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Getting Surgery Approved For Injured Workers: The Rules Governing Elective Surgery

Your patient suffered an injury on the job. The injury is an accepted Workers’ Compensation claim. The workers’ comp insurance carrier (“the insurer”) has been paying your bills.

Now, you think your patient needs surgery. The surgery is not needed as an emergency measure to preserve life, function or health, but you believe surgery will help your patient recover. How do you get the surgery approved?

This is called “elective surgery.” Very specific Workers’ Compensation rules govern how you must notify the insurer of the surgery you propose and how the insurer must respond. (Oregon Administrative Rules [OAR] 436-010-0250). These rules set time limits that you and the insurer must follow. Also, there are steps that must be followed if you and the insurer need to resolve disagreements about the surgery.

This article explains the rules. Also, we are including a recommended letter format for you to use to notify the insurer of your proposed surgery. Please note that the rules discussed here are subject to any procedures which may be provided by the MCO.

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

You must:

  1. substantiate the need for the surgery;
  2. give the approximate date of the proposedsurgery; and
  3. state where the surgery is to be performed, if known.

A letter format for providing this information appears at the end of this article 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 receiving your notice of intent to perform surgery, the insurer must notify you whether it will require an independent consultation with a physician of its choice by submitting Form 440-3228 (Elective Surgery Notification).

The consultation must occur within 28 days after they notify you.

Seven (7) days after the consultation the insurer must 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.

You may be required to obtain and provide additional diagnostic tests, clarification reports or other information where medically appropriate. These will be obtained with the insurer’s agreement to pay and will be designed to help you and the insurer reach an agreement regarding the proposed surgery.

If, after endeavoring in good faith to resolve the matter with the insurer, you get to where you think any further attempts would be futile, then you are required to notify in writing 1) the insurer; 2) the worker (your patient); and 3) the worker’s representative (your patient’s attorney) that attempts to resolve have become futile. This is done by signing and sending them copies of the Form 440-3228.

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

If the insurer fails to respond to your notice of proposed surgery by submitting Form 440-3228 within seven (7) days; or if 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.

The insurer may inform your patient about the consultant’s disagreement with your surgery recommendation, but the decision whether to proceed with surgery remains between you and your patient.

The following letter format contains all the information you are legally required to provide in your initial notification of elective surgery. Again, this information should be faxed to the insurer at least seven (7) days prior to the proposed surgery.

Dear [Workers’ Compensation insurer]:

I recommend the following medical treatment for my patient, [name of patient], for his accepted work injury, [state accepted condition], your claim number [Workers’ Compensation claim number].

I propose performing [name of surgical procedure] surgery on [date of proposed surgery, at least seven days after the date your letter will be received by the insurer], at [name of hospital/facility where surgery is to be performed, if known].

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].

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.

Sincerely,

If you are a surgeon or a physician who may refer a worker patient for surgery, you would do well to have this format saved in your computer.

This format, used in conjunction with the rules explained in this article, will help you avoid civil penalties for non-compliance with notice requirements. Also, it will expedite approval of the treatment your injured patient needs.

Life threatening or rapidly progressively
deteriorating or unmanageable pain situations calling for surgery before seven (7) days is emergency (not “elective”) surgery. Just notify the insurer as soon as possible.

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

Posted in: Workers' Compensation Lawyer Articles