Can I Get a Second Opinion in My Workers’ Compensation Case?

By Rocky McElhaney | February 11, 2014
Second Opinion Workers Compensation

Raise your hand if you’ve said or thought any of the following during your workers compensation claim:

  • My doctor isn’t listening to me.
  • The doctor says there’s nothing more he can do, but I’m still in pain.
  • I don’t trust my doctor and more because (fill in the blank).
  • The insurance company’s Nurse Case Manager asked the doctor to change my restrictions, and he just went along with what she wanted...I'm worried now.

If you’ve said or thought something along those lines, chances are you’ve asked the question, “Can I get a second opinion from another doctor?”  In Tennessee, the answer is technically always “yes” but when the question is narrowed to “Can I make the insurance company give me a second opinion?” the answer is usually “no”.

What is a second opinion?

A second opinion is a visit to a physician other than the one a patient has previously been seeing in order to get a differing point-of-view.  In workers' compensation, this might be regarding surgery, impairment, restrictions, or even what kind of conservative treatment should be provided.

Why would I get a second opinion?

If you are not satisfied with the treatment or care you are receiving from your doctor, you are always free to go see a doctor on your own outside of the workers’ compensation system.  Of course, if you do that, you do run some risks:  The workers’ compensation insurance company isn’t required to pay for that doctor, and your own personal insurance may refuse to pay, since your treatment is for a work related injury.  Getting put between your employer’s insurance and your personal insurance may result in the medical bills being sent to you directly for payment.  The other problem with seeking your own opinion outside the work comp system is that you may encounter difficulty getting the workers’ compensation insurance company to agree with your second opinion doctor, and they may refuse to honor that doctor’s restrictions or recommendations.

If you think your workers’ compensation insurance company should provide you with a second opinion, you may be interested in what the work comp statute says.  If you have a work comp claim, you should have seen this form before.  That is a doctor panel, which the insurance company is required to provide injured workers.  If you look above the section where the list of doctors would be filled in, there is a paragraph take right from the work comp statute.

The first sentence of this statute section says that the employer shall provide a list of three doctors, and the employee gets to pick from that list.  The second sentence says that if the employee injured their back, the panel must also include a chiropractor, but the chiropractor will only be authorized for 12 visits.

The third sentence addresses a second type of panel: “Further if the injury or illness requires the treatment of a physician or surgeon who practices orthopedic or neuroscience medicine, the employer may appoint a panel practicing orthopedic or neuroscience medicine consisting of 5 physicians, with no more than 4 physicians affiliated in practice.”  So, when someone needs to see an orthopedic or neuroscience specialist, the statute says the insurance company may expand the panel from 3 doctors (or 3 doctors and a chiropractor) to 5 doctors.  The important word there is “may”.  The statute does not require a 5 doctor panel in this situation, it simply gives the insurance company the option of doing so.  This becomes very important when we read the last sentence:  “If the employer provides this panel, the injured employee shall be entitled to have a second opinion on the issue of surgery, impairment, and a diagnosis from that same panel.”

This is the only section of the workers’ compensation statute that mentions the phrase “second opinion.”  So, the only time the statute says an injured worker is entitled to a second opinion is when they were previously provided a panel of 5 orthopedic or neuroscience doctors.  And since the statute says it is entirely voluntary for insurance companies to provide that expanded panel, there is no guarantee that any injured worker can receive a second opinion paid for by the employer.  The Department of Labor's Frequently Asked Questions page addresses the question with the following:  "What if the employee is unhappy with the physician he/she selected from the employer's panel?  Under Tennessee law, the employer or insurance carrier is not required to offer a second panel of physicians or a second opinion.  If asked, however, the insurer or employer MAY provide a second panel.  An employee may always seek a second opinion or obtain treatment with any physician at his/her own expense.  However, only the restrictions of the authorized physician must be followed by the employer."

Here at Rocky McElhaney Law Firm, workers’ compensation is one of our specialties.  While the statute doesn’t require employers to provide second opinions, we know it never hurts to ask an adjuster.  We also can send letters to the authorized doctor, asking him to take a second look at an issue, or perhaps make a specific referral for a second opinion.  We might also pay for our client to see an independent doctor if the issue relates to a second opinion on an impairment rating.  These are just some more ways we fight for our clients.  The statute is by no means worker-friendly when it comes to second opinions, but you may have options.

If you or someone you know has a work related injury claim, contact us.  We’ll fight for you.

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