Written by Nick Marrone, Esq.
Edited by Bob McAdam, Esq.
If you have been handling Virginia workers’ compensation claims it is likely that a claimant or their attorney has asked you to approve an FCE or an impairment rating ordered by their doctor. It is likely that such a request has resulted in a quick denial. Obtaining an FCE or an impairment rating is a litigation expense. The Commission has found that a visit to a physician for the sole purpose of proving a disability rating does not constitute medical treatment under Virginia Code § 65.2-603; and, therefore, the Insurer is not responsible. This longstanding precedent, however, appears to be over.
On October 5, 2021, the Full Commission issued their Review Opinion in Kenneth Elliott v. Sam Green Vault Corporation, JCN VA00001108316 (Oct. 5, 2021). Mr. Elliott was a grave digger. On August 16, 2015, he suffered a tibia fracture when a tombstone toppled over and fell on his left leg. After going through three surgeries on May 11, 2020 his treating doctor opined that he had reached maximum medical improvement. Mr. Elliott was referred to a physical therapy facility for an FCE and impairment rating to proceed. The insurer refused to authorize the same and following a hearing the Deputy Commissioner, following precedent, agreed. The claim was denied on the basis that the referral for the FCE and impairment rating was for the sole basis of securing a disability rating and is not medical treatment for which the insurer was responsible.
Mr. Elliott appealed the ruling arguing the referral was not solely to obtain a disability rating but was also for him to obtain further physical therapy and, therefore, the referral was the insurer’s responsibility. The Full Commission agreed with the Deputy Commissioner that the referral was, in fact, for the sole basis of securing a disability rating; however, in their unanimous opinion the full Commission reversed their longstanding precedent. In justifying their departure from precedent Commissioner Newman, who penned the opinion, gave four grounds.
Commissioner Newman found that obligating a claimant to pay for the costs associates with securing a disability rating offends the Virginia Workers’ Compensation Act’s fundamental premise that the financial burden resulting from a compensable accident be borne by the industry, by the employer and insurer.
Second the Commissioner found that a visit to a provider for the sole purpose of obtaining a disability rating applied too myopic of a view as to what benefits are afforded under Virginia Code § 65.2-603. Commissioner Newman reasoned that the Act never defines what “necessary medical attention” is, and that the Commission has not otherwise so narrowly interpreted that language as to limit what is covered to only care which advances the claimant on a path to recovery. For example, the Commission has found insurers to be responsible for transportation to and from medical treatment and diagnostic studies, even if the study establishes a condition is not causally related to a compensable injury.
Commissioner Newman also noted that an FCE has been defined as “necessary medical attention” as applied to an application for hearing to terminate benefits due to a claimant’s failure to attend the same. If the Commission can reason that a claimant’s refusal to undergo an FCE was an unjustified refusal of medical treatment worthy of terminating compensation benefits how then can the Commission find that an FCE is not “necessary medical attention” which the insurer is responsible for when a claim is filed for the same?
Third, the opinion found that finding an insurer responsible for an FCE to assess a claimant’s impairment is a matter of fundamental fairness. A treating physician may order an FCE to evaluate a claimant’s ability to function before releasing him to work. Again, Commissioner Newman noted that the Commission cannot portray such an FCE as “necessary medical treatment” for the purposes of suspending benefits of a claimant who refuses to appear for the FCE while concurrently denying that same evaluation qualifies as medical treatment when it is needed for the claimant to secure compensation (e.g., PPD benefits) under the Act.
Lastly, Commissioner Newman reasoned that holding an insurer liable for an FCE or impairment rating promotes the Commission’s charge to administer the Act and to adjudicate issues and controversies, which serves the interests of all parties. For example, the opinion argues that the insurer’s refusal to pay for an impairment rating allows the claimant to seek the opinion of an independent medical examiner including those reputed to render “suspiciously elevated ratings,” which typically results in the insurer obtaining a rating from their own doctor that may provide suspiciously low rating. If the insurer is responsible for paying for the impairment rating ordered by a treating provider then the Commission would be able to provide benefits based on the opinion of the physician that is most familiar with the claimant, as opposed to hired guns providing severely disparate ratings only after seeing the claimant once.
While this ruling issued by the Full Commission will result in insurers being responsible for what was previously an expense to be borne by a claimant insurers should not fret. As noted by Commissioner Newman, this ruling will likely result in impairment ratings provided by the treating providers. In other words, insurers would be able to obtain a rating that would be afforded more weight than the inflated rating that a claimant would obtain from their IME doctor and not have to go through the expense of obtaining their own IME. A rating from a treating doctor a claimant likely has chosen off a panel of vetted providers supplied by the employer and/or insurer.
Furthermore, if a treating provider refers the claimant to a facility without making a direct referral the insurer would have control over the facility that conducts the rating by providing a panel. Prior to this ruling the referral would likely be denied resulting in the claimant choosing a provider of their own to obtain a high rating necessitating the insurer to obtain an IME of their own at significant cost. In other words, while this ruling will result in the insurer being responsible for the cost of a treating doctor’s referral for an FCE or impairment rating in the end it may result in the insurer being exposed to fewer litigation expenses and a smaller PPD rating based on the treating provider’s opinion.
Should this decision be appealed to the Court of Appeals, we will let you know.
As always, if you have any questions, or would like to discuss this issue, please feel free to contact one of the team members at KPM LAW.