June 4, 2013
Have You Waived Your Right To Medical Control?
by Stu Baron
By proactively notifying an injured employee of their rights under California law and by scheduling a doctor's appointment for the injured employee when you are the first to receive of a claim, you can retain medical control with a minimum of effort, which is critical to the timely closure of any claim.
In the past, I have discussed the need to make employees who are injured on the job aware that they can retain their own doctors at their own expense.
We are now seeing the injured employee's attorney trying to gain medical control by claiming that pursuant to the Labor Code, you did not offer immediate medical treatment or, if it was provided it was not in a timely manner. As such, they are claiming that you (really your carrier) have waived your right to medical control under your Medical Provider Network. As such, applicant's attorneys are now trying to move their client to their medical provider(s) to see just how many new body parts they can add to the claim. So, when you are the first to receive notice of a claim, here is what we recommend you do.
Immediately schedule an appointment for the injured employee with your clinic and provide the employee with a written notice telling them when and where to go. That way, we will have foiled any attempt by the applicant attorney to grab medical control because of our alleged failure to provide treatment.
To help you facilitate the process, I have added language regarding this medical appointment to the “Acknowledgment of a Claim” letter I recommend you use (see below). The goal is to ensure that your injured employee understands that they must go to our doctors for treatment, as well as at the same time telling them that they are free to obtain medical treatment outside of your Medical Provider Network but that it will be at their own expense.
We have already seen this approach work keeping the injured employee treating within our Medical Provider Network. Injured employees are showing your letter to them to their attorney and are asking if they really have to go to our doctor(s). They are also asking if their attorney is going to pay for any treatment by the attorney's directed non-Medical Provider Network doctor. The answer is almost always “No,” and we find ourselves retaining medical control with a minimum of effort on our part, which we all know is critical to the timely closure of any claim.
You will note below the revised language I recommend you use. You will also note that it should be on company letterhead and given as soon as you first learn of the claim. A copy should also be sent to the examiner for this claim. This way, no time will be lost and there will be no argument over whether or not you have waived any of your rights to retain and maintain medical control.
I have put the medical appointment language in italics so that you understand that it should only be used when you are the first served with notice of a claim. Otherwise, simply leave this out and only use the language about their ability to obtain their own doctor at their own expense.
(On Company Letterhead)
Re: Recent work related injury – (Date of Injury)
Dear (Employee's first name if possible or Mr/Mrs …)
We were sorry to learn of your recent on the job injury. We want to take this opportunity to assure you that our workers' compensation insurance company has been notified. They will be in touch with you to discuss your injury and to make sure that you receive all the benefits necessary to help you with a speedy recovery.
We want to be sure that you know your rights under California law (Labor Code 4605) which says:
“You have the right to provide, at your own expense, a consulting physician or attending physician(s).”
We also understand that you probably feel the need to be seen by a doctor as soon as possible. We want you to know that medical treatment is immediately available at (insert your clinic's name here). They are located at (address and phone number).
An appointment has been made for you at (call the clinic and get a specific time for the injured worker to be seen). If this time is not convenient for you, call the clinic and reschedule at your convenience. You will be receiving further information directly from our workers' compensation carrier regarding your claim.
Please do not hesitate to contact (fill in the name of the person) if you have any questions about your injury or benefits.
Again, we wish you a speedy recovery.
Cc – Your insurance carrier