Workers Compensation Physician Panel Provisions: Ignore At Your Own Risk!

Russell Adkins

 

Tennessee’s workers compensation laws require an employer to offer injured employees with a panel of three or more physicians. An injured employee has the option to select one of those physicians to provide treatment. If the selected physician orders referral to a specialist, the employer is deemed to have accepted the referral unless the employer provides the employee with a panel of three specialists within three business days.

In the recent case of Ducros v. Metro Roofing and Metal Supply Co., Inc., et al, an employer’s failure to follow proper procedure brought about unintended consequences. Ducros was working as a truck driver when he injured his right wrist “pulling shingles”.  His employer (“Metro”) did not provide Ducros with a panel of physicians. Instead, Metro directed him to a health clinic, where he was treated by Dr. Sharma, a family physician. When Ducros returned the following week with continuing complaints. Dr. Sharma ordered a referral to a specialist, Dr. Kennedy.

Ducros visited Dr. Kennedy twice. On the second visit, Dr. Kennedy ordered diagnostic testing, including a nerve conduction study and an MRI. Metro had paid for both of Ducros’ visits with Dr. Sharma, and his first visit with Dr. Kennedy. However, after learning of Dr. Kennedy’s recommendations during the second visit, Metro provided Ducros with a panel of orthopedic physicians. Metro advised Ducros that his claim would be denied if he did not select from that panel. Ducros selected Dr. Lund from the panel.

Dr. Lund performed testing similar to that recommended by Dr. Kennedy. After three visits, Dr. Lund recommended that Ducros get a second opinion. Ducros asked Metro to allow him to seek a second opinion from Dr. Kennedy. Metro stated that it would not pay for any further treatment by Dr. Kennedy, but agreed to a second opinion from another physician, Dr. Arnold.

Ducros filed a petition for benefits determination, requesting that Metro be ordered to authorize additional treatment by Dr. Kennedy. The trial court declined Ducros’ request. Ducros appealed to the Workers’ Compensation Appeals Board.

On appeal, Ducros noted that it was only after Dr. Kennedy recommended diagnostic testing on the second visit that Employer provided a panel of physicians. Ducros also argued that he selected Dr. Lund under duress. The Board seemed persuaded by both of these points. The Board reversed the trial court, and ordered Metro to authorize treatment by Dr. Kennedy. In doing so, the Board noted:

… Employer did not provide a panel of physicians when it became aware of Employee’s injury, directing him instead to a particular medical facility. When Employee was referred for specialized care, Employer still did not provide a panel of physicians, but paid for the medical treatment Employee received from the specialist, Dr. Kennedy.

 

This opinion reminds employers to provide a panel of physicians promptly. Once the employer has established treatment with a provider, the employer may not take a “wait and see” approach to authorizing treatment. Not only must the employer pay for treatment by that physician, but the opinions of a treating physician are entitled to certain evidentiary presumptions in the event of disputed causation. Therefore, it is important to provide an injured employee with a panel of reputable, trustworthy physicians at the outset.