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  1. #1
    Join Date
    Feb 2009
    Posts
    18

    Default KSA 65-4977 vs KSA 44-510h, KSA 44-515, KSA 44-518 and KAR 51-9-5

    Explanation:

    My daughter has suffered from chronic pain for 7yrs. On 5 Oct 07 after her pain pump was removed because of a life threaten infection, her pain doctor prescribed MS Contin (morphine) after this surgery for her pain. Prior to this surgery she suffered several complications became septic, had 2 severe reactions to antibiotics which caused respiratory problems and she is now on a Bipap and oxygen while she is sleeping.

    Problem: Since Oct. 08 the nurse case manager for her worker's compensation carrier (Gini Toyne)has made 3 appointments as per KSA 44-515 to be evaluated for a pain management treatment using a detox drug Suboxone.The FDA has not approved this drug for pain management Under threat of KSA 44-518 she has attended all three appointments. As per manufacture's safety guidelines:

    Appropriate use of SUBOXONE .
    Do not use SUBOXONE or SUBUTEX for conditions for which they were not prescribed. Patients with a clinical need for analgesia should not be transferred to a SUBOXONE regimen. SUBOXONE is not indicated for pain management.

    My daughter has several concerns about this treatment and none of these 3 doctors have answered her concerns. One of these concerns is the distance she would have to travel to get these treatments and no plan to have a doctor closer to home if she would have serious reactions -side affects include respiratory depression. My daughter lives 25 miles west of Manhattan, Ks. There is a doctor in Manhattan, who has agreed to evaluate her for this treatment. However, so far the nurse case manager has schedule appointments for evaluations in Detroit, Mi., Shawnee Mission, Ks and Lee's Summit, Mo.and has completely refused to investigate the possibility of treatment in Manhattan. The last appointment on 6 Feb in Lee's Summit the doctor was under the impression my daughter was there for treatment and would have started treatment if my daughter had not refused. This was the first time he had seen my daughter and did not do a complete physical exam or review my daughter's complete medical history. Trips of these distances cause my daughter more pain and she is in extreme pain for 2-3 days after, she has reported this but it has not made difference-under KSA 44-515 and KSA 44-518 she has no right to refuse these exams. Because of the above statutes my daughter feels she does not have a choice or any input in her pain management treatment. My daughter's lawyer was unaware of KSA 65-4977 and I have volunteered to further investigate this situation and ask for your opinion and your advice on how to precede.

    My main question for you is: Can KSA-44-510h, KSA 44-515 and KSA 44-518 override her rights under KSA 65-4977 and who makes that call?
    ]KSA 65-4977 states Persons suffering from pain; use of controlled substances for pain treatment. (a) A person suffering from pain:

    (1) Should be an active participant in decisions about the assessment, diagnosis and treatment of their pain.

    (2) May accept or reject the use of any or all diagnostic and therapeutic modalities which may be recommended to treat such person's pain.
    Chapter 44.--LABOR AND INDUSTRIES Article 5.--WORKERS COMPENSATION

    44-510h. Medical compensation; change of health care provider; examination by alternate health care provider; faith healing; preventative hepatitis treatment. (a) It shall be the duty of the employer to provide the services of a health care provider, and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches, apparatus and transportation to and from the home of the injured employee to a place outside the community in which such employee resides, and within such community if the director, in the director's discretion, so orders, including transportation expenses computed in accordance with subsection (a) of K.S.A. 44-515 and amendments thereto, as may be reasonably necessary to cure and relieve the employee from the effects of the injury.

    (b) (1) If the director finds, upon application of an injured employee, that the services of the health care provider furnished as provided in subsection (a) and rendered on behalf of the injured employee are not satisfactory, the director may authorize the appointment of some other health care provider. In any such case, the employer shall submit the names of three health care providers who, if possible given the availability of local health care providers, are not associated in practice together. The injured employee may select one from the list who shall be the authorized treating health care provider. If the injured employee is unable to obtain satisfactory services from any of the health care providers submitted by the employer under this paragraph, either party or both parties may request the director to select a treating health care provider.

