I recently received a Commission Order on a Form A issue I thought may be of interest to you. To the extent it can assist with pre-litigation handling of an admitted injury, I wanted to share some thoughts regarding the potential limitation of medical treatment. Please note: I make no guarantee of such outcome in every situation, before every Judge, and still believe it to be a somewhat case-by-case, fact-intensive consideration:
Nature of the Case
The claim involves a single-event injury wherein Claimant was struck by a metal item on the back of the left hand. The incident was admitted and Claimant was referred for medical treatment. After initial evaluation by one of the Hospital physicians, Claimant was referred to an orthopedic hand specialist. Claimant was evaluated by Dr. David Wong who completed x-rays and requested a MRI. The MRI was completed and found to be essentially normal. Dr. Wong continued Claimant on full duty and ultimately released her from care.
Subsequently, the unrepresented Claimant contacted the insurance company with continued complaints of pain. She requested an additional evaluation of the left hand. In response, the Insurance company issued a letter to Claimant advising that, per Oklahoma Statute, Claimant was entitled to a Form A change of physician. The letter listed three (3) orthopedic hand specialists at different practices or facilities than Dr. Wong. Claimant then contacted the adjuster and, of the physicians listed, Claimant chose Dr. Brian Chalkin. An initial appointment was set shortly thereafter.
Dr. Chalkin subsequently evaluated Claimant and recommended an MR Arthrogram. The diagnostic was completed and found to be a normal study. Claimant was diagnosed with a contusion and released to MMI without restriction in July 2016.
Procedural History in Litigation
Subsequently, Claimant retained counsel and the Form 3 Claim for Compensation was filed on 9/20/16. Claimant then filed for a hearing seeking a Form A Order or CIME on the need for additional medical treatment. Respondent objected and disputed Claimant’s Form A request as Claimant had already been evaluated by two (2) separate, board-certified orthopedic hand specialists.
Under the Administrative Workers’ Compensation Act, the Employer “shall have the right to choose the treating physician.” 85A O.S. § 50(A). The Statute further provides as follows:
§85A-56. Certified workplace medical plans.
- If the employer has previously contracted with a certified workplace medical plan, the employer shall select for the injured employee a treating physician from the physicians listed within the network of the certified workplace medical plan. The employee may apply for a change of physician by utilizing the dispute resolution process set out in the certified workplace medical plan on file with the State Department of Health.
- If the employer is not covered by a certified workplace medical plan, the employer shall select the treating physician. The Commission on application of the employee shall order one change of treating physician. Upon the Commission’s granting of the application, the employer shall provide a list of three physicians from whom the employee may select the replacement.
Argument At Hearing
At hearing, Claimant’s counsel argued Claimant had seen the two (2) physicians before the case was litigated and before she was represented by legal counsel. Counsel argued the Statute required “the Commission” to order the change of physician and the Form A Order is the avenue for the Commission to enter such Order.
In opposition, we argued that Respondent followed the procedure and “spirit” of the Statute’s requirement under Section 56(B). We argued the legislative intent behind the section was Claimant’s absolute right to a second opinion. Whether or not the admitted claim is pre-litigation or litigated is immaterial. We offered Claimant’s historical medical records and the Adjuster’s “Form A” letter as our sole evidence at trial.
In this particular case, the Administrative Law Judge discussed the diagnostics completed and the “essentially normal” findings. The ALJ discussed the Carriers’ action, following the Form A process, the formal letter sent to Claimant and Claimant’s selection of Dr. Chalkin for a second opinion. The ALJ found the seeming intent of Section 56(B) is “to ensure that every claimant receives a second opinion on their need for treatment with regard to a particular body part…the aim of section 56(B) has been fulfilled by claimant’s seeing two different orthopedists, albeit before the claim was litigated.”
Overall, I believe it was of significance that Claimant’s objective findings were rather minor and her varying diagnostic studies normal. As noted above, I certainly am not representing this would be the outcome in every case. The ALJ did seem persuaded though by the adjuster’s proactive steps to follow the procedural requirements necessary for the Form A process. In keeping with the spirit of guaranteeing a second opinion, it is my hope we have limited any further medical treatment in the case. Whether or not Claimant appeals this Order is still to be seen.
As far as tips for handling claims, it may be of value to consider the process when a pre-litigation Claimant requests a second opinion. The practice of issuing correspondence to the Claimant, formally providing three (3) potential specialists (if required) from different practices than the initial treating physician and allowing Claimant to designate the new doctor may be of benefit when arguing to limit further treatment if the case become litigated. Providing a formal letter to Claimant and perhaps a follow-up letter confirming Claimant’s choice of physician may provide defense counsel with evidence to dispute further medical if the case becomes litigated.