What is Worker’s Compensation?

The worker’s compensation program was established in Wisconsin in 1911, and Wisconsin was the first state to recognize this need for worker’s compensation by passing a constitutional law. The worker’s compensation program has several goals. All of these goals are based on the concept that employers have an obligation to maintain their injured employees until they can be returned to employment and to compensate them for any temporary or permanent injuries suffered. Benefits provided to injured workers include payment of medical costs and weekly disability payments. The primary goal is to return the injured worker to employment as soon as possible while at the same time provide for prompt payment of appropriate benefits.

Who is responsible for changes in worker’s compensation laws?

The State of Wisconsin creates and changes its worker’s compensation laws using a process that is unlike the method used to create other laws. The traditional method for creating a law begins with a proposal by a state legislator. The law is drafted and referred to an Assembly or Senate committee for hearings. If approved by the committee, it is voted on by both the Assembly and the Senate. Upon passage by both houses of the state legislature, it is signed or vetoed by the Governor.

Because the worker’s compensation statues are highly technical and have tremendous financial impact on employers and their employees, the state legislature created the Workers Compensation Advisory Council (WCAC) to advise them on how these laws should be changed. Over the intervening decades, the WCAC process has become institutionalized to the point that, in recent history, the legislature has always approved the recommendations of the WCAC.

The voting members of the Workers Compensation Advisory Council are representatives from Wisconsin employers and labor unions. The insurance industry also is represented at the bargaining table but does not have a vote on actual proposals. In the late 1980’s, as health care costs became a focal point for WCAC discussions, the Wisconsin Chiropractic Association, the Wisconsin Medical Society and the Wisconsin Hospital Association were designated as “Council Liaisons”. This allowed health care providers and hospitals to fully participate on all discussion related to quality of care and cost containment proposals but left the decision making process unchanged.

The WCA and the WMS attend all meetings of the WCAC to assess the impact of council proposals on health care providers. Worker’s compensation laws are changed every other year with discussions beginning about 9 months before final decisions are made. The WCA not only discussed proposals from labor and management, it also recommends changes to improve the system for its members. For example, the WCA was responsible for insuring the expert panel created for reviewing necessity of treatment disputes be composed entirely of chiropractors.

How may insured employers are there in Wisconsin?

There are approximately 120,000 insured employers in Wisconsin. In addition there are approximately 200 private self-insurers.

What Does the Worker’s Compensation Division do?

The Worker’s Compensation Division performs essentially two tasks in administering the program. First, the Division monitors payments by insurers and self-insurers to guarantee the employee full benefits. This is accomplished by requiring employers to submit a report of all work-related injuries where the employee is off work for more than three days. In such cases the Division requires that the first payment be made to the employee within fourteen days of the injury. The date of first payment must also be reported by the insurance company or self-insurer.

The payments areactually made by the insurance carrier or self-insurer. A penalty may be imposed if the payment is late. Therefore, most injured employees will not miss a payday due to late payment. A report of last payment is also required when payments are ended. In cases where the employee is off work for more than three weeks, the Division also requiresa doctor’s report. This system permits the Division to monitor payments to an injured employee. In the event that full payment is not made, the Division will contact the insurer to determine the reason.

The second major function performed by the Worker’s Compensation Division is providing a process for resolving disputed claims. Approximately 2.2% of the cases require formal hearing. These hearings are conducted by an administrative law judge who is a full-time employee of the Division. The decision of the law judge may be appealed within 21 days of its issuance to the Labor and Industry Review Commission and from there to Circuit Court.

Is an injured worker required to have an attorney at a hearing?

No. An injured worker is not required to have an attorney at a hearing.

Are their limits on the fees of attorneys that represent injured workers?

Yes. An attorney’s fee is limited to 20% of the benefits in dispute, not the total recovery.

If an injured worker requests a hearing, must they come to Madison for the hearing?

No. An injured worker may request the area where the hearing will be held.

Do hearings occur quickly after they are requested?

The increasing number of claims and applications for hearings has increased the time frames for prehearing conferences and hearings. In unusual situations, it can take up to a year before a hearing is held.

What information does an injured worker receive regarding their worker’s compensation rights and responsibilities?

When the Workers Compensation Division receives the first report of injury, it sends a pamphlet directly to the employee explaining their rights under the Worker’s Compensation law. Employees may contact the WC Division directly with questions relating to their benefits.

What databases are currently certified by the state for worker’s compensation?

The Employer Health Care Alliance (Alliance)
Medirisk
PO Box 44365
Two Piedmont Center Ste 400
Madison, WI 53744-4365
Atlanta, GA 30305-1502
Contact: Gloria Dolan
Phone:608-276-6620
Phone: 800-955-2542 Ext. 3170
Fax: 608-276-6626

Health Insurance Assn. Of America
Medicode (Formerly MDR)
555 13th St. NW #600 East
5225 Wiley Post Way Ste 500
Washington, DC 20004-1109
Salt Lake City, UT 84116
Contact: Joan S. Aird
Phone:202-824-1754
Phone: 801-536-1100
Fax: 202-824-1800

Meridian Resource Corp
Midwest Comp Review Service
401 West Michigan St.
PO Box 81365
Milwaukee, WI 53201
Racine, WI 53408
Contact: Brian Behnken
Phone:414-226-5808
Phone: 414-554-0886
Fax: 414-226-2637

Wisconsin Physicians Services (WPS)
PO Box 8190
Madison WI 53708-8190
Contact: Richard Darga
Phone:608-221-4711 ext. 3682
Fax: 608-223-3625

A current list of certified databases can be obtained from teh state of Wisconsin Worker’s Compensation website.

We get questions from our patients who question whether or not they were “employed” at the time of their injury. What does “employment” mean?

WC benefits are payable “where, at the time of injury, the employee is performing service growing out of and incidental to his or her employment.” The employee must prove that the injury happened while engaged in some activity related to employment.

On the Job Injuries. The most frequent types of accidents occurring on the job are through the impact of a falling or moving objects, slips or falls, or strains or overexertion.

Injured While Going to and From Work. Usually, the only time an employee can be compensated for an injury which happens on the way to or from work is if it occurred on company owned property, or under conditions cited in the law. Company sponsored cars and van pools are not covered.

Injured on Company Steps or On Company Owed Parking Lot. Injuries occurring on steps leading to the company, or on a customary path through the employer’s property, or in a company or designated parking lot are covered under the WC system.

Injured While Attending to Personal Needs. Generally, an employee who is injured at work while attending to personal needs, such as smoking, eating, getting refreshments, or going to the lavatory, is paid worker’s compensation. Injuries off of the employer’s premises during a break or lunch hour are not usually covered.

An employee injured on the employer’s premises during the lunch hour, during wash up time or while changing clothes is covered by the law.

Injured While Doing Something Strictly of a Personal Nature. When an employee is injured in the performance of an act which is undertaken for a strictly private purpose or to satisfy his or her own curiosity, and it is apparent the job has been abandoned for the timebeing, the employee is not covered.

For example, an employee driving on the job who runs a private errand and deviates from the ordinary driving route would not be compensated.

Injuries While Off Company Property, but Still On the Job. An injury occurring away from the company premises, but while the employee is still performing service for the employer and under the employer’s direction and control, is comprehensible. If the employee is being transported by the employer when injured, he or she will be entitled to benefits whether or not the incident occurred on the employer’s property.

An employee whose employment requires travel is considered to be performing services at all times while on the trip. The employee is covered while traveling in airplanes, cabs, or while in eating places and hotels, provided there has been no deviation for a personal service.

Traffic Accidents Are Comprehensible. A traffic accident while on company business is covered under the WC system. An employee on company business who has a heart attack while driving, resulting in an auto accident, is compensated for the injuries caused by the accident but may not be compensated for the heart problem. A delivery person who is injured in a traffic accident or while unloading merchandise at a different company will be compensated.

Injured During Horseplay or Fighting. The circumstances surrounding horseplay or fighting determines if an injured worker should be compensated. If the injured employee started the horseplay or was the aggressor in the fight, it is unlikely that the employee will be paid compensation. On the other hand, if an employee is injured as the result of horseplay started by others, or was attacked without provocation, he or she may be awarded compensation.

Injured Because of Self Inflicted Injury

The law provides that if an injury is intentionally selfinflicted, it is not comprehensible.

How many injuries are there each year in Wisconsin?

In 1997, the Division received approximately 66,503 reports of comprehensible injuries. There are tens of thousands of additional non-comprehensible injuries for which wage replacement is not provided.

Some of my patients are asked to sign “stipulation of facts” agreements and others “compromise” agreements. What is the difference between these two types of agreements?

Stipulation of Facts Agreement. A stipulation of facts agreement is beneficial in cases where it is advantageous to both sides to pin down or identify the facts. This agreement commits each side to something that they might not want to otherwise concede. For instance, it will state the percentage of permanent/partial disability to eliminate further controversy over this point. In cases where there will be a lengthy payment period, it obligates both sides to accept the agreed upon number of weeks. The injured worker needs to make sure all of the facts are stated to their satisfaction as to percentage of permanent disability and number of weeks of payment. The WC carrier cannot claim at a later date that the disability actually amounted to a lesser amount unless it can bring proof of that fact.

Compromise Agreement
• If there is doubt that the claim is due to or aggravated by employment
• If there is a dispute about the extent of disability
• If there is uncertainty on both sides about how the case would turn out as a result of a hearing

How long does a patient have to report an injury?

The law requires the patient to report their injury within 30 days after the injury occurs or within 30 days after the employee knew or ought to have known that they had been disabled as a result of their employment. An employee must claim disability payments within 2 years of the date of the injury or when they knew, or should have known, the nature of the disability.

As a practical matter, the claim filed by the provider is often the first notice the worker’s compensation carrier or employer receives of the injury.

A provider should be cautious when the patient reports a date of injury well before the date they presented for care, an exacerbation of an injury well before the date they presented for care, or any injury that is cumulative in nature without a specific causal event. While these claims more often than not are legitimate, the worker’s compensation carrier is more likely to dispute their liability.

For these types of claims, doctors can best protect their financial interests following these steps.

1) Interact with the insurer immediately to determine if they will accept liability.

2) If liability is denied or will be investigated, make sure the patient is informed of their right to file for a hearing that will determine if the employer is liable for the injury.

3) Determine if the patient has a group health policy under which the provider is eligible to provide care. (Be careful if the patient is part of an HMO that restricts their choice of provider.)

4) If the patient does not have group health coverage, the doctor is allowed to collect for the care until liability is accepted. Once liability has been accepted, any amount collected from the patient or their group health carrier must be refunded and the worker’s compensation carrier billed for the services.

To whom is an injured worker required to report their injury?

The employee is required to give notice to a representative designated by the employer. The employer is required to place posters in conspicuous places letting their employees know who is the designated representative. If there is no poster, then the injured employee may inform any supervisor.

A patient came in for care and claimed that the care was related to an injury that occurred a number of years ago. The patient requested that we bill the WC carrier. Are we allowed to do so and will that put our reimbursement at risk?

There are two different issues at work in this case. The first is the legitimacy of the worker’s compensation claim and the second is the potential financial risk to the doctor. It is quite possible that the claim is legitimate. Exacerbations of previous injuries can occur for a number of years after the reporting of the initial claim. However, while the causation may not be in doubt, there are real questions about who is responsible for payment. As can be learned from other questions in this chapter, a settlement may have been reached or a disability rating may have been given that shifts the responsibility for payment from the carrier to the patient.

When circumstances like these are presented to a WC carrier, they are likely to take the position that they will not accept liability until the claim has been fully investigated. This investigation is likely to take an extended period of time. In any case where liability is at issue, the chiropractor has the right to collect directly from the patient until liability has been accepted. To wait until the investigation is concluded or an administrative law judge has rendered a decision exposes the chiropractor to financial risk.

How should an injured worker give proper notice of their injury to their employer?

Any injury and the need for health care attention must be reported to the employer to establish a worker’s compensation claim. Minor injuries should also be reported because they may later develop later on into something more serious.

As a general rule, an injury should be reported immediately so that a later claim will not be doubted. A very late report may cause an employer to suspect that the accident occurredat home or, perhaps, not at all. Notice can be given verbally or in writing. It should include:

- the time
- the date
- the type of injury
- the part of the body involved
- the circumstances surrounding the injury or the first appearance of symptoms
- the need for attention by a chiropractor

If the notice is verbal, the employee may want to keep a written record of the information and the person notified in case a question comes up later.

How do doctors or other individuals report worker’s compensation fraud?

If you are aware of a situation that appears fraudulent, you may report it to the worker’s compensation division at (608) 261-8486. A pre-taped message will ask you to leave the following information:

1. The name of person committing fraud;
2. The person’s address (at least the municipality);
3. A description of the alleged fraudulent activity in as much detail as you can provide; and
4. The employer at the time of the injury (if you know who it is).

You may also provide the same information by writing to:

State of Wisconsin Worker’s Compensation Division
P.O. Box 7901
Madison, WI 53707

Callers can remain anonymous. However, you will be asked to leave your name and phone number if you are willing to speak further with an insurance company investigator about the information you have. If you do leave your name, the WC Division will not use it in its public reports. However, you should assume that at some point your name could become part of a legal record which — even though it is not open to the general public — might be available to the injured worker, the employers and the insurance carriers who are parties to the alleged worker’s compensation injury.

Generally, the WC Division will refer the matter to an insurance carrier for investigation. The carrier will be required to report back to the WC Division the results of its investigation. However, by law, an insurer is not required to report back until it is satisfied that making the results of investigation known to the WC Division will not hurt their ability to handle the worker’s compensation claim.

Based on the results of the insurer’s investigation, the WC Division will make a decision about whether there is a reasonable basis to believe fraud has occurred. If so, the WC Division will refer the case to the local district attorney for prosecution. The district attorney must then decide whether to start criminal proceedings under the insurance fraud statute.

What tools do employers use to fight abusive claims?

The following are basic elements of an accident response program that employers use. These “tips” came from the suggestions of experienced worker’s compensation claims personnel and defense attorneys. By following these “suggestions”, employers reduce exaggerated or abusive claims, and bring down costs from workplace injuries.

1. Write a clear and strong policy statement about the importance of promptly reporting all suspected accidents and injuries to supervisors or designated worker’s compensation claims representatives. Make it clear that filing false claims is grounds for discharge. List this in work rules and procedure manuals and make sure all employees know and understand the rules.

2. Make sure that all supervisors know how to handle worker’s compensation claims including: a) who to send the worker to for completing the report of injury, b) the importance of immediate investigation of the circumstances surrounding the injury including witness reports, c) the supervisor’s responsibilities to make sure the employee gets appropriate medical care.

3. Poor communication between the employer and the insurer is very often at the root of inappropriate payment of marginal or invalid claims. Train your claims reporting personnel on how to thoroughly document a reported injury. Unfortunately, filling out WC-12s tends to be regarded as menial or undesirable work. As a result, low level/inexperienced people fill them out and simply take the employee’s word for what happened. Have an experienced person fill in the form and make sure the facts stated in it are accurate. Be wary of Monday morning injuries without a clear-cut accident at work.

4. Ask for a statement about the nature of the accident and the injury suffered from the claimant. Let them record the cause and nature of the accident in their own words. Encourage them to be specific. They should sign and date the statement.

5. Reenact accidents—even minor ones— to determine what happened and how the hazard can be avoided in the future. The emphasis of this reenactment should be safety and injury prevention; gathering useful evidence of abuse is just a by-product. If possible, include union representative, safety manager, supervisor, injured worker, and other interested parties in the reenactment. The more visible and “team oriented” the effort, the better.

