Tiebreaker Medical Examinations - Basic Facts
Tiebreaker examinations are ordered at the discretion of the department
The department will only appoint a tiebreaker doctor if an insurer concedes liability for the injury, but suspends an injured worker's temporary disability benefits or refuses to pay for further medical treatment because two or more doctors disagree about:
- The extent of an injured employee's temporary disability;
- The end of an injured employee's healing period;
- An employee's ability to return to work at suitable available employment; or
- The necessity for further treatment or a particular type of treatment.
Anyone may request a tiebreaker examination
Anyone may request that the department order a tiebreaker exam--an injured employee, a family member or friend, an attorney or physician, an insurer or employer. However, generally, the department will not order a tiebreaker exam without the injured employee's consent.
The insurer pays for the tiebreaker exam
By law, the employer or its insurance carrier, or both, must pay for the examination and opinion. The injured employee is responsible for all travel expenses going to and from the exam unless the insurer volunteers to pay some or all of those costs.
The appointment of a tiebreaker doctor may affect an employees benefits
It may result in the immediate, retroactive restoration of temporary disability benefits--even before the exam takes place. However, if the employee fails to cooperate in scheduling a timely exam or fails to appear at the exam without a compelling reason, the department will immediately authorize the insurer or employer to again suspend temporary disability payments.
If the employee has not returned to work at the time the department appoints a tiebreaker doctor, it will also direct the insurer to pay to the employee all temporary disability benefits which have accrued since the date on which the insurer suspended those payments and to continue paying those temporary disability benefits until the department receives the tiebreaker doctor's opinion.
The department will treat any benefits paid after the healing date set by the tiebreaker doctor as an "overpayment." Insurers may take credit for overpayments by using them to offset other benefit payments which might be owed (for example, permanent disability benefits) as a result of the injury. Although the department has no authority to order reimbursement, insurers sometimes initiate collection actions through the court system to recover overpayments.
The appointment of a tiebreaker doctor will not limit either party's right to a hearing
The tiebreaker opinion is likely to carry significant weight in any further litigation. However, by consenting to a tiebreaker exam, the employee does not give up the right to a formal hearing on the issues resolved by the tiebreaker doctor's opinion. In fact, either party may pursue a hearing. Similarly, the tiebreaker exam does not prevent the parties from settling any issue that is the subject of a tiebreaker exam by compromise or stipulation at any time.
The tiebreaker doctor schedules and conducts exam and sends report to WCD
Generally, when the department appoints the tiebreaker doctor, the doctor will:
- Contact the injured employee within 24 hours to schedule an exam;
- Conduct the exam itself as soon as possible, ideally within 7 days;
- Issue an opinion to the department within 30 days.
Although the department discourages additional testing, the tiebreaker doctor may order further tests. The doctor will also review medical records and reports, job descriptions, surveillance videos and any other material submitted by the department, the employee, the employer or the insurer which the doctor believes is relevant and helpful in reaching a fully informed opinion.
There are limitations on consultation or contact with the tiebreaker doctor
The employee, insurer or employer may provide the tiebreaker doctor with copies of any material that was previously provided to a treating or examining doctor. Beyond that, the employee, employer, insurer, their representatives or others acting on their behalf may not initiate contact with the tiebreaker doctor.
However, the tiebreaker doctor may request additional information from the department, the employee, the employer, the insurer, or their authorized agents or representatives at any time and in any manner. The tiebreaker doctor may also consult freely with other health care specialists who are not parties to the dispute. However, the tiebreaker doctor may not treat the injured employee for the injury which is the subject of the dispute (other than in an emergency situation), nor may the doctor assist the employee, employer or insurer in any departmental proceedings related to this injury.
The Workers Compensation Division selects the tiebreaker doctor
The department has designated the University of Wisconsin Medical School's Department of Orthopedics and Rehabilitation as the preferred provider for tiebreaker examinations. However, tiebreakers may be arranged with other specialists at other facilities at the discretion of the department.