to hands-on treatment and to administration of diagnostic testing.
The Importance of Exercising the Right to Direct and Control Treatment
All cases are different, and employers need to be proactive in all cases, not just cases where there is emergency treatment. The most important thing for an employer to be cognizant of in all cases, and especially where ER treatment is involved, is this: once the employer and/or insurer exercise(s) the right to direct and control treatment, the employer and insurer own that right and cannot lose it unless (a) one of them does so explicitly (e.g., by denying a request for treatment), or (b) both of them neglect to provide additional care in the face of an employee request or doctor recommendation.
This is precisely why the employer should be hands on as early as possible – once the employer takes the step of making an initial treatment direction, it has exercised the right to direct and control treatment. Once the right has been exercised, an employee cannot treat anywhere but with the employer- and insurer-authorized medical providers. This means that the employee will be responsible for paying any costs associated with any treatment that he undergoes with any other physician, such as his primary care physician or a chiropractor. By contrast, if the employer does not make sure the right to direct and control medical treatment is exercised, the employee can treat with any number of non-authorized physicians and later hold the employer/insurer responsible for the costs. And these costs, as briefly illustrated above, can be high.
In summary, employers can often exercise the right to direct and control treatment before the insurance carrier is involved. This can save the carrier money in terms of (a) paying the cost of medical treatment for which the employer/insurer are responsible (i.e., authorized treatment), and (b) not paying the cost of other treatment (i.e., with a primary care physician).
And when the carrier saves money, the employer in turn saves money on premiums.
HIPAA Implications
Employers need to ensure that their actions conform to the Health Insurance Portability and Accountability Act (HIPAA). However, employers should rest assured that taking action to proactively direct and control medical treatment regarding an alleged work injury will not result in employers violating HIPAA in any fashion. This is primarily because HIPAA is not applicable to the employer in the workers’ compensation setting.
For more information, please click on the following links to view the two federal regulatory provisions that discuss the inapplicability of HIPAA in workers’ compensation cases:
- 45 CFR 160.103 (page 3 of PDF, which refers to 42 USC § 300gg-91(c)(1), which lists workers’ compensation insurance as one of several “excepted benefits”)
- 45 CFR 164.512(l) (page 11 of PDF)
See also Section 287.140 of the Missouri Workers’ Compensation Act. Note that no subsection of this provision states that Missouri employers are held to a higher standard than HIPAA already holds them.
Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers.
06/1/12 8:57 AM
Filed under Employment Law, Workers' Compensation | Comments Off