6. Promptly report the claim to your carrier or third party administrator (TPA), along with any suspicious circumstances that may require further investigation on their part, e.g., Monday morning unwitnessed accident or a rash of pre-deer hunting injuries. Late reporting of claims increases lost time and medical cost, fosters abusive claims, and increases the probability of expensive litigation.

7. Have the supervisor accompany the injured worker to the provider for emergency or, with the employee’s permission, to initial non-emergency treatment. The supervisor should observe the quality of treatment and report any problems to the company, e.g., long delays, rude treatment, or doctors that seem to be “out of touch” with occupational injuries. The supervisor should try to talk to the provider about the nature of the injury and options for early return to work.

8. The employer should periodically check with the provider to discuss return to work options. Never accept a fax or copy of a physician’s report for return to work date—they are sometimes altered by unscrupulous employees.

9. Stay in touch with your injured employee. Encourage them to stay faithful to prescribed therapy (some employees stop going to therapy which prolongs their healing). Be wary of employees that miss medical appointments and are not available when you call. These are signs of abuse.

10. Make the main purpose of your program the prevention of injuries to your workers by the removal of hazards, proper training, and enforcement of safe work habits. Make this intention clear to your workforce. Get worker “buy-in” to safety programs before you implement new initiatives.

What should I do to find out if an employer will accept liability in a worker’s compensation case?

While a chiropractor’s rights are fully protected for legitimate worker’s compensation claims, those protections are not activated until the worker’s compensation carrier accepts liability for the injury. Quite often, accepting liability is delayed while circumstances surrounding the injury are investigated. If a carrier denies liability, it is not a worker’s compensation injury. The patient may ask for a hearing but, if an adminstrative law judge upholds the decision, the patient is responsible for payment of all claims.

The following administrative steps may limit your risks

1) At the time the initial appointment is scheduled, ask the patient if the injury is work related.

2) If the injury is work related, ask the patient if they have reported the injury to their supervisor. If so, obtain the name and phone number of the supervisor. In addition, ask if there were any witnesses to the injury.

3) Call the supervisor and introduce yourself. It is best if you explain that your goal is to return the patient to work as quickly as possible but, you need to know if the employer is accepting liability for the injury. If the answer is yes, note this information along with the date and time of the call in your records.

4) If the supervisor refers you to their worker’s compensation carrier, obtain the name of the carrier, their phone number, and the name of a contact person if possible.

5) Call the carrier and introduce yourself. It is best if you explain that you will do everything possible to return the patient to work as quickly as possible but you need to know if the carrier is accepting liability for the injury. If the answer is yes, note this information along with the date and time of the call in your records.

6) If the employer refuses to give you the name of their worker’s compensation carrier, you may obtain this information by calling DWD or through DWD’ website. Be aware that if the employer refuses to give you this basic information they either do not have worker’s compensation insurance (which exposes them to immediate penalties from DWD) or that liability is likely to be contested.

7) If the carrier tells you that they need to investigate the circumstances of the injury before they can make a determination of liability, it is helpful for you to explain that until liability is accepted, the patient is responsible for the immediate payment of all charges. Explaining that this is likely to upset the patient allows you to press the carrier for the amount of time it will take for them to reach a determination.

At the time the appointment is made, some patients may not be sure if the injury is potentially related to their work. If this is the case, all of the above steps should be followed as soon as this fact is determined.

Some patients are worried about informing their employer about their injury because the employer does not like worker’s compensation claims and the employee is worried about being penalized for being hurt. This fear is quite real; however, it is the doctor that is at financial risk if liability is not accepted. The patient needs to understand that the state requires their employer to be notified of an injury - either through your phone call or by the insurer when the claim if filed. Your work in establishing that the WC carrier will accept liability protects the patient from paying for the care out of his or her own pocket.

What if I call an employer and find out that they do not have worker’s compensation insurance?

Every year there are a substantial number of employers who try to evade their legal responsibility to obtain worker’s compensation insurance. An employer who does not purchase the required insurance is automatically fined twice the amount of what they would have paid for the insurance or $750, whichever is greater. Employers can be self-insured only if they have met the requirements established by the state. A provider can easily verify an employer’s claim of self-insurance by calling the WC Division of Workforce Development.

An employer who is uninsured will often attempt to coerce the doctor into sending the claims to them for payment. While this may seem to be efficient, it is not wise to cooperate. The patient has many rights that are tied to the correct use of the worker’s compensation. These rights may extend into the future when they are working for another employer. If the system is not used correctly both the doctor and the patient may be a victim of the employer.

A call to DWD or a visit to their website will get you the name of the employer’s worker’s compensation carrier or verification of their self-insurance.

Unfortunately, the law does not punish those individuals who express their personal opinions about the chiropractic profession or those individuals who are unprofessional or rude when they interact with you or your staff. Intimidation of providers and their patients is a well-known tactic with some employers and WC carriers. They let you know, in not very subtle ways, that they are going to fight every aspect of the WC claim. Usually their threats are verbal and are denied when you try to hold them accountable for their statements.

There are steps that can be taken to lessen the impact of this type of abuse:

• If an individual speaks to you in a rude or unprofessional manner, you have the right to immediately tell them that their language offends you. If they persist, tell them that any communication from them will have to come in writing. If an individual insists on calling or faxing you repeatedly, you have the right to ignore their requests for information until it is convenient for you to respond. The law gives the WC carrier the right to challenge the medical necessity of your care, even those services provided on the first day of treatment. They may ask for your records as often as they choose. You may charge for these records as allowed under the statutes. You, however, have nine months from their refusal to pay for care to appeal their decision and, if you are not satisfied with their decision, to use the “Necessity of Treatment Dispute” process. Employers are not allowed to threaten injured workers with termination for seeking care related to a legitimate WC injury. Every threat should be recorded noting the individual’s name, date, time and the threat that was made. If the threat is made to the doctor or the staff, this should be noted in the patient’s record. Depending on the content of the threat, the patient may be entitled additional benefits or damages under the WC statutes.

How old is the fee data in the certified databases?

The law allows database companies to use data that is up to twelve months old. In addition, the database is only required to update its information every 6 months. That means that the database could be up to 18 months old when your prices are compared to it. The law also has very weak standards as to how the data is collected so it is possible that the database company is using sources that do not accurately reflect all of the chiropractors in the geographic area.

The worker’s compensation carrier is required to list the name of its certified database on the explanation of benefits which is mailed to you. If they do not, you are allowed to use the “Reasonableness of Fee Dispute Process” that may order the carrier to pay your fee in full.

I know of an employer who does not have worker’s compensation insurance. When an employee is injured, he sends the patient to me and pays me personally. Is there anything wrong with this approach?

There are several things wrong with this approach. The first is that all employers (with rare exceptions) are required to carry worker’s compensation insurance. Because all workers have the benefits of the system, allowing some employers not to carry WC insurance forces all of the rest of the employers to pay higher premiums to make up for those that break the law. Since you are also an employer you do not want to cooperate with a company that is driving up the cost of your WC premiums.

The State of Wisconsin vigorously enforces this part of the WC statutes. When they are notified that an employer does not have WC coverage, they immediately issue an order to the employer. Either they get coverage immediately, or the state can levy fines and penalties that include shutting down their business. Even if they comply with the state’s order, they must also pay an automatic fine. The fines are designed to be punitive so that an employer cannot “save money” by going without coverage and paying the fine when caught.

You also bear financial risk if the employer is without coverage. Should the employer not pay for the care of the injured worker, you may not have the full protection of the WC statutes. In addition, the patient faces the possibility of losing the very important short and long-term disability protection available to them from the state. Should the doctor evade the statue’s requirement to properly evaluate the patient’s permanent disability, he or she may be sued for malpractice action by the patient, be sanctioned by the worker’s compensation division, and face disciplinary action from the Department of Regulation & Licensing.

How is the amount of benefits determined?

There are essentially four types of benefits under the Worker’s Compensation law: medical expenses, wage replacement, permanent disability and death benefits.

Medical Expenses. Employers (or their insurance carriers) are obligated to pay all reasonable medical expenses related to the injury or disease. If an employer has other group insurance, the payments for injury related to work is still paid by the Worker’s Compensation insurance company. There is no deductible that the employee must pay. There is no time limit, up to the 12-year statute of limitation, on the obligation to pay medical expenses as long as the treatment is related to the work injury or disease. Employees may receive treatment from the health care practitioner of their choice.

Wage Replacement. During the healing period the employee is entitled to two-thirds of his or her weekly wage up to a maximum payment of $538. (Accordingly, this maximum of 2/3 of the employee’s weekly wage would apply up to a weekly wage of $807). The Worker’s Compensation payment is not taxable; therefore, it results in approximately 80% average wage replacement. This payment is “temporary” in that it lasts only as long as the employee’s healing process. The payment is “total” as long as the employee is completely unable to return to work. If the employee can return part time, even if the healing was not completed, he or she would be eligible for a temporary partial payment.

Permanent Disability. Once the healing period is ended; a determination is made by the employee’s doctor as to whether any permanent disability exists. Permanent disability can be either total or partial. A person is totally disabled, for Worker’s Compensation purposes, if there is not reasonable opportunity to secure employment in view of the physical limitations. In some cases, a finding of total disability is made because of extremely serious injuries even if some employment opportunity exists.

A person less than totally disabled may receive permanent partial disability. The statute has established a list of various types of specific injuries. These injuries receive a specific predetermined rate of compensation usually payable in monthly installments. These injuries are referred to as “scheduled” injuries. In addition, there are some types of unscheduled injuries. These are unscheduled because the extent of physical disability varies among different people, although their physiological injury may be similar.

The most common type of unscheduled injury is injury to the back. In unscheduled cases, the law requires an assessment of the individual’s employment potential in relation to other personal factors such as training, education, prior work experience, age, job availability, and likelihood of successful vocational rehabilitation. Roughly 10% of the total comprehensible cases annually result in a determination of permanent disability.

Death Benefits. Death benefits are payable to the dependents of an employee killed as a result of a workrelated accident or disease. The payment is four times the annual average wage rate. As the wage rate increases, the maximum death benefit increases. The maximum benefit is presently $113,400.

These payments for disability and death are in addition to any other private insurance benefits the employee might have, either personally or through the employer. Many employees disabled more than six months are eligible for Social Security benefits as well as Worker’s Compensation disability.

Who is Eligible for Worker’s Compensation Benefits?

Any employee of a covered employer is covered by the Worker’s Compensation law for any injury or disease suffered as a result of the employment. Worker’s Compensation benefits will pay for medical expenses, partial wage replacement during recuperation, and payment for any permanent injury. An employee need not prove that the employer did something to cause the accident. Worker’s Compensation is, in effect, a “no-fault” system except that the injury or disease must be work related. The only exception is that the compensation can be increased by 15% if the employer failed to comply with a safety rule or decreased by 15% if an employee fails to comply, both to a maximum of $15,000. In return for this no-fault protection, the law provides that the employee cannot sue the employer or co-employee for the injury incurred.

An employee is not required to file any application for Worker’s Compensation benefits either with the employer, the insurance carrier, or the Worker’s Compensation Division in order to receive benefits. The obligation for payment of Worker’s Compensation benefits exists as soon as the employer knows that an injury occurred.

What injuries are covered by worker’s compensation?

The WC law of Wisconsin defines an injury as any mental or physical harm due to work place accidents or diseases, including accidental damage to artificial limbs, dental appliances, and teeth. Injuries covered include:

Physical harm or injury such as bruises, burns, cuts, fractures, crushing injuries, hernias, sprains, strains, stiffness, amputation, loss or paralysis of part of the body, sudden loss of hearing, sudden loss of vision and disfigurement.

Mental harm including nervous disorders, hysteria, and traumatic neurosis. The effects of brain hemorrhage caused by an industrial accident may also result in such harm. If the injury is mental harm or emotional stress without a physical trauma, the injured employee must show that it resulted from a situation of greater dimensions than day-today mental stresses and tensions which all employees’ experience.

Accidental injury such as physical or traumatic mental harm occurring suddenly and unexpectedly as a result of some employment related activity. Occupational disease is chronic physical or mental harm caused by exposure over a period of time to some employment related substance, condition or activity.

Occupational deafness Benefits are payable if prolonged exposure to noise causes permanent partial or total loss of hearing.

How long may a patient receive chiropractic care for their injury?

Theoretically, there are no limits as to the amount of chiropractic care a patient may receive for their injury. When a patient is injured as a result of their employment, the law allows a patient to receive care until they reach maximum medical improvement or until they reach the state of health they were in just prior to the injury. In addition, as part of a settlement with the insurer, and administrative law judge could order the insurance company to pay for chiropractic care for an indefinite period.

What chiropractors and their staffs have difficulty understanding is that this part of the law is a double edged sword. A chiropractor is responsible for determining when the patient has reached maximum medical improvement or when the patient has returned to the state of health they

were in just prior to the injury. While insurance companies may, and often do, try to tell chiropractors that care will not be approved after a certain date, the decision to terminate care is always the chiropractors. The reason is that the chiropractor is financially at risk for any care that is determined not to have been medically necessary. Simply put, the chiropractor is in charge of the case. He/she can keep the patient under care as long as they wish. If the worker’s compensation carrier disputes some care as not being medically necessary and wins, the chiropractor may not collect from the patient or their group health carrier for this care

When a chiropractor receives a letter from a worker’s compensation carrier that states that care will no longer be paid for after a certain date, the letter itself has no statutory meaning. The carrier has no authority to terminate care. The letter does, however, serve a useful purpose. The letter has put the doctor on notice that after the date indicated, the doctor will likely have to use the “Necessity of Treatment Dispute Process” in order to be paid for this care.

Are there treatments that will not be paid for worker’s compensation?

Expenses will not be paid for treatment by a physical therapist, masseur, or masseuse, or pain clinic unless the treatment is ordered in writing by a chiropractor or a medical doctor or unless the employer or WC carrier specifically agrees in advance to pay for this type of treatment.

Why won’t a worker’s compensation carrier pay for injured workers nutritional supplements?

A chiropractor faces great risk if they ever prescribe or recommend nutritional supplements to a worker’s compensation patient for the following reasons;

1) Chiropractors are not allowed to prescribe drugs under Wisconsin law. To do so is a very serious violation of the chiropractic scope of practice.

2) Chiropractors are not allowed to recommend any substance for the specific cure or treatment of any injury. Any substance recommended for a specific cure is defined as a drug under the statues. A worker’s compensation injury is very specific. A chiropractor recommending a nutritional supplement for the treatment of a condition related to a worker’’ compensation injury has prescribed a drug.

3) Chiropractors are allowed to recommend nutritional supplements for the “general health of a patient”. However, reimbursement for worker’s compensation care is limited to what is specifically necessary to what is necessary to return the patient to the state of health they were in just prior to the injury. Therefore, the supplements would not be reimbursable.

The patient, or their group health carrier, may not be billed when a carrier turns down payment for nutritional supplements. Once an injury has been billed to a worker’s compensation carrier, a patient may not be billed for any services or supplies until they have been released from care for that injury and the release has been noted in the patient’s record.

Does a patient have a right to choose their doctor if they are injured?

Section 102.42 (2) of the worker’s compensation statutes states that “the employer shall offer to the injured worker his or her choice of any physician, chiropractor, psychologist or podiatrist licensed to practice and practicing in this state for the treatment of the injury. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed, the employee shall be given his or her choice of attending practitioner at the earliest opportunity. The employee has the right to a 2nd choice of attending physician on notice to the employer or its insurance carrier.”

