Workers’ comp exams need reform to ensure fairness

How would you feel about your spouse, parent or child being sent for a medical examination by a strange doctor who is beholden to the insurance industry? It happens every day to injured workers throughout the state. Why not refuse? Insurance companies reserve the right to terminate coverage for medical care and wage loss benefits if you don’t show up. That’s why.

In Hawaii, statutes provide for the presumption of compensability in favor of the injured worker. This is analogous to the presumption of innocence until proved guilty in the criminal courts. The problem is that although patients are sent to what is called an Independent Medical Examination, the physicians who perform these exams usually work only for insurance companies and rarely engage in the actual full-time clinical practice of medicine. This is because those performing the evaluations are paid far more than what treating clinicians get paid for their time. These physicians are also well aware that should their opinions be too "patient friendly," the carriers will stop using them.

House Bill 466 requires both independent medical evaluations and disability evaluations for workers’ compensation claims to be performed by physicians mutually agreed upon by employers and employees or appointed by the director of the Department of Labor and Industrial Relations. The bill has already been passed by the House and crossed over to the Senate. It has been passed by the joint Senate Health and Judiciary committees with amendments and is now awaiting review by the Senate Ways and Means Committee, chaired by state Sen. David Ige. Because the bill has a small appropriation for staffing at the Department of Labor, it must be heard and passed before March 14 to be included in the state budget.

Opponents of the bill state that because there is a presumption of compensability in favor of the injured worker, insurance carriers should have the right to select their own medical examiners. To be sure, there are a small number of employees who attempt to abuse the system. When unchecked, fabricating symptoms can be a serious problem and place an undue burden on carriers.

Yet under the current structure, carriers can force patients to see their own physician examiners. Those physicians are protected from medical malpractice claims should they inappropriately deny care because there is no formal-doctor patient relationship. The insurance companies are, in turn, safe from liability for withholding care because they are "only following the advice of their physicians."

What is in the best interests of Hawaii’s injured workers are independent medical examiners who are fair and impartial. This is the spirit of House Bill 466. The bill, once signed, will level the playing field and remove an unfair advantage held by the workers’ compensation insurance sector. For now, all eyes are on the Senate Ways and Means Committee.

———

Ira Zunin, M.D., M.P.H., M.B.A., is medical director of Manakai o Malama Integrative Healthcare Group and Rehabilitation Center and CEO of Global Advisory Services Inc. Please submit your questions to info@manakaiomalama.com.