Why Can’t I Choose My Own Doctor?
The workers’ compensation community accepts and expects that injured workers in the state of Florida do not get to choose which doctors will treat them for their on-the-job injuries. However, when someone gets injured on the job, they are often frustrated by their lack of choice over who is going to treat them for their injuries.
The workers’ compensation system is far different from what workers are used to with health insurance or an auto accident and corresponding treatment. For instance, under health insurance, someone with an HMO might be limited in whether they choose, but by and large, they have choices. This is not the case within the workers’ compensation system.
The caveat to this is that the date and year you were injured determines which year of statutes apply to each case. For example if your case is still open from 1990, then the 1990 statutes still apply for the most part.
In the first section of the workers’ compensation law dealing with medical treatment for injured workers, we find the language: “the employer shall furnish to the employee such medically necessary remedial treatment…”1
Even though it says “employer” in the statute, it also means the insurance carrier.2 Most often the insurance carrier is in complete control of the medical treatment.
The current workers’ compensation law doesn’t even allow for the injured worker to choose which doctor they want within a particular group or practice. For instance, if the carrier wants to send a worker to ACME Orthopedic Associates and there are five different physicians qualified to treat the worker, the insurance carrier still has the right to pick which specific physician they want to authorize. The facility is never considered authorized, only the physician.
There is one exception, which is often referred to as the “One Time Change Rule”. If the injured worker decides during the course of treatment they disagree with the opinions of the authorized physician, they can request a change in physician.3 However, this change can only occur once during the claim.
This means only one specialist can be changed even if the injured worker is being treated by multiple specialists. Once notified of the request, the insurance carrier has five days to authorize a new physician that is not professionally affiliated with the previous authorized physician. If they fail to do so in five days, the injured worker has the right to choose their next physician. This is the ONLY time that an injured worker has the right to choose who will treat them for an injury.4
This was not always the law of the land.
The most sweeping year for workers’ compensation reform in the past two decades occurred in 2003. The system was severely changed in favor of employers and insurance companies. For this specific area of the workers’ compensation law, the language altered quite dramatically.
In 2002 the “One Time Change Rule” didn’t have the five-day language giving insurance carriers complete control if they were quick enough. Instead the language stated: “The employee shall be entitled to select another physician from among not fewer than three carrier-authorized physicians who are not professionally affiliated.”5
With the new language in the “One Time Change Rule,” a significantly great amount of freedom was lost for the injured worker. By the way, this is just the most recent example of the law being changed to reduce the benefits of the injured workers’ choice in medical treatment. The further back the statutes go, the greater the choice.
This only addresses the current state of the law, but not the reasoning. Depending on who the person works for (the injured worker or the employer/insurance carrier) you will get different answers as to why the law exists as it does today.
From the injured worker perspective, this law was created to drive more control and profits into the hands of insurance companies. Employers gain more control and self-insured mega employers such as Wal-Mart, Publix, and Disney also gain more profits. But the direct profit is received by insurance carriers.
Here is how it works. Insurance companies know which physicians are more likely to deem an injury as being pre-existing or no longer needing medical care, and the insurance companies authorize those physicians more often. Cases are closed quicker and cheaper.
The problem is when doctors think or receive pressure to create these opinions or risk losing the referral source of the insurance company. The doctors also know the insurance company gets to choose which physicians are authorized and so they want to protect the massive referral source.
From the employer and insurance company perspective, they want to avoid the liberal doctors that only want to operate and prescribe medicine. In turn this reduced spending will reduce the premiums the employers have to pay for the insurance coverage. This becomes a political issue very quickly because employers and insurance companies put pressure on legislators to create changes in their favor to get these lower premiums.
For legislators, happy employers and insurance carriers are great campaign donors. The legislators then advertise that Florida is a great opportunity for employers to come from out of state because our workers’ compensation rates are so low compared to other states. However, the costs to the employee are not really a part of that advertisement or reasoning.
A neutral group beyond politics has addressed these changes: The Courts. In 2016, the Supreme Court of Florida issued its decision in Westphal v. City of St. Petersburg.6 This case dealt with a limitation on temporary wage benefits, but it also addressed the system at large.
The Decision discussed the Grand Bargain of the workers’ compensation law in Florida. Essentially, giving up the right to sue their employer for getting injured on the job was exchanged for medical and lost wage benefits. The administrative workers’ compensation system is supposed to be a “reasonable alternative” to tort litigation.
The decision said the following: “The ‘reasonable alternative’ test is then the lynchpin and measuring stick, and this Court has undoubtedly upheld as constitutional many limitations on workers’ compensation benefits as benefits have progressively been reduced over the years and the statutory scheme changed to the detriment of the injured worker. But there must eventually come a ‘tipping point,’ where the diminution of benefits becomes so significant as to constitute a denial of benefits-thus creating a constitutional violation.”7
This language from the Courts seems to favor the side of the injured workers in that benefits have been taken away without an alternative. The choice of physician for an employee’s injury on the job is almost completely controlled by the employers and carriers. And the true reason behind the fact that the employee doesn’t get to choose their own physician for care is because their employer wants the lowest premium.
However, that is how the law exists today. Injured workers who seek workers’ compensation cannot choose a physician for treatment or for opinion. Physicians are chosen by the insurance carrier.
If you have been injured at work and you’re seeking worker’s compensation, reach out to us today so we can help guide you through the complicated process of worker’s compensation. Email us at email@example.com.