Small and large employers often abuse these rights. The most frequent type of abuse is the employer who requires all injured workers to first visit an on site nurse or a nearby clinic. Once there, the employee is intimidated by the company or nurse into not receiving care or receiving the care from “their doctor”. The patient has the right to:

- ignore the request to visit the on site nurse or the nearby clinic except in the case of a genuine emergency.
- seek treatment from anyone they choose
- ignore the treatment recommendations if they do initially visit the on site nurse or the nearby clinic

The most insidious abuse is the implied threat of the employer if the patient fails to follow their recommendations. While you may have great sympathy for an injured worker facing these circumstances, all that you can do is inform them of their rights. If the patient needs additional assurance, you should advise them to call the local worker’s compensation office where they will receive the same information. Ultimately, a patient must defend themselves against abuse; their chiropractor cannot do it for them.

What should I tell a patient if their employer tells them to go to a certain doctor for treatment?

1) Tell them that the worker’s compensation laws guarantee them the right to choose their provider. If they doubt this, they can call worker’s compensation confidentially to confirm this information.

2) If the employer violates this right, the employer will be penalized and their choices will be unrestricted.

3) If it is possible, ask them for the name of their supervisor, the name of the employer, and the address of the employer. If they will allow us, the WCA will take this information and file a complaint

with DWD. The supervisor will receive a letter from DWD advising them that they have violated the law.

What happens if an employer threatens to fire an employee if they do not see the doctor they “recommend”?

A direct threat to fire an employee who is injured is quite rare, but when it occurs it should be reacted to immediately.

- Note the information provided to you in the patient’s record. Be sure to include the supervisor’s name, the date, and time the supervisor made the threat.

- Have the patient contact the worker’s compensation division of DWD. They want an individual from worker’s compensation to have a record of the threat in case they are fired.

- Do not intercede on behalf of the patient. The patient should make the contact with DWD because only the patient can relate the exact words of the conversation.

- If the employer carries out the threat, the DWD has the right to reinstate the person in the job with back pay and to assess significant penalties against the employer.

Can a worker’s compensation carrier require me to preauthorize my care?

This is an area of the law that is frequently violated by carriers. A worker’s compensation carrier is not allowed to require the pre-authorization or pre-certification of a care for a worker’s compensation patient. When this occurs, the doctor or staff should obtain the name of the individual making the demand, the company they work for, and the address and phone number of the company. This information should be sent to the WCA so we may write a letter of complaint to DWD. When DWD receives WCA complaints, they write directly to the insurer and inform them that their requirement is a violation of the law.

The more sophisticated carriers do not insist on preauthorization. Instead they request voluntary cooperation in order to “speed up the processing of the claim”. A doctor is not required to give them any information over the phone and does not have to cooperate in any manner, if they so choose. If they choose to cooperate, they may discontinue their cooperation at any time and retain their full rights under the law.

An effective strategy for some doctors has been to cooperate as long as the nurse or case manager agrees with their assessment and treatment plan. At the point where disagreement occurs, the doctor merely thanks the nurse or case manager for their opinion and proceeds to care for the patient in the manner they believe is most appropriate. It is likely that the worker’s compensation carrier will dispute the necessity of care from that point onward; however, the doctor is fully protected by the “Necessity of Treatment Dispute Process”.

These rights do not apply to doctors who voluntarily sign managed care agreements that require the pre-authorization or pre-certification of care. In those instances, the doctor is bound by the terms of their agreement. If they were to appeal the decision of the managed care company by using the “Necessity of Treatment Dispute Process”, they may be successful at the state level but face possible legal actionby the managed care company.

What should I do when a patient is denied the freedom to choose their provider, an insurance company requires pre-authorization, or an employer refuses to let them get care from a chiropractor and the patient refuses to fight for their rights?

The WC statutes forbid all of these activities but that does not stop some employers or carriers from attempting to violate the law. This point is very important. The law only protects those injured workers who are willing to insist on their rights. If an injured worker is willing to be intimidated and is not willing to take action, there is nothing that you, or the state, can do for them.

For those injured workers who are willing to stand up for their rights there is much that can be done for them. Every year, the WCA writes hundreds of letters to solve these types of abuse problems. Here is the information we need in order to help you and your patient:

- The name of the injured worker
- The name of the person from the employer/WC carrier who gave them improper information
- The name of the employer/WC carrier and their address
- The date the problem occurred
- A copy of whatever documentation is available

When we receive this information we write a letter to DWD asking them to inform the employer/WC carrier that they have violated the law. You receive a copy of this letter . Both should be maintained in the patient’s file, as well as a copy of the letter from the state if one is written. Usually this results in the employer or WC carrier immediately correcting this problem (only because they got caught). However, if they should not correct the problem, having the copy of our letter in your file will help immensely if the case goes through the Necessity of Treatment Dispute process.

How many IME’s can an injured worker be forced go through?

The law allows a worker’s compensation carrier to have an injured worker examined as many times as the carrier believes is necessary to establish the condition of the patient. While it is rare that this occurs more than once with a patient, some carriers have required patients to go through a series of independent medical exams.

Some carriers use IME’s as a legitimate tool to help them understand the extent of a patient’s injury. Patients who have a permanent disability qualify for additional payments under Wisconsin law. These payments can be quite large and increase in proportion to the patient’s disability. An IME is used to be sure the disability rating given to the patient accurately reflects their permanent condition. If the patient disagrees with the decision of the insurance company, they may use the hearing process which an administrative law judge makes the final decision.

IME’s are also used to determine the necessity of the patient’s care. Patients have no need to be concerned about these types of IMEs since the law protects them from paying for any portion of their worker’s compensation care. Their doctors, however, have good reason to be concerned about these types of IMEs. Some insurance companies are known to employ chiropractors that routinely determine that a portion of a patient’s care was unnecessary. These doctors are hardly independent. They are selected specifically for their biased views. Carriers employ them because they know that a certain percentage of chiropractors will not defend their care no matter how outrageous the opinion of the IME doctor.

A more appropriate response would be for every chiropractor to assume that every stage of their care will eventually be challenged. With this assumption, they can make appropriate modifications to their documentation. A more comprehensive analysis of the patient’s progress will mute the opinion of an unbiased IME doctor when the case is reviewed through the Necessity of Treatment Dispute process.

My patient went to an IME. When the patient returned to my office they told me that the entire IME lasted less than 10 minutes and the doctor barely examined them. Now I have received notice that the carrier is disputing the necessity of my care. What are my options?

Chiropractors and patients are right to be outraged when they or their patients are subjected to a sham independent medical examination. An IME doctor who does not do a complete and proper examination does so because they valuethe payment they receive from the worker’s compensation carrier more than their reputation or their ethical responsibility to the patient.

Your first defense is to record the observations of the patient as part of your records. It may help to have the patient sit down with a sheet of paper and describe, in their own words,

what took place during the exam. While they will not be fluent with chiropractic terminology, they are certainly capable of describing the amount of time devoted to taking their history and to performing the exam. Additionally, they may be able to provide a description of the exams that were performed. From this you can deduce whether or not the examination could have yielded credible observations about the patient’s condition.

Having this information as part of your file strengthens your response when the necessity of your care is disputed. The chiropractor that reviews your claim under DWD’s expert review process is very familiar with the carriers who perform sham IME’s. Assuming your documentation presents a clear picture of the patient’s injury and their response to care, you have every right to expect that the carrier’s decision will be overturned by DWD in the Necessity of Treatment Dispute process.

Who should I send a worker’s compensation bill to?

The best way for you to receive timely payment is to identify the worker’s compensation carrier or third party administrator for the employer of the patient. Do this as soon as the patient calls for an appointment.

How can I find the WC carrier and the contact person to send the bill to?

Contact the employer as soon as possible after the patient contacts you for treatment. Tell the employer who you are treating or planning to treat and determine if they areemployed and who the responsible person is at the insurance carrier or third party administrator.

What if the employer refuses to give me the name of the insurer?

You can look up the insurer from the name and location of the employer through the DWD website, or by calling the worker’s compensation division at (608) 266-1340 and asking for the Bureau of Insurance.

What can I do to speed up payment in a worker’s compensation case?

Each of the following steps can significantly increase the speed at which your worker’s compensation claim is paid. Each delayed or skipped step can have a multiplying effect on the amount of time your payment is delayed.

- If liability is not immediately accepted, you have the right to begin collecting directly from the patient or their group health carrier. While money you collect must be refunded if the worker’s compensation carrier accepts liability, you have eliminated delay if liability is denied. In addition, a patient who is required to pay for care is likely to go to their employer immediately to resolve the question of liability.

- Bill the worker’s compensation carrier the day after services are rendered. A worker’s compensation carrier has 60 days from the date they receive your claim to make payment. Billing on a weekly, biweekly or monthly basis is inefficient, delays your default rights, and automatically results in the delay of your payment.

- Call the carrier within 10 days of your initial claim. Find out what documentation, if any, is needed to process payment for your claim. Make sure your staff notes these calls in the administrative file.

- If the carrier has a history of requiring documentation with each claim, do not wait for notification. Send the documentation along with each claim.

- Within 10 days of sending documentation, call the carrier and verify the receipt of the documentation. If they claim they have not received it, the next set of documentation should be sent to a specific individual and that individual should be call 3-4 days after mailing to verify its receipt.

The carrier only has 60 days to pay your claim or to dispute its necessity (see question explaining the default process). You can greatly reduce your worker’s compensation accounts receivable by starting the process quickly and staying on top of the process at every critical step.

A worker’s compensation carrier recently returned our claim forms with the following message “We are unable to process payment for this invoice, as we find no record of this individual filing a workers compensation claim. Please contact the employer and request they file an “Employers First Report of Injury”. Can a WC carrier delay payment for this reason and is it our responsibility to have this report filed?

The answer to both questions is no. It is the carrier’s responsibility to communicate with its insured employers. When they fail to file reports, it is the carrier that must use its staff to rectify this problem. It is also improper to send a valid claim back to a provider. If a carrier does so they are still liable under the default provisions of 80.73 (3).

This is an excellent example of the type of problem that needs to be reported to the WCA. When we received a copy of the EOB with this rejection notice, we will automatically intercede on your behalf. Should the carrier not act immediately to correct the problem, they will have exposed themselves to the likelihood of a default judgement and possible penalties by the state.

My WC patients sometimes ask me why they have not received their TTD check when the WC carrier has accepted liability for the case. What are the steps for the injured worker to follow for a non-disputed claim?

1. The injured worker should give immediate notice of the injury to their employer. This first step is critical. The injured worker may be expecting you to give this notice. Even if you have done so, the employer or the WC carrier may have rules that require the injured worker to give notice before they will start the claim process. The injured worker cannot expect to receive TTD checks unless they have notified their employer of the injury.

2. When the employee is injured, he or she needs to get chiropractic or medical attention. The injured worker should see their chiropractor as soon as possible and continue treatment as necessary.

3. The employer files its report with its WC carrier or internal claims department if self-insured.

4. The employer files a report of the fourth day of the disability with DWD. This report is called “Employer’s first Report of Injury or Disease.” The injured worker does not receive a copy of this report.

5. The WC Division sets up a record of the case and sends the injured worker an information brochure. The brochure has a lot of very important information including their right to choose their doctor and a description of the process to receive payments from the WC carrier. Please remind your patient it is important to read this brochure because you cannot protect their rights – only they can.

6. The WC carrier obtains a medical report on the nature of the injury from the doctor or employer.

7. The most common cause of delay or interruption of compensation payments is lack of chiropractic/medical information from the treating doctor. If an interruption in compensation payment occurs, it is advisable for an injured employee to call each doctor’s office from which they have obtained care to find when the last medical report was sent to the employer or worker’s compensation insurer and what was said in the report.

8. The WC carrier contacts the injured worker for details of the accident and the extent of the injury. The injured worker should give a complete statement, particularly of the physical symptoms connected with the disability. If there are any doubts about the statement, the employee need not sign it. The WC carrier must have a certain amount of information to handle the claim, and this is the basic purpose of the statement. Incomplete or inaccurate information may cause the company to deny the claim and withhold benefits. The worker must be given a copy of the signed statement.

9. If there is agreement about the claim, the WC carrier or self-insured employer will promptly begin paying benefits to the employee for lost wages. The WC carrier or employer is also responsible for paying reasonable and necessary chiropractic or medical costs directly to the provider. 10. The employer or WC carrier sends the WC Division a follow-up report within 14 days showing that payment of benefits has begun, or explaining the reasons for denial.

11. The injured worker receives the first check, usually within 15 days after the date of injury. If payment is not received, the injured worker should call the employer or its WC carrier to find out if a problem exists. You may not make this call for them. If there is a problem with the claim, the injured worker can write or call the WC Division office nearest to them.

12. At the end of the period of disability, the WC carrier usually writes a letter informing the injured worker that payments will be stopped as of a certain date.

13. An injured worker may safely sign a receipt for payment because the claim remains open for 12 years from the date of last payment.

14. The employer and WC carrier make out a “supplementary” report, sending one copy to the WC Division, and one copy to the injured worker when final payment has been made.

15. A report from a health care provider must accompany the final report, and a copy must be given to the injured worker if there has been any permanent disability or if the temporary disability exceeds three weeks.

What must a WC carrier do when it disputes the amount of my fee?

Within 30 days of receiving a bill that is beyond the formula amount in the database for that procedure, the insurer must notify the provider that it is disputing the fee. To make sure there is no misunderstanding between the provider and the insurer, the insurer’s notice to the provider disputing the fee must specify:

• the name of the patient
• the employer
• the date of the procedure in dispute
• the amount charged
• the CPT code
• the formula amount for that code
• the database from which it was taken
• the amount in dispute.

The insurer’s notice must also explain the process for justifying a fee more than the formula amount if the service was more difficult or complicated than usual.

How long do I have to file a dispute over the reasonableness of my fees?

You have 6 months after the insurer first refuses to pay in which to file a request for the WC Division to resolve the dispute. However, the WC Division will not review the dispute unless, at least 20 days before submitting a fee dispute to them you explain to the insurer, in writing, why the procedure was more difficult or complicated than usual. Within 15 days of receiving the justification for a higher fee the insurer must either pay the fee or explain its continuing refusal to pay.

When a fee dispute is submitted to the WC Division, they will notify the insurer that it has 20 days to the bill or file a written answer. If the insurer does neither, a default judgment will be ordered. If the insurer misses any deadline for responding, it must pay 12-percent annual interest from the date of the missed deadline to the date of actual payment to the provider. Within 90 days of receiving the insurer’s answer, the WC Division will issue an order resolving the dispute. Either party may appeal the order directly to circuit court.

If the fee dispute involves a claim for which an application for hearing is filed, or an injury for which the insurer disputes the cause of the injury, the extent of the disability, or other issues which could result in an application for hearing being filed, the WC Division may delay resolution of the fee dispute until a hearing is held or an order is issued resolving the dispute between the injured employee and the insurer. (Note: this also applies to necessity of treatment disputes.)

The worker’s compensation carrier paid for several visits and then sent me a letter stating they were denying liability and requested a refund. Can they do this?

This is not as unusual as it seems. Consider the following scenario: A worker goes into the supervisor’s office and states that they just hurt their lower back while moving some heavy containers in the storeroom. The employer, being both professional and compassionate, expresses sympathy and encourages the injured worker to seek care from a doctor of their choice. The employer also notifies the worker’s compensation carrier and tells them he has no concern over the legitimacy of the claim.

