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Patrick Springer, Published April 01 2013

Flipping proposal’s intent, amended bill would ‘gut’ WSI reform

FARGO – A bill intended to strengthen the opinion of a worker’s treating doctor in evaluating a workers’ compensation claim has been amended in a way that could require a hearing officer to discard the treating doctor’s opinion.

The reversal – which critics said would “gut” administrative hearing reviews of medical evidence – came Friday when House amendments were added to a bill that unanimously passed the Senate.

The lawyer who heads the North Dakota Office of Administrative Hearings said he is “very concerned” about the amendments, which he said would give Workforce Safety and Insurance the final say on whether to follow the treating doctor’s opinion.

“It would tie our hands in regard to the treating doctor’s decision,” said Allen Hoberg, who supervises the state’s administrative law judges.

“It’s an important part of the due process proceeding for us. De novo hearings” – in which the judges take a fresh look at all the evidence – “are very important,” Hoberg said.

“It would be a huge change,” he added. “WSI would have final say” on interpreting medical evidence represented by doctors’ opinions.

Mark Schneider, a Fargo attorney who represents injured workers, called it a “huge power grab” by WSI.

“They’re already the jury. Now they’re the judge, jury and executioner. They want it all,” he said.

Senate Bill 2298 as originally passed was designed to strengthen the weight of a treating doctor’s opinion in evaluating an injured worker’s claim for benefits, bolstering a law passed in 2009 that required opinions of treating doctors be given greater weight in deciding claims.

But the amendments added by a House committee would undo that.

In effect, Workforce Safety & Insurance would be the final authority on whether to apply the so-called “treating doctor” rule, said Dean Haas, a Bismarck lawyer who represents injured workers.

“The House amendments reverse the Senate intent, and allow WSI to call the shots by weighing independent medical examiners’ opinions more heavily than those of our North Dakota treating physicians,” he said.

As amended, the bill would effectively require administrative law judges to accept the determination of Workforce Safety & Insurance in deciding whether to follow a treating doctor’s opinion or outside reviewing doctor’s input.

The amended bill would require administrative law judges to accept WSI’s determination on which doctor’s advice to follow unless they concluded that a “reasoning mind” would disagree.

That’s actually a very high reviewing standard, one usually reserved for appellate courts, not trial courts or administrative hearings, lawyers who represent injured workers said.

The 2009 “treating doctor” statute would be “turned completely on its head,” by the amended bill, Schneider said. If the amended bill passes, WSI could hire an outside medical doctor who disagrees with the treating physician and discard the treating physician’s opinion, he said.

According to a 2008 study, outside medical reviewers hired by WSI disagreed with workers’ treating physician 65 percent of the time.

The amendments appear to have been lifted from administrative rules WSI put in place to blunt the effect of the “treating doctor” statute, Schneider added.

A WSI spokesman was not immediately available for comment Monday, but an administrator had testified in favor of the original Senate Bill 2298.

Readers can reach Forum reporter Patrick Springer at (701) 241-5522