Comp Attorneys React to 19th JDC Decision Declaring MTG Process Unconstitutional

A recent decision out of the 19th Judicial District Court in East Baton Rouge declaring parts of the OWCA’s statutory and administrative scheme unconstitutional could have significant implications for the future of the Louisiana Medical Treatment Guidelines (MTGs) passed in 2011 and the medical review process for disputed treatment.

In a two page document dated June 24th, Judge Donald R. Johnson indicated that he was granting injunctive relief to some of the plaintiffs and declaring the medical review process under Louisiana’s workers’ comp statute to be unconstitutional. A full decision is pending. Though he dismissed the doctors and the attorneys named as plaintiffs in the suit for lacking cause of action, Judge Johnson granted the requested relief on three different issues raised by the plaintiffs: automatic/”tacit” denials of medical treatment, variances from the Medical Treatment Guidelines, and violations of procedural and substantive due process. The ruling goes on to state that the workers’ compensation system also “unconstitutionally violates the separation of powers doctrine” with regards to judicial independence in the current administrative scheme.

In response to the case, (Janice Hebert Barber, et al. v. Louisiana Workforce Commission et al.) the LWC released a statement which explains in part: “The LWC and Office of Workers’ Compensation is aware of a district court ruling enjoining a portion of the workers’ compensation medical review process. We’re obviously disappointed with the decision […] The Louisiana Supreme Court has rejected challenges to the guidelines and approved the process. We are consulting with counsel to identify options for sustaining reforms that have been a big win for injured workers and for the employers who pay for the system. In the meantime, our customers will experience no change in service pending a written judgment clarifying the scope of the court’s decision.”

Judge Donald Johnson

Judge Donald Johnson, 19th JDC (East Baton Rouge)

In a conversation with Louisiana Comp Blog, OWC director Patrick Robinson (who is not named as a defendant in the suit) indicated that much of the agency’s future action on the issue remains hazy without a full judgment. “The ruling is somewhat broad so we don’t really know what the next step will be,” Robinson said. “Once the court signs a written judgment clarifying the scope of the decision, we will be in a better position to assess an appropriate course of action.”

Like Robinson, Wade Langlois, an attorney with Gaudry, Ranson, Higgins & Gremillion in Gretna, suggests that there are as many questions as answers in the current available information, but he is optimistic that the final determination will side with the system as is. “[This] is potentially a big setback because the decision gives no insight into the Judge’s thinking,” Langlois explained. “These procedures and guidelines [addressed in the ruling] were put in place with input from all sides to benefit employees and employers. I expect the decision will move quickly to the Supreme Court, and hopefully, the court will act quickly. I fully expect that the Supreme Court will reverse the Judgment after review.”

For his part, Bobby Truitt, who represents both injured workers and insurers in his practice, also stated that the Supreme Court will ultimately settle the questions raised by the decision, but cautioned that the recent reforms have not been as successful as many had hoped. Truitt explained, “I would think that parts of this ruling will be overturned. Specifically, the administrative court system has been held to be constitutional before. However, I would think that the other aspects of the ruling are on more solid ground in terms of deprivation of rights of the injured worker.”

Kirk Landry, with Keogh, Cox & Wilson in Baton Rouge, echoed Langlois’ reservations about a lack of insight, but also cautioned that the ruling is perhaps more expansive than some have recognized. “The question is how broad the judgment will be,” Landry said. “Some suggest that the ruling is limited to issues involving the Medical Treatment Guidelines, but the relief sought by the plaintiffs was much broader than that and the ruling granted much of what they asked for.”

Wayne Fontana of Roedel Parsons in New Orleans, also warned of the large potential scope of the ruling, citing the original complaint, but his greatest qualm was the supposed disregard of the compromise involved in the crafting of the Guidelines. Fontana explained his perception that the ruling “overlooks the fact that, at the express direction of the Legislature, the Medical Treatment Guidelines were established by a group of experienced health care providers. It is not like these guidelines were selected or put together by employers or payers,” he said. “The monumental stretch of this ruling in finding that the Legislature’s efforts to deliver quality medical care on an expedited basis to injured workers is somehow unconstitutional is, at best, bewildering.”

Meanwhile, Steve Wanko, claimant attorney with his own Wanko Law Firm and recently elected President of Louisiana Workers’ Advocates, applauded the ruling and encouraged reform of the MTGs in practice. “What a great and much needed victory in the ongoing war over the depletion of injured workers’ rights in Louisiana,” he said. “While most have not been averse to the Medical Treatment Guidelines in general, clearly the application of [them] has prevented prompt and necessary medical care for injured workers since the implementation.”

Wanko, who was not directly involved with the case, explained further that the litigation was the result of “many complaints made but ignored” by the OWCA. “The system is broken and it needs to be fixed,” he said.

 

Read the document from Judge Johnson in full below, plus the original court documents:

19th JDC MTG ruling 6/24/15

Proposed Findings of Fact & Conclusions of Law_ as filed

 

Image Credit: Robert Rhoden, NOLA.com | The Times-Picayune

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