One of the most common questions we receive about worker’s compensation has to deal with changing doctors. To help explain the law on this issue I will use three examples:
Worker is injured on the job, and he/she goes to the Emergency Department for treatment, and then requires follow up medical care. Who gets to pick the doctor the worker must see for the follow-up treatment?
Answer – Employer. But do not lose hope just yet… Worker is not without rights and options.
New Mexico law allows the employer to initially (I repeat, initially) select which doctor you must see. The employer has two options. First, they can select the doctor and the injured worker is required to present for follow up treatment to that doctor. Alternatively, the employer can allow the injured worker to select which doctor to follow up with.
*Important Rule – An injured worker should first check with their employer about who is to select the doctor before continuing treatment. If the employer does not give direction about which doctor to see, the injured worker can select the doctor of their choice.
Let’s assume Employer instructed Worker to see a specific doctor who we’ll call “Employer Doctor”. Is Worker stuck with Employer Doctor permanently? Answer - No.
*Important Rule - If the employer selects the initial doctor, then worker has the automatic right to change to a doctor of worker’s choosing after 60 days of treatment.
After 60 days of treatment, Worker has the automatic right (no filing a motion or court hearing required) to change doctors. Worker must notify Employer by simply completing and sending to Employer a form called the “Notice of Change of Healthcare Provider” which can be found here: (http://www.workerscomp.state.nm.us/NMWCA-Forms).
Let’s now change the facts again and assume Employer did not instruct Worker to see Employer Doctor, and instead allowed Worker to choose the doctor either by expressly telling Worker to choose or by failing to give Worker direction on who to see. Worker then chooses to see “Worker Doctor”. Does Worker get to keep seeing Worker Doctor? Answer - Maybe.
*Important Rule – The same 60-day rule applies equally to both parties. If Worker makes the initial doctor selection, Employer has an automatic right to change doctors simply by completing and sending a Notice of Change of Healthcare Provider to Worker.
Let’s now change the facts again. This time, Worker chose Worker Doctor and treated for 60 days before Employer exercised the right to change Worker Doctor to Employer Doctor. Employer Doctor has been treating Worker for 60 days. Can Worker change back to his/her preferred doctor, Worker Doctor? Answer - Maybe.
*Important Lesson - Any further changes in doctor selection must happen through one of two ways: 1) Agreement of both parties; or 2) By filing a motion with the court and getting a judge to approve the change.
It is impossible to know what a workers’ compensation judge may approve on an issue like that, but it is unlikely a judge will allow Worker or Employer to continue the carousel of changing doctors without a compelling reason to do so. Examples of compelling reasons could be mistreatment, lack of physician qualification, length of treatment, or any other reason that the Worker or Employer could demonstrate to justify another change in treating physician.
In summary, New Mexico law grants Workers important rights and remedies when it comes to selecting the Worker’s health care provider.
Our workers' compensation attorneys are here to answer your questions and explain how workers’ compensation works in New Mexico. Call our office or fill out our contact form to schedule a free consultation.