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Recurring Medical Treatment Issues

Leslie Whitten

Nearly every workers’ compensation claimant requires some amount of medical treatment.  Obviously, some claims are very minor and the medical treatment is limited.  Those claims are normally referred to as medical only claims and do not involve issues of temporary total or permanent partial disability.  In cases where the medical treatment becomes more extensive, that treatment is governed by S.C. Code Ann. § 42-15-60.  This statute requires the employer to provide medical treatment “as may reasonably be required, for a period not exceeding 10 weeks from the date of an injury to effect a cure or give relief and for such additional time as in the judgment of the Commission will tend to lessen the period of disability as evidenced by expert medical evidence stated to a reasonable degree of medical certainty.”  Once the authorized treating physician determines that a claimant has reached MMI, the Commission will award ongoing medical treatment if the claimant’s treating physician states to a reasonable degree of medical certainty that such treatment will more likely than not be required to maintain the claimant’s current level of function.  The statute also requires lifetime medical benefits in cases of permanent and total disability.  Finally, in all cases involving prosthetic devices or surgical hardware, an employer/carrier is responsible for lifetime maintenance and/or replacement of those devices.  Here are 4 areas of recurring issues regarding medical treatment that should always be in the back of your mind when handling these claims:

  1. The Employer/Carrier Directs Treatment in South Carolina

The employer’s ability to choose the treating physician is implied in § 42-15-60 and is specifically stated in regulation 67-509, which provides that “the employer’s representative chooses an authorized health care provider and pays for authorized treatment.”  An employer/carrier’s right to choose the doctor and direct treatment in South Carolina is a very important tool and allows an employer/carrier to maintain a certain measure of control of the medical aspects of a claim.  However, there are some limitations to an employer/carrier’s ability to direct treatment.  For instance, when the authorized treating physician determines that the claimant does not need any further medical treatment, claimants will often obtain a second opinion from another physician who believes further treatment is indicated. It then becomes a question for the hearing commissioner to determine whether that additional recommended treatment is reasonable and necessary.  Although the Commission tends to side with the authorized treating physician, it will order a change in treatment if there is a compelling reason to question the validity of the treating physician’s opinion. 

  1. Claimant’s Refusal of Authorized Treatment

In a situation where an employee refuses to accept medical treatment provided by the employer or ordered by the Commission, § 42-15-60 states that such refusal “shall bar such employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Commission the circumstances justified the refusal, in which case the Commission may order a change in the medical or hospital service.”  During the first 150 days after an injury, the employer/carrier MUST file a Form 15 when TTD benefits are suspended due to a Claimant’s refusal to accept medical treatment.  After the first 150 days, the employer/carrier MUST refer the claim to defense counsel to request a hearing, immediately upon suspending payment.

  1. Communications With Treating Physicians

The rules governing an employer/carrier’s communication with treating physicians in South Carolina further limit the ability to direct treatment.  Unfortunately, the law does not permit a representative of the employer/carrier to simply call the doctor at any time and discuss the claimant’s medical treatment.  The claimant’s consent is not required, but the employer/carrier must provide the claimant advance notice and advise the claimant of the nature of the planned communication.  S.C. Code Ann. section 42-15-95 and regulation 67-1308 require an employer/carrier to notify the claimant of the communication at least 10 days in advance and permit the claimant the opportunity to participate in the communication.  The statute and regulations also state that an employer/carrier must provide a copy of written questions to the claimant at the same time the questions are submitted to the doctor.  Any medical reports obtained in violation of this section will be excluded from consideration at a hearing or settlement conference.       

  1. Maximum Medical Improvement

Typically, a workers’ compensation claim in SC is ready to be closed out when the treating physician states the claimant has reached maximum medical improvement (MMI).  MMI is a term used to indicate that a person has reached such a plateau that in the physician’s opinion there is no further medical care or treatment that will lessen the degree of impairment.  MMI does not require that a claimant’s remaining injury related symptoms disappear altogether.  Rather, it is when the substantial weight of the evidence shows that further medical care will not improve the claimant’s medical condition.  Once the claimant reaches MMI, the parties typically attempt to negotiate a compromise settlement of permanent disability benefits and future medical treatment.  If the parties are unable to reach an agreement, a hearing before the Commission will be required. 

As always, feel free to contact us with feedback or questions.