Patrick Springer, Published March 16 2014
North Dakota workers’ comp doctor says opinions repeatedly bypassedFARGO – The top doctor for North Dakota’s workers’ compensation program complained that “the legal process overrides medical opinions” in the review of injured workers’ claims.
Dr. Luis Vilella, who is medical director of Workforce Safety & Insurance, recently wrote a letter to the program’s director, Bryan Klipfel, to complain about “wrongdoing” and “misconduct” by lawyers.
The letter, dated Jan. 14, was obtained by The Forum through an open records request. The three-page letter was heavily redacted before it was made available.
Vilella complained that he wasn’t asked for his input on a claim last November, and said he was repeatedly bypassed for his medical opinion.
In his letter, Vilella made references to an email exchange between Anne Green, a senior WSI lawyer, and Douglas Gigler, an outside lawyer from Fargo who represents WSI in court and administrative hearings involving appeals of injured workers’ denied claims.
Klipfel declined comment through a spokesman, who called the issue an “internal personnel matter.”
Mark Armstrong, a spokesman for WSI, said Klipfel met with Vilella several days after receiving the letter, but would not say what action, if any, was taken.
WSI denied The Forum’s request for nine documents attached to Vilella’s letter, which Armstrong said were part of confidential claim files.
Given references in Vilella’s letter, the attachments appeared to include the email exchange between WSI lawyers the doctor accused of acting improperly by failing to include him in the review of a worker’s claim.
“How can WSI impartially adjudicate a medical claim when its own Director of Legal Services, Attorney Green, disregards litigation support that WSI’s Medical Director offers on matters of disease and injury causation?” Vilella wrote.
It is not the first time Vilella has claimed that WSI lawyers have meddled with his medical reviews of injured workers’ claims.
In February 2012, Vilella wrote to the North Dakota Board of Medical Examiners claiming that he twice resisted efforts by WSI managers to alter his medical opinion.
Although WSI denied the allegations, the board advised Vilella that he and other physicians could be disciplined for allowing others to dictate their medical decisions.
“Once again I am confronted with the corrosive attitude of individuals to control and limit the dissemination of medical information, information that is essential for the fair and impartial adjudication of claims,” Vilella wrote in his Jan. 14 letter to Klipfel.
Vilella complained that he was being “intentionally marginalized, in an effort to remove or minimize the medical aspect of decision making at WSI,” adding that he was excluded from meetings involving medical topics.
As an example, he said he was not included in meetings with a consulting firm that is conducting a performance audit of WSI, which partly involves medical issues.
Among other issues, the auditors will examine WSI’s use of so-called independent medical examinations, in which WSI pays an outside doctor to examine a patient during a claim evaluation.
Lawyers representing injured workers have long argued that WSI uses the outside medical examinations as a tool for denying claims, but WSI has said its use of outside doctors is proper and meets standards.
In fact, the issue of independent medical examinations came up in Vilella’s recent job performance reviews. His supervisor’s appraisals of his work – and Vilella’s responses – suggest he is regularly at loggerheads with managers over the independence of his role.
In his most recent review, as of June 30, 2013, Vilella’s supervisor, Thomas Solberg, WSI’s director of medical services, said Vilella was increasingly recommending outside medical reviews.
Use of independent medical examiners rose 29.5 percent from 2011 to 2013, from 105 to 113, Solberg wrote in Vilella’s job review, adding that 120 outside medical reviews were projected for the coming year.
Vilella disputed that he was the cause of WSI’s increasing reliance on independent medical examiners.
Most requests for the outside examinations come from claims adjusters or from WSI’s lawyers, Vilella wrote, adding that it was “disheartening” that “inaccurate and misleading statements” were used in his performance appraisal.
Although Solberg gave Vilella high marks for his medical knowledge, and his training of staff on medical issues, a common theme of the supervisor’s appraisals was to urge Vilella to be more of a team player.
In his 2013 appraisal of Vilella, Solberg wrote that the doctor’s “absence as a progressive part of the organization is unfortunate.”
In response to similar complaints from Solberg in 2012, the year he went to the Board of Medical Examiners for guidance on whether he could be disciplined for allowing others to dictate his decisions, Vilella wrote:
“It is my perception that Mr. Solberg refuses to acknowledge that a physician owes a duty to a patient that transcends any duty to an employer.”
He added: “Nothing should prevent or limit a physician’s ability to advocate on behalf of a patient’s interest or to exercise his own medical judgment. Nor should a physician be punished in any way for exercising that independence.”
The Sedgwick consulting firm is conducting the performance evaluation of WSI, which will compare its use of independent medical evaluations against best practices.
Among other areas, the performance evaluation also will examine WSI’s use of fraud investigations and evaluate its claims processes, including administrative appeals.
The results of the performance evaluation will be presented next year to the state Legislature.
Readers can reach Forum reporter Patrick Springer at (701) 241-5522