House File 2608 - Introduced HOUSE FILE BY COMMITTEE ON LABOR (SUCCESSOR TO HSB 771) Passed House, Date Passed Senate, Date Vote: Ayes Nays Vote: Ayes Nays Approved A BILL FOR 1 An Act relating to the choice of doctor to treat an injured 2 employee under workers' compensation laws and providing an 3 applicability date. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 6539HV 82 6 av/nh/5 PAG LIN 1 1 Section 1. Section 85.27, subsection 4, Code Supplement 1 2 2007, is amended to read as follows: 1 3 4. a. (1) For purposes of this section, the employer is 1 4 obliged to furnish reasonable services and supplies to treat 1 5 an injured employee, and has the right to choose the care 1 6 unless the employee has predesignated a physician as provided 1 7 in paragraph "b". If the employer chooses the care, the 1 8 employer shall hold the employee harmless for the cost of care 1 9 until the employer notifies the employee that the employer is 1 10 no longer authorizing all or any part of the care and the 1 11 reason for the change in authorization. An employer is not 1 12 liable for the cost of care that the employer arranges in 1 13 response to a sudden emergency if the employee's condition, 1 14 for which care was arranged, is not related to the employment. 1 15 The treatment must be offered promptly and be reasonably 1 16 suited to treat the injury without undue inconvenience to the 1 17 employee. 1 18 (2) If the employee has reason to be dissatisfied with the 1 19 care offered, the employee should communicate the basis of 1 20 such dissatisfaction to the employer, in writing if requested, 1 21 following which the employer and the employee may agree to 1 22 alternate care reasonably suited to treat the injury. If the 1 23 employer and employee cannot agree on such alternate care, the 1 24 commissioner may, upon application and reasonableproofsproof 1 25 of the necessity therefor, allow and order other care. In an 1 26 emergency, the employee may choose the employee's care at the 1 27 employer's expense, provided the employer or the employer's 1 28 agent cannot be reached immediately. 1 29 (3) An application made under thissubsectionparagraph 1 30 "a" shall be considered an original proceeding for purposes of 1 31 commencement and contested case proceedings under section 1 32 85.26. The hearing shall be conducted pursuant to chapter 1 33 17A. Before a hearing is scheduled, the parties may choose a 1 34 telephone hearing, an audio=video conference hearing, or an 1 35 in=person hearing. A request for an in=person hearing shall 2 1 be approved unless the in=person hearing would be impractical 2 2 because of the distance between the parties to the hearing. 2 3 The workers' compensation commissioner shall issue a decision 2 4 within ten working days of receipt of an application for 2 5 alternate care made pursuant to a telephone hearing or 2 6 audio=video conference hearing or within fourteen working days 2 7 of receipt of an application for alternate care made pursuant 2 8 to an in=person hearing. The employer shall notify an injured 2 9 employee of the employee's ability to contest the employer's 2 10 choice of care pursuant to thissubsectionparagraph "a". 2 11 b. (1) An injured employee has the right to choose care, 2 12 unless care needs to be provided at the job site in response 2 13 to a life=threatening emergency, if the employee has 2 14 predesignated a physician who is a primary care provider, who 2 15 has previously provided medical treatment to the employee and 2 16 has retained the employee's medical records, to provide 2 17 treatment for the injury. Upon hire and periodically during 2 18 employment, an employer shall provide written notice to all 2 19 employees who have not yet predesignated a physician, of their 2 20 rights under this paragraph "b" to predesignate such a 2 21 physician for treatment of an injury, in a manner prescribed 2 22 by the workers' compensation commissioner by rule. The 2 23 employer or the employer's insurer shall not coerce or 2 24 otherwise attempt to influence an injured employee's choice of 2 25 a physician to provide care. An employee shall, as soon as 2 26 practicable, notify the employer of an injury, and upon 2 27 receiving such notice of an injury from an employee, the 2 28 employer shall again provide written notice to that employee 2 29 of the employee's rights under this paragraph "b" in a manner 2 30 prescribed by the workers' compensation commissioner by rule. 2 31 If an employer fails to notify employees of their right to 2 32 choose a physician as provided in this paragraph "b", the 2 33 employee has the right to choose any physician to provide 2 34 treatment for the injury and the treatment shall be considered 2 35 care authorized under this section. 