I am often asked my thoughts on independent medical exams. I question how any doctor can be considered “independent,” so it is necessary to discern what independent means.

Independence is most often defined as being free from outside control and, in the economic sense, self-supporting. However, assuring that one is free from outside control is always difficult, as independent doctors are asked to render an opinion based on a standard formulated by someone else and paid for by someone else.

In New York, the insurance carrier’s doctor is labeled as an Independent Medical Examiner (IME), but, unfortunately, they are far from independent. Indeed, independent doctors are employed primarily for the purpose of conducting exams at the direction of insurance carriers/employers.  Many of the doctors working as independent medical examiners have a very limited private practice or are semi-retired but perform occasional independent exams.  Others have set up a practice that derives a significant income from doing “Industrial” exams, as well as IME’s. Accordingly, independent doctors certainly bring a bias to the exam to perpetuate a stream of revenue.

In the past, but on rare occasions, the Workers’ Compensation Board (“WCB”) has directed that an “Impartial Specialist” examine the claimant, instead of an independent doctor.

In my experience, the WCB has had difficulty finding a physician to fill the role, especially in Central New York where I practice, as we simply do not have many specialty doctors.

In May of this year, the WCB sought applications for Impartial Specialists, but has not yet announced the results of this search. The semantics of Independent versus Impartial make me chuckle, because the carrier still pays for the exam, and at a higher rate for  an impartial exam than for an independent exam.  Moreover, the impartial doctor is still bound by the standard set by the WCB.

To conclude, I doubt that a truly Independent or Impartial exam exists.  It is my opinion that the system is better served if each party’s doctor were required to defend their position.

William W. Crossett IV
Partner

Email: crossett@mcvlaw.com

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

The biggest decision you will have to make in your case is whether or not to accept a section 32 settlement, which usually means a one-time lump-sum payment, as opposed to ongoing weekly payments. Typically, a Section 32 agreement will end both the carrier’s obligation to make lost wage payments and end their responsibility for medical coverage; although sometimes the Section 32 agreement is limited to lost wages, leaving the medical portion of your claim open.

When considering accepting a one-time payment, instead of ongoing payments, you must weigh many factors, including how long your lost wage benefits are likely to continue, and the cost of your likely future medical needs, including prescriptions.

In March of 2007, the law was changed by placing limits or caps on how long lost wage benefits are paid.  The duration of the payments is determined by your Loss of Wage Earning Capacity (LWEC), in combination with either (a) your reduced earnings (if you are working) or (b) your level of impairment (if you are not working).  The LWEC determination is either reached by agreement or found by the presiding Judge.

If you are on Social Security Disability Income (SSDI) at the time of settlement, that will carry some weight regarding your degree of impairment. However, collecting SSDI is not equivalent to a finding of a 100% LWEC for purposes of New York Worker’s Compensation.

As federal law prohibits a transfer of your medical care from the Workers Compensation carrier to the federal Medicare system, a monetary provision for your medical needs must be made in the Section 32 settlement if your medical is concluded.  This is referred to as a Medicare Set Aside (MSA).  The MSA is a sum of money that you are required to hold/use for your future medical care and treatment.  The idea is that if you exhaust the MSA monies, Medicare will then pick up the cost of care, subject to its rules.

The entire settlement process can be very complicated because it requires both good faith projections as to your future lost wage benefits and medical care, as well as serious negotiations with the carrier, who may or may not be interested in a section 32 agreement.  Typically, Section 32 settlements involve non-schedulable cases such as Back and Neck injuries. However, Schedulable cases such as Hand(s) and Knee(s) injuries may also be the subject of Section 32 Agreements.

Because of the complicated nature of a Section 32 agreement, your interests are best served by working with a local attorney who has experience with the process, and who can offer advice and strategy that works best with your particular situation and goals.

William W. Crossett IV
Partner

Email: crossett@mcvlaw.com

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

Commentary by Christopher Stringham, Esq.

On December 1, 2010, the NYS Workers’ Compensation Board instituted Medical Treatment Guidelines for the neck, back, shoulders, and knees.  The intent of the treatment guidelines was to have all parties (doctors, attorneys, insurance carriers, and injured workers, etc.) be on the same page when it came to treatment parameters, and to make the treatment authorization process both streamlined and more efficient.

Initially, as all the interested parties became familiar with the treatment guidelines and all of the required forms, a large number of disputes arose as the guidelines only seemed to address new, acute injuries, along with the necessary immediate treatment rendered to one of the covered body sites.  There was no way to address ongoing and palliative care for injured workers who required pain management, either from ongoing therapies (i.e. chiropractic, physical therapy, acupuncture, etc.) or from the prolonged use of medications.

The practical effect of the guidelines was that injured workers who had been dependent on this palliative care had their medical treatment cut off due to the new requirements that placed the burden of proof on doctors to show that the ongoing treatment was effectively making their patient “better” and not just alleviating pain.  This same set of circumstances arises with newly injured workers who exhaust the care that is prescribed by the guidelines, but who still require some treatment to address ongoing, or even permanent, pain issues.

