The workers’ compensation statute is a comprehensive system that was put in place after the Great Depression, along with several other workplace protections. Although it is not a federal law, it is in place in every state, and its general requirements are similar.
In New Hampshire, it can be found in the Revised Statutes Annotated (RSA), Chapter 281. The general concept is that, in return for gaining immunity from lawsuits by employees hurt on the job, employers are required to pay for an employee’s medical care, disability benefits, and, if necessary, job placement or retraining. This is usually done by purchasing a workers’ compensation insurance policy.
Full disclosure, I represent only employees with workers’ compensation claims, and have rarely seen abuses of the system by employees. Rather, I worry that pressure on legislators by business and insurance interests, and administration of the system by administrators unsympathetic to the needs of injured workers have thrown the system out of balance, creating economic hardship for injured workers.
RSA 281-A:23, I provides that “an employer, or insurance carrier, shall furnish or cause to be furnished to an injured employee reasonable medical services, remedial care, medicines for such period as the nature of the injury may require.” The law also allows an employee to get treatment from the medical provider of his or her choice, and unlike some states, does not require pre-authorization from the insurance company.
Nevertheless, my clients frequently tell me that their employer told them where to get medical treatment, and/or that their doctor has told them they need a particular test or surgery and they can’t get it scheduled because the insurance company won’t approve it. What is going on?
Many employers have contracts with a particular medical provider to treat their employees at a reduced rate, and will recommend that provider after an injury, without also informing the employee that he or she can choose another provider. This is not necessarily with bad intent as many employees need guidance, not having had previous work injuries. The problem is if an injury is complex, and requires evaluation by a specialist, the typical employer-contracted provider may not recognize this initially, and valuable time may be lost before the appropriate referral is made. It is therefore very important that if you are injured and have persistent disabling symptoms, you seek a second opinion soon.
However, that provider may be concerned about getting paid, especially if an expensive test like an MRI is needed. Although pre-authorization from the workers’ compensation insurance company is not required, the law does not require an insurance carrier to pay for treatment just because a bill has been submitted. Rather, RSA 281-A:23, V(e) requires the carrier “within 30 days after receipt of a medical bill: (1) To make payment, or (2) To deny such payment, notifying the health care provider, employee, and labor department of such denial. This denial shall give a valid reason for the denial and shall advise the claimant of the right to petition the commissioner for a hearing.”
A “valid reason” that the treatment is not related to the work injury, is not “necessary,” or the amount of the bill is not “reasonable.” If that happens, an employee can request a hearing at the New Hampshire Department of Labor. The law also requires that the insurance company pay an employee’s legal bill if he or she prevails. In my experience, most employees prevail, or, once an attorney comes on the scene, the bill gets paid voluntarily.
That does not help, though, if the medical provider refuses to schedule an appointment or test without pre-approval. That is a serious flaw in the system, because legitimate claims can be held up for an unreasonably long time as the employee or the attorney tries to get the requested approval. In the end, no one benefits, because the employee’s inability to get the appropriate treatment delays the return to work. The ideal solution is to find a medical provider that is willing to provide the treatment without pre-approval, or to submit the treatment for coverage under a health insurance policy, then request a hearing after getting the bill and have the workers’ compensation insurance company reimburse the health insurance company.
Two of the legitimate reasons for a workers’ compensation insurance company to deny treatment are that the treatment was not “necessary,” or “reasonable.” These denials occur more frequently than they should, and are often unsupported by the law. The New Hampshire Supreme Court has dismissed the position of many carriers that treatment that was “diagnostic” or “palliative,” and not “curative” was not “necessary.” Appeal of Levesque, 136 N.H. 211, 214 (1992).
“[T]he proper analysis is whether the petitioner presented objective evidence showing, that at the time the tests were ordered, it was reasonable for her to seek further treatment, be it diagnostic or palliative… [A] finding that … the tests yielded negative results is not sufficient to support [a denial]” Appeal of Lalime, 131 N.H. 534, 538 (1995).
The issue of necessity also arises with novel treatments. One example is of an amputee who wanted several specialized prostheses, to enable him to engage in athletic activities as well as everyday walking.
The extent to which an employee who has suffered a traumatic amputation is entitled to compensation for specialized prostheses, was addressed in Kelly v. Advanced Sheet Metal, 2016-L-0268 by the Compensation Appeals Board (CAB). In that case, the employee’s prosthetician recommended several artificial legs, to allow him to walk in his job, but also to run, ski, and do other activities which he did before he was hurt. The CAB rejected the insurance company position that it only needed to pay for one basic prosthesis.
At issue was the meaning of “made necessary” and “for such period as the nature of the injury may require.” Stated more clearly, the question is “made necessary for what?” The answer, according to several courts, is “reasonably necessary to restore [the employee] as far as practicable to his physical condition before this work-related injury.” Air Compressor Equipment v. Sword, 11 S.W. 3d 1, 3(Ark. App. 2000).
While it is true that in a typical case, it is simply not possible to return an employee to his former level of activity that is because of the limitations of medicine and technology, not because the law does not require it. The ability to design and fabricate artificial legs and other parts of the body has significantly advanced, to the point where amputees are able to live normal, functional lives, and compete at the same level as non-amputees.
Medical marijuana and CBD Oil are other types of novel treatment to which the law is required to adapt. Both have now been ruled compensable under our workers’ compensation statute. Injured employees struggle daily with the effects of their injury. I hope the information in this article will help you overcome at least one struggle – unwarranted denials of medical treatment.