3 1 (2) For the purposes of this paragraph "b", "physician" 3 2 includes an individual physician, a group of physicians, or a 3 3 clinic. For the purposes of this paragraph "b", "primary care 3 4 provider" means an employee's personal physician who is 3 5 licensed to practice medicine and surgery, osteopathic 3 6 medicine and surgery, or osteopathy in this state or in 3 7 another state and provides primary care who is a family or 3 8 general practitioner, a pediatrician, an internist, an 3 9 obstetrician, or a gynecologist. A physician who practices in 3 10 another state shall not be predesignated by an employee unless 3 11 the physician's office is located within sixty miles of where 3 12 the employee is employed or was injured unless the workers' 3 13 compensation commissioner allows otherwise. A physician 3 14 chosen by an injured employee to provide treatment is 3 15 authorized to arrange for any consultation, surgical 3 16 consultation, referral, emergency care, or other specialized 3 17 medical services as the physician deems necessary to treat the 3 18 injury. The employer shall pay for all such care, unless the 3 19 workers' compensation commissioner determines otherwise. 3 20 (3) If the employer has reason to be dissatisfied with the 3 21 care chosen by the employee, the employer should communicate 3 22 the basis of such dissatisfaction to the employee, in writing 3 23 if requested, following which the employee and the employer 3 24 may agree to alternate care reasonably suited to treat the 3 25 injury. If the employee and employer cannot agree on such 3 26 alternate care, the commissioner may, upon application and 3 27 reasonable proof of the necessity therefor, allow and order 3 28 other care. 3 29 (4) An application made under this paragraph "b" shall be 3 30 considered an original proceeding for purposes of commencement 3 31 and contested case proceedings under section 85.26. The 3 32 hearing shall be conducted pursuant to chapter 17A. Before a 3 33 hearing is scheduled, the parties may choose a telephone 3 34 hearing, an audio=video conference hearing, or an in=person 3 35 hearing. A request for an in=person hearing shall be approved 4 1 unless the in=person hearing would be impractical because of 4 2 the distance between the parties to the hearing. The workers' 4 3 compensation commissioner shall issue a decision within ten 4 4 working days of receipt of an application for alternate care 4 5 made pursuant to a telephone hearing or audio=video conference 4 6 hearing or within fourteen working days of receipt of an 4 7 application for alternate care made pursuant to an in=person 4 8 hearing. 4 9 Sec. 2. Section 85.39, Code 2007, is amended to read as 4 10 follows: 4 11 85.39 EXAMINATION OF INJURED EMPLOYEES. 4 12 1. a. After an injury, the employee, if requested by the 4 13 employer, shall submit for examination at some reasonable time 4 14 and place and as often as reasonably requested, to a physician 4 15 or physicians authorized to practice under the laws of this 4 16 state or another state, without cost to the employee; but if 4 17 the employee requests, the employee, at the employee's own 4 18 cost, is entitled to have a physician or physicians of the 4 19 employee's own selection present to participate in the 4 20 examination. If an employee is required to leave work for 4 21 which the employee is being paid wages to attend the requested 4 22 examination, the employee shall be compensated at the 4 23 employee's regular rate for the time the employee is required 4 24 to leave work, and the employee shall be furnished 4 25 transportation to and from the place of examination, or the 4 26 employer may elect to pay the employee the reasonable cost of 4 27 the transportation. The refusal of the employee to submit to 4 28 the examination shall suspend the employee's right to any 4 29 compensation for the period of the refusal. Compensation 4 30 shall not be payable for the period of suspension. 4 31 b. If an evaluation of permanent disability has been made 4 32 by a physician retained by the employer and the employee 4 33 believes this evaluation to be too low, the employee shall, 4 34 upon application to the commissioner and upon delivery of a 4 35 copy of the application to the employer and its insurance 5 1 carrier, be reimbursed by the employer the reasonable fee for 5 2 a subsequent examination by a physician of the employee's own 5 3 choice, and reasonably necessary transportation expenses 5 4 incurred for the examination. The physician chosen by the 5 5 employee has the right to confer with and obtain from the 5 6 employer=retained physician sufficient history of the injury 5 7 to make a proper examination. 