House and Senate Labor Considers 30-Day Deadline for Medical Director Appeals, Other Bills

The House and Senate Labor Committees considered several workers’ comp bills today including bills on hearing loss, a 30 day deadline to appeal decisions of the Medical Director, and reimbursement for implants.

The first bill, HB362 by Rep. Lyons, would remove the requirement that hearing loss claims under workers’ comp for classified firefighters stem from a single traumatic incident. It would also provide indemnity benefits in addition to the medical benefits already provided to the class.

“Just about everyone suffers some hearing loss as they get older,” Rep. Seabaugh said. “If I had a job that allowed me to blame it on that…I’m having a hard time opening the floodgates to workers’ comp.” Rep. Lyons countered that there are limitations already built into the statute to prevent “opening the floodgates” since a firefighter would have to be on the job for five years and the presumption is rebuttable. Also, an auditory specialist would be able to establish causation. Rep. Lyons also attempted to allay similar fears from Rep. Bagley by saying that “if you don’t give people a remedy they can sue in tort and get damages.”

There was a fiery accusation of lack of candor from Rep. Seabaugh in which he said that the bill was attempting to open up these benefits to all workers not just firefighters. He found that the first page of Lyons’ bill was identical to Rep. Connick’s bill HB790 from last year, which would have opened up these hearing benefits to everyone, not just firefighters. Rep. Lyons eventually voluntarily deferred the bill.

House Labor then considered HB571 by Rep. Seabaugh, which would mandate that the reimbursed amount for implants and grafts be at the manufacturer’s original invoice amount, exclusive of rebates and discounts, plus 20 percent. Rep. Seabaugh explained the impetus for the bill, saying that, “It’s causing a lot of problems for comp carriers because [providers] mark these things up hundreds of times.”

Workers’ comp defense attorney Denis Juge joined Seabaugh in his testimony to explain how implants are invoiced under the Medical Treatment Guidelines and how that changed five years ago with certain provider groups ordering the implants themselves through physician-owned distributors rather than the hospitals ordering the implants. “What we have discovered is that when we get the bills from the physician, the difference between the hospital bill and what we have now presented to us is running between 300 to 600 percent higher,” Juge said.

Several amendments were introduced and accepted that remove the “prudent buyer” language in the bill, at the request of the hospitals. Another amendment was introduced and accepted that adds clarifying language to ensure that the implant is selected by the surgeon.

Assistant Secretary of the Office of Workers’ Compensation Sheral Kellar provided information to the Committee, saying that though she appreciates the issue in the bill, it’s a slippery slope to “chip away” at the authority of the Office to set the medical reimbursement schedule. Kellar said that she would like to see parties work directly with the Office to update the schedule so that it’s not a piecemeal situation. Rep. Crews and Rep. Simon countered that though “we agree we shouldn’t be doing someone’s else’s job” it sometimes falls on the Legislature because of delays. After the Louisiana Hospital Association formerly withdrew its opposition to the bill, it was moved favorably to the floor without objection.

Shortly thereafter, in Senate Labor, SB88 by Senator Luneau was considered, which would impose a 30 day deadline on appeals of a Medical Director decision (LWC Form 1008) from the date of the decision. This idea has been considered several times over the last several Legislative Sessions, but has always stalled. Injured worker representative and attorney with Stanga & Mustian, Trey Mustian, joined Senator Luneau at the table, saying that he believes the lack of a deadline was a simple oversight.

Allen & Gooch attorney and former OWC Director Patrick Robinson as well as LCTA Workers’ Comp Executive VP Troy Prevot testified against the bill, saying that the bill is addressing a “nominal problem” and that most care is approved at the initial Form 1010 level, or if not, the Medical Director’s decision has a 15 day timeline under the administrative rules. Robinson said further that this bill could complicate efforts to fix other parts of the workers’ comp statute.

Senator Barrow countered that she is concerned that after a decade, the comp overhaul is still not operating properly, so perhaps this “baby step” is necessary. “Sometimes I wonder if there really is any intent to fix it,” she said. “If it was getting done step by step, it probably would’ve been fixed by now.” Assistant Secretary Kellar was also present at this meeting, and explained that contrary to the previous testimony, there is no prescriptive period because the Supreme Court ruled (in the Arrant decision) that such a period can only be established by the Legislature and not by rule. The bill was reported favorably with no objection.

 

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