In order to request the review of a treatment denial, injured workers must ask for review by a Law Judge.  This is done by checking the appropriate box on the form MG-2, the same form that the treating doctor used to make the variance request.   (The form can be found here)

As of today, the Medical Treatment Guidelines that became mandatory in late 2010 are still in effect and are still being utilized to bring an end to ongoing treatment.  However, the Workers’ Compensation Board has recently (March 2013) revised the guidelines so that an ongoing maintenance care program (10 Chiropractic/Physical Therapy treatments per year) will be authorized for those injured workers who have both reached maximum medical improvement and been classified with a permanent disability.  The Board is also working to institute chronic pain guidelines.

The Medical Treatment Guidelines were not a positive addition to the Workers’ Compensation system from the perspective of the injured worker.  They have been used as the basis to deny an untold number of treatment requests from treating physicians and made it much more difficult for injured workers with serious injuries and the desperate need for chronic pain management to get the treatment that they require.  However, I am hopeful that the Board’s review of the last three years and its intent to institute chronic care guidelines will lead to a rebalancing of the way in which treatment is rendered to injured workers in the future.

Christopher Stringham

Email: cstringham@mcvlaw.com

Phone: 315-471-1664

Christopher Stringham graduated from Western New England College School of Law in 2010 and was admitted to the New York State Bar as well as the United States District Court, Northern District of New York in 2011. He is a member of the New York State Bar Association, Onondaga County Bar Association, and the Injured Workers’ Bar Association of New York. He has been a member of Meggesto, Crossett & Valerino, LLP since October 2010.

For Meggesto, Crossett, and Valerino claimants with an existing New York State Worker’s compensation case, Compensation Law provides for the reimbursement of certain Medical and Transportation costs that are directly related to the injury of record.

Reimbursable expenses include mileage for transportation to and from Doctor’s visits, as well as out-of-pocket medical expenses for prescriptions and for durable medical equipment such as crutches and braces.

Below is the link to the mileage reimbursement rates.

http://www.wcb.ny.gov/content/main/SubjectNos/sn150_18_1.jsp

Below is the link to our C-257 form generator, which is the form to be used for submitting Medical and Transportation expenses.

http://mcvlawblog.com/practice-areas/workers-compensation/medical-and-transportation-expense-c-257-form-generator/

This form is very straightforward. Be sure to fill in all the necessary information at the top of the form, including name, WCB case Number, Social Security number, and address.  On the bottom half of the form, as well as on the second page, are spaces for you to fill in your expense information.  If you are going to ask for reimbursement of both mileage and medical expenses, it is best to use separate forms in order to keep the mileage and the medical separated.

When calculating mileage, under “Nature of Expense” put the name and address of the Doctor you are visiting. In the second column goes the date of the visit, and in the third column goes the “round-trip” mileage to the Doctor and back to your place of residence.  A trip to the pharmacy to pick up prescriptions is not a covered expense. Parking and toll expenses are, however, covered, with copies of original receipts. Do not try to “pad” the mileage with extra driving, because the examiner will already have an approximation of the miles involved, and discrepancies will slow or stop the reimbursement process.  Be sure to inquire if your carrier offers any home deliveries on prescriptions – more and more carriers are offering such programs.

When applying for Medical reimbursement, under “Nature of Expense,” put the name of the prescription or the type of medical equipment that you are seeking reimbursement for, the date you made the purchase, and the amount spent out-of-pocket. Please note that the carrier will not reimburse for out-of-pocket copays for medication. The carrier will also not reimburse for any prescription or medical equipment without a copy of the original receipt.

When you have completed the form, forward it to your Compensation insurance carrier for reimbursement. There is no statutory time limit for the reimbursement process, and there is no penalty for late payment of medical and transportation expenses, but allow at least a window of 60-90 days to receive payment. If you have not heard anything in 60 days, contact the offices of Meggesto, Crossett, And Valerino, and we will be glad to contact the carrier on your behalf. It is important for all parties involved that you keep a copy of your submission, in the event that payment is incorrect or delayed.

Tips:

o   Make sure the form is complete.

o   Neatness counts – a sloppy or incomplete form will cause delay.

o   Try to submit no more than 6 months’ worth of expenses at a time. If you try to submit several years at once, payment will be delayed, and there is no guarantee that the insurance carrier will be able to go back and pull all the necessary records.

o   If you receive mileage and not all of it is paid, it is possible that the medical records of your visits are not yet available to the carrier. Those records must be matched with your mileage submission. No payments are made until the matching medical reports are filed.

John M. Bellinger
Paralegal

jbellinger@mcvlaw.com

Mr. Bellinger is part of the Worker’s Compensation team at Meggesto, Crossett and Valerino.  This entry was written by Mr. Bellinger under the direction and approval of Attorney Crossett.

William W. Crossett IV
Partner

Email: crossett@mcvlaw.com

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.