New Office of Workers’ Compensation Administration (OWCA) Director and former Chief Workers’ Compensation Judge Sheral Kellar held her first Workers’ Compensation Advisory Council (WCAC) meeting yesterday at the LABI conference center in Baton Rouge. After introducing herself to the assembled stakeholders, Kellar addressed several pending administrative issues, including the Arrant v. Acree Supreme Court decision, the hiring process for a new Medical Director, and CLE credit for pro bono representation.
Arrant v. Acree and 1002 Process Status
The Arrant v. Acree Supreme Court decision, handed down late last month, essentially says that there is a conflict in the rules of prescription, because a claimant has only 15 days to appeal an adverse decision from the Medical Director, while the statute itself allows one to three years for a claimant to seek treatment. The Supreme Court took issue with the implication inherent with these deadlines, as the Director’s rulemaking authority cannot usurp the provisions of a statute.
Kellar addressed confusion about a potential administrative fix for the issue, saying that she is waiting for the First Circuit to render a decision on the matter and then will take rule changes under advisement. “I don’t think we have to do anything at this point, but what we will do is not grant an exceptions of prescription for claimants that file an appeal after the 15 day period,” she said.
Medical Director Hiring Status
The meeting proceeded with a familiar topic – the hiring status of a new Medical Director to handle 1009s. The post has been effectively empty for months, although before leaving the Directorship, former OWCA Director Patrick Robinson had made a selection. In a previous interview with Louisiana Comp Blog, Robinson revealed that he had selected a candidate to start in 2016, however, it appeared that by mid-January the new administration had chosen to start the search from scratch.
Currently, the responsibilities of the Medical Director (MD) are being handled by a group of contractors until a new MD is found. Kellar urged patience and assured the Council and public that the call for applications is closed, several candidates are under review and that “The executive secretary will make an appointment as soon as administratively possible.”
The WCAC members in attendance, primarily Charles Davoli and Denis Juge, in response to comments about the delay and the current backlog of 1009s, suggested that the statute will likely need to be altered in order to allow the MD to keep some of his or her private practice, which would make the position easier to fill in the future. Kellar agreed, asking members to submit their suggestions to her so that the Louisiana Workforce Commision (which currently has no official legislative agenda for the 2016 regular session) could potentially work on a legislative fix.
New Scheduling Order for Motions for Summary Judgment
The meeting then moved to another technical item, with a presentation from Judge Moses-Laramore (District 5) about scheduling motions for summary judgment under the recent changes to the code of civil procedure. Judge Laramore explained, “I’m here to talk about motions for summary judgment, the topic we all know and love – and if they tweak it anymore we’re not going to be able to read it! The biggest problem for workers’ compensation with the change in the statute, has come in the timing – fitting the dates in the calendar that you get when you have your telephone status conference.”
Judge Laramore went on to say that the trial dates established during the teleconference are the greatest issue under the new regulations. “The statute says that the motion and all documents must be filed and served on the opposing party at least 65 days prior to trial,” she said. “So if you’re at your telephone status conference and you’re even thinking that you’re going to file a motion for summary judgment, I would suggest to you that you tell the secretary that you need to pick a trial date far enough out for that requirement.” There are further deadlines as well, such that Judge Laramore urged attorneys for the moving party to arrange to have the documents served themselves (rather than by the office) or risk violating the new rules, which also stipulate that a hearing cannot be held less than 30 days prior to the trial date.
Further, the code governing MSJs used to allow parties to attach exhibits of almost any variety. Now, Judge Laramore explained, the list is finite. “Now, you can only attach to a Motion for Summary Judgment: pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.”
Pro bono CLE and Director’s Advisory Council
To conclude the meeting, Director Kellar spoke about two final administrative issues.
A recent Supreme Court order regarding CLE credit for pro bono representation of indigent or near-indigent clients (see complete order below article text) would allow attorneys to gain one hour of CLE for every three hours of work representing clients who cannot pay them or whose cases would not allow the attorney to collect fees. Asking for the “blessing” of the Council before proceeding with the opportunity, Kellar accepted an unopposed motion to implement the order within the comp system.
Finally, Kellar expressed her intention to appoint a “Director’s Advisory Council” to advise her decision making within the office. The rarely used service essentially allows the Director to have a smaller WCAC at his or her personal service, for insight into rule changes and other regulatory issues. Like the WCAC, the Director’s Advisory Council will be a balanced makeup of stakeholders, five in total. She said that she expects to announce those picks soon.
The next WCAC meeting is scheduled for March 24th.