There has always been great debate about whether it is proper to have the employer retain the right to direct medical care. This debate has never been more hotly contested than it is right now. See my prior article. So, I thought it important to reconsider and explain how Iowa’s worker’s compensation system got to this point.
Some states permit the employer to select the treating medical provider while some states permit the employee to select his/her own medical providers. Employees complain that their employer should not be allowed to select their treating medical providers. Indeed, there are some good arguments that can and have been advanced by employee representatives as to why the employer should not be permitted to select the treating physician. Among these arguments are the fact that medical care is inherently a private issue and that the employee should be able to treat privately and at his/her own discretion. Another argument that is often advanced and that has some logical appeal is that the employee is more likely to trust, respect, and follow the medical recommendations and treatment of a physician that he/she selects.
Similarly, there are good arguments why the employer should be permitted to select the physician. Among those arguments are that work injury claims are mandatory legal obligations placed on an employer. Unlike private health insurance claims where the employer may elect to decline to provide coverage for employees, employers are forced to provide worker’s compensation coverage and treatment for injured workers. Among the negotiated benefits and exchanges at the inception of the worker’s compensation system was this right to select medical care. In exchange for guaranteed coverage and medical care, employees were willing to give up their private right to select the medical provider. Employers will also tell you that they believe the employer-selected physician system is better because employees often obtain treatment from better qualified physicians and in a more timely manner.
Employers have connections and refer numerous workers to physicians. Over time, they develop rapport with the physicians’ offices. This may enable employers to secure more prompt medical care with the physician. Over time, the employer can identify specialties among physicians and can watch long-term outcomes of various physicians to identify the best physicians. In the end, it is most beneficial to both the worker and the employer to have the best possible medical outcome because the worker is “healed” and the employer’s liability decreases.
Other arguments that support an employer-chosen medical system are financial arguments. In those states where the employer is permitted to select the physician, workers tend to return to work sooner and treat for less time. It is arguable whether this is a good thing. However, from a financial viability standpoint, it is beneficial to keep premiums down and encourage employers to locate in a state. In addition, there is inherent benefit in having a rapport between the employer and the physicians treating injured workers. Over time, the physician learns and becomes comfortable with the work duties performed at particular employment sites. The physicians may become familiar with reasonable light duty work options and may develop a sense of cooperation (or alternatively a lack of cooperation) from the employer. If the physician knows the particular job duties and light duty work options, the physician may be able to tailor medical restrictions that will permit an injured worker to return sooner to the employment scene. While this obviously reduces the employer’s liability, this also permits the employee to earn more money.
In fact, the employee will earn more by working that by staying at home. Accordingly, both employees and employers have reasonable, logical, and compelling arguments as to how and why a certain phsycian selection process can and should be implemented. Although there is constantly debate about the issue, Iowa falls into the group that permits the employer to select the medical provider. Iowa Code section 85.27 provides that “the employer is obligated to furnish reasonable services and supplies to treat an injured employee.” However, that statute also provide the employer “the right to choose the care.” This statutory section is sometimes misunderstood or misapplied by employers and insurance carriers. While this statutory section permits the employer to “choose the care,” this statute does not permit an employer to pick and choose which treatment recommendations it will authorize. In other words, the employer is permitted to select the physician or other medical provider to whom the injured worker must go for treatment.
However, the employer may not dictate what care, the order of the care, or the extent of the care recommended or offered by the treating physician. The employer’s right to “choose the care” is limited to the selection of the medical provider that will render that care. Often times, an employer or an insurance carrier will select a reasonable and skilled physician to render care. However, after evaluating the injured worker, that physician may recommend a MRI or other expensive diagnostic testing. The inclination by the employer is to delay or deny that diagnostic testing if there are other alternatives or if there is a chance that this is a strain that may resolve with or without the expensive testing.
The law in Iowa is clear that the employer and/or carrier may not interfere with or dictate which testing or treatment is provided. Once the employer selects and designates the treating physician, its “right to choose” is accomplished and the carrier generally must accept and approve all recommended care from that physician. Employers contnue to cherish and urge retention of the employer-selected physician system. While I concur that the employer’s right to select the physician is important and makes sense for many of the reasons outlined in this article, I often wonder if some of the desire and drive to change that system isn’t simply because employers and carriers overstep their bounds and attempt to manipulate their use of the “right to choose” rather than simply directing employees to well-respected physicians and encouraging vigorous and prompt medical care.
If employers select competent physicians that have sufficient capacity to provide reasonably prompt medical care and Claimants cooperate in that treatment and attempt to get better, rather than trying to extend their time off work, the whole system can and should work better. Nevertheless, the debate rages on as the Iowa legislature debates whether the employer or the employee should be allowed to select the medical providers in a worker’s compensation case.
