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Could PI cases turn to workers’ comp to determine reasonable treatment?

By: dmc-admin//November 24, 2008//

Could PI cases turn to workers’ comp to determine reasonable treatment?

By: dmc-admin//November 24, 2008//

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It’s a basic tenet of civil practice; in personal injury cases, lawyers must show the connection between treatment and injury.

In most cases, the plaintiff’s doctor testifies. Cross-examination then tries to poke holes in the doctor’s justifications.

The process can be a lengthy, costly and slow march toward awarding damages.

But what if the system were different? What if the seemingly tidier, report-driven system used in workers’ compensation cases, where testimony is rare and decisions come comparatively swiftly, were used in personal injury suits?

“That would be revolutionary from a civil defense standpoint,” said Bryce Tolefree, a civil lawyer for 18 years and secretary/treasurer of the Civil Trial Counsel of Wisconsin.

For now, it’s a just an idea, a virtual daydream batted around on a legal message board or floated hypothetically by those frustrated with climbing medical costs and achingly slow, and also increasingly expensive, civil litigation.

But could it work? Could the practices applied in workers’ compensation cases be translated to the sister section of civil law?

“For all practical purposes, it is kind of the same. It is a similar standard,” said Tolefree of American Family Mutual Insurance Co.

In both types of cases, the connection must be drawn between an injury and the kind of treatment given.

In both cases, lawyers also must show that the treatment was reasonable and necessary; no $20,000 bandage for a cut, for example.

The difference between the types of cases is how lawyers establish what is reasonable and necessary.

Unlike testimony-driven civil cases before a circuit court judge and jury, workers’ compensation claims are mediated by an administrative law judge, largely through independent medical examination (IME) reports.

The process is helped along through references to private, state-certified databases, which catalog “reasonable” medical charges, said Administrative Law Judge James O’Malley, director of the Bureau of Legal Services for the Workers’ Compensation Bureau, part of the state’s Department of Workforce Development.

The databases started in the early 1990s, after hospital administrators complained that reported medical expenses were not accurate, particularly for x-rays, CAT Scans and MRIs.

For a fee, lawyers compare insurance claims to the database. If a bill is within “reasonable” range, the amount must be covered by insurance. If it is not, reports can be filed outlining the treatment and justifying the expense.

An administrative law judge would review any reports and decide the case; workers’ compensation cases only go to circuit court if there is an appeal.

Applying that process to civil personal injury cases could have staggering effects.

“If you applied those standards, if you didn’t have the doctors coming in and you just used reports that would save a lot of time and money. That would be a dramatic shift,” Tolefree said.

Dramatic and unlikely, said Michael Gillick, a civil attorney in Milwaukee.

Gillick, of Gillick, Wicht, Gillick & Graf, agreed: transferring the workers’ compensation claims process to civil personal injury cases could save time and money.

It could also create a constitutional problem.

“It would present a due process problem,” he said.

Or would it?

The issue has not been raised in workers’ compensation cases, Gillick said. And O’Malley’s department has a rule meant specifically to mitigate the due process issue.
Under that rule, workers’ compensation reports must be filed with the department and all other interested parties at least 15 days before a hearing.

“If they have a report, they always have the option to subpoena in the doctor for cross-examination,” O’Malley said.

As an administrative law judge supervisor, O’Malley doesn’t hear as many cases as he did earlier in his 35-year career. But, during his time on the bench, fairly few lawyers ever exercised that option of cross-examination.

Which gets back to the question: Could the practices used to resolve workers’ compensation cases be applied to civil personal injury matters?

Sure, Gillick said. It might even be truly helpful.

“There’s precedent to suggest the public is served by restricting litigation,” he said.

But that still doesn’t mean it’s going to happen.

A recent review of a damages-related jury instruction could have opened the door for new ways to show reasonable value in civil medical cases.

But the Wisconsin Civil Jury Instructions Committee found that instruction 1710, aggravation of injury because of medical negligence, was still accurate and, therefore, could still be used to show what is reasonable.

The instruction did not directly apply to workers’ compensation cases, and the committee did not examine workers’ compensation issues.

The issue of how to show what is reasonable – use a workers’ compensation case-like report or more traditional civil personal injury case-like testimony – also was not addressed.

If the murmurs within the civil legal community are any measure, it also is a proposition that could go unanswered in Wisconsin for quite some.

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