5 8 2. If the employee has chosen a physician to provide care 5 9 as provided in section 85.27, subsection 4, paragraph "b", 5 10 when it is medically indicated that no significant improvement 5 11 from an injury is anticipated, the employee may obtain a 5 12 medical opinion from the employee's physician, at the 5 13 employer's expense, regarding the extent of the employee's 5 14 permanent disability. If the employee obtains such an 5 15 evaluation and the employer believes this evaluation of 5 16 permanent disability to be too high, the employer may arrange 5 17 for a medical examination of the injured employee by a 5 18 physician of the employer's choice for the purpose of 5 19 obtaining a medical opinion regarding the extent of the 5 20 employee's permanent disability. If an employee is required 5 21 to leave work for which the employee is being paid wages to 5 22 attend an examination under this subsection, the employee 5 23 shall be compensated at the employee's regular rate for the 5 24 time the employee is required to leave work, and the employee 5 25 shall be furnished transportation to and from the place of 5 26 examination, or the employer may elect to pay the employee the 5 27 reasonable cost of transportation. The physician chosen by 5 28 the employer to conduct the examination has the right to 5 29 confer with and obtain from any physician who has treated the 5 30 injured employee sufficient history of the injury to make a 5 31 proper examination. The refusal by the employee to submit to 5 32 the examination shall suspend the employee's right to any 5 33 compensation for the period of the refusal. Compensation 5 34 shall not be payable for the period of suspension. 5 35 Sec. 3. APPLICABILITY DATE. This Act applies to injuries 6 1 occurring on or after January 1, 2009. 6 2 EXPLANATION 6 3 This bill relates to the choice of a physician to treat an 6 4 injured employee under the state's workers' compensation laws. 6 5 The bill allows the employer to choose care unless the 6 6 employee has predesignated a physician as provided in the 6 7 bill. 6 8 The bill gives an employee the right to predesignate a 6 9 physician who is a primary care provider, who has previously 6 10 provided treatment to the employee and has retained the 6 11 employee's medical records, to provide treatment for a 6 12 work=related injury. The employer is required to provide 6 13 written notice to employees of this right upon hire, and 6 14 periodically during employment, and upon receiving notice of 6 15 an injury from an employee who has not yet predesignated a 6 16 physician of their right to do so, in a manner prescribed by 6 17 the workers' compensation commissioner. An employer or an 6 18 employer's insurer shall not coerce or otherwise attempt to 6 19 influence an injured employee's choice of a physician. 6 20 If the employer fails to provide such notification, an 6 21 injured employee has the right to choose any physician to 6 22 provide treatment for the work=related injury and that 6 23 treatment shall be considered authorized care. 6 24 If the employer or employee is dissatisfied with the care 6 25 chosen by the other party, the dissatisfied party is required 6 26 to communicate the basis of dissatisfaction to the other party 6 27 in writing and the parties may agree to alternate care 6 28 reasonably suited to treat the injury. If the parties cannot 6 29 agree to such alternate care, the dissatisfied party may make 6 30 an application for alternate care to the commissioner. 6 31 An application for alternate care is an original proceeding 6 32 and is treated as a contested case. A party may request that 6 33 the hearing be held in person, by telephone, or by audio=video 6 34 conference. The commissioner is required to issue a decision 6 35 within 10 working days of receipt of an application made 7 1 pursuant to a telephone hearing or audio=video conference 7 2 hearing and within 14 days of an in=person hearing. 7 3 Code section 85.39 is amended to provide that if the 7 4 employee has chosen care, when it is medically indicated that 7 5 no significant improvement from an injury is anticipated, the 7 6 employee may obtain a medical opinion regarding the extent of 7 7 the employee's permanent disability. If the employer believes 7 8 that the evaluation of permanent disability obtained by the 7 9 employee is too high, the employer has the right to obtain 7 10 another medical opinion from a physician of the employer's 7 11 choosing. 7 12 The bill applies to injuries occurring on or after January 7 13 1, 2009. 7 14 LSB 6539HV 82 7 15 av/nh/5