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(Author's note: My practice is based in Illinois, and the examples I use in this article refer to Illinois law. However, the underlying issue of misinterpretation of rules and benefits is a national concern)

In a majority of cases, by the time an injured worker makes contact with a Worker's Compensation attorney, he has already been seen by a number of physicians. While most clients understand the Act requires employers to pay for 100% of all reasonable and necessary related medical care, workers may not know they can receive medical care by the physician of their choice.

Section 8(a) of the Act allows an employee to secure the services of his own medical providers at the employer’s expense. This includes all first aid and emergency treatment; plus, the services of the provider initially chosen by the employee as well as any other providers in the chain of referral from this initial provider; plus, services provided by a second medical provider, including any services in this chain of referral.

It is common for both employees and adjusters to misinterpret this rule. I currently represent a client who suffered a complex cervical spine injury while working as a commercial driver several hundred miles away from his home town. On the day of the accident, he was taken by ambulance to the local emergency room where he was treated and released. The next day, on the recommendation of a friend, he saw a local, well respected neurosurgeon.

This neurosurgeon recommended an anterior cervical discectomy and four level lumbar fusion. The Respondent ordered Section 12 medical examination that was conducted by another equally respected neurosurgeon. This neurosurgeon suggested an entirely different surgical approach which included a decompressive laminectomy, followed by a posterior cervical fusion.

Prior to hiring our law firm, the injured worker had a telephone conversation with both surgeons during which each attempted to persuade my future client their respective surgical approach was the preferred one.

These two vastly different opinions left him confused and frightened. He decided he needed to get another opinion. Unfortunately, his request was denied. The adjuster told the worker he had used up his two doctor choices: the first being the visit to the emergency room on the day of the accident and the second being his visit to his treating neurosurgeon.

This was the first work injury this client had ever experienced. At the onset of his injury, he had no intention of hiring an attorney to assist him in the administration of his claim. Yet, when faced with the difficult decision between two major surgeries, and without another opinion, he reached out to our law firm.

He was relieved to learn that emergency medical care or visits to the hospital emergency room do not qualify as a choice of physician under the Act. Therefore, he had only exercised one physician choice and had one remaining. After educating the adjuster on Illinois law, the additional doctor's visit was approved and my client was able to get the advice he needed to make a fully informed surgical decision. He obtained the surgery recommended by his treating neurosurgeon is currently 6 months post-op and is recovering quite well.

This is only one of numerous choice of physician scenarios we encounter in our practice. Perfection of the chain of referral is another problem. As we know, either of the two independent doctor choices may refer an injured worker to other doctors or specialists for further medical treatment or consultation. When problems arise with the chain of referral, it can usually be resolved by a thorough review of the client's medical records or, on occasion, a request for an addendum to a record to confirm a referral within the chain was made.

Our efforts to protect our clients’ right to see the doctor of their choice will soon become more complex as employers implement PPO plans under the new act. Soon, pursuant to new Section 8.1(a) of the Act, the choice of two doctors may be limited to the employer’s PPO plan or limited to one choice of doctor outside of the PPO plan if the employee chooses in writing to opt out of the employer's PPO plan.

All physicians are not created equal. Therefore, it is up to the petitioner's attorney to insure every client understands the law governing their choice of physician.

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