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Who can I choose as my doctor under the Defense Base Act? March 15, 2009

Posted by Aaron Walter in Uncategorized.
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This is a question I am not asked frequently enough. The answer is simple – under the Defense Base Act you can choose any qualified physician under the sun to treat your injuries. That is a flexibility not offered under most state workers’ compensation systems. For instance, in the State of Georgia, where our office is located, you would only have a choice from a list of doctors your employer posts at your work place. Under the Defense Base Act, depending on the type of injury you suffered, if the doctor you choose is a licensed surgeon, podiatrist, dentist, clinical psychologist, optometrist, osteopath, or chiropractor, then you have made a valid initial choice of physician.

 The reason why I am not asked this question very often, is that most injured contractors only contact an attorney AFTER something has gone wrong with their case, like that their benefits are stopped or reduced or a medical procedure is denied or delayed. One reason why this is unfortunate is that while you have amazing flexibility in choosing an initial physician, those same rules limit your ability to change doctors.

If your first choice of physician refers you to some other specialist, for instance a family doctor who refers you to a orthopedic specialist for a back problem, the insurance company must honor that referral. Also, if your doctor retires, you can choose a new one.

However, outside of those situations, you are pretty much stuck with your first choice. Once a claimant has made his initial, “free choice” of a physicians, he may change physicians only upon obtaining prior written approval of the employer, insurer, or the Department of Labor. It is likely that if you do not like your doctor or what he is telling you, the insurance company probably loves him.

One situation we have run into recently, is where the insurance company actually recommends a doctor to the injured employee. Sometimes this is done by the insurance company’s “Nurse Case Manager.” A Nurse Case Manager often just ends up being a spy for the insurance company. He or she will be assigned to your case and theoretically their job is to facilitate your medical treatment. They may even convince you to allow them to come to your doctor’s visits and speak privately with your doctor.  However, no matter how pleasant a human being they appear to be, they are first and foremost an employee of the insurance company. Their paycheck comes from the same place as your weekly check and your medical expenses. Their interests are not necessarily in line with yours.

In a recent case, the Nurse Case Manager mentioned this “great” doctor they knew whose office was nearby to our client. Little did he know that this doctor is one of the “go-to” doctors one major insurer sends claimants to for “independent” medical evaluations when they seek to challenge a claimant’s case. To our industry, this conversation is the equivalent of offering to sell you some beachfront property in Nevada.

They managed to fool the unsuspecting injured contractor into picking this doctor as his one free choice of doctors. You can guess how well that has worked out for him.  He had no clue of this doctor’s reputation and had no clue he likely could not change doctors without the insurance company agreeing.  While you have a wealth of options available to you upon your return to the United States or your home country, when you pick your doctor please do some research, talk to friends, or make some calls. Don’t just pick them out of the phone book and double check anyone the insurance company recommends.

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1. Marcie Hascall Clark - March 15, 2009

Thanks Aaron for an excellent explanation of this “feature” of the coverage.
So few contractors know anything about their rights undet the DBA before they are injured.
Then when they are laying in a pool of blood on morphine their first choice of doctor isn’t much of an issue.
The Department of Labor needs to begin enforcing the requirements for posting information about the DBA in the workplace.
We had the experience with the nurse/claims manager following us to doctor appointments and demanding to be in the examining room for the visit with the doctor. We had to draw the line there.
The injured contractor is often made to feel as though he has no rights in regards to his own body.

Aaron Walter - March 15, 2009

Thanks for your comments Marcie. I do not mean to say that all nurse case manangers/claims managers are bad people, in fact they often do a good job in facilitating initial treatments in accepted claims. If your claim is accepted the insurance company becomes a great cheerleader for your health. Until you are “healed” or reach the limits of what your doctors can do for you (known as Maximum Medical Improvement or MMI) the insurance company is stuck paying you weekly benefits. The faster you heal or reach the full extent of treatment the sooner they can return you to work or reduce your benefits. So during that period, their purpose of having a nurse case manager involved is to speed you through the process. However, your interests are only perfectly in line with those of the insurance company for a portion of the life of your claim/injuries. At that point, they continue to be an asset to the insurance company, but a liability to you.

You experience of the nurse case manager following you to appointments and demanding to be in the examining room with you is quite typical. For better or worse, this allows them to affect the course of your care by applying subtle pressure to your doctor(s). Of course, they often do not explain that they are only allowed to have this kind of impact on your claim if you allow them. However, it is a basic mind trick to simply insert yourself into a situation, thereby making everyone believe that this must be normal.

As to your comments on Tangiers International’s apparent involvement in facilitating overseas medical care, I can’t really answer all of the questions you raise, but I’ll try.

