If employers have recently struggled enough with planning for their obligations
to provide healthcare under the Obama regime, their headaches are only
just beginning. The Louisiana legislature has now imposed additional requirements
upon employers for the provision of Worker’s Compensation benefits
to their employees.
On January 1, 2011, the procedure for medical treatment claims under the
Louisiana workers compensation law will be changed quite substantially.
The statute making those changes is R.S.23:1203.1.
One of the substantial changes enacted by the law is the setting of a rather
short deadline for action by employers, insurers, and their agents when
they receive a request to pay medical bills from a medical care provider.
The employer in the words of the statute “shall” notify the
medical provider of his response to the request within 5 business days.
The statute does not provide a specific penalty for failure to act upon
the request within the 5 business days, but there is a very distinct possibility
that failure to deny it will result will result in a presumption that
it has been accepted by the employer.
This deadline will have significant effects upon an employer who wants
to defend a comp claim made by an employee. One of the most obvious effects
is that there will not be sufficient time to obtain a second medical opinion,
much less ask for a state appointed independent medical examination. Therefore,
the employer, insurer, or agent should probably request a second medical
opinion sometime when it becomes obvious that the claim will be disputed.
For example, in the case of a herniated disk claim, it probably would
be appropriate to ask for a second opinion when a request for an MRI or
other diagnostic test is received or when it becomes obvious that is where
the plaintiff’s doctor is headed with this treatment.
The new law also introduces guidelines, (which it refers to as a “schedule”)
to determine whether the requested treatment is appropriate. The purpose
behind this “schedule” is to introduce an element of objectivity
and standardization in determining whether or not certain medical procedures
are reasonable and necessary. Previously, this determination has been
a more subjective test The law also establishes several committees which
will promulgate standards for determining whether or not medical procedures
meet certain criteria set forth in subsections C and D of statute. Those
include review of the medical literature, and the determination of what
standards should be applied in determining what treatment is best in each
Those guidelines will be finally promulgated on December 20, 2010. The
proposed guidelines can be found at the following website: http://www.laworks.net/WorkersComp/OWC_MedicalGuidelines.asp
After December 20, 2010, the final guidelines will be found at the same
website. They are fairly detailed. For example the guidelines for treatment
of the cervical spine run 64 pages. However, there does appear to be an
element of subjectivity. For example imaging of the cervical spine is
indicated by number of factors such as a history of significant trauma
especially high-impact motor vehicle accident, rollover, ejection, bicycle,
or recreational vehicle collision or fall from height of greater than
1 m; age over 65; suspicion of fracture dislocation, instability, or neurological
deficit-Quebec Classification Grade III and IV; unexplained or persistent
cervical pain for at least six weeks or pain that is worse with rest;
and localized pain, fever, constitutional symptoms, suspected tumor, history
of cancer or suspected systematic illness. Although there are elements
that are not subjective-e.g. age over 65, there are elements that are
subjective, particularly the unexplained or persistent cervical pain.
The question that probably will have to be resolved with time and litigation
will be how important each factor is and whether or not the absence of
more than one factor substantially reduces the necessity for the treatment.
The big question is whether the employer’s denial of medical treatment
that is not included within the schedule would not be considered arbitrary
As to the medical care provider’s remedy if he/she is not satisfied
with the decision denying treatment, then the statute provides the right
to appeal to the medical director of the Louisiana office of Worker’s
Compensation on a form promulgated by the director. That appeal must be
filed within 15 calendar days. The medical director then must make the
decision whether or not to allow the treatment even if it is not within
the standards set forth in the regulation based on “a preponderance
of the scientific and medical evidence that a variance from the medical
treatment schedule is reasonably required to cure or relieve the injured
worker”. That decision must be made within 30 days. Once the decision
is made, the aggrieved party may appeal it to the Office of Worker’s
Compensation by filing a form 1008. However the decision of the medical
director can only be overturned by a showing through “clear and
convincing evidence” that it did not meet the criteria established
by the statute.
In conclusion, this new procedure will be helpful in introducing more objective
standards for medical treatment, but at the same time will place greater
demands upon worker’s compensation adjusters to meet the time criteria
for the processing medial claims.
If you would like to have a copy of the statute, please contact the authors
of this article, Jacqueline Griffith or Carl Aspelund.