By: Jacqueline G. Griffith

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 situation.

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 and capricious.

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.