Several weeks/months later, while having lunch with his co-workers, the injured worker “in confidence” tells his co-workers that he was not really injured on the job. In fact, his injury occurred as a result of a job he was doing around the house. One of the co-workers present at the discussion informs the supervisor about the fraud and the supervisor notifies the carrier. The carrier diligently paid your claim until it was notified by the employer. Then, they suspended payment while they investigated the liability question.

The injured worker, of course, has a potentially serious problem with his employer. Many company’s personnel policies provide for suspension or termination if an employee files a false worker’s compensation claim. You, on the other hand, now face the risk of not being paid for your services. If a worker’s compensation carrier informs you that they are re-opening the question of liability after initially paying your claims do not delay in following these steps:

- Immediately inform the injured worker. The injured worker has the right to file for a hearing before an administrative law judge and should do so immediately to protect their rights. A form for this purpose is easily obtained from the worker’s compensation division of DWD. Since liability has been questioned, the patient is now responsible for the payment of your bills plus they face the loss of temporary disability payments.

- If you have not already done so, determine if the patient has group health insurance. If they do, you may immediately begin billing the group health carrier for services until the liability question is resolved. If, sometime in the future, the worker’s compensation carrier again accepts liability, payments from the group health carrier must immediately be refunded.

If the patient does not have group health insurance, you may immediately begin billing or collecting for your services. If, sometime in the future, the worker’s compensation carrier again accepts liability, payments from the patient must immediately be refunded.

These alternative activities should not be delayed. It is not routine for a worker’s compensation carrier to re-open the question of liability. It can, and often does, mean that the patient’s injury was not the result of work and they are not liable for care.

If a patient’s WC settlement included payments for future care, whom do we bill for this care?

Because a settlement is not an admission of liability, this care is not considered to be a worker’s compensation claim. The payment for all services is the patient’s responsibility.

I got a letter from the WC Division ordering the payer to pay my fee and they have not paid. What can I do?

You should contact the payer and seek prompt payment of the amount ordered for payment. If the payer does not pay, write to the Worker’s Compensation Division of DWD and ask for a certified copy of the order. The Certified copy can be entered as a judgment in circuit court.

Are managed care plans allowed in worker’s compensation?

An employer is allowed to have a managed care plan that includes coverage for worker’s compensation. Under no circumstances, however, is an injured worker required to use a doctor on the managed care panel. The patient always retains the freedom to choose their doctor under worker’s compensation. They may choose to see their managed care doctor as their first choice and to seek treatment from a second doctor outside the plan if they are dissatisfied with the care of the first doctor.

There is considerable abuse from employers whose employees have HMO or PPO options for their group health plans. Employers are supposed to remind their employees that they have the freedom to choose their worker’s compensation doctors at the time of the injury. In reality, not only are injured worker’s not reminded of their freedom to choose, they are often “strongly encouraged” to visit one of the managed care doctors for their care. To an injured worker who does not know about their rights (which is often the case); this encouragement can sound like a threat to go where the employer wants them to go for their care or risk losing their job.

You are not likely to see those workers who have been successfully intimidated. You will, however, see patients who are worried about the consequences of them seeking care from you if you are not on the managed care panel. These patients should be reassured that an employer cannot retaliate against them for choosing a doctor outside the managed care panel. If they are angry with their employer for subjecting them to intimidation and they would like the WCA to complain on their behalf, send the following to the WCA:

- The name of the patient
- The employers name and address
- The name of the supervisor who told them they had to see a managed care doctor

The WCA will write to DWD and complain on behalf of the patient. In most cases, the employer will receive a letter from the worker’s compensation division reminding them that failure to allow an injured worker their choice of provider is a violation of the law.

Are there any circumstances in which an individual or their group health carrier can be charged for services that are deemed not to be medically necessary by the worker’s compensation carrier?

No. From the moment a WC carrier accepts liability for a person’s work place injury until the day the doctor has written a note in the file releasing the patient from care, the WC carrier is responsible for the cost of treatment until the patient has completed their treatment plan, reached MMI, or he/she has returned to the state of health they were in just prior to the injury.

If a carrier challenges any of the services as not being medically necessary, the chiropractor has only three options:

1) Appeal the decision of the carrier.
2) If the appeal is unsuccessful, use the Necessity of Treatment Dispute process.
3) Write off the balance due.

Some worker’s compensation carriers will write to you and request that the bills be sent to the group health carrier or the patient because they believe a patient should be dismissed as of a certain date. As explained in another question, this is a violation of the law. The key factor is the date in the clinical report that releases the patient from worker’s compensation care. Until the doctor releases the patient in writing, they have no option to but to pursue reimbursement through the worker’s compensation system.

 

What kind of notice does the WC carrier have to give me if they are disputing the necessity of my care?

A WC carrier or self-insured employer that refuses to pay for treatment rendered to an injured worker must give you a written notice with all of the following:

1. The name of the patient/employee;

2. The name of the employer on the date of injury;

3. The date of the treatment in dispute;

4. The amount charged for the treatment and the amount in dispute;

5. The reason that the carrier believes the treatment was unnecessary, including the organization and credentials of any person who provides supporting medical documentation;

6. Your right to initiate an independent review (the Necessity of Treatment Dispute Process) by the WC Division within 9 months and a description of how the costs of this process will be assessed.

7. The address to use in directing correspondence to them regarding the dispute;

8. That you may not collect a fee for the disputed treatment from, or bring an action for collection of the fee for that disputed treatment against, the employee who received the treatment.

What option do I have if I do not receive any notice or payment within 60 days?

If you do not hear anything from the carrier within 60 days of filing your claim (and you have verified that liability is not an issue), you may immediately request that DWD issue a default order requiring the WC carrier or self insured employer to pay the full amount in dispute.

If a WC carrier refuses to pay for care because it claims it was not “medically necessary”, what must a chiropractor do before they are allowed to file a “Necessity of Treatment Dispute”?

After receiving notice from the insurer or self-insured employer the chiropractor must:

• Write to the WC carrier DWD and explain why the treatment was necessary to cure and relieve the effects of the injury. The letter must include a diagnosis of the condition for which treatment was provided.

• The letter must be sent at least 30 days prior to filing a dispute with DWD.

• The letter should state that you are appealing their decision and that you intend to file a “Necessity of Treatment Dispute with DWD if the case is not resolved satisfactorily.

• You improve your chances of winning your appeal and/ or your dispute by providing a plain English narrative along with a copy of your clinical documentation. The narrative is most effective if each point that you make is clearly indexed to the appropriate section of your clinical documentation.

Within 30 days from the date on you send your letter, the WC carrier or self insured employer must notify you whether or not it accepts your explanation regarding the necessity of treatment. If they accept your explanation, your fee must be paid within 30 days.

What must be sent to the WC Division of Workforce Development (DWD) when filing a “Necessity of Treatment Dispute” and how does DWD handle the request?

Within 9 months of the final correspondence with the WC carrier or self insured employer in which they refused to pay for care because they claimed it was not “medically necessary”, a chiropractor must send all of the following to DWD.

• A properly completed Necessity of Treatment Form.

• A copy of all of the correspondence related to the dispute.

• A copy of all of the clinical documentation related to the case

• At the same time it files the application for the dispute with DWD the chiropractor must also send the insurer or self-insured employer a copy of all materials submitted to DWD.

When DWD receives the application for the dispute, it notifies the WC carrier or self insured employer that is has 20 days to either pay the bill in full for the treatment in dispute or to file an answer. The carrier or self insured employer also supplies DWD with a copy of all of the correspondence relating to the dispute and any other material that responds to the chiropractor’s application. Their answer must include the name of the organization and the credentials of any individual whose review of the case has been relied upon in reaching the decision to deny payment.

 

Can I charge the WC carrier interest if they are late in paying my claims?

Yes. In the case of late payment, the carrier or self insured employer must pay simple interest on the overdue amount at the annual rate of 12 percent. You must add this amount to your claim. They will not calculate the interest for you.

Who reviews claims for DWD in the Necessity of Treatment Dispute Process?

The state hires chiropractors to serve as expert reviewers. All of the reviewers hired by the state are chiropractors licensed to practice in Wisconsin. They are chosen through a competitive application process in which their qualifications and experience are thoroughly evaluated.

How long does the reviewer have to reach a decision?

Within 90 days of receiving the material from DWD, the reviewer must provided DWD with a written opinion regarding the necessity of treatment, including a recommendation regarding how much of the provider’s bill should be paid, if any. At the same time that it provides its opinion to DWD, the reviewer sends a copy of the opinion to the provider and the WC carrier.

Can I appeal the WC expert’s decision?

You may appeal the expert’s decision; however, unless DWD receives clear and convincing written evidence that the opinion is in error, they are required to adopt the written opinion of the expert. You, or the insurer, have 30 days from the date the expert’s opinion is received by DWD to present written evidence that the experts opinion is in error.

Can administrative law judges made a decision on the necessity of treatment as part of a liability hearing?

Yes. Administrative law judges have the authority to resolve necessity of treatment disputes as part of liability hearings. DWD encourages judges to use the necessity of treatment dispute process but some judges prefer to resolve all of the issues involving an injured worker. If an administrative law judges makes a decision on the necessity of care, it is cannot be appealed.

The worker’s compensation carrier for my patient is not only disputing liability for the injury, they have also told me that even if liability is accepted they will dispute the necessity of my treatment. Because of that statement, I submitted a Necessity of Treatment Dispute to DWD. DWD has told me that I will not get a decision until after the liability hearing. Can they do this?

Yes. DWD may delay resolution of the necessity of treatment dispute until a decision on liability is reached. Remember, you do not have to wait to be paid. You have the right to collect from the patient or their group health carrier until liability is determined.

I filed a Necessity of Treatment dispute and then the carrier made me an acceptable offer to settle the case. Must I go through with the Necessity of Treatment Dispute?

No. Any time you settle with the WC carrier you may cancel the pending dispute with a simple phone call or letter to DWD.

I got a letter from DWD in which they said they were putting my claim through the Necessity of Treatment Dispute process because of a patient complaint. Can they do this?

Yes. DWD has the right to initiate a Necessity of Treatment Dispute when requested to do so by an injured worker, a WC carrier or a self insured employer. While it would be unusual for an injured worker to request DWD to initiate a dispute, it would not be unusual for a WC carrier to make this request if they paid WC claims in good faith and, in retrospect, believed the care was not necessary.

What are the qualifications for a chiropractor to serve on the state’s expert panel?

DWD must consider all of the following when selecting chiropractors to serve on its expert panel to decide Necessity of Treatment Dispute cases.

An individual’s training and experience, including:

1. The number of years of practice;
2. The extent to which the doctor currently derives his or her income from an active practice; and,
3. The recommendation of the WCA
4. Any other factors that DWD may determine are relevant

The WC Division begins the selection process by sending out an information packet when it is seeking to hire chiropractors for the expert panel. Chiropractors must submit a detailed application that is reviewed by DWD. While each of these factors is considered, DWD has the authority to determine how much weight it assigns to each factor.

I know a WC carrier is required to tell me the name of the database they have used before they can reduce my worker’s compensation fee. But I am curious, how does the database itself work?

Before DWD may certify a database it must determine that all of the following apply:

1. The fees in the database accurately reflect the amounts charged by providers for procedures rather than the amounts paid to or collected by providers.

2. The information in the database is compiled and sorted by CPT code.

3. The information in the database is compiled and sorted into economically similar regions within the state, with the fee based on the location at which the service was provided.

4. The information in the database is presented in a way that clearly indicates the formula amount for each procedure.

5. The database company assists DWD in auditing the accuracy of its application for certification by any reasonable method. If the database company did not collect the data itself it must provide a means for DWD to audit the process used by the person who collected the data.

6. The information in the database must be updated and published at least every 6 months.

7. The number of pieces of data for each CPT code must be adequate.

8. The sources from which the data are collected, including the number of different providers, WC carriers of self insured employers must fairly represent the geographic area.

9. The extent to which the data are representative of the entire geographic area for which certification is sought;

Is there a problem if an employer asks me to “run a worker’s compensation claim through the patient’s group health insurance”?

It is not unusual for patients and even providers to think that all insurance is the same. If that were true, it would not make a difference if a worker’s compensation claim were submitted to group health. However, there is a big difference between the two that can have serious ramifications for both you and the patient.

Most importantly, each insurance contract specifically forbids payment for services not covered under the policy. In other words, a group carrier could well consider it fraud if they are billed for worker’s compensation services and worker’s compensation consider it fraud if they are billed for group health services. This is true even when the same carrier offers both types of insurance.

An employer that asks you to “run a worker’s compensation claim through the patient’s group health insurance” may be doing so for one of two reasons. The first is that they do not have the worker’s compensation insurance that is required under the law. An inquiry should immediately be raised with the WC Division of Workforce Development for any employer that will not give you the name of their worker’s compensation carrier. The state can easily provide you with that information.

The second possibility is that the employer is seeking to lower their worker’s compensation premium by shifting the cost of care to the group health carrier. While the employer may see this as a benefit, you ought not to cooperate. The consequences of filing a fraudulent claim can be significant.

When are medical reports required and when should they be sent to the WC Division?

Medical reports are required whenever:

1. Temporary disability exceeds 3 weeks; or
2. Permanent disability has resulted from the injury.

Medical reports should be sent to the WC Division once the worker has been released to return to work or has reached maximum medical improvement at the end of the healing period.

When does the WC Division follow up to ensure medical reports are received?

The WC Division will routinely follow up to request a medical report eight months after it receives information, usually from a WKC-13, indicating the worker has met the requirements of Wis. Admin. Code Section DWD 80.02(2)(e), and the worker been released to return to work or has reached the maximum medical improvement level.

Does the WC Division make “non-routine” requests for medical reports?

Yes. The WC Division will make non-routine requests for medical reports, especially when it receives information that there has been an evaluation of permanent disability and the worker is requesting payments or an advance on payments due for a permanent disability.

 

When does the WC Division assess a fine for failure to submit a medical report?

The WC Division will issue a $100 fine for any failure to respond to requested information, including medical reports, within 30 days of such request. If a carrier or employer is unable to obtain a medical report within the 30-day period, it must notify the Division of the circumstances to avoid issuance of the forfeiture.

What criteria does the WC Division use to determine that a medical report is final?

According to the WC Division, final medical reports:

a) include a statement by the doctor stating whether or not any permanent disability resulted from the work injury; and,

b) must be based on an examination after the end of healing and after the employee has been released from treatment or is receiving treatment strictly to maintain the health of the worker, not to improve the worker’s condition;

c) must be completed by the treating doctor; d) must be based on Admin. Code Section DWD 80.32 when applicable.

Not-final medical report includes those dated prior to the release to return to work, IME medical reports, medical reports based on AMA guidelines rather than Admin. Code DWD 80.32, and final medical reports which are followed by a renewed period of temporary total or partial disability.

Note: You will receive better assistance as to when an additional medical report is required if you identify the medical report you are submitting to the WC Division as final or not final.

I know how important it is for me to keep accurate documentation of the care that I provide to an injured worker. How important is it for the injured worker to keep their own written records?

Very important.
Complications can arise in a worker’s compensation claim, and the amount of benefits are determined by the specific facts of the case. It is important that the injured worker keep a record from the beginning of their care – especially if multiple providers treat the patient. If the case goes to hearing, you will most likely not be present to support your patient. At that hearing it will be important that the injured worker’s testimony is consistent with the earlier accounts of the accident that they gave to you. The following information is critical for the injured worker to have in writing.

