Louisiana Medical Treatment Guidelines UpdateThere are two very recent and significant jurisprudential developments in Louisiana’s Workers’ Compensation law that you should be aware of, specifically regarding the Louisiana Medical Treatment Guidelines (“MTG”).
First, while the MTG became effective on July 13, 2011 and the Louisiana Legislature may have intended for them to apply to all medical disputes regardless of when the work-accident occurred, in reality, the MTG may only apply to medical disputes from work-accidents which occurred after July 13, 2011 since the Louisiana Legislature failed to expressly designate the MTG law as “retroactive,” thus allowing the MTG to apply to work-related accidents prior to July 13, 2011.
The Louisiana First, Second, Third and Fourth Circuit Courts have litigated this issue over the past year, and, to date, not one of them CURRENTLY holds that the MTG should be applied retroactively. Recently, on January 22, 2014, the Second Circuit held that the MTG did not apply retroactively to work accidents occurring before July 13, 2011 as such an application would divest the claimants of their right to medical treatment without the need to prove by clear and convincing evidence the necessity of such treatment when attempting to overturn the Medical Director (as is the new standard under the MTG). Additionally, the Third Circuit, which initially held the MTG to be retroactive, recently overruled its original holding and decided on December 26, 2013 that the MTG cannot be applied to work-accidents occurring prior to July 13, 2011. The Third Circuit also awarded penalties and attorneys’ fees to the claimant for the employers’ failure to authorize medical treatment since the employer’s initial denial was solely based upon a Utilization Review Doctor’s (who did not examine the claimant) opinion.
On January 17, 2014, the Louisiana Supreme Court accepted writs of the Third Circuit case (the case which originally held the MTG to be retroactive, before it was overruled) and the Fourth Circuit case (holding the MTG to not be retroactive). Thus, it appears the Louisiana Supreme Court will soon make a final ruling upon whether the MTG can be applied retroactively to accidents occurring prior to July 13, 2011. We will closely monitor the Louisiana Supreme Court’s decision on this issue. Further, as the applicability of the MTG has been in flux for the last year, a decision by the Louisiana Supreme Court that the MTG do not apply retroactively may spawn additional suits for penalties and attorneys’ fees for employers’ reliance on the MTG (and the Medical Director) to deny medical treatment for work-accidents arising prior to July 13, 2011. Whether that reliance by the employers was arbitrary and capricious will be up to the workers’ compensation judges.
Secondly, as you know, when the Medical Director approves or denies medical treatment pursuant to a LWC Form 1009 Appeal, this decision cannot be overturned by a workers’ compensation judge unless it is proven by clear and convincing evidence that the Medical Director was wrong and that the medical treatment is/or is not medically necessary. This clear and convincing standard puts a very high burden of proof on the party attempting to overturn the Medical Director. Thus, it appeared at first that whenever the Medical Director ruled (which was normally in the employer’s favor) that his decision would rarely, if ever, be overturned by the workers’ compensation judge. However, just recently, for the first time, the First Circuit on December 27, 2013 actually affirmed a workers’ compensation judge’s decision to overrule the Medical Director’s denial of a lumbar MRI. In that case, the Medical Director held that there was insufficient information to justify a lumbar MRI since only one medical record from the requesting physician was attached to the request for the lumbar MRI. The First Circuit held that although only one medical record from the requesting physician was attached, the Medical Director had sufficient medical records from a prior physician which indicated the necessity of follow up imaging studies. Thus, the First Circuit found that the medical records showed by clear and convincing evidence that the Medical Director’s denial was not in accordance with the applicable MTG, thus the workers’ compensation judge’s decision to overrule the Medical Director was correct. Again, this indicates that workers’ compensation judges and appellate courts are not deterred by the high burden of proof imposed by the MTG, and will overturn the Medical Director if they find that his decision was not in accordance with the MTG.