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Published March 23, 2013, 11:30 PM

State wants second look at WSI’s ‘second opinions’

ND worker’s comp reviews again under scrutiny
FARGO – Tim Lambertson has fought a long legal battle to keep from seeing the doctor. The former truck driver, who was sidelined from work by an injury sustained while unloading potatoes, would welcome medical treatments to end his debilitating back pain. Social Security classifies him as disabled.

By: Patrick Springer, INFORUM

FARGO – Tim Lambertson has fought a long legal battle to keep from seeing the doctor.

The former truck driver, who was sidelined from work by an injury sustained while unloading potatoes, would welcome medical treatments to end his debilitating back pain. Social Security classifies him as disabled.

But he is waging a legal fight – so far unsuccessfully – over whether he must submit to so-called independent medical examinations ordered by Workforce Safety & Insurance, North Dakota’s workers’ compensation program.

The reason for his obstinacy: Lambertson believes the reviews by doctors hired by WSI for a “second opinion” will be used to override his treating physicians’ opinions that he is not able to work.

“They keep sending me and sending me and sending me until they can cut my benefits off,” Lambertson said of the barrage of WSI-ordered evaluations.

A consultant’s report five years ago found that the outside physicians hired by WSI disagreed with workers’ treating doctors 65 percent of the time.

That’s significant, because administrative law judges who decide claims disputes usually issue rulings agreeing with outside physicians hired by WSI for another opinion, lawyers representing injured workers said.

Long a source of controversy, WSI’s use of “second opinions” will be a focus of an upcoming performance review by the North Dakota State Auditor’s Office.

To clarify or cut off?

Figures show that WSI uses the outside medical examiners in less than 1 percent of all claims, far less than some other workers’ comp programs that consultants looked at in a comparison, a WSI spokesman said.

“Use of IMEs” – independent medical examinations – “by WSI is rare,” said Clare Carlson, deputy director of North Dakota workers’ compensation.

“Their purpose is to get a second opinion when medical evidence is in conflict with other information,” he said. “IMEs help provide clarity.”

A 2010 study found WSI uses independent medical examiners an average of 150 times a year. WSI estimates that three years later is using, on average, 77 independent medical examinations per year, with estimates of the total cost ranging from $231,000 to $308,000. It handles about 24,000 new claims per year.

But lawyers who represent injured workers say WSI routinely uses IMEs as a tool when disputed claims end up in litigation, either administrative appeals or in court, such as Lambertson’s case.

Mark Schneider, Lambertson’s lawyer, believes WSI intended to use “second opinions” to come up with information it could use to determine it did not have to accept liability for Lambertson’s disability claim.

In court documents, WSI argued that it wanted the outside medical examinations for a fresh evaluation of Lambertson’s vocational rehabilitation potential.

But WSI had ordered the “second opinions” just days after conceding Lambertson had exhausted all vocational rehabilitation, indicating its true interest was to find a reason to deny the claim, Schneider said.

“What they’re doing is looking for any way to cut this guy off,” he said.

WSI would not comment on Lambertson’s case because it is in litigation, Carlson said.

New study planned

WSI’s use of independent medical examiners has been studied in three earlier reviews, and each time found their use was rare, Carlson said. Other workers’ comp programs used the exams in 3.7 percent and 10.1 percent of their claims.

The 2008 consultant’s study of WSI’s use of outside medical examinations noted a “sense of pessimism” by workers and their representatives “that they can achieve a neutral or independent opinion from any IME.”

Or, as Schneider puts it, the “independent medical examinations” should be called “adverse medical examinations” because of how often doctors hired by WSI disagree with workers’ treating physicians.

State Auditor Bob Peterson decided to take another look at the use of outside medical examiners due to the frequent disagreements.

“It seems to me that people should be agreeing on a course of action,” he said, adding that his office makes no presumptions before an evaluation or audit.

Results of the study, which will take place next year, should be ready in time for the 2015 legislative session, Peterson said.

Courtney Koebele, executive director of the North Dakota Medical Association, which represents the state’s doctors, said WSI’s use of independent medical examiners bears scrutiny because the reviews often involve “tough cases.”

“It’s something we want to take a look at,” she said.

Dean Haas, a lawyer who worked for North Dakota workers’ compensation from 1984 to 1995 and now represents workers, said the agency used to rely almost exclusively on the opinion of treating doctors, even when claims were disputed.

“I came into this system that was all about treating doctors,” he said. “You can always get an IME to say this is nothing but a progression of a pre-existing condition,” and therefore not a compensable claim, Haas added.

The 2010 study of WSI’s use of independent medical examiners said while the usage was “fairly low” given the number of injuries, the exams can become a “lightening rod” for complaints because they involve a shift in power over health care from the employee to workers’ comp.

Legislative debate

The issue of how much weight WSI should give to the treating physician’s opinion is the subject of a debate before the North Dakota Legislature.

Senate Bill 2298 would require administrative hearing officers to take a fresh look at the treating doctor’s opinion, and not rely on WSI’s determination.

The bill unanimously passed the Senate after removal of a provision that would have required WSI to pay for a treating physician’s appearance at hearings. WSI had objected to that provision because of cost concerns, and it also opposes the flexibility the bill allows administrative law judges to ignore its own determinations.

“WSI anticipates the removal of deference to the original findings will increase the time associated with (administrative law judge) inquiry, extend hearings and may increase costs,” Tim Wahlin, WSI’s chief of injury services, told legislators in written testimony.

In 2009, legislators passed a law requiring WSI to give a “supported and defendable” reason for a claims decision at odds with a treating doctor’s opinion.

But an administrative rule WSI seeks to apply would negate the effect of that law, Haas and Schneider said, allowing them to discard treating doctors’ advice with a hired “second opinion.”

Life of pain

Although an administrative hearing judge decided earlier this year that Lambertson had to submit to two “second opinions,” he is challenging that decision in court.

His treating physicians, a family medicine doctor and a pain management specialist, have said all treatments have failed to resolve his chronic back pain. His family medicine doctor said in deposition testimony that Lambertson’s “severe back issues” have left him “completely incapable of work of any kind.”

Even sedentary work for short periods of time proved to be unsustainable, Lambertson and his lawyer have argued.

“I’ve done everything they’ve asked,” said Lambertson, who retrained in business management after his 2004 back injury and worked for seven or eight months as a shop foreman but was unable to continue because the pain was too severe.

“The pain just kept getting worse,” he said. Although not strenuous, the work required a lot of walking.

“He just kept upping the pain medication and upping the pain medication to keep working,” added his wife, Heidi.

Lambertson, noting that he kept working for a year and a half after his 2004 back injury, said he would much rather work that rely on disability benefits. But his back injury is too severe, he said.

“I’ve been to Mayo Clinic. I’ve been everywhere searching for answers, and I’ve never heard anything different,” he said.

To pay for the legal fight, the Lambertsons sold some of their property, including a boat, and are considering selling their lakeside resort.

“We’ve had to accept that this is a lifelong injury,” Heidi Lambertson said.


Readers can reach Forum reporter Patrick Springer at (701) 241-5522

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