Imagine this hard to believe scenario: After weeks of endless snowfall, your Connecticut home is hit with yet another storm that leaves a fourteen-inch coating of snow and ice. Instead of battling the masses who buy up all of the snow rakes at your local hardware store, you decide to take the natural route and let the snow melt on its own. Unfortunately, before the melting can occur your gutters pull off the house under the weight of the snow. You believe your insurance company should pay to replace the gutters, while your insurance company argues that you were responsible for removing the snow from your rooftop.
While you fight with your insurance company over whether the repair work will be covered, you call up a gutter repair service. When the repair service arrives you are told that the cost of replacing your gutters will be higher if the insurance company declines coverage of the claim.
Seem unreasonable? Sure does. Replacing the gutters will require the same parts and labor regardless of whether the insurance company is covering the bill. Similarly, why would it be reasonable for a physician to charge more for services provided during a contested workers' compensation case than he would for providing the same services to a patient involved in an accepted case?
As noted in Chairman John A. Mastropietro's June 4, 2010 letter to the workers' compensation bar, the fee schedule established by the Workers' Compensation Commission pursuant to C.G.S. §31-280 is based on Medicare's resource-based relative value scale, and is intended to follow the "methods used in the current medical marketplace to determine the appropriate level of compensation to physicians." Additionally, the chairman stated that the fee schedule is in place to allow "health care providers to define their services in the most accurate manner, allowing for timely and efficient reimbursement." In short, the fee schedule has been established in an effort to regulate the market. It serves both as an authority for physicians to use in charging for services, and as a guideline for insurance carriers and employers to negotiate costs and premiums.
Two key questions come to mind when questioning whether a physician should be allowed to charge above fee schedule prices for services provided during a contested case:
1) What is the physician's rationale behind the increased cost?
2) Where do you draw the line for costs when a case that was initially contested is now accepted?
In a world that has become unbelievably (and at times unreasonably) complicated, one of the best tools for an attorney is one that is not used enough: common sense. If a physician is charging more than he is permitted, the first question should be "why?" Is a report prepared differently if a case is accepted than it would be in a contested case? Is the time that a physician spends preparing for a deposition different for a denied claim? And finally, are the procedures that a physician follows during a surgery different when his patient's case is accepted in the workers' compensation forum than those he would follow if the case had been denied?
The simple answer to all of these questions is "no." The actions a physician takes, or the time he spends in preparation thereof, are the same whether the case is accepted or denied. The actual practice of medicine remains the same, as does the analytical review of the objective medical evidence. Consequently, there is no merit in charging differently for identical services.
If a physician is allowed to charge differently for denied cases, the question then becomes where do we draw the line? Based on the Supreme Court's opinions in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, and Donahue v. Veridiem, Inc., 291 Conn. 537, respondents are being forced to issue immediate denials of cases so that they can preserve the right to contest the extent of liability. In such cases, compensability might not even be in question, but respondents would still be penalized in paying costs above the fee schedule simply due to efforts to comply with controlling case law by thoroughly investigating a claim. What if a case becomes compensable after initially being contested? Will a physician reimburse the respondent that initially paid the increased costs because the case was contested at the outset of the claim? It is highly doubtful.
Despite this, there are instances that warrant a request for an increased fee. One example would be a respondents' medical examiner who is asked to perform examinations on multiple body parts. There, the physician could either negotiate his or her rate directly with the insurance company or petition the commission and request that an increased fee be permitted in certain cases. If the physician will not reduce his or her fee, the respondents could decide to use a different doctor.
What should be avoided is the problem that is becoming increasingly more relevant in Medicare cases, physicians that will simply not treat patients because of a refusal to work within the system due to reimbursement rates. Because the best medical providers should be available to both claimants and respondents in workers' compensation cases, efforts should be made to resolve matters in accordance with the fee schedule, or to work with physicians to negotiate fair and reasonable costs in lieu thereof.
The commission has worked extensively to create a fee schedule that is fair to medical providers and benefit payors alike. Unless exigent circumstances arise that would justify the need to charge for services in excess of the fee schedule, physicians should be required to comply with the costs that have been established by the commission. Failure to do so should result in the provider in question being prohibited from serving as a treater or respondents' medical examiner in any workers' compensation cases. However, respondents share an equal responsibility in this endeavor, and in an effort to promote compliance on behalf of medical providers, respondents should reimburse for fair charges under the fee schedule in a timely manner.