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Workers' Compensation

The Case for Clear Guidelines for Nurse Case Managers

 By Steven M. Birnbaum, Law Offices of Steven Birnbaum, San Rafael, California

The cost of medical care has risen throughout our society and calls for cost control are no louder than in workers' compensation cases and Longshore cases are included in that. Thus, the insurance industry has tried a number of approaches, including the practice of employing what are called "nurse case managers."

There are many and varied descriptions of the duties of “nurse case managers.” A reading of Section 7 of the Longshore and Harbor Workers' Compensation Act does not mention that terminology (33 U.S.C.S. § 901 et seq., 33 U.S.C.S § 907). A good argument could be made that this specific classification of medical specialty was not even contemplated at the time of the last amendments to the Longshore Act.

Generally speaking most would agree that those performing this job are almost always registered nurses. Their job appears to be one of coordination of medical benefits for injured workers. That includes the following:  the treatment of injured workers, reviewing and analyzing medical records, corresponding with the treating physicians, coordinating the referral to specialists if necessary, and making sure that all of the physicians are keeping the carriers up to date on their recommendations, prescriptions, and prognoses for the future, including return to work.

All of the above details of the work of a nurse case manager appear to be a reasonable extension of the claims adjustment process. It makes sense that a specialist in the form of a nurse should be the proper coordinator of medical treatment rather than a layperson. However, there are other aspects that have surfaced in the approach of some nurse case managers that have brought objections from the claimant and have given rise to controversy that increasingly results in litigation. This article is an attempt to put forward reasonable guidelines so that nurse case managers can be used in a way to avoid litigation.

Section 907(b) of the Act governs the management of medical treatment (33 U.S.C.S. § 907(b)). Its words are the following:

(b) Physician selection; administrative supervision; change of physicians and hospitals. The employee shall have the right to choose an attending physician authorized by the Secretary to provide medical care under this Act as hereinafter provided. If, due to the nature of the injury, the employee is unable to select his physician and the nature of the injury requires immediate medical treatment and care, the employer shall select a physician for him. The Secretary shall actively supervise the medical care rendered to injured employees, shall require periodic reports as to the medical care being rendered to injured employees, shall have authority to determine the necessity, character, and sufficiency of any medical aid furnished or to be furnished, and may, on his own initiative or at the request of the employer, order a change of physicians or hospitals when in his judgment such change is desirable or necessary in the interest of the employee or where the charges exceed those prevailing within the community for the same or similar services or exceed the provider's customary charges. Change of physicians at the request of employees shall be permitted in accordance with regulations of the Secretary.

If this section is read literally, the job that a nurse case manager appears to do is actually supposed to be done by the U.S. Department of Labor.

It would be speculation but it is also quite conceivable that the Department of Labor does not have the resources to oversee each and every case with regard to medical management. Thus, there may be need for a professional to oversee treatment. The problem, however, arises in how that supervision occurs.

A review of cases under the Act does not mention obligations, duties or requirements regarding nurse case managers. However, the American Nursing Association's website at contains a Code of Ethics for nurses. This code spells out that a nurse's primary commitment is to a patient. It also provides clear rules for how nurses are to operate in the world of business.

A recent blog that included workers' responses to how they felt about nurse case managers had some of the common complaints. We summarize their comments.  One worker said, "I had my attorney get rid of mine, and I couldn't have been happier! They work for the insurance carrier and their job is to get you back to work as soon as they can, sometimes at the cost of your health! I'm sure some of the nurse case managers are good and do their job well, but from what I've experienced and seen, they are pretty hard to find.”

Another worker said that her nurse case manager told her "I googled this Dr. and couldn't find him (referring to the patient's choice of physician). So I set you up with a great one." The injured worker agreed and went to the doctor. She said that, believe it or not, in the lobby of the doctor's office, she (nurse case manager) was sitting there talking on a cell phone. She said nothing to the injured worker, and did not even acknowledge the fact that the injured worker was there. However, after the worker came out of the doctor's office, the nurse case manager insisted that the worker sign an election of the doctor the nurse had selected. The worker refused and asked if she could get a copy of the doctor's report. The nurse said that the worker would have to go through workers' comp. to get the opinion because they paid for it. The nurse case manager e-mailed that worker later saying that the worker could get the report whenever she signed the form that the nurse case manager wanted her to sign.

The problem that arises in general is that while a carrier wants the injured worker to believe that the nurse case manager was hired in order to help in treatment, too often the nurse case manager turns into just an extension of the claims adjuster. If that is the case, it then should be incumbent upon the carrier to inform the injured worker that the carrier wishes to have someone act on behalf of the carrier.

If the carrier is sincere about employing a nurse to help with care, then it appears that the Act allows for free choice of physician and, in turn, it can be argued allows for a free choice of nurse case manager. In the alternative, why wouldn't the injured worker’s chosen physician be allowed the opportunity of choosing the nurse he wishes to work with?

Another approach would be for the Department of Labor to publish guidelines for the practice of nurse case managers. For example, the State of Michigan has created guidelines for the use of nurse case managers. They are as follows:


1. Be inclusive of all parties involved in the medical recovery process, especially the family.

2. Include goals and time frames when creating the care plan and allow for updates.

3. Determine if treatment is appropriate.

4. Determine what is needed for successful return to work, especially from employer’s perspective.

5. Provide client advocacy and support at all times, and provide input and guidance on treatment services

6. Use valid disability duration guidelines, and use them as GUIDELINES.

7. Educate all parties, especially employer, whenever possible on the positive and cost-effective aspects of return to work programs and processes.

8. Always obtain and maintain appropriate releases of information.

9. Understand that there are many players in the case management process, but that your main client should always be the injured employee.

10. At the very start, identify clearly your role as a case manager.


1. Change employee’s doctor appointments just to fit YOUR schedule.

2. Perpetuate disability by failing to address doctor recommendations, health concerns, or return-to-work issues in a timely fashion.

3. Become personally and/or emotionally attached to the clients.

4. Assume that you have an absolute right to attend all doctors’ appointments despite client wishes against it.

5. Interfere with due process between employee and employer.

6. Initiate cost services prior to obtaining carrier authorization.

7. Provide legal direction to the claims adjuster, or engage in claims investigative or adversarial activities.

8. Give legal advice at any time.

9. Schedule independent medical examinations.

Added to these should be considerations of privacy under HIPAA (Health Insurance Portability and Accountability Act, 42 U.S.C.S. § 1320d et seq.) and a transparency of the relationship between the insurance company and the nurse case practitioner.

Adopting guidelines, making clear what relationships exist, and having nurse case practitioners follow a code of ethics will allow patient trust, recovery, return to work, and elimination of extra costs that all parties can embrace.

© Copyright 2012 Steven Birnbaum.  All rights reserved. Reprinted by permission. This article will appear in an upcoming issue of Benefits Review Board Service Longshore Reporter (LexisNexis).


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