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A Change Would Do You Good

J. Steven Rodenberg

In cases where the indemnity portion of a claim has been resolved and the claimant is entitled to lifetime causally related medical treatment, carriers often find themselves in the position of paying exorbitant amounts of money to fund a claimant’s prescription drug dependency problem. The claimant’s prescription drug dependency problem is usually facilitated and furthered by his authorized treating physician, whether it be a pain management specialist or a primary care physician, and carriers have had a difficult time changing the authorized treating physician once a doctor/patient relationship has been established and continued for a period of time. The Appellate Panel of the Workers’ Compensation Commission just issued a Decision & Order on February 13, 2019, which gives carriers a little more hope in their ability to change an authorized treating physician in certain circumstances.

In this particular case, claimant settled his original indemnity claim via agreement and release on December 23, 2010, with future medical treatment left open. Defendants requested a hearing pursuant to Reg. 67-601 to determine whether continued authorized medical treatment could be transferred. Claimant objected to jurisdiction, arguing such a hearing request does not exist under the South Carolina Workers’ Compensation Act. Defendants disagreed, arguing the Commission has jurisdiction to hear any issues that are still open, related to a workers’ compensation claim, as long as those issues are issues upon which the parties do not agree.

Defendants’ basis for requesting the transfer of Claimant’s treatment was established in the report of a pain management IME physician and the deposition testimony of Claimant’s authorized treating physician. The authorized treating physician confirmed that he is not a pain specialist and that he had increased the opioids and benzodiazepines he had prescribed  to Claimant over the years to over 4 times the morphine milligram equivalents (MME) recommended by the Center for Disease Control. Defendants asserted that when a doctor agrees that what he is doing is causing significant harm to a claimant, the Commission has both a legal and a moral obligation to stop that doctor from causing more harm to the claimant.

Claimant argued that he wished to maintain his long-standing doctor/patient relationship. Claimant argued the relationship was promoted, financed, and monitored by Employer/Carrier. According to Claimant, Defendants’ desire to transfer medical treatment was an attempt to reduce their medical costs.

The Appellate Panel found that the Single Commissioner hearing was properly set pursuant to Reg. 67-601 and that the Commission has jurisdiction to decide all issues set forth at the hearing. The Appellate Panel was very concerned about Claimant’s safety and well-being and did not find it logical or within the realm of reasonable for a claimant to claim to be “happy” with a treatment protocol that finds him essentially in 10/10 pain “at the least.” Failure of the Appellate Panel to address this issue would result in the Commission’s abdication of its statutory duties.

Claimant’s authorized treating physician who was specifically named in the settlement agreement and the release had retired. After that doctor’s retirement, Claimant began treating with a primary care physician, whose continuing treatment was authorized by Carrier. Defendants sought to transfer care from the primary care physician to a pain management specialist. The pain management specialist who performed the IME of the claimant expressed concern at the high doses of pain medication prescribed for Claimant and indicated that Claimant would benefit from ongoing physical therapy and injection therapy.

The authorized treating primary care physician testified in his deposition that Claimant is a “pretty complicated case,” he is not a pain management specialist, and that Claimant is at a high risk for overdose and death because of the high doses of opioids he is on. That doctor further testified that he does not think it would be inappropriate for Claimant’s care to be transferred to an interventional pain specialist.

The Appellate Panel further found that Claimant is not entitled to choose a treating doctor. The Appellate Panel understood that Claimant has a relationship with his treating physician and he wants that relationship to continue, but the treating physician was not the doctor specifically designated in the settlement agreement. The specifically named doctor had retired. Therefore, the settlement agreement was found to be unenforceable as to the medical provider. There was a material change in circumstances since the settlement agreement was filed, specifically, the named treating physician had retired.

The Appellate Panel noted that they were deeply concerned about the high levels of pain medication being prescribed for Claimant and gave the opinion of the IME pain management physician, a board-certified expert, the greatest weight. The Appellate Panel then found that Claimant is entitled to ongoing causally related pain management with a board-certified pain management doctor of Defendant’s choosing.

Obviously, this Decision & Order is based on a very specific factual scenario where a specifically named authorized treating physician was no longer practicing medicine. However, some of the comments and findings made by the Appellate Panel certainly suggest that if a non-pain management specialist is providing pain management of a claimant’s injuries and condition, and in so doing is prescribing excessive amounts of medications, the carrier has a legitimate reason and a right to change the authorized treating physician. So, at least there is some hope moving forward with these lifetime medical treatment claims.