1. The date of injury of first indication of an injury. The date is very important.

2. The accident’s cause such as being struck by an object, overexerting, strain, sprain, etc.

3. The nature of the injury or disease, such as cut, sprain, hernia.

4. The part of the body affected, such as finger, low back, or respiratory system.

5. The kind of action that was taking place, such as lifting, carrying, etc.

6. The source of injury, such as machinery, object, etc.

7. The weight of the object causing the injury.

8. Physical symptoms such as sharp pain, stiffness, loss of motion, etc.

9. How long the symptoms lasted; if and when they reoccurred.

10. Names of any witnesses who saw the accident or who the injured worker spoke to immediately following the injury.

11. The doctors seen and the date of each visit.

12. All money spent on doctors, examinations, treatment, medicines and transportation. Receipts and bills are important documentation.

13. All days or parts of days lost from work because of the disability.

14. A written record of any statement made to the employer or the insurance carrier representative.

15. Copies of any agreement or final receipt signed for a worker’s compensation claim.

Can you provide some guidance in how to complete the WKC-16B form?

The questions on the WKC-16-B concerning causation and disability should be answered to a “reasonable medical probability”. The Worker’s Compensation Law does not require 100 percent certainty. The standard is “reasonable medical probability” which is somewhat less than absolute certainty. On the basis of the information available to doctors, they should decide whether it is more likely than not that an event or series of events caused the injury and whether the injury caused the disability.

The first three questions on the form should present no difficulties. In answering Question 3, the doctor should enter the date of accident according to the history provided by the injured employee.

In answering Question 4, the doctor should describe the accident or accidents (traumatic incidents) to which the patient attributes their condition. A legible copy of the patient’s history is sufficient if it contains this information. Those notes can be copied, attached to the WKC-16-B form and referred to in question 4.

Question 5 requires the doctor to include the subjective complaints and objective findings. If it is possible at the time the report is completed, the doctor should provide the diagnosis or a description of the physical conditions from which the employee is suffering. Again, a legible copy of the history or clinical documentation, if it contains this information, can be attached and referred to.

The answers to Questions 6 and 7 are self evident and only require a review of the doctor’s notes. However, Questions 8, 9 and 10 present more complex problems. These questions are directed to the issue of temporary disability. An accurate description of temporary disability is “the healing period.” Following injuries, workers must be given time to recover. They may be hospitalized, at home resting, or receiving therapy and/or medication. When treatment is completed, the healing period is ended and is followed by recovery or stabilization. Sometimes stabilization is referred to as “the plateau of healing.”

Whether recovery or stabilization has occurred is strictly a chiropractic/medical question. The fact that some treatment is still necessary, such as chiropractic adjustments or pain medication, does not rule out the fact that the healing period may have ended. This type of treatment is referred to as “maintenance.” The answer to Question 8 provides the Worker’s Compensation Division with the beginning of the healing period. A definite date is necessary

In Question 9, the WC Division recognizes that although patients are in healing periods, they may be able to do limited work within restrictions imposed by the doctor. Question 9 provides that information. The information as to the end of the healing period (stabilization) is provided in the answer to Question 10. Again, you must provide definite dates.

Questions 11, 12 and 13 are directed to the issues of causation and should be answered to a reasonable degree of probability. After the healing period has ended and workers’ conditions have stabilized, they may have permanent residual disability as a result of injury. This, of course, is a different type of disability than temporary disability. This is the type of disability that employees will have to deal with for the rest of their lives.

Permanent disability has been placed in two different categories by the Worker’s Compensation Law. The first category is known as “scheduled injuries”. These injuries include permanent injuries to the arms, hands, thumbs and fingers. Also included are injuries to the legs, feet and toes. Loss of vision and hearing also are scheduled injuries. Disability to these scheduled injuries is rated by comparing the permanently injured member or organ with a member or organ that is functioning at a 100 percent level.

The Legislature has decided that permanent injuries to the back, head, respiratory system, bodily organs (except for eyes and ears) and mental illness are not amenable to a schedule. Therefore, concerning this type of permanent injury, the doctor must compare, on a physical basis, this disability with a 100 percent disability to the entire body. This is strictly a physical or functional rating by the doctor.

The elements that constitute the disability should be described. For example, in dealing with back injuries, doctors could state that the employee is limited to lifting 25 pounds or that they cannot do repetitive bending. This is a physical evaluation. The problem of how this affects the injured person’s ability to perform in the available labor market must be addressed by the WC Division - not the doctor.

Doctors completing this form should “leave the disabilities where they find them”. In other words, if the pain and limitation of motion is at the wrist, rate the disability at the wrist. Do not rate it as a disability of the entire arm. Question 15 is directed to the rating. Question 16 is directed to elements that constitute the disability.

Questions 17 and 18 are used by the WC Division to determine whether the particular claim should be kept open. If you believe there may be an increase in disability or that further treatment is required, and this includes maintenance, you should so state. This is very valuable information. If you have information relative to a preexisting permanent disability, you must answer Question 19. This form must be certified, which means that the form need only be signed. It does not have to be notarized.

I referred a patient to an orthopedist for evaluation. I expected the orthopedist to return the patient to me for care, but instead he referred the patient to a physical therapist for care. Do I have any recourse?

Chiropractors are not as skilled as their medical counterparts in the art of referring patients and then getting the patient to return in the future for additional care. In addition, chiropractic/medical referral relationships are not as established as medical/medical referral relationships. These steps can help you avoid the problems related in the question:

- Do not refer the patient to a doctor you do not know. If you do not have a personal relationship it is easy for the doctor to ignore your instructions. If you do not have a business relationship with the doctor to whom you wish to refer a patient:

• call the doctor
• introduce yourself
• explain that you would like to refer a patient to them

- tell them exactly what services you would like them to provide

- request that the patient be returned to you for care

- Even if you have a business relationship, the medical doctor needs to be told, in writing, exactly why the patient is being referred to them.

- The best-written referrals provide clinical information along with what you suspect might be wrong with the patient. This “points” the doctor in a direction and assists them in carrying out your instructions.

- If the referral is for a specific service or treatment, be sure to state this in your instructions. To the degree possible, you want to stay in charge of the patient’s care.

- If you do not want the patient referred to any other health care provider, your instructions should include that request. Likewise if you wish the patient to be returned to you for treatment.

A medical doctor or other health care provider is not bound to follow your instructions or to return the patient to you for care. That is why it is best to limit your referrals to those providers with whom you have a good working relationship.

Do providers or IME reviewers “get a reputation” within worker’s compensation?

The number of worker’s compensation carriers in Wisconsin is relatively small. Each carrier has a chiropractor that does most, if not all, of their review work. It should not come as a surprise that just as reviewers get a reputation within the chiropractic community, individual chiropractors may also get reputation with the reviewer for a worker’s compensation carrier.

One would hope that a reviewer would make recommendations based on the merits of each case. But some reviewers do not take their ethical responsibilities seriously. They would rather retain their paycheck from the insurance company rather than give a fair and honest review. Human nature being what it is, there are also those reviewers that base their review on the reputation of the doctor. Here are some of the more important factors in establishing a chiropractor’s reputation.

Quality of documentation. The quality of a chiropractor’s documentation is at the heart of establishing his/her reputation for clinical competence. It is more than just producing endless pages of records. It has to do with how well the doctor tells the patient’s story. Too often a doctor is focused on reporting a myriad of findings and forgets that those findings need to be put in a logical sequence that directly relates to the patient’s care.

Reviewers are no different than anyone else. They want their work to be as simple as possible. From a purely administrative viewpoint, a typical reviewer would like to have the clinical records tell a story. The story begins with the reason for the patient’s visit that, in a worker’s compensation case, is always an injury of some type.

Before an explanation of the injury is given, the reviewer needs to understand the health care background on the patient. This is necessary because some individuals try to get the worker’s compensation carrier to pay for injuries that were not caused at work. Also, the doctor needs to know everything in the patient’s past health and family history that may influence their examination, assessment and treatment plan.

Knowing that the patient sustained an injury at work is not enough. Because the amount of money spent for treatment, time off of work, and long term disability is quite significant, it is not unusual for employers or their carriers to dispute the causation of the injury or to challenge the necessity of the care received by the patient. With this in mind, a doctor wants “to prove” that everything they did was proper.

- A doctor wants to prove that the diagnosis is accurate. That means listing enough orthopedic and/ or neurological results to establish the underlying problem(s). It is not enough to merely establish what a problem is; a doctor should extend the scope of the examination to rule out possible complicating factors. A limited examination could leave a doctor exposed to criticism if the patient fails to recover in a timely fashion.

- A doctor wants to prove that their treatment plan was appropriate. If all patients recovered from injuries in a predictable, measurable manner, a treatment plan could be measured objectively. However, patients do not heal on a fixed schedule. Some respond quickly while others require a much longer time to heal. A more severe injury may not only add additional healing time but also cause complications in the way the patient heals.

- In order to prove the treatment plan was appropriate, the doctor must perform periodic re-examinations of the patient to track the patient’s progress. More importantly, the doctor must make changes to the treatment plan and/or referrals to other providers when a patient does not respond to care in an expected manner. A chiropractor that treats without establishing the effectiveness of care through re-exams will constantly have the necessity of their care challenged.

- A chiropractor must prove that they attempted to get the patient back to work as quickly as possible. Employers continue to pay injured workers their salaries while they are out of work. They have a strong interest in seeing the patient back at work, even if it is in a “light duty” capacity. A chiropractor’s credibility will suffer if they do not make reasonable efforts to return an injured worker to work in a job appropriate to their limitations.

Willingness to defend care. As important as the amount of care given is the willingness of the chiropractor to defend his/her care. A worker’s compensation carrier incurs a cost every time a chiropractor defends their care. This cost may be considerable, depending on the number of times a decision is appealed. In addition, when a decision is appealed through the state’s Necessity of Treatment Dispute process, the insurance company must also pay for the cost of the expert opinion when they lose the decision.

Track record in defending care. It is unfortunate that chiropractic effectiveness or patient satisfaction is not a component in establishing the reputation of a chiropractor. If that were the case, there would be far fewer medical necessity challenges. But to some worker’s compensation carriers, the payment of claims is nothing more than a risk assessment exercise. They know that if they lose a “Necessity of Treatment” dispute they will not only have to pay for the claim but also the cost of the review.

A key element in the assessment of their financial exposure is the chiropractor’s previous track record in defending their care. As the doctor develops a history of beating them in the necessity review process, the carrier understands the financial odds that are stacked against them. The doctors with good track records are more likely to receive payment when a request to use the necessity of treatment process is filed. However, it is useful to remember, that just as carriers track those doctors with good track records, they also track those doctors who are unwilling to defend their care or have poor track records in doing so. These doctors are singled out for their own special kind of treatment.

Can a worker’s compensation carrier insist that I allow a nurse to come to my office to discuss a patient’s care or to observe the patient’s treatment?

It is now common for worker’s compensation carriers to use nurses to monitor the treatment process of patients receiving worker’s compensation care. They do so in order to satisfy themselves that the patient is only getting the care that is absolutely necessary for their injury. The nurse may have any of the following roles:

1) The nurse may arrange for the initial care of the patient in the case of an emergency
2) The nurse may serve as the communications link between the carrier and the provider by tracking the initial assessment and subsequent progress of the patient through a telephone conference call with the provider.
3) The nurse may attempt to have the provider or the patient pre-authorize all of the care. (requiring preauthorization is a violation of the WC statutes.)
4) The nurse may be responsible for determining the medical necessity of the care that is rendered.
5) The nurse may proactively monitor the patient’s care by attempting to attend all of the patient’s treatment sessions.

In this last role a nurse may call in advance to determine the patient’s treatment time and then show up requesting to observe the treatment and discuss the care with the doctor. You are in complete control of this situation. It is up to you and the patient to determine if you want the nurse to observe the care or discuss the case with the doctor.

Since you hold all of the options, the most beneficial method of dealing with the nurse is to cooperate as much as possible. Cooperating does not cost you a lot of time. In fact, it may actually save you time. If the nurse has the opportunity to discuss the case and sees for herself the type of treatment the patient is receiving, she may become an advocate for the patient’s care with the carrier. If the carrier accepts her opinion, they may pay for your care without requiring you to submit clinical records and narratives, and/or use the Necessity of Treatment Dispute process.

On the other hand, it will not take you long to discover if the nurse has a bias against chiropractic or the patient. The moment the nurse becomes uncooperative, criticizes the assessment or the treatment plan, or attempts to talk the patient out of receiving care from you, you may discontinue your communication with her. You risk nothing by taking this course of action. A nurse that is not supportive of your approach to the patient’s care is not going to recommend payment to the carrier. If she is not going to recommend payment, why cooperate? If it is necessary to stop communicating with her, you still have the option of appealing the WC carrier’s decision and using the Necessity of Treatment Dispute process if necessary. This may truly be one of those situations where you “catch more bees with honey than vinegar”.

What if I think my patient is ready to return to work but their employer refuses to rehire them?

If an employer unreasonably refuses to rehire an employee following an injury, the WC division may award the injured worker the wage loss during the period of refusal, up to one year’s wages.

What should my patient do if I recommend that that they not return to the same line of work?

First, they should ask their employer for work within your work restrictions. If there is no suitable work, they may apply to the State Division of Vocational Rehabilitation (DVR) for vocational counseling and placement services.

Why does Wisconsin focus on early return to work programs for injured worker?

After an injury at work, an injured worker must often wait before returning to the job. The injured worker may be reluctant to start working again for fear of pain, reinjury, or not being able to perform as well. If a different job is required because of the injury, there may also be a concern about trying something new.

Sometimes employers are not willing to bring able workers back to their original jobs, or some related work, for many of the same reasons. It is helpful if employers have some type of limited duty, an alternate work, to help workers gradually get used to being back in the work force

 

It is to everyone’s advantage to return to work as soon as possible – within your restrictions - because returning to suitable work helps injured workers more readily recover from injuries

In addition to these benefits of early return to work, there are also financial advantages. Under the law, if the return to work is at a lower pay rate, benefits for temporary partial disability still are payable. Temporary partial disability (TPD) benefits are not taxable income. If the employer offers work within the limits set by a doctor, and the worker refuses the job offer, the employer or the WC carrier owes only the TPD. They do not owe for temporary total disability. The injured worker gains by returning to work and, may actually lose money by not returning if you advise them to do so.

There are other good reasons for an early return to work. National research has found that:

• If employers have some type of return to work program, the majority of workers will return to their jobs early in their recovery period.
  

• Most injured workers WANT to go back to work.
  

• If an injured worker misses six months of work, there is only a 50% chance he or she will be able to return at all. Injured workers off a year because of an injury return to the workplace in 25% of cases, and injured workers off two years or more have little potential to return to work.

What is the Vocational Rehabilitation Program?

The 1993 Wisconsin Act 370 created an alternate process for permanently disabled injured workers to receive vocational rehabilitation services when the State Division of Vocational Rehabilitation (DVR) is unable to serve them and they are placed on DVR’s waiting list. The Worker’s Compensation/Vocational Rehabilitation (WC/VR) unit began managing the new program in December 1994.

To take advantage of the new program, the injured worker must:

Should we give the worker’s compensation carrier “a few extra days” before filing for a default order?

