Fourth Quarter 2018
By: Paul Berard & Joshua Stegeman
Question: Under what circumstances do you recommend a Utilization Review (UR) or an Independent Medical Examination (IME) in an otherwise compensable claim?
Short Answer: In Missouri, due to the employer and insurer directing the care and treatment of an injured worker, URs are rarely, if ever, used; and IMEs are primarily used in disputed claims when the employer has not directed medical treatment or lost control of it.
Discussion: In Missouri, the employer has the right to direct the care and treatment of an injured worker. Pursuant to Section 287.140 of the Revised Missouri Statutes, “in addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment…as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense…The choice of provider within the location selected shall continue to be made by the employer…” However, the employer may waive its right to select the treating physician by failing or neglecting to provide necessary medical aid. Emert v. Ford Motor Company, 863 S.W. 2d 629 (Mo.App. 1993); Shores v. General Motors Corporation, 842 S.W. 2d 929 (Mo.App.1992) and Hendricks v. Motor Freight, 520 S.W. 2d 702, 710 (Mo.App.1978).
Utilization Review (UR)
The Missouri Workers’ Compensation Law does not address URs. It is rarely, if ever, used because employers have the right to select physicians and direct medical treatment, so there is no use for it because the employer’s selected doctors are making the decisions about care and the employer can provide input about those decisions. URs are not effective in Missouri to deny treatment or bills since they are not generally recognized, so it is not cost effective to obtain an UR in support of a denial in a case.
Independent Medical Examination (IME)
Missouri Workers’ Compensation Law specifically addresses IMEs under Section 287.210.1 RSMo.
“After an employee has received an injury he shall from time to time thereafter during disability submit to reasonable medical examination at the request of the employer, the employer’s insurer, the commission, the division, an administrative law judge, or the attorney general on behalf of the second injury fund if the employer has not obtained a medical examination report, the time and place of which shall be fixed with due regard to the convenience of the employee and his physical condition and ability to attend. The employee may have his own physician present, and if the employee refuses to submit to the examination, or in any way obstructs it, his right to compensation shall be forfeited during such period unless in the opinion of the commission the circumstances justify the refusal or obstruction.”
Once again, because employers have the right to select physicians and direct treatment in an otherwise compensable claim, there is not typically a need for them. Also, an independent medical examiner may contradict the employer directed treating physician’s opinions, diagnoses and opinions on work status, creating a conflict about which opinions to rely. The Missouri Division of Workers’ Compensation also may consider this to be doctor shopping depending on the circumstances of why the IME was obtained and then may disregard the doctor’s opinions. However, IMEs are often scheduled when an employer directed physician makes a recommendation for referral to a specialist such as physiatrist, orthopedic surgeon, or other specialty physician. The initial evaluation with the specialist is often scheduled as an IME.
In addition, for an otherwise compensable claim an IME may be necessary when a treating physician does not provide clear opinions regarding an employee’s treatment, diagnoses, or work status, or if a treating physician does not perform ratings as part of regular practice. IMEs are more often used in disputed claims where the employer has not directed the employee’s medical treatment, either because the claim was initially disputed, or the employer waived its right to control medical treatment. In these disputed claims, employers should obtain an IME to address an employee’s physician’s treatment, diagnoses, and opinions regarding treatment that was not authorized.
In Missouri, since an accident is only compensable if the accident was the prevailing factor in causing both the resulting medical condition and disability, an IME physician will want to ensure that this standard is used when providing his or her opinion. A “prevailing factor” is “the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.” Section 287.020.3(2) RSMo. Additionally, an employee also has a right to obtain an IME at his or her expense.
Employees will typically obtain their own IME when they disagree with an employer directed physician’s opinions. This will typically occur when an employer directed physician has placed an employee at MMI and discharged them from care, but the employee believes they need additional medical treatment.
Practice Tip: In Missouri, one of the most important decisions in many cases is where to direct an employee for medical treatment on an accepted workers’ compensation claim. It is important for Employers to direct care to physicians who are familiar with workers’ compensation claims. A physician familiar with workers’ compensation claims should help reduce the chances of needing to obtain an IME and will insure proper treatment to help the employee return to work and reach MMI faster. In addition, the employer’s selection the best physicians for treatment means the prevailing factor should be properly addressed as part of the handling of the claim. Please feel free to contact attorneys at Hennessy & Roach P.C. for recommendations about treating physicians.