The 19th JDC constitutionality suit that has recently rocked Louisiana’s workers’ compensation system has been discussed at all levels of industry and labor since it came out at the end of last month. However, the impetus behind the suit and the drivers of it have not been a focus of the debate. Louisiana Comp Blog sat down with Janice Barber and Jennifer Barber Valois, the claimant attorneys named as plaintiffs in the case against the Louisiana Workforce Commission and associated parties dealing with the medical review (1009) process, to get their forthright perspective on why they took on the agency.
Janice Barber and Jennifer Barber Valois are a mother-daughter team working under the auspices of their own workers’ comp exclusive Barber Law Firm in Lafayette. Although both note that the case has been a whirlwind, they contest the notion from certain sides of the argument that the 19th JDC decision is an aberration. In fact, Valois insists that she and others warned the LWC of the potential constitutional issues inherent in the utilization review rules and in Medical Director Christopher Rich’s position from the beginning.
Valois: “This is going to be a landmine.”
“There were drafts of the UR rules circulated and [Louisiana Workers’ Advocates] responded with the opinion that the problem wasn’t so much the Medical Treatment Guidelines but that the actual rules the agency put in place had some serious problems,” Valois explained. “We said upfront before [these rules] were put into place – this is going to be a landmine. There were some real concerns about evidence issues. That was back in the Fall of 2012 after the Guidelines went into effect [in July 2011.]”
As time went on and the Office of Workers’ Compensation and the system at large adjusted to the new processes, Valois started to become suspicious. “I kept going to [Workers’ Compensation Advisory Council] meetings and hearing that the system was working and that the numbers were great, but I wasn’t seeing that in my office,” she said. “Eventually I got tired of hearing that and I sent a public records request. That’s when I realized, it actually isn’t working for everyone, [Dr. Rich] is only approving fourteen percent.”
Valois and Barber proceeded to contact the OWC with their concerns about due process issues with the 1009s (one of the key bases of the constitutionality suit they eventually filed) and the agency agreed to informally meet, however, Valois explained that she felt the tone was different and “defensive” rather than informal and geared toward consensus-building. “We realized after that meeting [in January 2013] that we have a problem and that the agency wasn’t willing to fix it, so we filed our petition in March. Before January though, I felt like we were working toward a consensus, it was troubling. We were on board with the Guidelines, but the dispute resolution process has to pass Constitutional muster – and it doesn’t,” she said.
Tacit Denials Spark Due Process Debate
Aside from confirming their general support of the Medical Treatment Guidelines, Barber and Valois indicated that their argument surrounding tacit denials has also been misconstrued. “The statute says that reasonable and necessary medical is due,” Valois said. “The agency turned around and made a rule that said if the insurance company doesn’t respond in five days then the treatment is denied, and that’s a legal denial. What we argued in this case is that the agency doesn’t have the authority to overstep the statute that way – they can’t, even with their broad rule-making authority, directly contradict the Legislature. When the Legislature said you owe it, that doesn’t mean you owe it unless you don’t answer,” she explained.
Barber added onto the tacit denial point by praising the adjusters that get the approvals out, but she said those efficient adjusters do not eliminate the problem for the system as a whole. “I applaud the adjusters that get their approvals and denials out in the five days,” Barber said, “But as the law is written, there is no incentive to do anything, because you can just leave it alone and it’s completely denied, which then pushes it to the Medical Director and then the burden shifts.”
“Under the law, if the injured worker doesn’t receive the denial because no one took any action on it, then they don’t receive the notice, so they don’t even know that the timeline is running [to file a 1009] – that’s clearly a due process violation,” Valois added.
In response to the counter-argument that a tacit approval system would create a situation where injured workers would undergo expensive treatments that might eventually be deemed non-compensable, Valois explained that such a reversal was never her suggestion: “We suggested four years ago that the best way to do it would be to say, ‘Adjuster: if you don’t agree with the treating physician, it’s your burden to present evidence to the Medical Director.’ I still think that would be fair. Right now the whole burden is on the claimant and only about 20 percent of claimants are represented.”
Valois and Barber proceeded to cite another concern – the cost-shifting element with such “tacit denial” injuries. “When that treatment gets denied and the worker didn’t get notice and didn’t know what to do because they weren’t represented – that injury isn’t going away. They’re going to seek out Medicaid and Medicare and go to the ER,” Barber warned.
Barber: Challenge was a group effort but, “We were the only members willing to put our names on it.”
The apparent conflict that the 19th JDC decision has generated for the Barber/Valois team, and the workers’ comp community at large, was a constant refrain in their description of the case and in their recounting of the events leading up to it, but ultimately, the pair said it has been worth the strife.
“It was a huge and difficult decision to go to this level,” Barber said, “But it’s important for the public to know that this isn’t about Jan Barber and Jennifer Barber Valois deciding to sue the state. LWA as a group decided to file this challenge and we were the only members who were willing to put our names on it.”
Further, both Barber and Valois voiced their desire to speak out about the case in terms of their technical bases, rather than as a symbolic stand against the state. The transcripts of the hearing from March 17th and 18th, 2015, reveal those five bases, which Barber and Valois believe to be “very narrow.”
The “Five Areas” of Argument
As it is written in the transcripts, plaintiffs’ counsel, J. Arthur “Art” Smith explained those five points to court one by one: “We’re going to focus on five areas today where we think there are serious constitutional problems. The first is with respect to procedural and substantive due process in the system; the second is with regard to what is called an automatic tacit denial of medical care; the third is [..] variances; fourth is treatment not covered by the guidelines; and the fifth is judicial independence and separation of powers.”
With regards to the “five areas” as they were presented, Barber and Valois contest the notion expressed by some of the comp community that the decision will be quickly overturned. “[The agency has] created a hybrid judge in the Medical Director position in which he issues decisions which go to what is called an ‘appeal,’ but he doesn’t know what the legal standards he’s supposed to meet actually mean, because he’s a doctor, not a lawyer – that’s a problem. This and everything else made me think from the very beginning that we have a strong case and that this isn’t going away,” Barber said.
And as for comparisons with other states in terms of medical spending, Valois warns against unilaterally labelling individual systems as high cost or low cost: “Unlike Texas, unlike Arkansas, unlike Washington state – workers’ comp in Louisiana is a private right of action between two private parties. Here in Louisiana, we’re blessed to have a system where our workers actually have full rights to due process in the comp scheme. Effectively, they have more rights. We’ve been saying this and I think people are finally starting to get it.”
“Those [state by state cost] comparisons are not helpful,” Barber added. “You can make numbers do whatever you want, but state-to-state, you’re comparing apples to beef, not even apples to oranges. I never expected to lose this case on the law. No matter who the judge is, if the judge applied the law, there’s no way we could lose.”
Editor’s Note: Janice Barber graduated from LSU Paul M. Hebert Law Center and began practicing workers’ comp law almost immediately at The Glenn Armentor Law Corporation in Lafayette where her sole responsibility was to start a workers’ comp section. After nine years there, she opened the Barber Law Firm and continued to exclusively practice workers’ comp.
Jennifer Barber Valois graduated from Mercer University Walter F. George School of Law in 2002. She took the bar examination and worked in the states of South Carolina, Florida and Virginia before settling into aviation litigation defense at a large firm based in Washington, D.C. Valois returned to Lafayette in 2007 and joined the Barber Law Firm shortly thereafter.