Whitt & Del Bueno, Attorneys at Law

Leaders in defending workers' compensation claims.

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Who Is Really Making The Referral, Anyway?

By Mike Del Bueno

Under Virginia workers’ compensation law, the word or opinion of the injured employee’s treating physician is usually given great credibility by the Commission and other courts. For example, if the treating physician in an otherwise compensable workers’ compensation claim makes a referral for the injured employee to get additional medical treatment, such as physical therapy, or a second opinion by a different physician, the employer and carrier will usually have to pay for the resulting medical treatment from that referral.

However, what if the treating physician does not make such a referral on his or her own accord, but does so at the request of the injured employee? In certain cases where the treating physician makes a referral only to accommodate the wishes of the injured employee, and not for specific medical necessity, the Commission and other courts have held that the employer and carrier do not have to pay for the resulting medical treatment from that referral.

The above rationale follows the Commission and other courts’ proposition that the employer and carrier cannot manage a workers’ compensation claim by directing medical treatment. It is the treating physician alone who directs medical treatment. Just as the employer and carrier cannot medically manage a workers’ compensation claim, neither can the injured employee.

Therefore, adjusters or claims managers should be vigilant in watching referrals for additional medical treatment by a treating physician in an otherwise compensable workers’ compensation claim. One should ask, “Who is really making the referral, anyway – the treating physician, or the injured employee?” The answer to that question may determine who has to pay for the medical treatment resulting from the referral by the treating physician.

If you are dealing with a medical referral circumstance you think may involve issues such as those discussed here, we can assist you in analyzing the situation. Even if the claim is one in which we are not involved, we are glad to offer opinions and advice.