Nothing ruins a Friday for a cold-hearted workers’ compensation defense attorney than having to side with the arguments of an applicant.  Well, probably a few things could make a Friday worse (like realizing that it’s only Thursday), but that’s one of the bad ones.  So it is, as your humble blogger has learned of the case of David Pelletier v. United Structures, Inc.

The subject of this case is the degree to which an applicant has control over the selection of a Nurse Case Manager.  Now, workers’ compensation is riddled with these battles over control: who gets to pick the interpreter for applicant’s deposition?  Applicants get to pick the QME from the panel, but only if unrepresented.  The defense gets to set up an MPN and provide a list of potential primary treating physicians, but applicants get to choose from those primary treating physicians.  How is venue selected when the residency, place of business, and injury are all in Northern California, but applicant’s attorney is in Southern California?

Well, this blog has had occasion to touch on the issue of Nurse Case Manager selection before, and the Pelletier case seems to revisit the subject.

Mr. Pelletier had a Nurse Case Manager who, from the panel opinion, appeared to like to appear by e-mail.  The NCM kept in touch with applicant’s treating physicians, applicant, and his family by e-mail.  Even as applicant was in the hospital for several days, repeatedly having his stay extended just prior to planned discharge, the NCM declined to appear in person to discuss what was going on with the doctors.

The NCM was repeatedly asked to come by applicant, his attorney, and his family, as potential amputation of the leg was being discussed by one of his treating physicians.  Still, the NCM declined to come.

Eventually, applicant informed the NCM that he would no longer have contact with her, and demanded a new NCM, one with whom he could work: trust, communication, etc.  The defense refused, and the matter went before a Judge.

The WCJ denied the applicant’s motion for a new NCM.  Citing Lamin v. City of Los Angeles, a writ denied case from 2004, the WCJ noted that parties were required to confer and jointly select a new NCM.  In this case, there was no evidence of any effort on the part of applicant to do that – he wanted this one gone and a new one appointed.

Relying on the same writ denied case and underlying panel opinion in Lamin v. City of Los Angeles, the WCAB reversed the judge’s finding that applicant was not entitled to a new NCM.  The WCAB certainly found fault with the current NCM for failing to appear at appointments, record diagnoses and recommendations made by physicians as well as concerns expressed by the applicant, and act as a patient advocate.  The WCAB also found fault with Mr. Pelletier for breaking off contact and refusing to cooperate.

The resulting order, which appeared to be rooted in a substance rarely found in California workers’ compensation, to wit, common sense and reason, required the NCM to remain in her role for 10 days (five for mailing and five more for deliberation) and the parties were to confer and attempt to agree on a new NCM.  If the parties failed to agree, they would have 5 more days to provide the WCJ with a list of NCMs with a resume for each, and the WCJ would either pick one from one of their lists of select one on his own.

Although it’s labeled as a grant of reconsideration, really, it isn’t – the WCJ got it right, and the WCAB was just providing guidance on what the applicant needed to do to replace the current NCM.

Now, about your humble blogger siding with the applicant – if we concede that there are cases in which reasonable medical treatment includes the services of a NCM, then that NCM needs to be there – physically.  Doctors sometimes explain more than they put in their notes, or their notes are more detailed than their paraphrasing explanations to their patients.  Patients forget things – such as temporary symptoms, medications, etc.

And, in this case, THERE WAS A POTENTIAL FOR LEG AMPUTATION (I just can’t stress this enough – how do you tell someone who is calling you frantically because they’re going to cut off his leg that you’re just going to send the doc an e-mail?  What would the e-mail even say – patient doesn’t want his leg cut off?  Who does?).

Now, if I ran a service providing Nurse Case Managers, I would of course want to beat out every competitor in terms of pricing.  And, accordingly, I might hire NCMs that will do everything or almost everything remotely, so that one NCM can take on more and more patients.

If you’re a defendant, don’t be lured into this – shell out the extra cash and get a Nurse Case Manager that will be dedicated to fewer patients/applicants.  Get an NCM that is going to know each patient’s file backwards and forwards, and move them along towards a goal of recovery and less treatment needed.  Get an NCM that will have a good bedside manner and inspire trust and confidence from the injured worker, as well as trust and confidence from the adjuster to make sure that neither a pill-happy worker, nor an Rx happy physician is bleeding the reserves dry.

If the applicant and his/her attorney are reasonable, they will agree to a great NCM with lots of experience and a track record of satisfied patients.  If they’re unreasonable, the WCJ will see it and select a good apple.

Now, don’t get me wrong – this is blog post is not meant to comment on the overall competence of any particular NCM.  But, this industry, with its high cost and low profit margins, drives good, quality people to be spread too thin.  Sharp, hard-working adjusters get over-worked and can’t be on top of everything.  Sharp, hard-working associates [in some defense and applicant firms] get overwhelmed by their bosses, and miss details that end up costing a lot of money.

And, yes, sharp, hard-working NCMs get too many files and start appearing by e-mail and phone to keep up.