The orthopaedist and the workers’ compensation patient

By William J. Holt, MD

A cautionary tale of patient care and professional liability

Orthopaedic surgeons are commonly asked to care for patients who have been injured in the course of their employment. Some of these injuries are employment-specific, such as a mangled hand from a punch-press injury; others are similar to those encountered in everyday practice, such as an ankle fracture from a “slip-and-fall” at work, acute or chronic back pain, or carpal tunnel syndrome.

The origins of workers’ compensationYet caring for an injured worker poses special challenges that must be remembered. Indeed, many orthopaedic surgeons are so concerned about those challenges that they refuse to accept workers’ compensation patients. A better understanding of the workers’ compensation system and its operation may help alleviate some of those concerns.

The workers’ compensation system originated at the end of the 18th century as part of the progressive movement. In an era when factory safety standards didn’t exist, it was an attempt to ensure that factory workers injured at work received appropriate medical care and compensation for permanent crippling injuries.

In general, the worker’s compensation is a “no-fault” system that is designed to benefit both employer and employee. The benefit for employees is that they do not have to prove negligence to have a claim; it is sufficient that the injury occurred at work. The benefit for the employer is that damages are typically limited to an amount defined in the statute.

Today, each state has its own workers’ compensation system, with its own rules and processes. In Illinois, for example, the patient can choose his or her treating physician, while in Missouri, the employer can determine who treats the patient. If you accept workers’ compensation cases, you must be familiar with applicable laws; if you practice in a border region, you need to be aware of the differences between various state laws. Treating workers’ compensation patients requires interaction with multiple entities—the exam room can get crowded!

The workers’ compensation patient
The first person you deal with—and the person to whom you owe primary responsibility—is the patient. The workers’ compensation patient deserves the same level of diligent care you provide to any other patient.

Do not allow an employer or insurer to dictate care; as the physician, you must decide and advise your patient on what you believe is the proper care for the injury. As in all claims for damages, there may be a tendency for a workers’ compensation patient to exaggerate injuries or not comply with rehabilitation, because the greater the permanent disability, the larger the eventual settlement. This tendency may be unconscious, making it different than malingering, which is intentional, fraudulent behavior.

Orthopaedic surgeons may fear that injured employees are litigious and prone to file medical liability lawsuits. Little evidence exists to support this concern. Most employers require employees to file workers’ compensation claims for any work injury and employees’ medical insurance typically will not cover work-related injuries. While the injured worker is involved in a legal process, it is directed at the employer/insurer, not at the physician.

The employer and the insurer
In the workers’ compensation system, the employer is typically required by statute to maintain workers’ compensation insurance and the insurer is usually responsible for paying for the injured worker’s medical care, rehabilitation, and other expenses.

Most insurance companies that sell workers’ compensation coverage specialize in this kind of insurance. Their intermediaries—nurse case managers or nurse rehabilitation specialists—will usually interface with you. The titles imply a level of expertise that these people may not, in fact, possess. I’ve worked with some who have been very valuable in coordinating rehabilitation services, facilitating a return to work on a limited basis, and generally serving as a mediator on the patient’s behalf. Unfortunately, I’ve also known others who took a very confrontational role and actively interfered with patient care.

If the employer is a small firm, the owner may be directly involved and attempt to interfere in the medical care. At other times, the employee may be dealing with a personnel office or an immediate supervisor, who may be less sophisticated about the process and less willing to take the worker back on limited duty.

The lawyers
Although the workers’ compensation system was designed to relieve the injured worker of the responsibility of proving in court that his or her injury resulted from an employer’s negligence, it didn’t eliminate the role of lawyers. Many law firms specialize in representing either patients or employers in workers’ compensation cases.

Sometimes the worker may already have retained a lawyer before seeing an orthopaedic surgeon; other times, the patient may need to be advised that representation may be helpful. The first determination is whether the employee was injured on the job, and what is the extent of the short-term and permanent disability. The dilemma that both the patient and the patient’s attorney face is that because the attorney’s fee is usually a percentage of the patient’s recovery for permanent disability, the worse the patient does, the better the lawyer does!

An extended battle over “compensability” to determine whether or not the injury occurred during employment may delay treatment. A patient who has to wait 3 years for a rotator cuff repair while the system decides who will pay for it will certainly not have an optimal result. In these cases, if you are called to give testimony, answer truthfully and succinctly. If you don’t know, say so. Although you are the patient’s advocate as far as getting appropriate treatment, when it comes to deposition testimony, it’s best if you are a neutral servant of the truth.

One question that is often asked is whether the patient’s problem is work-related. This can be a difficult question to answer for back pain or “repetitive trauma disorders.” Be aware of current literature on causation, and do not be afraid to say, “There’s no way to know for sure” if that’s what you think.

The industrial commission
The state agency that administers workers’ compensation programs may be called the industrial commission or have another name. This agency holds hearings on disputed claims and adjudicates compensability and final disability. Commissioners will rely on your deposition testimony and your office notes for the facts of the case (so you should make sure you know what’s in your records before you testify, and be ready to explain any contradictions).

In many states, either the employer or employee will present an independent medical examination (IME) as evidence. If you are asked to do an IME, you should act as if you’ve been retained as a neutral consultant to the judge and provide an objective opinion. Many physicians will perform IMEs; some physicians develop reputations for being consistently favorable to the employee or to the employer.

If you are threatened by an attorney with a malpractice suit solely because you wrote a report that is not favorable to the patient, report the threat to the attorney’s state licensing board as unethical behavior.

Employees who are injured on the job deserve good medical care, rehabilitation, and compensation for permanent injury. Many of these injuries will be orthopaedic in nature. Orthopaedic surgeons should not shy away from treating patients in the workers’ compensation system, but they should be aware of how the system works.

William J. Holt, MD, is in private practice in Quincy, Ill. He can be reached at wholtmd@rnet.com

Note: The information contained in this article is intended for general information purposes only and is not legal advice. Individuals who need legal services should contact a duly licensed professional.

April 2008 Issue

Josh Sandberg

Josh Sandberg is the President and CEO of Ortho Spine Partners and sits on several company and industry related Boards. He also is the Creator and Editor of OrthoSpineNews.

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