June 01, 2008

Limitation of Two-Physician Rule Not Applicable When Second Physician Had Not Requested Payment

June 01, 2008

Comfort Masters v. Workers’ Compensation No. 1-07-1951WC

As we all know, Section 8(a) of the Act describes the so-called two-physician rule.  Subsections 8(a)(2) and (a)(3) provides as follows:

[T]he employer’s liability to pay for *** medical services selected by the employee shall be limited to:

***

(2) all medical, surgical and hospital services provided by the physician, surgeon or hospital initially chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said initial service provider or any subsequent provider of medical services in the chain of referrals from said initial service provider; plus

(3) all medical, surgical and hospital services provided by any second physician, surgeon or hospital subsequently chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said second service provider or any subsequent provider of medical services in the chain of referrals from said second service provider.  Thereafter the employer shall select and pay for all necessary medical, surgical and hospital treatment and the employee may not select a provider of medical services at the employer’s expense unless the employer agrees to such selection.  At any time the employee may obtain any medical treatment he desires at his own expense.

Included in the provisions, selection of the first physician would include all medical services in the chain of referrals from said initial physician.  A similar interpretation applies to the nature and value of the services provided.

Onasis Youanis, the claimant, an employee of Comfort Masters, sustained a back injury as a result of a fall.  The claimant obtained medical treatment from Dr. Cirrincione and several other providers in a chain of referrals from Dr. Cirrincione.  The claimant later moved to New Mexico and commenced treatment with Dr. Jack Vick.  The arbitrator awarded medical expenses amounting to $61,776.69, but denied the claim for $44,659.83 in medical expense for treatment the claimant received in New Mexico, finding that he had exhausted his two-physician choices.  The opinion notes:

In an office note dated June 27, 1998, Doctor Cirrincione wrote that Youanis “apparently received some chiropractic treatments to his lower back, which have helped.”  Based on this notation, Comfort Masters asked Youanis on cross-examination if he had seen any additional chiropractors, doctors or acupuncturists.  Youanis answers no, and the arbitration hearing was then continued.  When the hearing resumed, he testified that while in Chicago (during the period of Doctor Cirrincione’s care) he received treatment from his wife’s best friend, Dina Chris-Rogers: “She is like a Chinese acupuncture, you know, not a chiropractor.  She’s an acupuncture.”  Contrary to the suggestion in Doctor Cirrincione’s office note, Chris-Rogers is not a licensed chiropractor.  Youanis testified that he went to her house on two occasions for back massages and never sought treatment in her office.  Chris-Rogers performed the massages free of charge because she was best friends with Youanis’ wife.

The Commission reversed the arbitrator and found that the claimant had not exhausted his two physician choices.  The trial court and the appellate court agreed that the treatment from the wife’s best friend did not preclude the employer’s obligation to pay for the treatment rendered in New Mexico for the reason that the employer did not incur any liability for Ms. Chris-Rogers’ services as petitioner was not charged for any services that Ms. Chris-Rogers may have rendered and when there were no medical bills, there would be no employer liability.

The court stated:

Nothing in this opinion prevents a claimant from obtaining treatment by a provider like Chris-Rogers outside the two chains of referrals mentioned above.  The question is simply one of the employer’s liability for payment.  Subsection 8(a)(3) allows a claimant “[a]t any time” to “obtain any medical treatment he desires at his own expense.”

Editor’s Note:

Several interesting questions are raised by the opinion.  If Ms. Chris-Rogers, an alleged acupuncturist, had submitted a bill which the employer had not paid, would this have amounted as the employee’s second selection?  If Ms. Chris-Rogers had been a licensed medical physician and had waived her charges because of the personal relationship, would that have constituted a second selection?  Finally, if Ms. Chris-Rogers had not submitted a bill until after the claimant had received treatment in New Mexico, would that have eliminated the employer’s liability to pay for the New Mexico treatment?

The opinion notes that “the question is simply one of the employer’s liability for payment.”  It would seem that the employer might be liable for the treatment by Ms. Chris-Rogers even if the bill was not submitted until after the New Mexico treatment was completed.  In other words, one might question whether the failure to render a bill would be sufficient to eliminate the fact that there may have indeed been a second selection.

Comfort Masters v. Workers’ Compensation Commission No. 1-07-1951WC, decided May 20, 2008

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105