Normally Reasonable: Transferring Attending Providers in Washington Workers’ Compensation Claim
Claimant’s attending physician plays an important role in assisting claimant’s return to their job of injury. Their attentiveness and skill as a provider often dictate how efficiently a claim is processed. Many claims have one attending provider for the duration, however, there are some instances where claimant seeks treatment from a new attending provider. Sometimes these transfers make sense from the perspective of both parties, for example, when a claimant seeks to transfer care from a provider with a generalized skillset to a more specialized provider. There are also times when a request to transfer care presents significant logistical and legal hurdles, such as when a claimant who is nearing maximum medical improvement with one provider seeks transfer to another. Unfortunately, the administrative code which established the rules surrounding transfer leaves room for significant subjectivity on the part of the Department or Industrial Appeals judge.
Washington Administrative Code 296-20-065 (and to an extent, RCW 51.36.010) establishes the rules by which a transfer of attending provider can be made. The selected provider must be a network provider and all transfers must be approved by the Department or self-insurer. “Normally” the code continues “transfer will be allowed only after the worker has been under the care of the attending provider for sufficient time for the provider to: Complete necessary diagnostic studies, establish an appropriate treatment regimen, and evaluate the efficacy of the therapeutic program.” This statement makes sense on its own, however, WAC 296-20-065 continues “Under RCW 51.36.010 the worker is entitled to free choice of treatment provider. Except as provided as provided under this subsection…no reasonable request for transfer to a network provider will be denied” The presence of both of these statements in WAC 296-20-065 creates significant ambiguity surrounding the appropriateness of a request to transfer care.
If WAC 296-20-065 requires that all reasonable transfer requests are approved, how are we to interpret next line? One interpretation is that reasonable transfers are not those made before the attending provider has sufficient time to complete necessary diagnostic studies, establish an appropriate treatment regimen, and evaluate the efficacy of therapeutic treatment. However, the aforementioned sentences, importantly, prefaces itself with the word “Normally” which means there are times when a transfer is appropriate before an attending provider has had sufficient time.
Unfortunately, case law has not been as helpful as one would have hoped in providing guidance. In fact, there is only one, decades old, Significant Decision that discusses WAC 296-20-065. In In re Maria Gonzalez, BIIA Dec., 97 0261 (1998), the Board of Industrial Insurance Appeals assessed whether a claimant may transfer attending providers after her attending provider had assessed she was at maximum medical improvement. Thankfully the Board clearly announced that “The mere fact that [claimant] was unhappy with [her attending provider], who had performed the surgery and said she was ready to go back to work, is not sufficient for a transfer of her care to another physician.”
While the rule announced by the Board in In re Maria Gonzalez serves the purpose of providing some guidance in instances of egregious abuse of WAC 296-20-065, it fails to provide much assistance in other applications. That being said, In re Maria Gonzalez should be seen as a case to build upon when addressing attending provider transfer issues. There are of course, non-binding Board decisions which can be helpful in drawing convincing parallels for Department adjudicators. Transfers of attending providers can be deceptively important claim processing decisions which may have a significant bearing on the result of a claim. If you are doing with a transfer of attending provider issue, feel free to reach out to me, I would love to discuss options for employers seeks to effectively manage the request.
If you have questions regarding this topic, please do not hesitate to contact me at or 971-867-2731.
Posted by Zachary Goldberg-Johns.
