I had this scenario arise at a deposition this morning:

My client is suffering from bi-lateral (both hands) carpal tunnel. So far her claim has been paid, but now she needs surgery. However she doesn’t want to have surgery because she has heard the surgeon has had bad results with others and she feels the doctor is too deferential to her employer — a major employer in a smallish community.  Her current surgeon was referred to her by her family doctor.

Employers and insurers know doctor choice is important, which is why they often try to steer their injured workers towards doctor’s known to be friendly towards employers/insurers.

So is my client forced to chose between not treating her wrist injuries or being treated by a doctor she doesn’t trust?

Fortunately, in Nebraska, the answer is no thanks to Rule 50(a)(5) of the Rules of Procedure for the Nebraska Workers’ Compensation court which gives injured workers the right to chose their own doctor for a major surgery.  Physician choice is a positive in and of itself. But in a workers compensation claim, the opinions of doctors drive the determination of how a claimant will be paid for their temporary and permanent disability.  Medical opinions also drive to what extent courts will award claimants past, present and future medical care.

Employers and insurers know doctor choice is important, which is why they often try to steer their injured workers towards doctor’s known to be friendly towards employers/insurers. Employees are often told they have to go see a doctor who their employer wants  them to see and that they can’t go see their own doctor. In Colorado, Wal-Mart is being sued in a Civil RICO class action for conspiring with Concentra to manipulate the medical care of 8,000 injured workers in Colorado. Civil RICO is a difficult legal claim to make, but in my experience — and in the experience of countless other workers’ compensation claimant’s attorneys — employers/insurers have a cozy relationship with occupational medicine outfits like Concentra. Employers/insurers often try to steer their workers, especially their low wage workers, to clinics like Concentra.

At present the best and only real way for injured workers in Nebraska to enforce their rights to chose a doctor to treat their work injury is to hire an attorney with knowledge of Nebraska physician choice rules. However I think an employee could make a claim against their employer for interfering with their freedom to chose their own doctor under a retaliation framework. Retaliation is defined as “ an adverse impact on the employee (that) must effectuate ‘a material change in the terms or conditions of … employment.’ Stated another way, ‘proof of an adverse employment action requires a tangible change in duties or working conditions that constitute a material disadvantage.” ’ Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir.2002) (internal citations omitted). Examples of material disadvantages that may constitute an adverse employment action include a detrimental change in salary, benefits, or responsibilities. Tademe v. Saint Cloud State Univ., 328 F.3d 982, 992 (8th Cir.2003).

The argument that interfering with physician choice is retaliation is that it reduces the workers compensation benefits to which a worker is lawfully entitled.  I don’t think such a claim has been litigated in Nebraska or anywhere else, but I think the idea merits more discussion and lawyers willing and able to litigate such a case under the right set of facts.