Sunshine Is The Best Disinfectant

The New Jersey Workers’ Compensation Act [“the WC Act”] requires an employer to furnish to an injured worker all medical treatment necessary to cure and relieve her from the effects of the injury and restore function whenever possible. Courts have interpreted this responsibility as empowering the workers’ compensation insurance carrier to direct medical care to specific physicians. Unfortunately, many carriers take this responsibility as a license to micromanage medical care and dictate the terms of the “acceptable” treatment plan to their authorized panel physicians.

Several of my clients have attended medical appointments in which a workers’ compensation physician verbally recommends a certain course of treatment, only to find out later that the recommendation was absent from the written office notes. Why would that be? One possibility is that the nurse case manager or a claims adjuster limited treatment to a particular body part or authorization for only conservative treatment. Not wanting to anger the insurance carrier which refers a sizable percentage of his patients, the panel physician will simply “forget” the conversation he had with his patient. Worse yet, an errant panel physician who mistakenly put his recommendations in writing without first checking the limits of his authorization, may issue a supplemental office note, reversing his decision after supposedly reviewing additional information provided by the insurance carrier.

How can an injured worker fully recover if her own doctor is basing a treatment plan upon communications with an insurance carrier rather than the best interests of his patient? I have issued subpoenas to such physicians, requiring them to disclose all communications between their medical office and representatives of the insurance carrier. Although such subpoenas rarely uncover a smoking gun to prove that a physician flip-flopped due to pressure by an adjuster, occasionally they disclose useful nuggets of evidence which cast doubt on the purity of the physician’s medical opinion. Insurance carriers usually fight these subpoenas, arguing that the communications constitute “attorney work product.” These arguments generally fail, and the full medical file, including carrier communications, is eventually turned over. However, the process of issuing and enforcing a subpoena is unnecessarily time-consuming, especially for a patient who is suffering.

I thus support the passage of a bill to amend the WC Act, which would bring transparency to the medical treatment of injured workers. Such a bill was proposed in 2021 by Senator Troy Singleton (Burlington), which would require insurance carriers to contemporaneously disclose all communications between its representatives and the authorized medical provider, to the patient or the patient’s attorney. A nurse case manager or adjuster may then think twice before sending an email to the workers’ compensation physician, asking him to discharge a patient or release him to return to work prematurely, knowing that her comments will be disclosed to the patient and/or his attorney.

From a moral perspective, insurance carriers should not be permitted to communicate with a patient’s physician without the patient herself knowing about it. For example, a carrier may obtain surveillance on an injured worker, and describe the video to the physician in the most negative light, seeking to convince the doctor that his patient is a fraud. If the patient is made aware of the allegations, at least she may provide the physician with an explanation. (Of course, if the injured worker is faking the injury, the carrier would be justified in terminating benefits. However, in my experience, the percentage of injured workers committing fraud is quite small.) An individual suffering from an injury who is honestly seeking medical treatment to get better should not need to worry about an insurance carrier “talking behind her back” to her doctor. Sunshine is the best disinfectant to clean up such unfair tactics.

Call us if you believe that the insurance carrier is feeding your workers’ compensation physician inaccurate information or is attempting to put undue pressure on the doctor to release you.