Can I Choose My Own Doctor in a Workers’ Compensation Case?

Posted on Thursday, March 21st, 2019 at 12:48 pm    

Most workers who are hurt on the job make arrangements to go their nearest emergency room – or someone makes the arrangements for them. The ER facility takes your history and may conduct some initial diagnostic tests such as taking an X-Ray. They then make an initial diagnosis. In serious cases, they’ll then advise you whether they think you should be admitted – or not. If you are admitted, then your local hospital generally performs whatever procedures are necessary.

After the visit to the ER, or if you never went to the ER, the next normal step is to see the physicians who can help you. These doctors include family doctors, orthopedists, pain management doctors, neurologists, psychiatrists, psychologists, cardiologists, and many other types of doctors. You may also need to treat with physical therapists, vocational therapists, and other health care providers. Some workers also find that working with a chiropractor can help.

Unfortunately, in a worker’s compensation case, you typically don’t get to make the initial choice as to which health providers you see. You can’t choose your own doctors and therapists. Instead, in Virginia, unless you have a catastrophic injury that requires immediate surgery—in which case whatever surgeon is on call at the hospital typically becomes your treating physician—the workers comp insurance company will give you a list of 3 of their preferred doctors for each type of doctor or health provider you want to see. This is known as a “panel” of doctors. For example, the employer may give you several pain management doctors and give you the right to choose one of the several doctors listed.

Employees should understand that most, if not all, of the doctors on the list were chosen by the employer for a reason. The employer wants doctors who will get you back to work as soon as possible. While company doctors are duty-bound to help employees, company doctors tend to certify patients as ready to return to work (or to work with restrictions) much more readily than non-company doctors. These doctors will be looking to see if you have any pre-existing injuries that might disqualify you from work injury benefits. They will be aware if you state that the you’re not really hurting that much. They’re less likely to recommend long-term or expensive treatments than everyday doctors.

That being said, on most of these panels, it is our experience that there is at least one doctor who is “less bad” or even helpful, as compared with the other two on the panel.

In North Carolina, there is no such ability to choose even from a panel. The insurance company gets to choose which doctor the employee sees. That being said, as will be further explained, North Carolina has a mechanism in place to request either a change in treating doctors or an Independent Medical Examination to be paid for by the defense. Virginia has no such provision.

When it comes to the initial visit to doctor, therapists, and others – particularly in North Carolina—there isn’t much the employee can do.

How to make the switch to a doctor you prefer

Most workers feel more comfortable working with a doctor of their own choosing. The lines of communication are usually better. Workers understand that the doctors they choose will be looking out only for their interests and not the interests of the company or organization that hired you.

There are several ways that a switch can be made

  1. You have the right, under North Carolina’s workers’ compensation laws, to get a second opinion. Injured employees can make a written request to have a doctor in the same specialty or area of care examine you – at the expense of the employer. The request is first made to the employer. If the employer denies the request, you can appeal to the state industrial commission. There are a few things to keep in mind if you get a second opinion through the employer. The original treating doctors can review the report and contest the findings. The employer and the employer’s insurance company also have the right to review the second doctor’s report.
  2. You can, normally with the help of an experienced North Carolina work injury lawyer, request permission to switch doctors or to switch health care providers. If the doctor who gives you a second opinion thinks that you need treatment or care that the first original doctor is not providing, then you can make a formal request to switch to the new doctor. The North Carolina Industrial Commission will have to approve the switch. An experienced North Carolina lawyer will explain what situations will likely result in an approval of the switch. He’ll fight to show the switch is necessary. Generally, the switch has a greater chance of success if some or all of the following factors apply:
    1. Sufficient time has elapsed to show the treatments from the original doctor aren’t working
    2. You can show some inherent bias against you from the first doctor
    3. The original doctor isn’t using reasonably available treatments
    4. Other factors depending on your health condition

There are some situations where the employer will be required to pay for a doctor who wasn’t pre-approved or for a hospital that wasn’t pre-approved. The main situation/exception is in response to an emergency. Emergencies include the initial injury. They can also include an emergency that appears during your treatment phases – such as an allergic reaction to a medication that requires immediate attention.

How an experienced workers’ compensation can help increase the likelihood of seeing a different doctor

Insurance carriers and defense lawyers will normally fight any request to switch doctors or health care providers. An experienced lawyer will help you in several ways. A skilled North Carolina workers’ compensation lawyer normally works with many different work injury doctors. He’ll help you make an appointment with a doctor who has trained for your type of injury. A good work injury attorney will understand what objections the insurance company will likely make and what objections or responses the original treating doctor will make.

The law on second opinions and switching health providers can be found at N.C.G.S. §97-25. Medical treatment and supplies. Some key considerations in the law, in addition to the above summary, are:

  • The employer must respond to your request for a second opinion within 14 days of your written request.
  • “If in an emergency on account of the employer’s failure to provide medical compensation, a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service shall be paid by the employer if so ordered by the Industrial Commission.”

Virginia—No Independent Medical Exams for injured workers…. But….

Unlike North Carolina, Virginia has no provision with regard to the payment by the insurance company for an Independent Medical Exam if the worker is being mistreated by the current treating doctor; however, Virginia is less restrictive in terms of choosing a doctor and paying for it on one’s own. In other words, if the injured worker has private health insurance, and he or she is dissatisfied with the care of the authorized treating physician, then the worker can go to whatever doctor he or she wants to, provided that individual is able to pay, either through private health insurance or with his or her own funds. If that new physician should have a clear and reasonable opinion that the authorized treating doctor is incorrect, or engaging in inappropriate treatment for the injured worker, then the Virginia Workers Comp Commission may very well side with the physician chosen by the injured worker.

In North Carolina, unless the injured worker takes advantage of the laws that permit either a change of treating physician or an authorized Independent Medical Examination, then the Industrial Commission has said it will ignore the opinions of any unauthorized treating physicians. In other words, seeking privately paid treatment would likely do little to change the course of one’s case in North Carolina.

Experience matters. North Carolina and Virginia lawyer Joe Miller is a strong advocate with a track record of success. He’s helped many clients get second opinions and has helped many clients switch physicians. To make an appointment now, please call 1-(888) 667-8295 or fill out my contact form