Heather McCloud: In order to make it meaningful for them, or profitable I would say, you have to be able to have enough staff to handle the high volume.
Speaker 2: Welcome to the Growing a Successful Orthopedic Practice Podcast. Join us every episode to hear from fellow medical practice administrators, staff, and physicians, as we break down current issues affecting the industry and share real stories from guests on their way to growing a successful orthopedic practice. Let’s get started.
Keith Landry: Hello everyone, and welcome to another episode of Growing a Successful Orthopedic Practice Podcast. I’m your host, Keith Landry. Thanks for tuning in. We’ve got some wonderful insights today talking to you about the correlation, the relationship between orthopedic medical practices and workers’ compensation. And this episode is sponsored by OrthoLive. So let’s talk to our expert, Heather McCloud, an attorney at MKRS Law in Central Florida. Thanks for being here. I think you’re going to give our orthopedic physicians and practice managers some stuff they just never thought of today.
Heather McCloud: Well, or re-emphasize some matters that will help them grow the practice.
Keith Landry: Sounds great. Let me give them a little background to our listeners so they know who we’re speaking with. Ms. McCloud has been practicing law since 1992, concentrates on the representation of employers, insurance carriers and third party administrators, and that’s been since 1994. She performs seminars for employers in an effort to provide preventative counseling that can assist in reducing claims and reducing exposure for established claims. So maybe you have some interest in that, trying to take a preventative approach. And she’s been a Supreme Court circuit certified mediator since 2003, with a specialization in workers’ compensation. Thanks again for joining us.
Heather McCloud: Yeah. Happy to be here.
Keith Landry: You bet. So let’s dig in a little bit. You’re an attorney who represents the employers and insurance companies for these workers’ compensation claims, so you’ve got a really honed-in perspective to share with our listeners. How long you been doing that work, with that focus?
Heather McCloud: Since 1994, I’ve concentrated on the defense of workers’ compensation claims.
Keith Landry: Okay. Are you seeing more orthopedic physicians focus their practices to serve patients who are making workers’ compensation claims? Is there a trend you’re seeing over the last couple of years?
Heather McCloud: I definitely see a trend. I see some interesting trends. I see trends recently of combinations of orthopedic clinics coming together to be bigger. I’ve also seen some orthopedic clinics opening in different areas, or different maybe underserved areas. It is always a challenge for us if we have a person who is in more of a rural area to get them to an orthopedic clinic close to their home or to the business. So we have seen, which has been good, we’ve seen an opening of different offices, which gives us a little more expansiveness with geographical opportunities.
Keith Landry: That’s good news there for the patients out there in the rural areas. So do you see a way for physicians to grow their practices and consequently their revenues by focusing on this workers’ compensation area?
Heather McCloud: I do. It is definitely tricky in a sense that, just like for me, for my business, workers’ compensation is a high volume business. That’s what you’re banking on is for me to have many claims and many files. The same I would think would be true for the orthopedist, because obviously they’re subject to a certain fee schedule, which might not be as high as someone coming in as a self pay or even health insurance. So in order to make it meaningful for them, or profitable I would say, you have to be able to have enough staff to handle the high volume, which is one of the things that we’d be looking for, because you need administrative staff that is going to be able to communicate with the insurance adjuster, or if I’m on it, with me, asking them for certain things, records and conferences and so forth. So I think, yes, it can be profitable because it is a high volume industry, but you do have to figure out a way that you can manage that.
Keith Landry: So let’s dig in a little deeper on that management aspect of it. There are some best practices that the physicians and their managers can use to make life easier for the claims adjusters who work with the workers’ compensation claims, or for you. What are some of those best practices? What are things they should be thinking about while they’re working with you and the claims adjuster?
Heather McCloud: Definitely, we have to have the access to the communication. For the adjuster, especially if I’m not on the case yet, this adjuster gets a claim, has to provide medical care, employer carrier directs that care and if it becomes, where they are referred to an orthopedist, the big thing for them is to identify in the beginning and making sure what body parts are really part of this claim. Because you can have a situation of, and this happens regularly, the person might initially say, “It’s my neck.” And then we start getting expansive as the more doctors or the more clinics we go to and they start expanding it for that adjuster because of trends in the law, not necessarily to the law being re changed, but just more of an expansive application of the law. The adjuster has to make these decisions very quickly as to whether they are going to provide treatment for now, maybe newly reported injuries, new diagnoses.
