Workers’ Comp Denied Your Surgery in Minnesota? Your Rights and Next Steps

Workers’ Comp Denied Your Surgery in Minnesota? Your Rights and Next Steps

Your doctor says you need surgery for your work injury. You are ready to move forward. Then the workers’ compensation insurance company refuses to authorize it.

What happens now?

Under Minnesota workers’ compensation law, an employer and its insurer are responsible for surgical treatment that is reasonably required to cure and relieve the effects of a work injury.

An insurance company does not necessarily have the final word simply because it denies authorization for a surgery recommended by your treating physician.

But a denial can delay treatment, and resolving the dispute may require additional medical evidence, a second opinion, an independent medical examination, a Medical Request, or formal workers’ compensation litigation.

If your surgery has been denied, understanding why it was denied is the first step toward determining what to do next.

Does Minnesota Workers’ Compensation Have to Pay for Surgery?

Minnesota Statutes § 176.135 requires an employer to furnish medical and surgical treatment that is reasonably required to cure and relieve the effects of a work injury.

That obligation can continue long after the original injury.

Workers’ compensation medical benefits may include:

• physician visits;
• diagnostic testing;
• physical therapy;
• injections;
• medications;
• hospital treatment;
• surgery;
• post-operative care; and
• other reasonable and necessary treatment related to the work injury.

For surgery to be compensable, however, there can be disputes over two different questions:

Is the surgery reasonable and medically necessary?

and

Is the condition requiring surgery actually related to the work injury?

The insurance company may dispute either—or both.

How Quickly Does the Insurance Company Have to Respond to a Surgery Request?

Minnesota law contains specific requirements concerning requests for nonemergency surgery.

When an employer or insurer receives a request for nonemergency surgery from the employee or health care provider, the insurer generally must respond in writing within the time required by Minnesota law.

The insurer may:

• approve the surgery;
• deny authorization;
• request additional information;
• request a second surgical opinion; or
• request an examination by a physician selected by the employer or insurer.

If your surgeon has submitted a surgery request and you have heard nothing, find out when the insurer received the request and whether a written response was issued.

A lack of response should not simply be allowed to continue indefinitely.

Why Do Workers’ Compensation Insurers Deny Surgery?

There are many reasons an insurer may refuse to authorize surgery.

Common disputes include claims that:

• the surgery is not medically necessary;
• conservative treatment has not been exhausted;
• the proposed procedure does not satisfy Minnesota treatment parameters;
• diagnostic imaging does not support surgery;
• the employee’s symptoms do not justify the procedure;
• the surgery is unlikely to improve the employee’s condition;
• another procedure should be tried first;
• the condition is degenerative or pre-existing;
• the need for surgery was caused by something other than the work injury;
• the employee has recovered from the work injury;
• the treating surgeon’s opinion is not adequately supported; or
• an independent medical examiner disagrees with the treating physician.

Sometimes the insurer accepts that an employee was injured at work but disputes the proposed treatment.

In other cases, the insurer denies that the employee’s current condition has anything to do with the work injury.

That distinction matters because it can change the procedure used to pursue payment for the surgery.

What Are Minnesota Workers’ Compensation Treatment Parameters?

Minnesota has workers’ compensation treatment parameters contained primarily in Minnesota Rules parts 5221.6010 through 5221.6600.

The treatment parameters contain guidelines concerning medical care for certain work-related conditions, including:

• low back injuries;
• neck injuries;
• thoracic spine injuries;
• upper-extremity conditions;
• complex regional pain syndrome; and
• certain surgical procedures.

The parameters are intended to help determine whether treatment is reasonable and necessary.

They can address issues such as the amount of conservative treatment that should ordinarily occur before surgery, clinical findings supporting particular procedures, imaging requirements, and other treatment criteria.

But treatment parameters are not simply a checklist that automatically allows an insurer to deny treatment.

There are circumstances in which a departure from the treatment parameters may be appropriate.

The particular rule and the medical evidence matter.

Do Treatment Parameters Apply If the Insurance Company Has Denied My Entire Claim?

Not necessarily.

This is an important distinction.

Minnesota’s treatment parameters govern treatment issues in compensable workers’ compensation claims, but they do not determine whether the employer is legally responsible for the injury in the first place.

If the insurance company is denying primary liability—meaning it is claiming that your condition is not a compensable work injury—the dispute is fundamentally about causation and liability.

