by P. Kathleen Bloch –
Understanding how nurse case managers’ (NCM) role in the workers’ compensation system is imperative for defendants, as NCMs can expedite cumbersome medical treatment issues in workers’ compensation claims.
Below, we will discuss how nurse case managers qualify as “medical treatment,” selection of a NCM, when they should be assigned to a claim, and case law impacting the withdrawal of NCMs from a claim.
NURSE CASE MANAGERS ARE “MEDICAL TREATMENT”
Under current ACOEM guidelines, before a defendant can be held liable for a nurse case manager, a NCM must be reasonably required to cure or relieve the effects of the injury (LC 4600). A NCM accomplishes an applicant’s care by assessing treatment needs, developing monitoring and evaluations, treatment plans and progress, facilitating interdisciplinary approaches and monitoring staff performance.
SELECTING A NURSE CASE MANAGER
The case of Lamin v. City of Los Angeles, sets forth the proper procedure for the selection of a Nurse Case Manager:
- The employer or insurance carrier initially designates a Nurse Case Manager.
- If the applicant ever objects to a person so designated, the parties should confer and jointly select a Nurse Case Manager. As a matter of practice, I believe it reasonable to anticipate that some applicants’ attorneys will always object to the designation of a NCM by the insurance carrier. This is usually based on the assumption that the NCM works for the carrier and not in the best interest of the applicant.
- If the parties are unable to agree within a reasonable time, a judge can resolve the issue by appointing a NCM. If this route is necessary, one of the parties will have to file a Declaration of Readiness to Proceed regarding the issue of medical treatment.
WHEN SHOULD A NURSE CASE MANAGER BE ASSIGNED?
The answer to this question may be somewhat self-evident when an applicant has suffered a catastrophic injury. For example, a worker may suffer injuries involving several medical disciplines, such orthopedic, internal, and/or psychiatric after being involved in a motor vehicle accident.
In such a case, a nurse case manager can and should help facilitate the treatment necessary to cure or relieve the effects of the injury by coordinating the treatment received by the various professionals, ensuring that appointments are scheduled and kept, requested testing is scheduled and undertaken, that medications are not being duplicated by the physicians and providing copies of the reporting to each of the physicians. In addition to these duties, the most important duty of a nurse case manager is to communicate the status of applicant’s treatment with both the carrier and applicant’s attorney.
The question of whether a NCM should be assigned can become more problematic if the claim is considered “soft tissue” or deemed “run of the mill” such as a slip and fall, or lifting injury. A carrier may be tempted to assign a Nurse Case Manager in these types of cases when:
- it appears from the medical reporting that the applicant is not progressing as anticipated,
- begins missing appointments,
- there is evidence of malingering; and/or
- the medical reporting supporting the applicant’s receipt of temporary disability payments is not received on a timely basis.
CASE LAW IMPACTING NCMS
Notwithstanding these possible issues, it is very important to consider when determining whether a nurse case manager should be assigned, that once the decision has been made to assign a nurse case manager that the carrier may not unilaterally withdraw the assignment.
In Patterson v. The Oaks Farm (2014) (a significant panel decision) the WCAB held that:
- Provision of a nurse case manager is a form of medical treatment under LC 4600,
- An employer may not unilaterally cease to a provide nurse case manager services when there is no evidence of a change in the employee’s circumstances or condition showing that the services are no longer reasonably required to care or relieve from effects of the industrial injury (Patterson specifically held that it is not applicant’s obligation to prove that the services were still necessary, but that it was defendant’s burden to show that the services of a Nurse Case Manager were no longer reasonably required.),
- Use of an expedited hearing to address the medical treatment issue in these cases is expressly authorized by LC 5502(b)(1), and
- It is not necessary for the injured worker to obtain a request for authorization from the primary treating physician to be sent to utilization review, then independent medical review, to challenge unilateral termination of the services of a nurse case manager.
Again, given the holding in Patterson, the adjuster should weigh carefully the cost/benefit in assigning a nurse case manager. A careful review of the medical reporting should be undertaken along with consideration of any change of circumstances when making the determination to discontinue the use of a nurse case manager (e.g., the applicant has returned to work and/or the applicant has completed a recommended course of treatment).
Patterson noted that there was no evidence that the applicant had completed a recommended course of treatment such that the services of the NCM were no longer required. In that case, the defendant did not provide any evidence in support of its determination that the services of a NCM were no longer required.
CONCLUSION
Finally, although there may be some question as to where a nurse case manager’s loyalty and duties lie, it appears that communication between the carrier, defense and applicant’s counsel is essential in the assignment and/or withdrawal of a nurse manager is essential in ensuring that the applicant is receiving timely care.
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin at the Law Offices of Bradford and Barthel at 818.654.0411 ext. 1517 or by emailing jkamin@bradfordbarthel.com.
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