Obviously they’re not a physician. They need the orthopedist to help them. And so they need to have a way of getting those answers, which is either by sometimes they have a nurse case manager that sends out a questionnaire, or they might send out a questionnaire. And it’s really important for them to get that communication efficiently and effectively because they are working on a ticking time clock that I don’t think a lot of the physicians understand. And so I think communication, I think also just obtaining the reports in what we call the DWC-25s, which are what they have to fill out. Every orthopedist is going to have to fill out at every visit, which identifies work restrictions, but also making sure those questions are several boxes that they’re not confusing. And it, because a lot of times too, if it’s confusing, that is also why the adjuster would be calling because they have to, at the time that they get it and make these decisions and they have ramifications for them as the claim could progress and if it was to be litigated.
Keith Landry: So if they don’t check the boxes the right way, be that the practice manager or whomever, that makes life a challenge for the claims adjuster and then ultimately for you to?
Heather McCloud: Yeah, I mean, we often have a lot of times where there’s a question about whether there’s a pre-existing component to this or not, and we’ll get different check boxes, which would in itself look conflicting, or sometimes they just don’t even address that aspect of it and they leave a blank. The biggest one that I see often go unchecked or unaddressed is down at the end, even if you’ve placed them at MMI, I’d ask a question of, is there anticipated future medical? And there’s a yes box and a no box and that generally doesn’t get addressed. And yes, we do have the medical reports, but sometimes the medical reports don’t address it either or sometimes where the medical report is in conflict with the DWC-25, which then necessitates everybody getting clarification.
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Keith Landry: Okay, so let’s switch gears a little bit. There’s been a change in the landscape to all this that basically gives an injured worker five days to select an orthopedic physician. How is that change playing out for patients and practices? Go ahead and explain all of that to us if you would.
Heather McCloud: Well, actually the five day is the claimant has at one time during a claim, the right to request what they call one-time change, that’s the five day. So the one-time change would be whatever level they’re treating with. It has to be within the same specialty. So let’s just say for the orthopedic world. So if they’re treating with an orthopedist and they request a one-time change, what happens is the employer and the insurance company has five days, not five business days anymore, it used to be five business days now it’s straight five days, to respond. And not only just say, “Hey, we’re going to give you one-time change.”
We actually have to identify who, by name the one-time change physician. If we don’t do that within five days, what happens is the injured worker has the ability select their orthopedist or their doctor, which in the world of workers’ compensation, the biggest thing or the advantage for the employer carrier is that they’re able to control which providers they want to use, because the medical opinions pretty much dictate everything that goes on in a workers’ compensation claim as to whether they should be off of work, what medical care, it all has to be from a medical opinion.
So it’s crucial for the employer carriers to have the physicians that they trust. So losing that ability is often seen damaging. So we have that five day. And the problem with that is that, like I said, it used to be five business days and then the courts, through case law changed it to say five days straight. So what you have is you have opposing counsel’s claims attorneys strategically deciding when they’re going to ask for it. So if you ask for it at Wednesday evening, you now have a weekend that you’ve lost that there’s no way that the insurance company is going to get any answer from an orthopedist on this over the weekend. So now you have Thursday, Friday due Monday, its due Monday-
Keith Landry: And if Monday’s a holiday, they’ve really stacked it against you.
Heather McCloud: Correct. Right. So we tend to watch out. We’re always on watch at times of during holidays, during any of those, because it is such an important aspect of the claim that’s why claims attorneys would use that strategy. And the important thing about that is that we have to actually know that the doctor is going to accept it, because we have also had case law that has said, well, I could say Dr. Joe Smith, and then I have to hope and pray that Dr. Joe Smith says, “Yes, I’ll accept it as a one-time change.”
Oftentimes what happens is, and I get it, the orthopedist will say, “I need to see the records.” And then I’ll decide if I want to take it, because I get it. It could be a very old claim, there could be millions of providers involved in it and an orthopedist might say, “Yeah, this is going to be a little more consuming than what I can handle.” But, and that’s the problem so we have to have communication again, which is why I say those orthopedic clinics that have a team that can really rush these and they don’t understand that it’s five days. But if I say Dr. Joe Smith and on Monday, Dr. Joe Smith says, “Yeah, I’m not taking the case and I can’t get somebody else in that timeframe.” I’ve now lost that ability to control it.
Keith Landry: Let’s talk about workers’ compensation fraud. Obviously that can be a problem. So how can the physician or practice manager work with you to help reduce fraud, which in theory should save patients at least some money in the long run?
