Editor’s welcome:
July 2016
Rabalais Unland, LLP continues to wish everyone a happy summer. The school days are quickly approaching!!
Thank you to all who participated in our summer seminar/classes and our ‘Lunch and Learn’ series. Due to the great success we’ve had, we are extending the availability into the Fall. We offer seminars/classes on Louisiana Workers’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and Jones Act/maritime areas of law. These seminars/classes can be modified to discuss one particular area of employment or a general overview of multiple employment-related matters. Our job is to serve you, so please contact me if interested.
As a reminder: we have moved into our new office. Our new address is:
1404 Greengate Drive
Suite 110
Covington, Louisiana 70433
As always, please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.
Many Thanks, Matthew D. Crumhorn, Esq.
FIRM NEWS
Happy Birthday to: NOBODY!!
Interesting fact, our law firm has 31 employees and July is the only month without any birthdays. (But we still had cake!!)
LOUISIANA WORKERS’ COMP NEWS
The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for August 25, 2016 at 9:30 a.m.
The Louisiana Workforce Commission has amended the filing fees and court costs for the 2016 year. Please refer to the website for information. www.laworks.net
Ms. Linda Smith has been hired as the new Judge at the Office of Workers’ Compensation, District 1W, in Shreveport, Louisiana. Linda Smith was previously a workers’ compensation judge before going into private practice, and has no returned to the bench.
Happy Anniversary to:
Dawn Hughes (9 years) Danielle Gleason (8 years) Blake Alphonso (3 years)
Resources/Links:
www.laworks.net www.dol.gov/owcp/dlhwc/index.htm
QUOTE OF THE MONTH:
“The best way to cheer yourself up is to cheer somebody else up.”
– Mark Twain
In District 03, Lake Charles, Louisiana, claims are now being transferred to the new Judge, Diane Mayo. Several hearings and Trials have been postponed while Judge Mayo generates her docket/calendar.
RECENT LOUISIANA WORKERS’ COMPENSATION CASES
In this month’s newsletter, I want to address an ongoing workers’ compensation issue that has caused a lot of concern among employers and insurers. There have been many questions as to whether an employer/insurer can rely on medical decisions made by its Utilization Review department, when other medical evidence disputes the approval/denial of requested treatment.
La.R.S. 23:1203 provides that the employer/insurer pay for medical benefits that are “reasonable and necessary.” La.R.S. 23:1203.1 sets forth Medical Treatment Guidelines which establish a set of criteria for the consideration of medical treatment based on medical evidence, literature, and clinical experience. The Medical Treatment Guidelines were designed to expedite the approval of treatment.
However, the Medical Treatment Guidelines have caused a number of problems. We have had several cases where a physician has recommend treatment that is denied by Utilization Review Department and litigation ensues as to whether that treatment is reasonable, necessary, and should, ultimately, be approved. Should the employer/insurer be able to rely on the denial by Utilization Review since its decision was based on the application of the Medical Treatment Guidelines? Or should the employer/insurer be forced to override the Utilization Review decision because “other medical evidence” suggests that the treatment recommended is reasonable and necessary, even though it may not fall specifically under the Guidelines. Essentially, how much can we really rely on our Utilization Review department?
This issue has begun to arise in the workers’ compensation courts and the results have been surprising. Our prior newsletters have discussed some of these cases, and it deserves a closer look. Ultimately, the workers’ compensation courts have looked at the facts of each case and often held, depending on the facts, that medical treatment should be approved despite Utilization Review’s denial of same.
Here are four (4) cases that address this issue from three (3) of the Appellate Courts in Louisiana:
Prince v. Superior Energy Services, LLC and Liberty Mutual Ins. Co., 15-728 (La. App. 3 Cir. 12/16/15),
The Third Circuit Court of Appeal reversed the workers’ compensation judge’s opinion in favor of the employer. The employer refused to approve a second MRI scan and a psychological exam to determine if claimant was a proper candidate for a discogram (as required by the Medical Treatment Schedule). The Third Circuit found that greater weight should be afforded to the Medical Treatment Schedule and the established guidelines which set forth a treatment protocol, particularly when faced with the opinions from physicians who do not agree with the Medical Treatment Schedule. The workers’ compensation judge’s decision to afford greater weight to the physicians who did not agree with the Medical Treatment Schedule over the treating physician who did was legal error. Penalties awarded of $2,000 for denial of a second MRI, $2,000 for denial of psychological exam, $2,000 for termination of indemnity benefits, and attorney fees of $3,500 were given, but then reversed by the Third Circuit Court of Appeal.
