Recent developments in Louisiana law: Louisiana Legislature Enacts Workers’ Compensation Medical Guidelines
By: Natasha Z. Wilson and Teresa Martin
Galloway, Johnson, Tompkins, Burr & Smith
Introduction
Recent revisions to the Workers’ Compensation Act will result in the creation of medical guidelines for physicians to follow. The measure is a result of an extensive effort by the workforce commission and the governor’s Workers’ Compensation Advisory Council, composed of representatives of business, labor, health care providers and workers’ compensation insurers.
Statute Summary
Under La. R.S. 23:1203.1, the Director shall, through the OWCA, promulgate rules in accordance with the Administrative Procedure Act to establish a medical treatment schedule. The rules shall be promulgated no later than January 1, 2010.
The Director will appoint a Medical Advisory Committee with representatives from the respective medical disciplines, including Orthopedic Surgeons, Neurosurgeons, Neurologists, Interventional Pain Management Physicians, Family Practice Physicians, Physical and Occupational Therapists, Chiropractic Association of Louisiana, Psychologist and Psychiatrists. The Act gives the Director discretion to consider additional representatives. Members of the Medical Advisory Committee will serve two year terms. The measure also authorizes the Workers’ Compensation Director to hire a Medical Director and consultants to assist the Medical Advisory Council with the Medical Guidelines.
The Medical Advisory Council shall review current guidelines and accepted medical treatments which meet the criteria set forth in La. R.S. 23:1203.1 (C), (D), and (E). It will provide recommendations to the Director for designation of guidelines to be established and promulgated as the medical treatment schedule.
The current categories of Medical Guidelines include Carpal Tunnel Syndrome (CTS), Cervical Spine Injury, Chronic Pain Disorder, Complex Regional Pain, Syndrome/Reflex, Sympathetic Dystrophy, Low Back Pain Lower Extremity Injury, Shoulder Injury, Thoracic Outlet Syndrome The proposed Medical Guidelines can be found at:
http://www.laworks.net/WorkersComp/OWC_MedicalGuidelines.asp
The Medical Treatment Schedule shall be developed by use of current best evidence in making decisions about the care of individual patients acquired through clinical experience and clinical practice, with the best available external clinical evidence from systematic research. La. R.S. 23:1203.1(C). The medical treatment schedule shall be based on guidelines which shall meet all of the following criteria:
(1) Rely on specified, comprehensive, and ongoing systematic medical literature review.
(2) Contain published criteria for rating studies and for determining the overall strength of the medical evidence, including the size of the sample, whether the authors and researchers had any financial interest in the product or service being studied, the design of the study and identification of any bias, and the statistical significance of the study.
(3) Are current and the most recent version produced, which shall mean that documented evidence can be produced or verified that the guideline was developed, reviewed, or revised within the previous five years.
(4) Are interdisciplinary and address the frequency, duration, intensity, and appropriateness of treatment procedures and modalities for all disciplines commonly performing treatment of employment-related injuries and diseases.
(5) Are, by statute or rule, adopted by any other state regarding medical treatment for workers’ compensation injuries, diseases, or conditions. La. R.S. 23:1203.1 (D)
Medical Treatment not within the schedule is not owed by the employer and denial of treatment will not be considered arbitrary and capricious. There will be a presumption that the medical treatment in the guidelines is correct. Medical treatment that varies from the schedule may be owed when it is demonstrated to the Medical Director. By a preponderance of the scientific medical evidence, that the variance is reasonably required to relieve or cure the injured worker. After a medical provider has submitted to the payor the request for authorization, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises, an aggrieved party shall file an appeal with the medical director within 15 calendar days. The Director shall render a decision as soon as practicable, but no later than 30 days from the date of filing.
After the Medical Director issues his or her decision, any party who disagrees may appeal to the OWCA by filing a 1008. However, the decision of the Medical Director is strong evidence and it will not be overturned unless it can be shown by clear and convincing evidence that the decision was not in accordance with the schedule.
Implications of the Medical Guidelines
Tim Barfield, executive director of the Louisiana Workforce Commission, commented, “We believe the medical guidelines will help injured workers return more quickly to gainful employment, as well as reduce costs for employers and insurers.” The Medical Guidelines will also be beneficial to the employer because they provide a more uniform method of treatment. Specifically, the Guidelines will attempt to curtail pain management treatment. The Guidelines, however, impose a five day requirement for the employer to reasonably controvert claimant’s treatment.