Unions and labor advocates want to expand the number of doctors that injured workers can choose from for treatment — from the four they now are offered by employers to some 1,200 who are certified as workers-compensation care providers by the state of Colorado.
The change proposed in House Bill 1300 — which passed its first legislative committee on a fully partisan, Democrat-led vote Tuesday — is one that would give patients more comfort with physicians and, in doing so, speed their recovery and return to work, backers say. Business groups, insurers and some workers’ compensation attorneys argue, however, that leaving patients to navigate the workers’ comp system themselves will delay needed care and will increase health-care expenses for patients and employers.
HB 1300, sponsored by Rep. Jenny Willford, D-Northglenn, seeks the first major change to state workers’ compensation law since a negotiated 2014 bill increased the number of provider options that employers must offer injured workers from two to four. A 2021 bill, like the newest iteration, sought to eliminate the cap on providers that employers can offer when they are paying for their workers’ care, but that proposal died in the House.
Defense of existing workers’ compensation law
The reason for the four-doctor choice cap, several business representatives told the House Business Affairs & Labor Committee, is so that employers can vet the physicians who will treat their workers and ensure they get the best care for them.
Employees still have 90 days from the time of injury to change physicians if they are unhappy with their care under current law, but such requests are rare, several witnesses said. Pinnacol Assurance, the state’s largest workers’ compensation insurer, handled 35,000 claims last year and received just 165 requests for physician changes — 80% of which were approved, attorney Harvey Flewelling said.
“The designated provider list is, in the first instance, meant to provide experienced, competent, workers-compensation-trained doctors,” said Paul Feld, an attorney who represents employers and insurers on workers’ compensation cases. “Our experience is this works very well. This is not a problem.”
Workers say the system has failed them
However, Willford offered the committee about 10 workers who described bad experiences in which their employer-recommended providers failed to diagnose them correctly, advised them not to file certain claims and left them permanently injured. Meanwhile, six different unions and several plaintiffs’ attorneys implied or said outright that the pool of providers offered by physicians are doing the bidding of employers and insurers in cutting treatment costs and pushing to get workers back on the jobs too early.
“Injured and stressed workers need to meet with providers who are not directed or controlled by employers or insurers,” said Sandra Parker Murray, a Communication Workers of America organizer. “Passing this bill will give workers confidence in the system.”
Under HB 1300, workers would get seven business days from the time of injury to choose a Level I or Level II accredited workers-compensation provider within 70 miles of their home or workplace from the extensive list provided by the Division of Workers Compensation. If they do not elect a provider in that that timeframe, the employer can pick one for them.
The bill also would expand the 90-day window to change doctors to an unlimited amount of time before the patient achieves maximum medical improvement that typically requires a return to work if there is not a permanent disability. And it would allow the worker to choose a provider within a 100-mile radius if there are three or fewer accredited workers-compensation doctors within a 70-mile radius.
One major change already to bill
Willford on Tuesday cut from the bill one of its most controversial provisions — a clause that would have moved the burden of proof in any dispute regarding provision of medical benefits from the injured worker to the employer. She acknowledged that she did not have the votes to get HB 1300 out of committee with that section still in the bill, though she said she will continue to work on that issue in future years.
Kjersten Forseth, a Colorado AFL-CIO lobbyist, argued counter to business claims that giving workers the full freedom to pick their own provider would lower employer costs, as it would improve care and get them healthy more quickly. Willford also argued it will expand the market of workers-compensation-care providers, which she said is artificially restricted by the limited number of physicians with whom insurers are willing to contract for service.
But Sonja Guenther of the Workers’ Compensation Coalition of business owners scoffed at the notion that telling workers who are in pain and unfamiliar with the system to pick a provider out of 120 pages of choices on the DOWC website is any kind of convenience. Many workers in the highest-injury professions, such as construction, speak English as a second language, and having employers tell them to take care of their own provider needs likely will delay care and make it harder to fully heal injuries, she and others said.
Could new proposal lead to doctor-shopping?
Flewelling also suggested that the vastly extended timeline to change doctors in HB 1300 will lead to workers who are not wanting to return to their jobs being able to shop for doctors who grow reputations as being willing to extend disability timeframes. That will raise the costs for companies that must pay for wages and care while presumably having to hire temporary help as well, and inefficient care could lead to long-term physical harm that will add costs to the health-care system, business leaders said.
Colorado Chamber of Commerce President/CEO Loren Furman also noted that the 2014 expansion of physician choice came after nine months of discussions between employer and labor interests, while there was no such discussion this time.
“There’s a lack of awareness of this history and public policy,” Furman said. “We’re open to having those discussions again, but this bill is not necessarily the answer.”
Opponents’ of workers’ compensation changes have tough road ahead
HB 1300 heads now to the House floor for debate. Several Democrats who supported the bill Wednesday, including Reps. Gretchen Rydin of Littleton and Naquetta Ricks of Aurora, said they would like to see Willford place some limits on the amount of time patients have to switch doctors once they start treatment.
But to understand why the bill’s opponents could face a difficult time killing it, one need to look only at the explanation from moderate Democratic Rep. William Lindstedt on Wednesday as to why he voted the bill out of committee. Lindstedt said he asked Willford to remove the provision that sought to move the burden of proof to employers because of the expense it would have placed on businesses, but once that clause was gone, he said he agreed fully with the overarching premise of HB 1300.
“I think patients should be able to choose their own doctors,” Lindstedt said. “The idea that someone can be injured and not choose their own doctor and not have confidence just doesn’t sit right with me.”
Pinnacol privatization on table too
The discussion over doctor choice in workers’ compensation, intriguingly, is happening while legislators are debating a proposal from Gov. Jared Polis to convert state-chartered Pinnacol into a fully privatized mutual insurance company.
Such a move would allow the insurer to expand business to other states and would generate significant disaffiliation fees for the state government while it looks to close a $1.2 billion budget shortfall. Still, some legislators worry that it will weaken coverage and care for some workers.
The future of the disaffiliation proposal will become clearer if the Joint Budget Committee introduces the proposed budget Monday for the fiscal year that begins on July 1, as it is scheduled to do. JBC members already have delayed the introduction by a week, however, as they scramble to close the budget shortfall.