The insurer generally cannot turn a denied-liability case into merely a treatment-parameter dispute.

That difference also affects which form or litigation procedure may be necessary to pursue the claim.

Can the Insurance Company Require a Second Surgical Opinion?

Yes.

Minnesota law permits second opinions concerning nonemergency surgery in appropriate circumstances.

If you want a second opinion about whether surgery is necessary, the employer or insurer may be responsible for the cost.

The employer or insurer may also require you to obtain a second surgical opinion before approving nonemergency surgery.

An insurer may also request an independent medical examination with a physician it selects.

Do I Have to Attend the Insurance Company’s Second Opinion or IME?

Ignoring the request can create additional problems.

Minnesota law gives employers and insurers the right, in appropriate circumstances, to obtain medical opinions concerning the necessity of treatment.

If an employee refuses to attend a properly requested examination, that can affect the claim.

If you disagree with the request, have concerns about the examination, or believe the insurer is using repeated examinations to delay treatment, speak with an attorney before simply refusing to attend.

What If the Insurance Company’s Doctor Says I Don’t Need Surgery?

This is extremely common.

Your treating orthopedic surgeon may say:

Surgery is medically necessary.

The insurance company’s physician may say:

Surgery is unnecessary.

That does not mean the insurance company’s physician automatically wins.

A compensation judge may ultimately have to evaluate the competing medical opinions.

Important factors can include:

• each physician’s specialty;
• the employee’s history;
• objective examination findings;
• diagnostic imaging;
• response to prior treatment;
• physical work demands;
• work restrictions;
• whether conservative treatment has failed;
• whether the physician had accurate information;
• the reasoning supporting the opinion; and
• whether the proposed treatment complies with, or appropriately departs from, the applicable treatment parameters.

Workers’ compensation medical disputes are often not resolved merely by counting how many doctors are on each side.

The quality and foundation of the medical opinions matter.

What If the Insurer Says My Condition Is Degenerative or Pre-existing?

A pre-existing condition does not automatically prevent you from receiving workers’ compensation benefits.

Many people have degeneration on MRIs before they ever experience disabling symptoms.

A work injury can aggravate, accelerate, or contribute to an underlying condition.

For example, an insurer may argue that a shoulder surgery is needed because of pre-existing arthritis rather than the employee’s work injury.

Or it may claim that lumbar surgery is needed because of longstanding degenerative disc disease rather than a work-related event.

Those cases often turn on medical causation.

A treating physician may need to address whether the work injury substantially contributed to the condition requiring surgery, rather than simply stating that surgery is medically necessary.

The distinction is important:

“The patient needs surgery”

does not necessarily answer:

“Is the work injury a substantial contributing cause of the need for surgery?”

A well-supported medical opinion should address both when causation is disputed.

What If the Insurance Company Has Accepted My Work Injury but Denies the Surgery?

If the insurer has accepted liability for your work injury but disputes a particular medical treatment, a Medical Request may be used to bring the dispute into the Minnesota workers’ compensation system.

The Medical Request identifies the treatment being sought and the nature of the dispute.

If the dispute remains unresolved, an administrative conference may be scheduled.

What Happens at a Medical Conference?

A medical conference is an expedited and comparatively informal workers’ compensation proceeding.

The parties may submit medical records and other relevant information concerning the disputed treatment.

For a denied surgery, the evidence could include:

• the surgeon’s recommendation;
• office notes;
• MRI or CT reports;
• operative recommendations;
• prior treatment records;
• physical therapy records;
• injection history;
• work restrictions;
• the insurer’s medical review;
• second-opinion reports; and
• an independent medical examination report.

A workers’ compensation decision-maker considers the medical dispute and issues a decision if the parties cannot resolve it.

That decision may be subject to further proceedings.

What If the Insurance Company Has Denied My Entire Workers’ Compensation Claim?

The process is different.

If the insurer has denied primary liability for your claimed injury and has not accepted responsibility for the claim, a Medical Request generally is not the appropriate procedure.

Instead, the employee may need to file an Employee’s Claim Petition seeking workers’ compensation benefits.

A Claim Petition begins formal litigation.

That litigation can involve:

• an Answer from the employer and insurer;
• discovery;
• medical records;
• depositions;
• an independent medical examination;
• settlement proceedings; and
• ultimately a hearing before a compensation judge if the case does not resolve.