First, if you are badly hurt in Iraq, practically speaking no one is going to turn down treatment so that they can get to doctor of their own choosing. Theoretically, this is an advantage to both the insurer and the injured contractor. Facilitated treatment for the injured, greater control for the insurer. Any treatment is optional, but who would ever turn it down?

I will make two obsevations:

#1 – Seeing a doctor overseas likely should NOT constitute a choice of physicians under the Defense Base Act (LHWCA).

#2 – I have seen disability ratings (which determine your rights to permanent partial disability compensation) given by doctors in Iraq and Syria. Our feeling on that is that a US contractor should have every right to have those re-evaluated by US specialists.

Upon return to the US or your home country you should have the right to have yourself and your rating checked out by local doctors. I do not know that this point has been litigated, but practically speaking the major insurers have not argued that point in any of our cases. It will be interesting to see if anything in that regard changes as more treatment is provided in-theatre.

2. Marcie Hascall Clark - March 15, 2009

What happens to the injured workers first choice of doctor if they have no choice but to use the Tangiers International third party medical provider services in Iraq?
Tangiers International states that they not only provide the medical services even to the extent of amputations, but also determine disability ratings for their client.
AIG, CNA and I believe ACE have contracts with Tangiers to provide these services.
Are these services optional?

3. Jana - March 16, 2009

I’m under the understanding that KBR/ AIG/ CNA all work with their clients until they obtain an attorney under the DBA.

Aaron Walter - March 16, 2009

Jana, I an not entirely clear what this comment means. If you are asking if AIG/CNA, the two major insurers in this area, are willing to work with a claimant regarding changing physicians only up until the point they hire an attorney, then with all due respect, you could not be more wrong. In fact, in our experience clients often find of easier to get proper referrals, approval of recommended medical treatment, and even changes of physicians after the involvmenet of a skilled attorney.

The verbal threat to an insurance adjuster of hiring an attorney is often met with resistance and a claim by the adjuster that this will only serve to hurt the injured contractor, but I cannot yet think of a single instance of a Defense Base Act client of ours that has been left worse off for hiring our firm. I should “knock on wood” after saying that because maybe one day that will come. But because of the unique circumstances in these claims with attorneys fees being paid for by the insurers and not the client, the real issue for the client is whether they can get a skilled attorney to handle their case. There are a handfull of skilled DBA plaintiff’s attorneys scattered throughout the United States and thousands of injured contractors. Most do not try to hire an attorney to handle their claim, but the reality is that all them could not. There are not enough attorneys to go around. Therefore, each attorney has to evaluate cases and determine whether the case meets what they need to continue to pay their employees, associate attorneys, rent, utility bills, etc. The nature of DBA claims means that unless operating on a partial charity basis the attorney cannot make a significant fee on injuries to the hands or feet and often injuries to Iraqi nationals who are paid $40-$200 per week for their services. However, our firm has tried to help any claimant in need and has made special sacrifices when it comes to Iraqis injured or killed because of their sacrifeces for the good of the US war effort.

While we cannot warrant that we can represent every person who contacts our firm, I truly feel like everyone who we do represent gains from our involvement in their claim. The choice of whether to take that step falls on the individual themselves.

4. Jana - March 16, 2009

One of the other things that isn’t asked is how far is a contractor required to travel for medical services? I have heard of many contractors having to travel out of their home states to TEXAS to undergo medical treatment and so fourth by AIG, CNA. How are the Insurance companies allowed to do this? Again from what I have heard from the injured, this happens all the time, some attorneys actually pay to have thier client come to Texas to under the Insurance company treatments with their doctors. Under the DBA should the Insurance company find doctors who are closer (within 50 miles) of the injured home? Why does this continually get over looked?
This to me is unjust practice under the LHWCA.

Aaron Walter - March 16, 2009

Jana, an injured contractor’s requirement to travel for potential medical treatment can be broken down into 2 aspects:

#1) An IME ordered by the employer. An IME means an Independant Medical Evaluation. It is when the employer/insurer disagrees with something your doctor has stated or ordered and asked that their own doctor examine you. Usually this is done by a doctor of the insurer’s choosing in your home town, but we have seen (especially in Texas) an interest by one of the major insurers to get the contractor to travel to the insurer’s home office area of Dallas, Texas for an examination or to send a Dallas, TX doctor to their Texas location.

