Well, here is the age-old question again.
Do the Workers’ Compensation Treatment Guidelines apply to No-Fault patients?
Strictly speaking, the answer is no.
That is because there is no specific law, precedent, or regulatory language stating that they do.
However, they are a published and publicly available list of treatments for specific injuries.
That makes them too tempting for insurance carriers to ignore.
The issue of these guidelines as well as other published treatment guidelines came up in a new AAA publication.
The American Arbitration Association has recently published their Spring 2022 Insurance Reporter.
You can click through to it here:
https://go.adr.org/rs/294-SFS-516/images/2022_AAA_Insurance_Reporter_Spring2022.pdf
In that report, there are a group of decisions that AAA has selected as instructive on the question posed by my headline.
Those decisions involve cases where the insurance carrier’s peer reviewer or IME doctor relied at least in part on the Workers’ Compensation Treatment Guidelines or another published set of recommendations.
Keep in mind that this was not just an adjustor issuing a denial for failure to comply with the guidelines, these are licensed treating professionals relying on the written protocols as part of their determination that the treatment was not necessary.
A slight, but important distinction.
That’s what makes it so tricky (a cynic might call it a sneaky way to bring the guidelines in through the backdoor).
All in all, there are a total of five arbitration awards selected on this subject and the insurance carrier lost four of them.
Many times, the insurance carrier’s medical reports were ruled insufficient as a result of their reliance on the Guidelines.
One decision in the report cites to 17-16-1034-2976 which in turn references the Workers’ Compensation Board’s published comments on the most recent edition of the treatment guidelines.
The Workers’ Compensation Board issued a response to a question which re-asserted the basic fact that the Board does not have jurisdiction over the No-Fault system, and therefore, the Guidelines “will not apply to No-Fault claims”.
So, for now, we can still rely on the absence of any official adoption of the Guidelines for No-Fault, but we also keep an eye out for peer reviews and IME reports that cite them as part of their thinking.