The claim may seek payment for the disputed surgery along with other benefits, such as wage loss, permanent partial disability, rehabilitation, or other medical treatment.

What If I Am in a Certified Managed Care Plan?

Some Minnesota workers’ compensation claims are subject to a certified managed care plan.

If you are covered by one of these plans and there is a medical dispute, you generally may need to use the managed care plan’s dispute-resolution process before filing a Medical Request.

Before filing, determine whether your treatment is governed by a certified managed care plan because that can affect the proper procedure.

Can I Just Have the Surgery and Fight About Payment Later?

This deserves individualized legal advice.

The fact that an insurer has denied authorization does not necessarily mean the treatment is legally noncompensable.

But an injured worker should not assume it is financially safe to undergo a disputed procedure and simply expect workers’ compensation to pay afterward.

If the insurer has denied responsibility, there can be a significant financial dispute over:

• surgeon’s fees;
• hospital charges;
• anesthesia;
• imaging;
• rehabilitation;
• post-operative treatment; and
• wage loss during recovery.

Before proceeding with surgery over an insurer’s objection, understand exactly who may be responsible for payment if the workers’ compensation dispute is unsuccessful.

What Can My Doctor Do to Help?

The treating physician’s opinion may be one of the most important pieces of evidence.

A useful medical report often addresses more than simply saying:

“I recommend surgery.”

Depending on the issues in dispute, the physician may need to explain:

• the diagnosis;
• objective findings supporting the diagnosis;
• relevant MRI or other imaging findings;
• treatment already attempted;
• why conservative treatment has failed;
• why the proposed surgery is medically appropriate;
• the expected benefit of surgery;
• applicable treatment parameters;
• any basis for departing from a treatment parameter;
• whether the work injury substantially contributed to the condition; and
• why the physician disagrees with the insurer’s medical examiner, if applicable.

A detailed opinion addressing the actual reason for denial is generally much more useful than a conclusory statement that surgery is necessary.

What Should I Do After My Workers’ Comp Surgery Is Denied?

Do not simply assume the case is over.

Start by obtaining the written denial and determining exactly why authorization was refused.

Important steps may include:

1. Get a copy of the written denial.
2. Determine whether the insurer disputes medical necessity, causation, or both.
3. Obtain the report or medical opinion the insurer relied upon.
4. Talk with your treating surgeon about the reason given for the denial.
5. Determine whether additional medical evidence is needed.
6. Find out whether a certified managed care plan applies.
7. Determine whether a Medical Request, Claim Petition, or another procedure is appropriate.
8. Consider speaking with a Minnesota workers’ compensation attorney before significant treatment is delayed.

The right strategy depends heavily on the reason for the denial.

Should I Hire a Workers’ Compensation Attorney If My Surgery Is Denied?

A denied surgery is one of the situations where legal representation can be particularly valuable.

The dispute may involve several different areas of Minnesota workers’ compensation law at once:

• medical causation;
• treatment parameters;
• independent medical examinations;
• second surgical opinions;
• administrative conferences;
• primary liability; and
• formal workers’ compensation litigation.

An attorney can determine what the insurer is actually disputing, obtain the necessary medical evidence, communicate with the treating physician, file the appropriate claim, and present the medical dispute to the workers’ compensation system.

The goal is not simply to obtain an authorization letter.

The larger question is ensuring that an injured worker receives the medical treatment and workers’ compensation benefits to which the worker is legally entitled.

Minnesota Workers’ Compensation Attorneys Representing Injured Workers

Lemmon & Tanasychuk, LLC represents injured employees throughout Minnesota.

We represent workers—not employers or insurance companies—in disputes involving:

• denied surgery and other medical treatment;
• denied workers’ compensation claims;
• independent medical examinations;
• stopped wage-loss benefits;
• rehabilitation and QRC disputes;
• permanent disability;
• work restrictions; and
• workers’ compensation settlements.

If your doctor has recommended surgery and the workers’ compensation insurance company has refused to authorize it, we can review the denial, the medical evidence, and the insurer’s position and help you understand your options.

Contact Lemmon & Tanasychuk, LLC for a free consultation.

This article provides general information concerning Minnesota workers’ compensation law and is not legal advice. Workers’ compensation cases depend on their individual facts, and statutes, rules, and procedures can change.