This is an interesting case by the Third Circuit, when compared to its decision in Ardoin v. Calcasieu Parish School Board, cited below, only three months later.
Ardoin v. Calcasieu Parish School Board, 2016 WL 430366 (La. App. 3rd Cir. 2/3/16)
A workers’ compensation claimant filed a Disputed Claim for Compensation requesting authorization for purchase of an adjustable mattress after suffering from a low back injury that required surgery. The Insurer’s pre-certification process and the Office of Workers’ Compensation Medical Director denied the medical request stating that “such large expenses purchases such as spas, whirlpools, and special mattresses are not necessary to maintain function.” The recently retired Judge Lowery overturned the denial and found that the School Board failed to reasonably controvert the necessity of the adjustable mattress, and ordered the School Board to approve same. Judge Lowery also taxed Dr. Clark Gunderson’s expert witness fee to the School Board and cast the School Board with penalties and attorney fees.
The Third Circuit Court of Appeal affirmed the entire judgment, including penalties and attorney fees. The Third Circuit held that the medical evidence from Dr. Clark Gunderson supports that this particular claimant would have benefitted from the adjustable bed. Moreover, the Third Circuit found that penalties and attorney fees were proper because the School Board relied only on the Medical Treatment Guidelines’ decision, without fully investigating whether the request was reasonable for this particular claimant, and did not produce any medical evidence stating otherwise. The Third Circuit Court of Appeal held that relying solely on the Medical Director is a “departure from the long-standing jurisprudence requiring an employer to rely on competent medical advice when the decision to deny medical treatment is made.”
Friedman v. Ecolab, Inc., 197 So.3d 491 (La. App. 2 Cir. 2/3/16)
A workers’ compensation claimant filed a disputed claim for medical treatment after a low back injury. The medical director of the workers’ compensation administration denied the surgery request on the basis that the claimant did not produce sufficient documentation to consider the surgery. Claimant sought review from workers’ compensation Judge Brenda Irving. Judge Irving reversed the decision and ordered the employer to cover the cost of surgery. Judge Irving also awarded $2,000 in penalties and $4,000 in attorney fees to the claimant. The Employer appealed to the Second Circuit Court of Appeal.
The Second Circuit Court of Appeal affirmed the decision and awarded an additional $3,000 in attorney fees to the claimant for having to defend his position on appeal. The Second Circuit reviewed the medical records provided and opined that the claimant proved, by clear and convincing evidence, that the medical director’s decision was not in accordance with the Medical Treatment Guidelines as set forth in La.R.S. 23:1203.1. The Appellate Court affirmed the penalty and attorney fee award by holding that the lower court has great discretion as to whether to allow penalties and attorney fees, and the appellate court refused to disturb that award.
This ruling is even more concerning considering the OWC Medical Director initially denied the procedure. The Courts took the treatment decisions out of the hands of a medical expert, who was appointed by the Office of Workers’ Compensation Administration.
Debbie Motichek v. State of Louisiana through the Department of Health and Hospitals, No.2016 CW 0330 (La. App. 1 Cir. 06/27/16)
The First Circuit Court of Appeal granted a Supervisory Writ to review Judge Gwendolyn Thompson’s ruling that the claimant’s LWC-WC-1008/Disputed Claim for Compensation was filed prematurely. The claimant filed his Disputed Claim for Compensation seeking authorization of prescription medication. The employer argued that requests for prescription medication must be submitted in a LWC-WC-1010/Request for Authorization and considered in accordance with the Medical Treatment Guidelines. Judge Thompson agreed and held that until the claimant follows the Medical Treatment Guidelines as set forth in La.R.S. 23:1203.1, his LWC-WC-1008/Disputed Claim for Compensation was premature.
The First Circuit Court of Appeal reversed and ruled in favor of the claimant. The First Circuit Court of Appeal reasoned that prescription medication is not subject to the approval and appeal process authorized by La.R.S. 23:1203.1. Therefore, claimant’s LWC-WC-1008/Disputed Claim for Compensation is not premature. The Courts again took the medical decision-making power out of the hands of experts, and placed it within the Court’s authority.
So what does this mean? The Appellate Courts will not automatically uphold an employer/carrier’s denial of medical treatment, when such denial is based on Utilization Review alone. Each set of facts must be scrutinized and, in some cases, Utilization Review should be overridden when “other medical evidence” supports the approval of treatment.