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Getting Approval For Elective Surgery On Injured Workers

Your patient suffered an injury on the job. The injury is an accepted Workers’ Compensation claim. The comp insurance carrier (“the insurer”) has been paying your bills. Now, you think your patient needs surgery. Although not needed as an emergency measure to preserve life, function or health, you believe surgery is required to help your patient recover. What do you do to get surgery approved?

This is called “elective surgery.” How you notify the insurer of your proposed surgery and how the insurer must respond are the subjects of very specific Workers’ Compensation rules (OAR 436-010-0250). These rules contain time-lines you and the insurer must follow. There are also procedures that you and the insurer must follow to resolve disagreements about the surgery.

This article explains the rules and includes a proposed letter for you to use in notifying the insurer of your proposed surgery. (NOTE: These rules are subject to procedures otherwise provided by the MCO.)

At least seven (7) days prior to the proposed surgery, you must notify the insurer. It would be to your advantage if you DO THIS IN WRITING and FAX IT.

You must: 1) substantiate the need for the surgery; 2) give the estimated date of the proposed surgery and post-surgery recovery period; and 3) give the name of the hospital where the surgery is to be performed. A format for this letter is provided below for your convenience.

If you prescribe or perform elective surgery without notifying the insurer as required above, you may be subject to civil penalties.

The insurer may question your recommendation and want a second opinion. If so, within seven (7) days of receipt of your notice of intent to perform surgery, the insurer must notify you that it will require an independent consultation with a physician of its choice. This consultation must be completed within 28 days after they notify you.

The insurer has seven (7) days after the consultation to notify you of the consultant’s findings. (So, within six (6) weeks (42 days) after the insurer receives your notice of proposed surgery, you should have the insurer’s medical consultant’s findings on your proposal.)

If the consultant disagrees with your surgery proposal, you and the insurer are required to “endeavor to resolve any issues” raised by the consultant’s report. To this end, you may be required to obtain and provide additional diagnostic tests, clarification reports or other information where medically appropriate.

Suppose after endeavoring in good faith, you reach the point where think any further attempts to resolve the matter with the insurer would be futile? At that point, you are required to notify: 1) the insurer; 2) the worker (your patient); and 3) the worker’s representative (your patient’s attorney) that further attempts to resolve the matter would be futile. (The Director of the Department of Consumer and Business Services has been authorized to prescribe a form and format for this notification. To find out if such a form has been prescribed, you may call Fred Bruyns at (503) 947-7623.)

Within 21 days after you provide your notice that attempts to resolve have become futile, the insurer must request an administrative review by the Director, if the insurer believes your proposed surgery is excessive, inappropriate, or ineffectual, and the insurer cannot resolve the dispute with you.

If the insurer fails to respond to your notice of proposed surgery within seven (7) days, or the insurer fails to request administrative review within 21 days after your notice that resolution efforts have become futile, the insurer will be barred from later disputing the surgery.

A letter on your letterhead faxed to the insurer in the following format at least seven (7) days prior to the proposed surgery will meet your initial notification requirements:

Dear [Workers’ Compensation insurer]:

This concerns my recommendation for medical treatment for my patient, [name of patient], for his accepted work injury, your claim number [ Workers’ Compensation claim number].

I propose performing [name of surgical procedure] surgery on [date at least seven days after the date your letter is to be received by the insurer/date of “actual notice”].

This surgery is needed to treat [name of patient]’s [injury or illness accepted] because [provide medical information explaining and substantiating the need for surgery]. The recovery period following this surgery will be [estimate length of time your patient will need to recover]. Surgery will be performed at [name of hospital ].

Unless I hear otherwise from you within seven days of your receipt of this notice, I will assume your approval and proceed with surgery as planned. Thank you for your consideration.

If you are a surgeon or a physician who may refer a worker patient for surgery, you would do well to have the above format placed in your computer. Properly used, it will help you avoid civil penalties for non-compliance with notice requirements. Also, it will expedite approval of the treatment your injured worker patient needs.

This article was prepared by Arthur W. Stevens III and Peter E. Yeager

Posted in: Workers' Compensation Lawyer Articles