While the carrier may appreciate this courtesy, it does deprive you of important rights. When the WC Division grants the default order, the carrier is ordered to pay the claims in dispute in full. They are not allowed to question either the necessity of the care or to challenge the reasonableness of the fee charged. From the point of view of the provider, it would seem in their best interest to request a default order on the 60th day.

1. be referred from the DVR to the Worker’s Compensation/Vocational Rehabilitation unit,
2. have a claim which has not compromised the issue of vocational rehabilitation, and
3. be unemployed or employed in less than a “suitable” position. Generally, a “suitable” position is one that pays at least 85% of the wage at time of injury and that meets the permanent work restrictions established at the end of the healing period.

Vocational rehabilitation services are provided by private sector Vocational Rehabilitation Specialists who have been certified by WC/VR.

The WC/VR unit sends a letter and list of private vocational rehabilitation specialists to injured workers referred from DVR. The worker provides the employer at the time of injury with a copy of the work restrictions and asks for a letter indicating whether there is suitable work. The employer has suitable work within the permanent restrictions and the person returns to employment. The employer does not have suitable work at this time. The injured worker may then choose a private vocational rehabilitation specialist. Once the injured worker has selected a specialist, the specialist notifies the insurance carrier or self-insured employer that vocational rehabilitation services will begin.

Do the patients have to work with the insurance carrier’s private rehabilitation specialist or can they use someone from the certified list sent by the WC/VR unit?

They may work with either specialist. It is their choice.

How can I become certified as a vocational rehabilitation specialist for the Worker’s Compensation program?

You can obtain an application for certification by phone the WC/VR unit at 608-266-1343 or writing the Worker’s Compensation Rehabilitation Unit, 201 E. Washington Ave., P.O. Box 7901, Madison, WI 53707.

How does my patient apply for a hearing?

When the injured worker wants to request a hearing, three copies of a form entitled “Application for Hearing (WKC-7) must be filed with the WC Division. The form can be obtained from any WC office or from the WC website. The WC Division sends one copy of the WKC-7 to the employer or WC carrier for an answer.

How much can an attorney charge for representing an injured worker?

An injured worker should always hire someone experienced in worker’s compensation litigation. An attorney is entitled to legal fees up to 20% of the amount of benefits in dispute or, if there is no net gain over the amount the employer offered, the attorney is entitled to up to $100 as determined by the ALJ.

What form do chiropractors and other doctors use to submit health care information for a WC hearing? Doctors reports may be submitted on the “Practitioner’s Report on Accident or Industrial Disease in Lieu of Testimony” (WKC-16B). You should submit this form to the WC Division at least 15 days before the hearing, so it can be used as direct testimony, just as if you were there in person.

Can my patient appeal the hearing decision of the ALJ?

Yes, either the patient or the WC carrier can appeal a decision. The appeals follow this order:

- Labor and Industry Review Commission (LIRC). This appeal must be filed within 21 days of the mailing date of the ALJ’s order.

- Circuit Court. This appeal must be made within 30 days of the LIRC decision.

- Court Appeals. Usually, only exceptional cases are appealed to the Court of Appeals. The appealing party has 30 days to appeal after the judgement of the Circuit Court

- Wisconsin Supreme Court

When will the WC Division order a tiebreaker medical exam?

The WC Division will only appoint a tiebreaker doctor if an insurer concedes liability for the injury, but suspends an injured worker’s temporary disability benefits (or refuses to pay for further medical treatment) because two or more doctors disagree about:

A. The extent of an injured employee’s temporary disability;
B. The end of an injured employee’s healing period;
C. An employee’s ability to return to work at suitable available employment; or
D. The necessity for further treatment or a particular type of treatment.

Who pays for a tiebreaker medical exam?

By law, the employer or its insurance carrier, or both, must pay for the examination and opinion. Who is responsible for paying for the injured worker’s travel costs when going to a tiebreaker medical exam? The injured employee is responsible for all travel expenses going to and from the exam unless the insurer volunteers to pay some or all of those costs.

How does the appointment of a tiebreaker doctor affect an injured worker’s benefits?

It may result in the immediate, retroactive restoration of temporary disability benefits—even before the exam takes place. However, if the employee fails to cooperate in scheduling a timely exam or fails to appear at the exam without a compelling reason, the WC Division will immediately authorize the insurer or employer to again suspend temporary disability payments.

Here’s how it works. If the employee has not returned to work, then at the same time the WC Division appoints a tiebreaker doctor, it will also direct the insurer to pay to the employee all temporary disability benefits which have accrued since the date on which the insurer suspended those payments, and to continue paying those temporary disability benefits until the WC division receives the tiebreaker doctor’s opinion

 

The WC division will treat any benefits paid after the healing date set by the tiebreaker doctor as an “overpayment.” Insurers may take credit for overpayments by using them to offset other benefit payments which might be owed (for example, permanent disability benefits) as a result of the injury. Although the WC division has no authority to order reimbursement, insurers sometimes initiate collection actions through the court system to recover overpayments.

What does the tiebreaker doctor do?

Generally, when the WC division appoints the tiebreaker doctor, the doctor will:

1. Contact the injured employee within 24 hours to schedule an exam;
2. Conduct the exam itself within 7 days;
3. Issue an opinion to the WC division within 30 days.

Although the WC division discourages additional testing, the tiebreaker doctor may order further tests. The doctor will also review medical records and reports, job descriptions, surveillance videos and any other material submitted by the WC Division, the employee, the employer or the insurer which the doctor believes is relevant and helpful in reaching a fully informed opinion.

Can you still file for a default order if the carrier questions the necessity of your care but does it more than 60 days after you filed your claim?

Yes. Unless the carrier gets an extension from the WC Division they must notify you within 60 days. If they are late, they are hoping that you either will not notice or that you are unfamiliar with the law.

What are the different timetables that apply to Necessity of Treatment disputes?

60-Day Notice to Provider. When an insurer or selfinsurer refuses to pay part or all of a medical bill, it must give written notice to the health care provider explaining why. The insurer’s notice must be given within 60 days of receiving the bill unless the WC Division authorizes an additional 60 days to obtain supporting medical documentation.

30-Day Waiting Period. The provider has 9 months from the date it receives notice to apply to the WC Division for a review of the dispute. However, at least 30 days prior to submitting a dispute to the WC Division, the provider must give the insurer a written explanation regarding why the treatment was necessary. If the dispute is not resolved within the 30-day waiting period, the provider may then apply to the WC Division and must send a copy of all material to the insurer.

20-Day Answer Period. When a necessity dispute is submitted, the WC Division will notify the insurer or selfinsurer that it has 20 days to pay the bill or file a written answer. The answer must include the name of organization and the credentials of any individual whose review of the case has been relied on in denying payment.

90-Day Expert Review. When the 20-day period to answer has elapsed, the WC Division will submit the dispute to a chiropractor who is employed by the state as part of its worker’s compensation expert panel. The expert will render an opinion within 90 days.

30-Day Waiting Period. The insurer and provider have 30 days to provide clear and convincing evidence that the expert’s opinion is wrong. Then, the WC Division will adopt or modify the expert’s opinion, determine the losing party, and issue an order. The order may be appealed to circuit court.

How do I Evaluate Disability Under Wisconsin’s Worker’s Compensation Law?

The following information is reproduced from WC Division of Workforce Development materials. Because it applies to all providers, it provides only indirect guidance to the chiropractic profession.

The purpose of this information is to assist doctors in evaluating permanent disability as provided for in Wisconsin Worker’s Compensation statutes and administrative codes. Worker’s Compensation provides prompt medical care to an injured or ill worker plus benefits to help the worker meet expenses while he/she is out of work.

The program emphasizes a return to work as soon as possible and rehabilitation of the worker patient both during and after the healing period. Employers must report injuries to the Worker’s Compensation Division and the insurance carrier within four days of any accident that causes more than three days of disability.

A medical report verifying details of the injury or illness is made part of the record for each claim. This doctor’s report is very important because it is used by self-insured employers, insurance carriers and the WC Division to eventually determine eligibility for compensation. The Medical Report on Industrial Injury (Form WKC16) also determines the amount of WC benefits paid to replace lost wages and medical expense coverage. The doctor’s role also is vital in determining the amount of compensation for permanent, partial disability that may be involved.

The sooner a needed medical report is available, the sooner appropriate benefits can be paid. The WKC16 must be filed in any case when the temporary disability exceeds three weeks or if there is permanent disability. If the employer or insurance company files a narrative report in place of the WKC16, it should list any surgery and address the issue of permanent disability. The report is due within three months of the end of temporary disability, and the Division must receive an explanation if it will be delayed.

Evaluating Permanent Disability

The evaluation of disability in an injured or ill worker is a necessary part of the patient’s treatment, and as such is a combination of both art and science. The final rating of the patient’s disability should be the personal opinion of the doctor.

Doctors may consult rating guides on relative percentage of disability and apply more than one rating formula, but in the end the final rating will be based on the doctor’s personal knowledge, experience and weighing of all anatomical damages and clinical findings.

Some elements of disability, such as range of motion, can be measured with some degree of objectivity. Even here there are questions requiring exercise of professional judgement. Doctors must ask: Is the demonstrated motion by the patient consistent with the nature of the injury and the x-rays, tests and other objective findings? Is the motion consistent upon repeated testing?

Other elements of disability are more subjective and less capable of being measured precisely. Pain is a good example. There is no question that pain can be disabling. Pain is not easily measured, and judgement is required. Doctors must ask:

- Are the complaints consistent with the injury?

- Has pain been consistent since the injury?
- Does it follow an anatomic pattern?
- How does pain interfere with ability to work?
- What activities bring out the complaints?
- What is the apparent severity of the pain?
- What is an appropriate disability allowance for the element of pain?

In its Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment, the American Academyof Orthopedic Surgeons suggests the following guidelines in the evaluation of pain:

Grading of Pain as a Subjective Symptom

Grade I

• Mild: When there is a firm conviction established through thorough observation and clinical tests that pain actually exists even though there may be no organic manifestations. Pain of this degree does not contribute to physical impairment.

Grade II

• Moderate: When the examination reveals the definite evidence of a pathological state of the involved structures that would reasonably produce the degree of pain indicated to be present. This degree of pain might require treatment and could be expected to contribute in a minor degree to permanent physical impairment.

Grade III

• Severe: When the pathological changes and clinical findings indicate that permanent physical function is limited by pain requiring treatment for relief and contributing extensively to permanent physical impairment.

Grade IV

• Very Severe: When the pathological changes and clinical signs indicate limitation of physical function by pain to such a degree that physical impairment is nearly complete.

While pain is probably the most frequent subjective complaint, a similar reasoning process is necessary in judging other elements of disability. Examples are loss of strength, lack of endurance, loss of sensation and sensitivity to heat or cold.

It is very important for doctors to understand the distinction between “disability” in a “workplace sense” and “impairment”. In evaluating disability, this is very significant. The American Medical Association and the American Academy of Orthopedic Surgeons have recognized the distinction as follows:

1. Permanent disability is not a purely medical condition. A patient is ‘permanently disabled’ if ‘under a permanent disability’ when his (or her) actual or presumed ability to engage in gainful activity is reduced or absent because of ‘impairment’ and no fundamental or marked change in the future can be expected.

2. Physical impairment is purely medical condition. Permanent physical impairment is any anatomical or functional abnormality or loss after maximum medical rehabilitation has been achieved and which abnormality or loss the physician considers stable or non-progressive at the time the evaluation is made. (AMA GUIDE: Journal of American Medical Assoc. Note: The American Academy is in the process of revising this definition.)

Some idea of this important difference can be gleaned from the fact that the AMA guidelines evaluate a blind person as having an 85 percent impairment of the whole person, while the Worker’s Compensation Law states the disability is 100 percent of permanent, total disability.

How long does an injured worker have to re-open a worker’s compensation claim?

When an employee has stopped receiving weekly compensation benefits for temporary or permanent disability after an accidental injury, the claim may be reopened at any time within 12 years from the date compensation was last paid. This 12 year period does not apply, however, where a compromise agreement has been made and approved by the WC division or where a final award has been issued after a hearing.

A final award closes the claim after the time allowed for appeal unless the award is set aside on appeal. A compromise closes the claim. Within one year after the WC Division’s approval of the compromise, any party to the compromise may ask the WC division to set aside or modify the compromise. The WC division may or may not grant the request. Few are ever reopened

When health care treatment will be required beyond the 12 year period and there has not been a compromise or final award, the injured worker can file an application for hearing to keep the claim open until a hearing is held and a final order is issued. For injuries that occurred before May 13, 1980, the statute of limitations is shorter.

In cases of occupational disease there is no statute of limitations. The injured worker may make a claim against the employer or its WC carrier within 12 years from the date of injury or the date on which compensation was last paid. If the 12 year period has expired, the injured worker may make a claim against the Work Injury Supplemental Benefits Fund, which is funded completely by specific case assessments on employers and WC carriers.

Could you please explain the difference between temporary total disability (TTD) and temporary partial disability (TPD)?

Temporary Total Disability (TTD). Almost all worker’s compensation cases initially are for temporary total disability which covers the period immediately after injury. This is the period of treatment and healing before it can be determined whether or not there is any permanent disability.

TTD benefits are paid when the injured worker is unable to work and has a total loss of wages or, when the injured worker is still recovering and is able to do some work, but the employer cannot provide work within the limitations the doctor has set.

TTD benefits are paid until the injured worker’s condition has become stabilized and treatment and convalescence are not likely to result in additional improvement. The amount of the payment is two-thirds of the injured worker’s own average weekly wage subject to the maximum amount specified by law. Currently that amount is two-thirds of $764, or $509. This applies to normal full-time work. Wages and rates may vary for part-time employment.

Temporary Partial Disability (TPD). Temporary partial disability benefits are paid when an injured worker is working at a lesser-paying job or is working fewer hours because of the temporary effects of an industrial accident. Benefits are paid when the injured worker is offered a wage reduction because of the disabling effects of the injury during the healing period. TPD benefits are paid in proportion to the wage reduction.

TPD are paid while the injured worker is working at a lesserpaying job or working part-time until their condition becomes stabilized and treatment and convalescence is not likely to result in additional improvement. TPD benefits will vary. The injured worker gets the same percentage of TTD benefits as their percentage wage loss when compared to his or her wage at the time of injury.

What is permanent partial disability (PPD)?

The healing period lasts until the patient returns to the state of health they were in just prior to the injury or until they reach maximum medical or chiropractic improvement. If, at that time, the injured worker has limitations that are expected to remain unchanged in the future, he or she is entitled to benefits for permanent disability.

Permanent disabilities, including loss or partial loss of particular parts of the body, or physical or mental capacities, are compensated after the temporary injury has healed. The duration of PPD is determined in one of two ways.

Number of Weeks Paid According to a Schedule of Losses

The WC law contains a schedule for various kinds of injuries with a corresponding number of weeks for which benefits are allowed. This schedule states the number of weeks benefits that will allowed for each condition. For example: loss of a hand at the wrist – 400 weeks; loss of a foot at the ankle – 250 weeks; loss of the thumb at the proximal joint – 120 weeks; 10% loss of use of the hand at the wrist would amount to 40 weeks of benefits.

Nonscheduled Injuries are Paid as a Percentage 1,000 weeks

For permanent injuries that are not listed on the schedule of injuries, such as internal injuries to the head, back or torso, a chiropractic estimate has to be made as to the amount of permanent loss. The amount estimated is then taken as a percentage of 1,000 weeks. For example, an injured worker who suffered a herniated disc to the back receives a doctor’s estimate of 10% permanent partial disability. The employee is entitled to 100 weeks of PPD benefits (10% of 1,000 weeks). Claims for loss of earning capacity can be made only in cases of nonscheduled injuries.

