Plaintiffs, OWCA, and Local Voices Respond to Latest Decision in Barber Case

UPDATE March 10th, 2017:

Judge Donald Johnson of the 19th JDC in East Baton Rouge Parish granted the Louisiana Workforce Commission’s Motion for Suspensive Appeal of his judgment enjoining the Medical Treatment Guidelines utilization review procedures, among other rules and pieces of the statute. Office of Workers’ Compensation Director Sheral Kellar confirmed that the suspensive appeal was signed on March 9th, 2017. In effect, this means that the 1008 and 1009 processes, as well as the Medical Treatment Guidelines and the variance process will function as usual for now.

 

The most recent decision in Barber v. Louisiana Workforce Commission (the constitutionality suit brought by a group of injured workers’ representatives and doctors against the state) issued a permanent injunction halting parts of the utilization review process under the Louisiana Medical Treatment Guidelines.

Judge Donald R. Johnson of the 19th JDC in East Baton Rouge Parish signed the judgement dated March 2nd and did not offer additional reasons for his ruling, presumably because he explained his view of the case in an earlier judgement from 2015 in which he reached the same conclusions.

 

 

Louisiana Comp Blog reached out to the Office of Workers’ Compensation Administration, the plaintiffs and other local comp experts to get their take on the latest development in this ongoing story:

 

Sheral Kellar, Esq. | Director, Office of Workers’ Compensation Administration, formerly Chief Administrative Law Judge OWCA

“The LWC and Office of Workers’ Compensation are disappointed with the district court ruling regarding the Louisiana Medical Treatment Guidelines. We have consulted with counsel and will be immediately filing a suspensive appeal. The Office of Workers’ Compensation is fully committed to the delivery of timely medical care, services and treatment to injured workers.  While the effects of this judgment are suspended, we will continue to process requests for treatment as quickly as possible so that Louisiana citizens can return to work as soon as they are able. Meanwhile, the public hearing regarding the Notice of Intent to revise Rule 2715 will be held as previously scheduled.”

 

 

Jennifer Barber Valois, Esq. | Plaintiff, Barber v. LWC

“We are very pleased with the Court’s ruling. Injured workers’ rights are protected by the Louisiana Constitution. It is critical that we observe and protect those rights as the statutes are implemented.”

 

 

 

 

Wayne Fontana, Esq. | Roedel Parsons

“What is abundantly clear is that the remaining plaintiffs and their attorneys seek to disregard the clearly expressed will of the Legislature. They wish to return to the days when reasonable and necessary medical care was determined solely by the singular opinion of one treating physician […] What has perhaps been forgotten is that [the Medical Treatment Guidelines] were established by a group of experienced health care providers, including representatives of the very same physicians who now question these Guidelines. Neither employers nor payors played any role in establishing those Guidelines.

Perhaps the most distressing suggestion from the original petition and this lower court ruling is the challenge to the legislature’s authority to establish the rights and remedies of its citizens.  The ruling doesn’t even mention a constitutional problem or defect.”

 

 

Trey Mustian, Esq. | Stanga and Mustian, President, Louisiana Workers’ Advocates

“In my view, this decision is a huge victory for injured workers in Louisiana. The medical treatment guidelines process has not been working for injured workers and their treating physicians. It has only served to drag out and deny treatment and to deprive injured workers of due process.”

 

 

 

Nathan Schrantz Esq. | Nathan Schrantz LLC

“I believe this will lead to the filing of more 1008’s (Disputed Claims for Compensation) in the near term. Judge Johnson’s decision appears to have enjoined the entire 1009 process. As a result, if treatment is denied by an employer/insurer, the recourse for a claimant is to file a 1008 immediately. The OWC has been trying to address issues with the Medical Guidelines by seeking input from the business community and workers’ compensation practitioners. I assume the ultimate goal would be for the OWC to implement change through the legislative process.”

 

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In specific terms, this latest ruling (download the full text at the bottom of this page) provides for the following:

 

  • The LWC and OWCA are enjoined from enforcing the following statutory provisions in Title 40:
    • 2715(E)(2) and 2715(H)
    • 2715 (L)

 

  • Further, the permanent injunction against the defendants extends to “the statutes and regulations which establish the system for the administrative determinations of form 1009 claims for medical benefits for injured workers by a medical director employed by the Office of Workers’ Compensation of the Louisiana Workforce Commission and administrative appeals therefrom to Office of Workers’ Compensation judges.”
    • Those statutes and regulations are: La. R.S.23:1203.1(J)(1), (K), (M);
    • La. R.S.23:1314 (D)-(E)(1) inclusive;
    • 40 LAC 2715(B)(3), (d), (e), (f); and
    • 40 LAC 2715(E)(2), (F), (H), (I), (J), (K), and (L).

 

Download the entire decision: Barber v LWC_Signed Judgment_Permanent Injunction 03.02.17

 

 

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