#2) Travel by the claimant to see their own doctor. Jana, this appears to be what you are referring to, a contractor leaving their home area to see a doctor. I have to admit that I cannot relate to this. I am not sure that our firm has a single DBA client who is currently being forced or coerced to see an authorized treating doctor well outside their home town or metro area. The irony of an insurer arguing that such regular travel to see a doctor would be appropriate would be that we have met resistance regarding referrals by one doctor to a specialist who was maybe 100 miles away in a major metropolitan area, when the claimant lived in a smaller city. As stated in my orignal post, we have seen the insurer “recommend” doctors to a contractor, but I do not recall a situation where they have tried to force a large range of travel. I am not sure that this should be acceptable under the Defense Base Act and I think that the long period of travel might mke for a basis to request a change of physician from the Department of Labor. As stated in my original post, that is not an easy feat, but is proper in some situations.

As to the issue with an attorney recommending a client travel to see a doctor close to where the attorney resides, I can only imagine that they are attempting to set the client up with a doctor they are familiar with. By virtue of the nature of Defense Base Act practice we have become quite familar with doctors in multiple metropotitan areas including Houston, Dallas, San Antonio, Boston, and other areas. Obviously our firm’s greatest connection with physicians is in the Atlanta area, extending to Nashville, TN, Chattanooga, TN, and down to the Savannah, Georgia area.

I cannot recall a situation we advised a client to see a doctor more than an hour from their home, unless they were looking for a second opinion to their local doctor’s approach, and the insurance company also agreed that was a good idea. (Imagine someone who had undergone multiple surgeries and still had no relief or cure).

5. Anonymous - March 22, 2009

No I don’t think I wrong at all… What I mean by that is that AIG/ KBR is all more then willing to help the injured until they hire an attorney.

6. critin - April 17, 2009

I hate to say it, but after three plus years in the “system”, a DBA attorney is pretty much a neccessity unless you are a tenacious and astute researcher. The LHWCA can be figured out, but all the court cases that determine the nuances of its application make it hard to represent yourself in any but the most simple case. I wonder, are attorney’s fees taken out of the gross settlement amount? or are they figured above that?

7. abbi - January 4, 2010

I live in a rural area close to another state. I was sent for a second opinion and their choice of doctor agreed with everything almost to a T with my doctor and my surgeon. Now that my doctor is asking for more testing and another MRI to see if a second surgery is required OWCP is wanting me to travel nearly 3 hours in a different time zone in the middle of winter to see yet another doctor they have chosen. Yet the bordering state is closer for me and in the same time zone. And the thing is I rarely missed any work due to the injury except 6 eeks after the surgery. The first doctor they asked me to see suggested they provide many of the services my doctor asked for. Yet They never provide them. Even with a lawyer I still pay for much of my own care. Any suggestions.

8. Confidential for now - June 4, 2010

On a DBA case, what happens after surgery and soon after several follow up medical visits an Independent medical exam by AIG states I reached maximun medical improvement? The Doctor that KBR hired, it was learned had not been actively practicing in over 22 years and 95% of his business was from this insurance company. My treating Doctor was only a surgeon for the hernia and he does not do anything except surgery. After the hernia surgery, I still have a chronic pain condition that occurred during my accident. As it took 16 months to get my surgery authorized, apparently there was nerve damage during no medical care. My treating Surgeon had a referral to send me to a pain mgmt clinic, but as a result of the IME, all medical care was stopped. My injury diagnosis was in Kuwait and maybe they missed something. So what happens now after you reach this MMI, but you still suffer from chronic pain that keeps you from working and all you want is medical care to diagnosis and resolve the pain issue. An overseas Doctor told me that as I had no medical care for 16 months after the injury, that the nerves became inflamed and continuous irritation and inflammation now has resulted in a chronic pain condition in which nerves became encased in scar tissue. So while I wait for the ALJ judge to decide, which now been over nine months, is there any disability rating on a hernia or chronic pain condition? Why was I never offered any work rehabilitation? Am I entitled to DOL worker retraining? What does a person do after MMI and you have problems and no medical care?

9. Anonymous - September 26, 2011

do you have to sign a medical release for Owcp. AND CAN THE NURSE CANCEL AN APPOINTMENT I HAD AND MAKE ANOTHER APPOINTMENT WITHOUT TELLING ME,AS WELL AS COME TO THAT APPOINTMENT WITH ME

Herb Chestnut - September 26, 2011

Generally, the OWCP does not require you to sign a medical authorization but they are probably entitled to one if they did request it. As to the nurse case manager, she should not be scheduling or cancelling anything with your treating doctor. While she can speak to the doctor as a representative of the insurer, she cannot attend your appointments without your written permission. I would suggest sending her something in writing instructing her not to make/cancel appointments with your doctor and she is not allowed to attend. If she persists, I would report her contact to the district office that administers your claim.

Hope this helps.

Herb Chestnut


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