    and 44-515. Medical examinations; travel and living expenses; availability of reports; disqualification of certain medical evidence; consideration of health care providers' opinions. (a) After an employee sustains an injury, the employee shall, upon request of the employer, submit to an examination at any reasonable time and place by any one or more reputable health care providers, selected by the employer, and shall so submit to an examination thereafter at intervals during the pendency of such employee's claim for compensation, upon the request of the employer, but the employee shall not be required to submit to an examination oftener than twice in any one month, unless required to do so in accordance with such orders as may be made by the director. Any employee so submitting to an examination or such employee's authorized representative shall upon request be entitled to receive and shall have delivered to such employee a copy of the health care provider's report of such examination within 15 days after such examination, which report shall be identical to the report submitted to the employer. If the employee is notified to submit to an examination before any health care provider in any town or city other than the residence of the employee at the time that the employee received an injury, the employee shall not be required to submit to an examination until such employee has been furnished with sufficient funds to pay for transportation to and from the place of examination at the rate prescribed for compensation of state officers and employees under K.S.A. 75-3203a and amendments thereto, for each mile actually and necessarily traveled to and from the place of examination, any turnpike or other tolls and any parking fees actually and necessarily incurred, and in addition the sum of $15 per day for each day or a part thereof that the employee was required to be away from such employee's residence to defray such employee's board and lodging and living expenses. The employee shall not be liable for any fees or charge of any health care provider selected by the employer for making any examination of the employee. The employer or the insurance carrier of the employer of any employee making claim for compensation under the workers compensation act shall be entitled to a copy of the report of any health care provider who has examined or treated the employee in regard to such claim upon written request to the employee or the employee's attorney within 15 days after such examination or treatment, which report shall be identical to the report submitted to the employee or the employee's attorney.

    and under the threat of:

    44-518. Refusal of medical examination; effect. If the employee refuses to submit to an examination upon request of the employer as provided for in K.S.A. 44-515 and amendments thereto or if the employee or the employee's health care provider unnecessarily obstructs or prevents such examination by the health care provider of the employer, the employee's right to payment of compensation shall be suspended until the employee submits to an examination and until such examination is completed. No compensation shall be payable under the workers compensation act during the period of suspension. If the employee refuses to submit to an examination while any proceedings are pending for the purpose of determining the amount of compensation due, such proceedings shall be dismissed upon showing being made of the refusal of the employee to submit to an examination.

    Evidently, reasonable time and place and twice in any one month in KSA 44-515 means any place this insurance carrier wants to send my daughter no matter how it effects her health and by threat of KSA 44-518 she has to comply? What about her rights?
    KAR 51-9-5 Refusal to submit to medical
    treatment. An unreasonable refusal of the em-
    ployee to submit to medical or surgical treatment,
    when the danger to life would be small and the
    probabilities of a permanent cure great, may re-
    sult in denial or termination of compensation be-
    yond the period of time that the injured worker
    would have been disabled had the worker sub-
    mitted to medical or surgical treatment, but only
    after a hearing as to the reasonableness of such
    refusal.

    My daughter is very afraid of this treatment-please comment.

    Thank-you for any help you can provide us now-it take 2-3 months to get hearing before a judge, so they can harass my daughter and send her on these trips 6-8 more times, allowing her no human rights under Kansas law.

    Momcares

  2. #2
    Join Date
    Oct 1971
    Posts
    3,537

    Default Re: KSA 65-4977 vs KSA 44-510h, KSA 44-515, KSA 44-518 and KAR 51-9-5

    momcares
    under KSA 44-515 and KSA 44-518 she has no right to refuse these exams. Because of the above statutes my daughter feels she does not have a choice or any input in her pain management treatment.
    She must submit to the exams, but she can refuse "pain manegment treatments"
    ]KSA 65-4977(2) May accept or reject the use of any or all diagnostic and therapeutic modalities which may be recommended to treat such person's pain.
    Chapter 44.--LABOR AND INDUSTRIES Article 5.--WORKERS COMPENSATION



    My main question for you is: Can KSA-44-510h, KSA 44-515 and KSA 44-518 override her rights under KSA 65-4977 and who makes that call?
    No, they are saying basically the same thing, KSA-44-510h, KSA 44-515 and KSA 44-518 are saying she must submit to the exams, I see nothing that says she must submit to the pain treatments, which aren't a "cure"
    The key word here is "CURE" ...pain manegement is not a cure.

    It says by "curing" to relieve the effects of the injury...
    " K.S.A. 44-515 and amendments thereto, as may be reasonably necessary to cure and relieve the employee from the effects of the injury."

