Bad Faith or Unfounded Requests?
There’s a Mississippi case that’s been kicking around since 1992 related to physician prescribed Nike Air Max sneakers and a Whirlpool tub, and bad faith actions by the carrier. I’m not going to continue the debate on bad faith, as I think that’s in the eye of the beholder (or in this case, the courts) but rather point the discussion toward what are reasonable and necessary medical treatments and supplies.
We’ve all seen requests for jetted tubs, hot tubs, mattresses, shoes and perhaps other items that normally would not be considered medically necessary — some of which I blush to think about. When I see them, I wonder “Why?” What elevates the need for any of those items to the status of medical necessity?
A physician writes on a prescription pad that the injured worker requires a new mattress, but has never seen the worker’s home, let alone their mattress. (I think if they have seen the worker’s mattress we have much bigger problems in the claim.)
What research has been done to show that Nike Air Max is the only shoe beneficial to someone with back problems versus an orthopedic shoe with inserts? What about a jetted tub makes it medically necessary? What therapeutic value does it add that is superior to a warm bath with Epsom salts?
The difference between push-back and bad faith is in addressing the issue. When items seem out of the ordinary, put it back on the physician to explain the necessity.
I am reminded of a back claim case I had. The physician wrote on a prescription pad that the injured worker required a California King Tempur-Pedic mattress. When I saw it, I thought “why?” Why is her current mattress not meeting her needs? Why king size? Why Tempur-Pedic? Upon discussion I learned it wasn’t that there was a medical need, but due to the age of her mattress the physician thought she would benefit from a new one.
They say a mattress will last seven to 10 years. The employee was 58. The full size mattress she was sleeping on — the one she had been sharing with her husband for the entirety of their marriage — had been hers since she was a child. Small wonder she had a problem with her back.
This became a contentious point in mediation. She kept coming back to that new mattress. I offered to provide the residual value of her old mattress or rent/buy a twin mattress for her. In hindsight, that might have not helped the mediation. In the end, we agreed to a settlement number and the mediator came back to the mattress. It was a deal breaker for me on principle. I prepared to walk out. We settled — no mattress.
The difference between push-back and bad faith is in addressing the issue. When items seem out of the ordinary, put it back on the physician to explain the necessity. Why does that name brand meet their need better than others? Have they seen the old one? Where is the evidence that it is medically necessary? It is always better to question and then decide versus ignoring the request. You might just find a doctor that admits, “I don’t know — they just asked for it.”