Heather McCloud: Well, it won’t save patients money in the long run. I mean, I can bet it’ll save the employer and insurance companies in long run, but yeah, the biggest way to help us is determine whether there’s fraud. Obviously we’re not saying everybody commits fraud in workers’ compensation, but the importance is those intake sheets, having the injured worker actually fill them out, getting an accurate history, not only just relying on the intake, the orthopedist that do a great job. Also, again, ask again, because if they have an intake sheet where they’ve asked, have you had similar problems in this body area? Have you had an injury? Have you had an out of the treatment? And the injured worker says no and signs that intake sheet, well, that’s kind of strike one in my mind. Then if the orthopedist says yes, on top of that, and further got a history and talked to him about it and asked it, and you actually put it out in the history that I’ve gone over.
I’ve confirmed with him. He denies any, or he or she denies any prior injuries or accidents, then that’s basically strike two that if later we discover once litigation began, the one investigating and it turns out that was untruthful, then you have what we call misrepresentation defense that we can offer up. The biggest thing is we tend to, when we ask for a medical record to get the medical records, a lot of practices don’t give us the intake form. Not sure why. So we have to usually follow up and ask for that, but that’s why we’re asking for that.
And like I said, just getting a really, really detailed, accurate history, what body parts, how they got injured, what the timeframe is or what their symptoms are, because sometimes we don’t have, we and the employer don’t have a report of an injury. And the first knowledge that we get of it is that they’ve retained an attorney and they filed it and now we’re sending it. It could be months later, and now we’re sending it to the ortho or run through the course of the primary clinic who’s now referred it to an ortho. And now it’s really important to get the detailed timeline of what this injured worker is saying has happened and the symptoms.
Keith Landry: So on that patient intake form, you’re hoping that the orthopedic physicians will do a really good job of doubling down and making sure they ask a few questions about whether that patient had prior workers’ compensation claim?
Heather McCloud: Yeah. I mean, I would definitely look over the intake form. If there’s any ambiguity, maybe follow up, get more clarification and find out. It’s not just a prior workers’ compensation claim, but it could be a motor vehicle accident, it could be a sports accident, it could be any prior accident or injury, because that becomes important in determining causation. Causality of if they’ve had a prior injury, I have a case now where they were actually actively treating for shoulder problems at the time that they had their accidents. So we have deposed the doctor, the doctor says yes and accurate history is important for me to determine, because we know that MRIs don’t tell everything. They can’t tell you exact when a terror began. So every orthopedics will tell me, “Yes, the history is important.” So, which is why if every provider does a detailed history, we can piece it all together.
Keith Landry: Awesome information. Heather, what are you looking at for 2021? Any insights you want to offer to our listeners as we wind down 2020 and we look ahead to the new year?
Heather McCloud: Yeah. I think the pandemic has taught us that I think orthopedist are more inclined and have been using the telemedicine. I think that can be useful in certain circumstances in the workers’ compensation realm. Obviously you can’t have every appointment be telemedicine, because I would see claims attorneys or judges saying, “Well, were they able to get objective findings from exams?” But I think that is something that I believe having born out of necessity for the pandemic and seeing patients for follow-up. I think those might be something that could be useful in terms of maybe lessening the burden of the high volume on the practice, that maybe those could be set up. If it’s something of, we know they’ve had Navy surgery, sutures are done or whatever, but they’re not at MMI though. I don’t need to be rating him yet, but I need to see how he’s doing.
Those could maybe eliminate the burden on the practice. So I think that’s going to be a trend. I’ve also seen, which is good, I’ve seen a trend in the orthopedic field, in my area of Central Florida, the less opportunities of orthopedic foot and ankle. We have a lot of podiatrists, but in that whole thing about the one-time change, it has to be actually the same. So when we have somebody treating with an orthopedic foot and ankle, and then we get a change, we can’t go to a podiatrist. They will argue and say, that’s not the exact same qualifications. And I’ve seen where, which I’m happy about, I’ve seen orthopedic practices adding in that area, which would be helpful.
Keith Landry: Great information. So how can our listeners get in touch with you? Especially if they’re interested in those seminars where you try to put a preventive element into what you do, what is the best way to reach out to you?
Heather McCloud: Best way is to email me at email@example.com.
Keith Landry: Okay. Heather McCloud with MKRS Law, thank you so much for your insights today. It’s been a pleasure having you here with us.
Heather McCloud: Thank you, Keith.
Keith Landry: You bet. And that’s a wrap on this latest episode of Growing a Successful Orthopedic Practice Podcast. We’re going to do it again soon. We hope you’ll all come on back soon. Have a great day.
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