Nonscheduled injuries take into account the injured workers ability to perform in the labor market after the permanent physical disability has been determined. Benefits help make up some of the loss of ability to perform in the labor market. If an injured worker returns to work for the same employer at no more than a 15% wage loss, compensation is payable only for the physical disability. However, if the employer cannot continue to provide suitable employment or if the worker is physically unable to do the job, the claim for a loss of earning capacity may be reopened.

PPD benefits for both scheduled and nonscheduled injuries are computed at two-thirds of a maximum average permanent partial weekly wage provided for in the law at the time of the injury.

How long does an employer have to notify the WC carrier of an injury to one of its employees?

An employer must notify its WC carrier of a compensable injury within 7 days after the accident if any of the following occurs:

1. Disability exists beyond the 3rd day after the employee leaves work as a result of the injury. In counting the days on which disability exists, Sunday is only included if the employee usually works on Sunday.

2. An employer’s WC carrier has primary liability for unpaid medical treatment.

Do WC carriers and self insured employers have to report injuries to the state?

Yes. They must file a report with the state within 14 days of being notified of the injury. If the employer does not notify them until after the 14th day, they must notify the state within 7 days of receiving notice of the injury from any source.

They must also file a supplementary report with the state 30 days after the injury occurred.

Once a WC carrier has made the decision to deny liability for a WC claim how long do they have to notify the injured worker?

They are required to give the injured worker written notice within 7 days of their decision to deny liability. They are also required to give the reason for the denial and advise the employee of their right to a hearing before DWD.

How long does a WC carrier have to pay after a hearing in which the ALJ finds that care was medically necessary?

The WC carrier or self insured employer has 21 days to make payment after DWD has published its order.

How long does a WC carrier have to pay a patient after a settlement or compromise agreement?

A WC carrier or self insured employer has 10 days to pays after a settlement or compromise agreement has been published by DWD.

What may we charge a worker’s compensation carrier requesting a copy of our records?

You are entitled to charge the following amounts every time your records are requested. If you send your records, without being requested to do so, the insurer does not have to pay for them.

• The greater of 45 cents per page or $7.50 per request, plus

• The actual costs of postage.

Who sets the worker’s compensation premium rates?

The premium rates are established by the Commissioner of Insurance through the Wisconsin Compensation Rating Bureau. These rates vary depending on the type of industry or business insured and the kinds of work performed. There are presently over 800 different classifications for which rates are established. The rate within each category depends on its previous injury experience. If an employee of a corporation that is not insured is injured, the officers are all personally liable for the payments. It is also a misdemeanor for an employer not to secure the coverage required by law.

An outside party injured my patient while she was doing her job. Can this person be sued if my patient collects worker’s compensation benefits?

If a person is hurt by negligence of a third party, the injured worker may receive worker’s compensation benefits and also sue the third party. The worker will receive at least one-third of the net amount recovered from the third party. All costs of collection, including attorney’s fees, are taken out before the proceeds are divided. The WC carrier or employer is then repaid the amount they have paid as compensation to the injured worker, and if any balance remains, it is paid to the injured worker. Action against a third party is usually a joint action of the employer and/or the WC carrier and the injured worker. Employers or injured workers may not always be aware of a third party suit and should consult the WC Division if there is any doubt.

Who is covered by worker’s compensation laws?

Nearly all workers are covered by the WC law including all state and municipal employees. All employees working for an employer (other than farmers) with three or more workers are protected immediately by worker’s compensation. Employers with fewer than three workers come under the law if they pay wages of $500 or more in any quarter of a calendar year. Their workers are covered by the law 10 days after the end of that quarter. Farm workers are covered if the farm employer has six or more employees on 20 or more days in a calendar year.

Will an injured worker lose their rights to benefits if they do not report their injury?

Not necessarily. If the injured employee does not mislead their employer, they are likely to receive worker’s compensation benefits. However, it is important to remember that the worker’s compensation carrier must accept liability before any benefits will be paid. The longer an injured worker delays in reporting their injury, the more likely the carrier will refuse to accept liability unless ordered to do so as the result of the hearing process.

What happens to injured workers who are injured while intoxicated or refused to follow their employer’s safety rules?

If an injured worker fails to use a safety device or to obey a reasonable safety rule, their compensation may be decreased by 15% up to a state maximum. The safety device must be provided and adequately maintained and its use must be reasonably enforced by the employer or the injured worker’s compensation will not be reduced. Likewise, a safety rule must be enforced and the employee must have notice of the rule before compensation would be reduced. If an injury occurs because of an injured worker’s intoxication by alcohol or illegal drugs, their compensation may be decreased by 15%.

Who Pays For Worker’s Compensation?

Wisconsin law requires that all non farm employers who employ three or more employees or pay more than $500 in wages per quarter must secure a Worker’s Compensation insurance policy. The must have the coverage required by the Worker’s Compensation law. Farm employers are required to obtain coverage if they employ six or more employees for at least 20 days a year. The law also permits the Secretary of the WC Division of WorkForce Development to permit some employers to self-insure. This privilege is granted only under strict circumstances.

What happens to an employer who violates a patient’s worker’s compensation rights?

The law provides for a full range of penalties against an employer who violates a patient’s worker’s compensation rights. It may range from allowing a patient to have an unlimited number of providers (if they violate the patient’s right to choose) up to an award of 200% of the amount of their compensation if the employer is found to have acted in bad faith.

While a doctor should never give a patient legal advice, you can direct them to seek legal advice. For example, when a patient tells you they are being harassed or disciplined by their employer for filing a worker’s compensation claim, then the patient should be counseled to speak with an attorney. Quite often, the patient will express reluctance because they fear they might be terminated. It might be useful to point out that an employer who violates worker’s compensation law is not likely to treat them fairly in other areas of their employment. At least in worker’s compensation, if they are treated improperly, the law allows their employer to be penalized.

When is a person eligible for wage reimbursement?

Eligibility for compensation for medical expenses and permanent injury arises at the time that the expense is incurred or the permanent injury becomes known. Eligibility for wage reimbursement (called temporary disability) arises on the fourth day off work following an injury. When the employee is able to return to work in three days or less, he or she is not eligible for wage replacement under Worker’s Compensation. These injuries are called “non-compensable.”

I have a patient that works in a very unsafe work environment. Are there special penalties for this?

State law imposes an absolute duty on employers to do everything reasonably necessary to furnish a safe place to work and to protect the life, health, safety, and welfare of their employees. If employers fail to meet safety standards, the WC Division can increase by 15% the amount of worker’s compensation benefits they must pay. If an injured worker wants to report their employer for not maintaining a safe work environment, they should report accidents to the WC Division which will investigate.

Are an injured worker’s bills paid even if they do not miss any time from work?

An individual who is injured at work is entitled to be paid for all chiropractic, medical, surgical or hospital treatment relating to the injury including doctor bills, hospital bills, therapies, medicines, lost time and traveling expenses for treatment and examination.

All reasonable and necessary health care expenses must be paid by the employer whether or not weekly benefits are also due for temporary or permanent disability. If an injury requires chiropractic or medical treatment and there has been no lost time, no lost wages, and no disability, the injured worker is still entitled to have their treatment costs paid. Necessary treatment expenses must be paid unless the claim has been settled through a compromise agreement. Compromise agreements are not an admission of liability and when a compromise agreement is reached the injured worker is personally responsible for the payment of all treatment costs.

If an insurance company claims that it is not liable for an injury, then settles with the employee before a hearing takes place, must the worker’s compensation carrier pay for the patient’s care?

Settlements are an agreement between a worker’s compensation carrier and an injured worker to pay a specified amount of money. These agreements are reached for a number of reasons including a desire to compromise when certain facts are in doubt. By settling a carrier may limit the total amount they might otherwise have had to pay for medical care, lost time wages, and/or disability payments.

A settlement between an injured worker and the worker’s compensation carrier is not an admission of liability. Regardless of the facts in the case the patient, and not the insurer, is obligated to pay your claims. This is true even if the amount of the settlement is sufficient to pay all of the outstanding claims. When a settlement occurs, the patient has the responsibility for all outstanding charges.

My patient was required to see an orthopedist for an IME. After the IME, the orthopedist told my patient that he did not think chiropractic care was appropriate but would approve physical therapy. What options does the patient have?

The orthopedist is entitled to his/her opinion but the patient is under no obligation to follow their advice. Patients normally tell you when an IME is scheduled for them. This is your opportunity to let them know what might happen as part of the IME. Unethical medical doctors or chiropractors sometimes use the IME as an opportunity to take over the care of a patient (even though this is a violation of WC law). If this is not done directly, they may attempt to direct the patient to an alternative form of treatment, such as physical therapy instead of chiropractic.

It is natural for the patient to feel a little intimidated because they think if they do not follow the medical doctor’s advice that they will be in trouble with their boss. Little do they know that, more often than not, their employer has no knowledge of what the medical doctor is telling them, and might well be offended if they knew. Your job is to let the patient know that if the medical doctor gives them any advice about the care they are receiving during the IME, to call your office or let you know on their next visit. Remind the patient that they never lose their freedom to choose their type of care; there are no penalties if they do not follow the advice of the medical doctor, and they never pay for any care related to their work place injury.

Are there any rules governing requests for independent medical exams?

On written request, an injured worker must submit promptly to a reasonable examination by any doctor (medical doctor, chiropractor, psychologist, or podiatrist) named by the employer or the WC carrier. The written request must notify the injured worker of the date, time and place of the examination and give the examining doctor’s name and area of specialization.

The request must also advise the injured worker of the procedure for changing the date, time and place of the examination. It must also advise of the injured worker’s right to have a doctor of his or her own choice present at the examination and of their right to request and receive a copy of the doctor’s report.

Who is not covered by worker’s compensation laws?

Federal employees, individuals working on Indian tribal lands, and workers who reside in Wisconsin but are injured outside the state while working for employers outside the state are not covered under Wisconsin law. Because these individuals are not covered under Wisconsin law, you may collect for your care directly from the patient even if the patient obtains chiropractic benefits from their employer.

If a worker’s compensation carrier used a certified database to reduce my fees, may I charge the patient or their group health carrier for the unpaid balance of their claim?

If the amount you are paid is less that what you have charged and the carrier has used a certified database, you must write off the unpaid balance. You are not allowed to charge the patient or their group health insurance for this amount. If the WC carrier did not use a certified database, you may still not charge the patient or their group health carrier for the unpaid balance. Your only recourse is to use the “Reasonableness of Fee Dispute Process”. Note: If the carrier pays zero, they are challenging the necessity of your care and you need to use the “Necessity of Treatment Dispute Process.

How long does a worker’s compensation carrier have to give me notice if they do not believe my care is necessary?

The WC carrier has 60 days to pay your claim or tell you why they are not paying. However, if they are investigating liability (or merely tell the state that they are investigating liability), the state does not hold the carrier to the 60 day limit.

At the request of the WC carrier, DWD may extend the 60-day period if the carrier is unable to obtain the supporting medical documentation within the 60-day period, or where DWD determines other extraordinary circumstances justify an extension.

Why is a worker’s compensation carrier allowed to reduce my fee?

The single largest expense of the worker’s compensation system is the amount that is paid to health care providers to treat injured workers. Over the years as health care costs have escalated, different states have used different approaches to try to put limits on the amount that is paid. Some states have mandatory managed care as part of worker’s compensation, others have fee schedules. In Wisconsin, the state established the “Reasonableness of Fee” process as an alternative to a fee schedule or managed care.

Under this process, a worker’s compensation carrier has two choices when it receives your claim. It may pay the amount you charge or it may use a database to compare your fees to other providers who share the same first three digits of your zip code. In Wisconsin, the major database companies are HIAA and MDR (DWD maintains a current list of certified databases on their website). These companies calculate the “allowable amount” by applying a statistical formula that is part of the worker’s compensation statutes.

If a supervisor states that they accept liability for an injury, can the worker’s compensation carrier later deny liability?

The final decision for the acceptance of liability rests with the carrier. While it is unusual for a WC carrier to overrule an employer, it can happen. Consider the example of a worker who reports an injury to his supervisor. The supervisor, fully respecting the worker, offers sympathy and allows the injured worker to immediately seek treatment. At this point, the chiropractic office contacts the supervisor and they indicate that they will accept liability.

The injury requires the worker to be out of work for two weeks. Upon his return, the worker tells his friends that the injury actually occurred while doing work around the house. The worker’s compensation carrier, doing a routine investigation, learns of these facts from the worker’s colleagues. They immediately deny liability for the injury.

In a case like this it is not likely that the carrier will ask for a refund for services provided up to the date of notification, but they could. The provider would not be required to give a refund until a liability decision was rendered through the hearing process. When this type of situation occurs you should be aware that the facts usually favor the carrier.

Can I continue to treat a patient after they have been released from their worker’s compensation injury even if the care is related to that injury?

A chiropractor is allowed to treat a patient until they have reached the state of health they were in just prior to the injury or until they have maximum chiropractic or medical improvement. Once either of these conditions has been met, and the doctor has discharged the patient in writing from the worker’s compensation case, the patient or their group health carrier may be billed for future treatment.

The key to this answer is the written discharge of the patient. A worker’s compensation carrier may not give you permission to bill the patient or the patient’s group health carrier. Until a patient has been discharged, in writing, your only recourse is to bill the worker’s compensation carrier.

Does an injured worker get paid for all lost time from work?

To eliminate minor claims for temporary disability, the law requires a three day waiting period for all disabilities lasting seven days or less. (Sundays are not included in the three days unless the injured worker usually works on Sundays.) Temporary disability benefits are not paid for the day of the injury.

If the injured worker is still unable to work eight days after the date of injury, compensation is paid for the entire period including the three-day waiting period. Payment for the eighth day will include all days of disability up to that date, but not including the date of injury. If an injury causes both temporary and permanent disability, there is not waiting period. Temporary benefits start from the first day.

How are “reasonable fees” in worker’s compensation calculated?

The WC division certifies databases that list fees charged by providers sorted by CPT code. Each certified database lists a dollar amount (called the formula amount) for each CPT code. The formula amount is the arithmetic mean of all the fees in the database, plus 1.5 standard deviations from the mean, in a particular region of the state, for a specific CPT code. For example, if all provider charges in the database for a certain medical procedure were represented by a perfect, bell-shaped curve, the formula amount (that is, 1.5 standard deviations from the mean) would be at approximately the 93rd percentile.

A fee equal to or less than the formula amount is considered reasonable. A fee more than the formula amount is considered by the state to be unreasonable unless the health service provider proves to the satisfaction of the WC Division that a higher fee is justified because the service provided in the disputed case was “more difficult or more complicated than in the usual case”.

Is the state’s expert reviewer allowed to contact me if he/she has any questions about my documentation?

Yes. The expert reviewer receives a copy of all of the information in the carrier’s file as well as a copy of the clinical records you sent to the state. When necessary, the expert may contact the provider or insurer for clarification of issues raised in the written materials. Where the contact is in writing, the expert must provide all parties to the dispute with a copy of the request for clarification and a copy of any responses received. Where the contact is by phone, the expert arranges a conference call giving all parties an opportunity to participate simultaneously.

How do I know when a worker’s compensation carrier is disputing the necessity of my care?

You will know a worker’s compensation carrier is disputing the necessity of your care when you are paid zero for a particular service on an explanation of benefits. If you are paid more than zero but less than the amount you billed, the WC carrier is required to list the name of the certified database they used to justify the reduction. If they do not do so, you may file a Reasonableness of Fee Dispute with the state. In addition, the EOB will have an explanation.