    No one can force her to submit to any medical treatment she's not comfortable with.

    They may threaten to cut off her benefits, ect..but it's just cheap threats.
    Tell her to be honest with them, state her concerns and politely refuse.

    If you don't have an attorney, get one pronto.
    If you do have an attorney, he should be a buffer between your daughter and this so called "nurse case manager"

    I'm telling you my opinion only, this isn't legal advice...
    Take Care.
    Tony
    Last edited by tony; 02-27-2009 at 08:57 AM.
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  3. #3
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: KSA 65-4977 vs KSA 44-510h, KSA 44-515, KSA 44-518 and KAR 51-9-5

    The FDA has not approved this drug for pain management Under threat of KSA 44-518 she has attended all three appointments.
    Tony is right in his opinion.
    WC provides treatment to ''cure and/or relieve from the effects of the work related injury/illness'...

    My question would be... WHO is the person recommending a treatment that has not been evaluated/approved for use by the FDA.
    For one thing, that treatment is not recognized by any industrial medicine treatment guidelines, and if the FDA hasn't reviewed/evaluated the procedure/drug yet...it would be unlikely for any IC to approve such exposure. Their liability would be horrendous if there were adverse reactions by your

    The laws permit the ER/IC to schedule periodic evaluations to confirm/deny a diagnosis, and/or treatment plan, and to verify the condition of the IW.
    The laws haven't, as far as I've seen been written that compel your daughter to submit to what you have described here.

    Best advise... consult with a good WC attorney... you'll see that time and again... if you have one..great. if not, start making consultation appts.

  4. #4
    Join Date
    Feb 2009
    Posts
    18

    Unhappy Re: KSA 65-4977 vs KSA 44-510h, KSA 44-515, KSA 44-518 and KAR 51-9-5

    KAR 51-9-5 Refusal to submit to medical
    treatment. An unreasonable refusal of the em-
    ployee to submit to medical or surgical treatment,
    when the danger to life would be small and the
    probabilities of a permanent cure great, may re-
    sult in denial or termination of compensation be-
    yond the period of time that the injured worker
    would have been disabled had the worker sub-
    mitted to medical or surgical treatment, but only
    after a hearing as to the reasonableness of such
    refusal.

    My daughter has been denied her monetary compensation since she would not go to appointment on Feb 16-to start pre pyschological therapy before taking this drug!
    Lawyer and I advised her not to go if she did not want the treatment! Did I tell her wrong!!! Momcares

  5. #5
    Join Date
    Oct 1971
    Posts
    3,537

    Default Re: KSA 65-4977 vs KSA 44-510h, KSA 44-515, KSA 44-518 and KAR 51-9-5

    I would say "going" is mandatory.
    In my book she should keep all appointments.
    She has to go to state her reasons why she's refusing treatments, and make sure it's on record, otherwise it gives the appearance she isn't cooperating.
    In short, she can't refuse if she doesn't go.
    Missing appointments is cause to stop payments, she's "not cooperating" (at least that's their case)
    Tony
    Moderator
    We reserve the right to forbid any user from participating in this forum, and to close any user account, at any time, for any reason. In the interest of the community, this may be done without prior notice or warning.
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  6. #6
    Join Date
    Feb 2009
    Posts
    18

    Default Re: KSA 65-4977 vs KSA 44-510h, KSA 44-515, KSA 44-518 and KAR 51-9-5

    Thanks, Tony - I thought by attending the appointments she was implying that she was submitting to this treatment. Her lawyer wrote a letter to their lawyer stating the reasons why she was frightened of this treatment and I thought the passage in KAR 51-9-5 would protect: "may result in denial or termination of compensation beyond the period of time that the injured worker would have been disabled had the worker sub-
    mitted to medical or surgical treatment, but only
    after a hearing as to the reasonableness of such
    refusal." But guess not. Do you know of a good venue (sp?) editorials -newpapers, anything to let people know how bad our laws are-this has made me so angry that I am seeing a counselor and until I showed her the laws she didn't believe that they could do this to my daughter. I have emailed every state representative and state senator. Several have and answered back saying she needed to have a lawyer-I can't get it through their heads that it's the Kansas laws that are wrong, that allow injured workers to be treated like a criminals. This is so wrong-I just need to let other workers know what they are in for if the have an injury at work-I never knew this stuff until my daughter was injured!!! Thanks again. Momcares

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