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Employer can choose injured worker’s medical provider

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An employer has the right to direct medical treatment of an injured worker after a subsequent diagnosis secured independently by the employee revealed a work-related injury that was previously deemed not compensable, an Oklahoma appeals court has ruled.

Edward Bray, an employee of Houston-based containment management solutions company Pecofacet Houston L.L.C., injured his left shoulder at work in September 2015 and promptly received treatment for the injury at a clinic, according to court records in Edward E. Bray v. Pecofacet Houston L.L.C., Travelers Indemnity Co. of America and the Oklahoma Workers’ Compensation Commission. In October 2015, Mr. Bray complained of neck pain to his treating physician and subsequently filed a formal notice of injury claiming both a shoulder and a neck injury.

In November 2015, Mr. Bray underwent an X-ray of his neck, which did not disclose an injury, and an MRI later that month found no disc herniation or stenosis. The employer admitted Mr. Bray’s shoulder injury but relied on the X-ray and MRI reports to determine that Mr. Bray did not suffer a neck injury at work, court documents show.

In December 2015, the Oklahoma Workers’ Compensation Commission authorized a change of physicians for Mr. Bray’s shoulder injury. That physician noted that prior tests did not show a neck injury but recommended Mr. Bray see a spine specialist for an opinion regarding his neck pain. Tests Mr. Bray underwent with the spine specialist revealed conditions that were deemed to be related to an injury at work, court records show.

An administrative law judge ruled in March 2016 that Mr. Bray sustained a work-related neck injury, and the state workers comp commission agreed. Neither Mr. Bray nor the employer have appealed this determination, according to court documents.

The judge also ruled that the employer did not provide medical care for the neck injury within five days as required by Oklahoma’s workers comp statute and said Mr. Bray therefore has the right to choose his physician. The workers comp commission reversed that part of the decision in July 2016, saying the employer retains the right to choose the physician, court records show. Mr. Bray appealed that decision to the Oklahoma Court of Civil Appeals.

A three-judge panel of the appeals court on April 27 unanimously agreed with the workers comp commission in finding that the employer has the right to choose the physician.

Oklahoma’s workers comp statute allows employers to choose the physician to treat injured workers unless they fail to provide medical treatment within five days of receiving actual knowledge of a work-related injury. If the employer has not provided medical treatment within five days, the employee is afforded the right to select a physician to provide treatment at the expense of the employer, according to court documents.

In sustaining the workers comp bureau’s findings, the panel found that actual knowledge of Mr. Bray’s work-related neck injury did not occur until he underwent diagnostic tests in February 2016, and that the results of the tests were not provided to the employer until the case went to trial. A formal claim of injury is not actual knowledge of an injury, the panel said.

“The Bray decision reinforces the Oklahoma legislature’s intent that the employer has the right to choose the injured worker’s treating physician even when a previously denied injury is found compensable,” Jill Fidelie, managing partner of Oklahoma City-based law firm Adelson, Testan, Brundo, Novell & Jimenez, which represented the employer, said Thursday in a statement.