Who pays for the cost of the Necessity of Treatment review?

The WC carrier or self insured employer pays for the cost of the expert decision for the first dispute involving a provider, unless DWD determines the provider’s position in the dispute is frivolous or based on fraudulent representations. In subsequent disputes, the full cost of obtaining the experts opinion is charged to the losing party. The losing party is the one who loses 51% of the amount that is in dispute.

If a patient has both worker’s compensation and group health insurance, why do they fight over who is responsible for the bill? Isn’t it all insurance?

Since the staff of chiropractors tend to be both young and healthy, they do not spend much time thinking about the financial structure of an insurance company. But the question is a good one because many companies sell both group health and worker’s compensation insurance and even these companies fight over who is responsible for paying a claim.

It is easy to understand this conflict if you pretend you are an insurance company. First you collect money (premiums) from all of your policyholders. All of the money you collect goes into one checking account. When one of your policyholders gets hurt they visit a doctor and the doctor sends the claim to you. You pay the claim out of your checkbook along with all of the other costs of running your insurance business. At the end of the year, you look at your checkbook to see if there is any money left over to pay yourself. You are not only hoping there is money left over, you naturally would like this amount to be a large as possible.

Being an honest person, you are perfectly happy paying the legitimate bills for anyone that is your policyholder. But would you be willing to pay a bill that belonged to someone else? Of course not. The same is true for insurance companies. They fight hard to make sure that claims they receive really belong to them and that every claim is for services they agreed to pay as part of their policy. The same is true for an insurance company that sells both worker’s compensation and group health insurance. Each of these groups is really a “company within a company” and they fight hard to make sure “their company” is a profitable as possible.

If the worker’s compensation law is changed to allow employers to require their injured employees to use a managed care organization for treatment, will being in a plan today assure that I will be part of the managed care panel in the future?

Worker’s compensation laws are changed on a two-year cycle (odd number years). Allowing employers to require their employees to use their managed care organization for treatment is a topic that has been seriously discussed since 1991. While managed care is something employers would like to require for their injured workers, Wisconsin has a long history respecting an injured worker’s right to choose their health care provider.

Allowing an employer to direct an injured worker to a particular managed care company may be approved at some future date by the state legislature. However, it is quite likely that an injured worker will always retain their right to leave the managed care setting if they are unhappy with their care for any reason or, if they merely wish to choose a provider not on the managed care panel. In addition, it is likely that the labor side of the WCAC will insist that managed care panels include all providers that meet a certain set of criteria. As a result, any implied threat that you must ‘get in now or you might not get in later’ is a completely empty threat.

 

Who pays for the cost of the expert review in a worker’s compensation case?

The first time a chiropractor uses the Necessity of Treatment dispute process the WC carrier pays for the cost of the review. After that, the losing party pays for the review. The loser is determined by which party loses more than 50% of the cost of the care that is disputed. For example, if $625 is in dispute, and the expert determines that $325 of the care was necessary, the insurer would have to pay for the cost of the expert review plus the $325 for the care.

 

Does a referral count as one of the patient’s two choices?

Referral to other recognized health care providers does not count as a patient choice as long as the referral from one provider to another is in writing. Theoretically, a patient could begin with a chiropractor and be referred to an orthopedist for evaluation, who then refers to a neurologist for evaluation, who then returns the patient to the chiropractor for treatment. The referral list could even be longer depending on the complexity of the patient’s condition.

A patient has a great deal of responsibility in this equation. They must tell you about any previous doctors they have seen before seeking your care. If it is more than one, you must confirm that the referral(s) were given in writing. A worker’s compensation carrier can approve a third or fourth choice of doctor but those approvals should always be in writing.

How can a patient get rehabilitation services?

They can ask their employer’s insurance carrier to provide rehabilitation services or they may apply with the Division of Vocational Rehabilitation (DVR). If DVR accepts their case but places them on a waiting list for services, their name will be forwarded to the Worker’s Compensation Rehabilitation Unit. That unit will send them a list of private sector Vocational Rehabilitation Specialists who are certified to provide rehabilitation services.

What is the employer’s obligation to re-hire a person after an injury?

There is no guaranteed job after any injury. The employer is not required to hold a job open or create one. However, if there is “suitable work” available, the employer may not “unreasonably” refuse to rehire the injured worker. “Suitable work” is generally defined as work that is at least 85% of pre-injury wage and which conforms to the permanent work restrictions and the person’s abilities.

If the employer does unreasonably refuse to rehire the worker, the employer is liable for any lost wages, up to a total of one year’s wages. The employer is also liable for vocational rehabilitation benefits. With the passing of the Americans with Disabilities Act (ADA), employers have an obligation to make reasonable accommodations for individuals who have a disability.

We have had a patient under treatment for a WC injury for the past 9 weeks. We just received an EOB from the WC carrier in which they stated that they would pay for care through the 7th week of treatment but deny liability for care for all treatment past that point. Can I charge the patient or their group health carrier for this care?

This is an attempt by the worker’s compensation carrier to mislead you regarding their responsibility for paying for all of the allowed care related to an injury. When a carrier accepts liability for an injury, they accept liability for the entire course of necessary treatment. They cannot decide that they will accept liability for only a certain portion of the treatment. The attempt of the carrier to shift the claim to the patient’s group health carrier is a violation of the law.

Just because the carrier used incorrect terminology does not relieve you of your responsibilities under the WC statutes. All medical necessity disputes must be appealed through the Necessity of Treatment Dispute process. The patient, or their group health carrier, may never be charged for worker’s compensation care. Please send any examples of this to the WCA so we may forward them to DWD.

What happens after a patient files for a hearing?

After an Application for Hearing is filed, the WC Division may schedule a pre-hearing conference. The purpose is to permit the parties to discuss the claim informally with an administrative law judge. The ALJ will try to have the parties agree on exhibits which may be introduced at a hearing and to reduce the number of issues that are in dispute. As the issues are reduced, it is often possible for the parties to come to an agreement that will eliminate the need for a hearing.

Does the injured worker need an attorney if there is a hearing?

An injured worker does not need to be represented by an attorney at a WC hearing. If the injured worker is not represented at the time of a scheduled hearing, the administrative law judge will ask the questions to record all testimony and evidence that is available at the time of the meeting. The WC Division or the ALJ, however, cannot prepare the claim in advance, cannot see that the proper evidence is available at the time of the hearing, or act as legal counsel to represent any of the parties. All of these are good reasons for the injured worker to be represented by an attorney of their choice.

Why does the WC Division request medical reports after one has already been submitted?

Some medical reports that are submitted to the WC Division routinely by providers or by carriers and employers do not clearly indicate that there is no permanent disability or that maximum medical improvement has been reached. In such instances, the WC Division does not consider the first report filed to have been a “final” report and will request a “final” medical report.

What is the WKC-16-B form?

WKC-16-B is the number for the form entitled Practitioner’s Report on Accident or Industrial Disease in Lieu of Testimony. Doctors may be asked to complete it by an insurance company, employer, attorney or employee. The form was devised to provide competent health care testimony without the necessity of having doctors take time off from their schedules to appear at hearings.

The completed WKC-16-B form is a document that is made a part of the record at a worker’s compensation hearing. Decisions involving medical problems are generally predicated upon these forms. You will notice that many of the questions are difficult to answer; however, the form of the question in these documents is required by state law and court decisions.

Is an injured worker eligible for retraining if they cannot go back to their job?

The purpose of the worker’s compensation system is to provide a method to restore an injured worker as nearly as possible to their preinjury earning capacity and potential. Vocational rehabilitation benefits encompass a broad spectrum of services that assist a person’s re-entry into the labor force. Examples of potential services are vocational counseling, vocational evaluation, transferable skills analysis, job seeking skills instruction, job analysis, job site modification, job placement, on-the-job training and vocational retraining.

For some injured workers, job placement services may be the method to restore them to the pre-injury earning capacity. For others, a retraining program may be necessary. Each claim is evaluated as to the appropriate method of returning a person back to the work force. The State Division of Vocational Rehabilitation reports that, among their Worker’s Compensation clients who have successfully gone back to work, 52% were retrained and 48% returned to work through other services.

A worker’s compensation patient that I am treating works for an absolutely awful employer. The patient is begging me to keep them off work because they cannot face the emotional trauma of returning to work. May I do so?

Patients look to their chiropractors for compassion and understanding as well as excellent health care. However, there is a difference between offering compassion and violating worker’s compensation law. The law allows you to treat the patient’s direct physical problems. This may involve taking the patient out of the work place if it is not physically possible for them to do their job.

The law does not allow you to keep a patient off of work based on your perception of the work environment even if you believe time away from work would aid the patient’s mental health (remember, your scope of practice does not include psychotherapy). A patient in these circumstances should be advised in a very understanding manner that your ability to treat them is limited. If you believe it appropriate, you may refer them to a professional counselor who can assist them with the emotional problems of the work environment.

Is it wise for a chiropractor to attend a hearing with their patient?

The purpose of a liability hearing is for an administrative law judge to determine whether or not the injury was sustained in the work place. While the chiropractor may have done an excellent job in examining the patient, they can never know if the injury occurred at work because they were not present at the time of the injury. The best their records can reflect is that the symptoms of the patient are consistent with the description of the accident as described by the patient.

A chiropractor is expected to be an impartial provider of health care. If a chiropractor were to appear at a hearing at the request of the patient their credibility would be impaired because they would be appearing as an advocate of the patient which is not allowed. If a chiropractor chooses to do so they may severely impact the patient’s ability to win their case.

As part of a hearing over liability, does an administrative law judge have the right to determine if my care is necessary?

An administrative law judge has the authority to resolve all outstanding issues between the parties of a liability dispute including the necessity of care. If the administrative law judge issues a decision on the necessity of treatment, the chiropractor does not have the opportunity to the “Necessity of Treatment Dispute” process. The only recourse for a chiropractor is to appeal the decision in circuit court. The ALJ decision will be heavily influenced by the quality of clinical documentation provided as part of the record. To protect against an unfavorable decision, it is in the chiropractor’s best interests to insure that documentation to be used as part of the hearing process is a complete and as understandable as possible.

What are the most common types of cases to go to hearing?

One of the most common types of cases to go to hearing involves a conflict of medical testimony. There may already have been a number of examinations and reports at the time of hearing. (The employer or the WC carrier has the right to ask that the injured worker be examined and re-examined a reasonable number of times.) Both the injured worker and the employer have the right to obtain medical or chiropractic reports submitted on their behalf, or to have health care practitioners appear as witnesses at the hearing.

If I file a Necessity of Treatment dispute for a claim in which there is also an application for a hearing, which takes precedence?

If the necessity of treatment dispute involves a claim for which the carrier disputes the cause of the injury, the extent of the disability, or other issues which could result in an application for hearing being filed, DWD may delay resolution of the necessity of treatment dispute until a hearing is held or a compromise is reached between the carrier and the injured worker. In these situations, you have the right to collect directly from the patient or their group health carrier until a decision is reached.

If my patient requests that I attend the hearing, who pays for the cost?

The injured worker pays for your appearance. The fee to attend the hearing is not part of the treatment costs and cannot be billed to the WC carrier. Since the WKC-16B will be read into the record there should be no reason for you to have to appear. If you do appear, it is very important that you do not act as an advocate for the patient. To do so will negatively prejudice the decision of the ALJ. Your testimony should be professional and accurate, and you should not volunteer opinions unless they are based on clinical facts.

A patient I have been treating for a worker’s compensation injury is ready to return to work. However, in 3 days the patient is due to leave on vacation. The patient requests that I delay his return to work until after the vacation? May I do so?

Delaying a patient’s return to work for the convenience of the patient is not permitted under the statutes. Under the scenario described above, the patient is receiving their full salary because they are off of work due to their injury. If the doctor were to delay the patient’s return to work by 3 days, he is giving the patient 3 days worth of compensation to which the patient is not entitled.

In addition to having engaged in activity that is not allowed, the doctor has also put himself at risk for any claims that have yet to be paid. The worker’s compensation carrier reviews every aspect of a case. They are very familiar with return to work delays due to vacations, holidays, and plant shut downs. They consider these delays to be fraudulent. When they suspect this has occurred, many carriers will stop paying claims until they have a complete understanding of the facts. If they determine that the doctor did not return the patient to work promptly, the doctor can expect that every aspect of the case will be thoroughly reviewed.

Are there any limits on consultation or contact with the tiebreaker doctor?

The employee, insurer or employer may provide the tiebreaker doctor with copies of any material that was previously provided to a treating or examining doctor. Beyond that, the employee, employer, insurer, their representatives or others acting on their behalf may not initiate contact with the tiebreaker doctor. However, the tiebreaker doctor may request additional information from the WC Division, the employee, the employer, the insurer, or their authorized agents or representatives at any time and in any manner. The tiebreaker doctor may also consult freely with other health care specialists who are not parties to the dispute. However, the tiebreaker doctor may not treat the injured employee for the injury that is the subject of the dispute (other than in an emergency situation), nor may the doctor assist the employee, employer or insurer in any WC Divisional proceedings related to this injury.

Who may request a tiebreaker medical exam?

Anyone may request that the WC Division order a tiebreaker exam—an injured employee, a family member or friend, an attorney or physician, an insurer or employer. However, generally, the WC Division will not order a tiebreaker exam without the injured employee’s written consent.

Does the appointment of a tiebreaker doctor limit either party’s right to a hearing?

The tiebreaker opinion is likely to carry significant weight in any further litigation. However, by consenting to a tiebreaker exam, the employee does not give up the right to a formal hearing on the issues resolved by the tiebreaker doctor’s opinion. In fact, either party may pursue a hearing. Similarly, the tiebreaker exam does not prevent the parties from settling any issue which is the subject of a tiebreaker exam by compromise or stipulation at any time.

What is permanent total disability (PTD)?

In the case of an extremely serious injury that prevents the injured worker from performing any gainful employment, the law provides that weekly benefits be paid for life. The law defines a permanent total injury as the loss of both eyes, both arms, both legs, the loss of an arm and a leg and other extreme conditions determined by the WC Division to prevent the injured working from working.

PTD benefits amount to two-thirds of the injured workers own average weekly rate subject to the maximum amount specified by law.

What is the default process?

While there are significant financial risks until the worker’s compensation carrier accepts liability for an injury, chiropractors have a great tool to use to force carriers to pay their claims. This is the part of the worker’s compensation law known as the default process. Simply put, the carrier has 60 days to either pay your claim or to dispute the necessity of your care. If the carrier does not do so within 60 days, and you file for a default order with DWD, the WC Division will likely order the carrier to immediately pay your claim in full.

We called the WC carrier and informed them of a patient’s injury on the first day of treatment. They told us they were investigating whether or not they were liable. How much time do they have to get back to us or the patient?

The WC carrier has 14 days from the date of the injury to accept liability. If they are still investigating after 14 days they must give the injured worker a written explanation giving the reason for further investigation. If this information is not given to you or the injured worker make sure to include this fact when you file for a default after 60 days.

What is a hearing like?

Once the WC Division sets a hearing date, both parties are notified at least 10 days in advance. If the worker is not ready for the hearing, the WC Division should be notified immediately. Hearings are semijudicial proceedings. Witnesses are sworn in as in a courtroom and either party may cross-examine. Exhibits of documents and reports are entered into the formal hearing record. A court reporter records all testimony.