Freedom Of Choice In The Workers’ Compensation Arena

With the celebration of Independence Day, our thoughts often turn to our love of country and the precious gift of freedom that we have here in America. Every freedom has its limits, of course. The classic example of a limit on the First Amendment is that we cannot yell “Fire!” in a crowded theater. In the arena of New Jersey Workers’ Compensation Law, injured workers gave up the freedom to choose their own physician, supposedly in exchange for prompt access to medical care.

In drafting the “grand bargain” between employee and employer, the legislature tried to strike a balance between the needs of injured workers’ while also protecting businesses from expensive lawsuits. As a result, employees cannot receive an award for “pain and suffering” or punitive damages (there are no multi-million-dollar verdicts in the Division of Workers’ Compensation). If an employee is able to quickly obtain needed medical treatment and lost wages in exchange for giving up the right to sue, that is an arguably good trade-off in my view. But when the Workers’ Compensation Act was originally passed in 1911, did the legislature foresee that the practice of medicine would become a big business or that insurance carriers would require an injured employee to treat with a doctor he dislikes or distrusts? Did the legislature anticipate that insurance carriers would manipulate physicians to terminate treatment prematurely, to the detriment of the patient, all in the name of cost savings?

It has been the unquestioned belief of the insurance industry that the employer or its carrier must have the right to direct medical treatment in order to reduce medical costs, which continue to skyrocket. Wel, we have had employer control over medical care in New Jersey for the past 107 years. How is that working out? According to the National Council on Compensation Insurance (NCCI), New Jersey ranks as the fifth highest-cost state for “medical only” claims. Perhaps it is time to try another way to control costs — by giving employees the right to choose their own physicians.

It is natural that patients who trust their doctors will be more likely to accept recommended treatment plans or the painful reality that there is simply no further medical intervention that is likely to improve their function, and move on with their lives. When patients are able to compare physicians by training, outcome, and demeanor, the best physicians will rise to the top of the medical marketplace. The waiting rooms of physicians with less than stellar results, whose medical errors and poor judgment cost more in dollars and tears in the long run, will rapidly empty out.

Currently, workers’ compensation physicians in NJ have divided loyalties. While some dedicated physicians treat patients the same regardless of who is paying the bill, we must acknowledge that medical facilities are business entities, with expenses to pay and a profit margin to meet. When a workers’ compensation insurance adjuster is given the power to refer large numbers of patients to a particular physician, who is the physician more motivated to serve: the single patient he may never see again after treatment ends or the claims adjuster who might send him his next 100 customers? Call me jaded, but if a doctor could potentially be standing over me with a scalpel, I want him to know that I can walk away at any time if I am not happy with his services.

The concept that an injured worker must succumb to being treated by a physician chosen by an insurance bureaucrat seems antithetical to the concept of freedom. After all, what personal freedom is more basic than the right to make our own medical choices? It is time to rethink employer control of medical care in New Jersey. Insurance carriers may be pleasantly surprised to learn that medical costs actually fall when trust is improved between doctor and patient and the patient’s input is taken into consideration when evaluating the effectiveness of workers’ compensation physicians.