Significant Louisiana Jurisprudential Development Regarding the Requirement of Utilization Review Doctors to be Licensed to Practice Medicine in Louisiana
Recently, on March 11, 2015, the Louisiana Fifth Circuit Court of Appeal in Wilson v. Broadmoor, LLC, 14-694 (La.App. 5 Cir. 3/11/15); 2015 WL 1088465, affirmed the workers’ compensation judge’s (“WCJ”) exclusion of an employer’s utilization review report due to the fact that the utilization review doctor was not licensed to practice medicine in Louisiana. The Fifth Circuit also affirmed the WCJ’s reversal of the Louisiana Medical Director’s denial of claimant’s request for treatment, finding that the Medical Director’s denial was clearly and convincingly wrong. This ruling illustrates that WCJs will be more likely to overturn the Medical Director’s decisions based upon creative and technical grounds even considering the high burden of proof that the WCJ must meet to do so.
In Wilson, the claimant injured his neck, shoulder and back in a work-related accident on January 6, 2013. The claimant was eventually referred to a neurosurgeon for an evaluation of surgical options to relieve alleged radiating pain. Thereafter, he also complained to his orthopedist regarding radiating pain to his legs. In February of 2014, in conjunction with the Louisiana Medical Treatment Guidelines, the claimant’s neurosurgeon issued a LWC Form 1010 requesting authorization for a back surgery to alleviate the claimant’s alleged radicular pain. The employer obtained a utilization review opinion from an out of state doctor and denied claimant’s request on the basis that it failed to meet the Medical Treatment Guidelines with “clear objective clinical evidence of radiculopathy.”
The claimant sought review of this denial by issuing a LWC Form 1009 to the Louisiana Medical Director. The Medical Director upheld the employer’s denial of surgery, finding that “clinical indications have not been met” because “[s]ubmitted records do not document radiculopathy and radiculitis on exam and no correlating imaging study or electro-diagnostic study reports are submitted.”
The claimant then filed a LWC Form 1008 Disputed Claim for Compensation seeking authorization from the WCJ for the surgical procedure. Significantly, the WCJ found that solely because the employer’s utilization review doctor was not licensed to practice medicine in Louisiana, his report was not competent evidence to support the employer’s denial of the surgery request. The WCJ also reversed the Medical Director’s denial and approved the surgery finding that the medical evidence submitted by the claimant constituted clear and convincing evidence that the Medical Director’s denial was manifestly erroneous.
The employer appealed the WCJ’s decision regarding the exclusion of the doctor’s report and approval of the surgery. The Fifth Circuit cited La. R.S. 37:1271, entitled “License to Practice Medicine or Telemedicine Required,” which sets forth:
A. No person shall practice medicine as defined herein until he possesses a duly recorded license issued under this Part or a permit or registration as provided for herein.
B. (1) No person shall practice or attempt to practice medicine across state lines without first complying with the provisions of this Part and without being a holder of either an unrestricted license to practice medicine in Louisiana or a telemedicine license entitling him to practice medicine pursuant to R.S. 37:1276.1.
The Fifth Circuit also referred to the utilization review rules, which provide that “physicians must review all questionable cases and make the carrier/self-insured employer decisions on all denials of certifications.”
Reading these two provisions together, the Fifth Circuit held that a reviewing physician must be duly licensed in Louisiana for the physician’s findings to be received as competent evidence.
The Fifth Circuit also held that the WCJ applied the correct standard of review of the Medical Director’s decision, i.e. it must be shown by clear and convincing evidence that the decision of the Medical Director was not in accordance with the Medical Treatment Guidelines. The Court affirmed the WCJ’s reversal of the Medical Director’s denial of the surgery as the Director was presented with medical records from two physicians noting radicular complaints as well as an MRI evidencing stenosis and a herniation of the claimant’s spine. Under the Medical Treatment Guidelines, for the particular surgery recommended in Wilson, the surgical indications include “primary radicular symptoms” and “radiculopathy on exam.” Thus, the Fifth Circuit held that the surgery was reasonably necessary under the Medical Treatment Guidelines and the Medical Director’s denial was clearly and convincingly wrong.
This case has significant repercussions for employers/insurance carriers that use out-of-state utilization review companies and non-Louisiana licensed physicians to evaluate LWC 1010 Forms regarding claimants’ requests for medical treatment. If the physicians reviewing the 1010 Form and medical records are not licensed to practice medicine in Louisiana, their reports and findings may be deemed incompetent evidence and not considered under this Wilson decision, leaving the employer with no evidence to support their decision on the 1010 Form.
This ruling creates more questions than answers and may lead to increased litigation on utilization review doctor issues. As this currently appears to be the only Louisiana appellate court case on this matter, out of an abundance of caution, it would be wise to consider requesting the utilization review providers to only use doctors licensed in Louisiana to perform utilization reviews.