Daniel Miller of MPH Consulting explains the possibility for employers to take a whole new approach to workers’ comp cost containment based on an OSHA regulation that allows an employer to require injured workers to undergo a prompt medical exam outside of the workers’ comp system and to obtain the release of prior medical records.
Most employers are unaware that they can utilize this little-known and virtually untried regulation that allows for employers to pay for second medical opinions under OSHA recordkeeping requirements and regulations. The regulation can be found in §§ 1904.7(b)(3)(ii) and (b) (4)(viii).
There are two major facets to this statute. First, employers must pay 100% of the medical exam costs outside of the workers’ comp system. Second, insurance companies and third-party administrators (TPA)s cannot schedule such exams or pay for such exams because they cannot work outside the state workers’ comp system.
The costs of such exams are not included in an employers’ overall workers’ comp claim costs, nor are they included in experience modification calculations. The costs for such a program would have to come out of another budget, like risk management or safety.
Of major significance is that, while the regulation states such exams are outside workers’ comp regulations, with proper procedure they and the related medical records are discoverable. They may be released and used in workers’ comp claim adjudication.