The Myth of the 90-Day Rule

By Daniel J. Siegel, Esquire

Law Offices of Daniel J. Siegel, LLC
66 West Eagle Road, Suite 1
Havertown, PA 19083
Phone (610) 446-3457; Fax (484) 636-3993;
Email dan@danieljsiegel.com
(c) 2009 Daniel J. Siegel – All Rights Reserved
NO REPRINTS PERMITTED WITHOUT THE WRITTEN PERMISSION OF THE AUTHOR

The constant mantra that injured workers must treat with a “company doctor” for 90 days is a myth, albeit one that many attorneys who represent injured workers erroneously accept as gospel. Consider this description of the “90-Day Rule” from the website of a Pennsylvania law firm that represents injured workers:

In seeking medical treatment for your work-related injury, you must find out if your employer has posted a list of physicians or health care providers in your work place. If the employer has done this, then you are required to visit one of them for initial treatment. You are to continue treatment with that provider or another on the list for a period of 90 days following the first visit. If your employer's health care provider prescribes invasive surgery, you are entitled to a second opinion which will be paid for by your employer/insurer. Treatment recommended as a result of the second opinion must be provided by a list provider for 90 days. After the 90 days in cases where there is no list of providers, you may treat with any provider you like. You are required to notify your employer of the provider you have selected.

If this explanation sounds accurate, then you too have fallen victim to the myth of the “90-Day Rule.” In fact, the requirement that an injured worker must treat with a designated physician rarely applies. Treatment with a “company doctor” is governed by Section 306(f.1)(1)(i) of the Workers’ Compensation Act, which states:

Provided an employer establishes a list of at least six designated health care providers, no more than four of whom may be a coordinated care organization and no fewer than three of whom shall be physicians, the employe shall be required to visit one of the physicians or other health care providers so designated and shall continue to visit the same or another designated physician or health care provider for a period of ninety (90) days from the date of the first visit: Provided, however, That the employer shall not include on the list a physician or other health care provider who is employed, owned or controlled by the employer or the employer’s insurer unless employment, ownership or control is disclosed on the list. . . . Should the employe not comply with the foregoing, the employer will be relieved from liability for the payment for the services rendered during such applicable period. It shall be the duty of the employer to provide a clearly written notification of the employe’s rights and duties under this section to the employe. The employer shall further ensure that the employe has been informed and that he understands these rights and duties. This duty shall be evidenced only by the employe’s written acknowledgment of having been informed and having understood his rights and duties. Any failure of the employer to provide and evidence such notification shall relieve the employe from any notification duty owed, notwithstanding any provision of this act to the contrary, and the employer shall remain liable for all rendered treatment. Subsequent treatment may be provided by any health care provider of the employe’s own choice. (emphasis supplied)

This section of the act is not a carte-blanche license requiring all injured employees to treat only with "company doctors" for 90 days. Rather, before any injured worker must treat with any employer-designated medical provider, the Act requires the employer "to provide a clearly written notification" of the employe's rights and duties to the employee, and to obtain a "written acknowledgment" by the employee that he or she has been advised of the requirement. Verbal notice alone is inadequate. In fact, the Bureau has created a form, “Notice: Medical Treatment for Your Work Injury or Occupational Illness,” available for download at http://www.dli.state.pa.us/landi/lib/landi/bwc/med_treatment.pdf, in order for employers to comply with these provisions.

Because most employers do not elect to comply with this section of the Act, most injured workers do not have to treat with the so-called company doctor following a work injury. Despite this, many employers and insurance companies routinely tell injured employees that they must go to a particular doctor or clinic, or the insurance company will not pay for their medical care. These statements are actually misrepresentations of the Workers' Compensation Act, which never gives an employer or insurance company the right to (1) mandate that an injured worker treat with only one provider, or (2) "pre-deny" payment for care under most circumstances. Sadly, based upon the “90-Day Rule,” many doctors also refuse to treat injured workers for 90 days after their injuries because they have heard or been told that they will not be paid for any care they provide because of “90-Day Rule.”

If employers choose to provide the notice, they must do so in writing, and in accordance with 34 Pa. Code 127.755(c)'s requirement that "The written notice to an employee of the employee’s rights and duties under this section shall be provided at the time the employee is hired and immediately after the injury, or as soon thereafter as possible under the circumstances of the injury."

Providing only the written notice, however, is not even enough; employers must do more. They cannot, for example, tell employees that they can treat with only one particular doctor, nor can they require that an employee treat with only one multi-purpose facility, such as a hospital's workers' compensation clinic. In fact, 34 Pa. Code 127.751(c) specifies that "The employer may not require treatment with any one specific provider on the list, nor may the employer restrict the employe from switching from one designated provider to another designated provider."

The regulations, largely ignored by employers and insurers as they apply to the “90-Day Rule,” go further. 34 Pa. Code 127.751(f) confirms that "If an employer chooses not to establish a list of designated providers, the employe shall have the right to seek medical treatment from any provider from the time of the initial visit." Assuming, however, that proper notice is given to an employee, then the employer's list of physicians must also comply with 34 Pa. Code 127.752, which states:

(a) If an employer establishes a list of designated health care providers, there shall be at least six providers on the list. (1) At least three of the providers on the list shall be physicians. (2) No more than four of the providers on the list may be CCOs.

(b) The employer shall include the names, addresses, telephone numbers and areas of medical specialties of the designated providers on the list.

(c) The employer shall include on the list only providers who are geographically accessible and whose specialties are appropriate based on the anticipated work-related medical problems of the employes.

(d) If the employer lists a CCO, as an option on the list of designated providers, the employer may not individually list any provider participating in that CCO, under circumstances when those individually listed providers are bound by the terms of the CCO for the treatment rendered to the injured workers.

(e) The employer may change the designated providers on a list. However, changes to the list may not affect the options available to an employe who has already commenced the 90-day treatment period.

Only when an employer complies with all of the regulations must an employee treat with one or more of the six designated “company doctors” for the first 90 days after the first visit to the doctor – not 90 days after the date of injury and not 90 days from some other date relevant to the claim. The “90-Day Rule” calendar begins on the date of the first visit to one of the designated medical providers on the six-doctor list.

Employers have the right to make certain that their injured workers get care with doctors that the employers know and trust. But before doing so, employers (and insurers) must comply with the Workers' Compensation Act and the applicable regulations in the Pennsylvania Code. If not, the employers and insurers have no one to blame but themselves when their workers go elsewhere for care.

Reprinted from PaTLA News, Vol. XX, No. 4, September 2006

NO REPRINTS PERMITTED WITHOUT THE WRITTEN PERMISSION OF THE AUTHOR