First Circuit Decides Barber Case, Largely in Favor of OWCA

In a seventeen-page opinion rendered October 19th, the First Circuit Court of Appeals decided the Barber case, which has been stewing for several years and sought permanent injunctions against a range of Office of Workers’ Compensation Administration (OWCA) procedures.

Sheral Kellar, OWCA Director, called the decision a “tremendous victory” for stakeholders across the workers’ comp system. “Barber resoundingly validates the 2011 medical treatment guidelines process established to provide injured workers with reasonable and necessary medical treatment in an efficient and timely manner,” she said in a statement to Louisiana Comp Blog. “The state’s efforts to insure that injured workers receive the treatment recommended by their treating physicians has been justified.”

The case centered around five areas in which the plaintiffs argued that workers’ constitutional rights had been violated. The first was with respect to procedural and substantive due process in the system; the second was automatic tacit denial of medical care; the third was variance procedures and how medical evidence is found and graded; fourth was treatment not covered by the Medical Treatment Guidelines; and the fifth was judicial independence and separation of powers.

In the opinion authored by Judge Guidry, the only area where the plaintiffs prevailed was that of judicial independence. Guidry writes in part:

[…] we find that the plaintiffs established by the preponderance of the evidence that defendants violated their due process rights by interfering with the judicial independence of the OWC judges by instructing them how to rule on matters pending before them, i.e. retroactivity of the medical treatment schedule. As such, we find no error in the trial court’s judgment permanently enjoining defendants from allowing anyone to attempt to communicate with OWC judges regarding pending workers’ compensation claims by using any employee of the Louisiana Workforce Commission or the OWC as an intermediary.

This part of the opinion refers to three claims made by the Barber team: the OWC’s process of “evaluating” judges; holding meetings to direct OWC judges on how they should rule in certain situations; and ex parte communications from attorneys.

The meetings and evaluations were deemed to be improper and were traced in the case history to a two year process undertaken by the OWC to create more uniformity between district offices and identify inefficiencies. Former OWC Director Wes Hataway testified that no judges were disciplined based on the evaluations, and that the person responsible for the meetings, Carey Holliday, told Hataway that, “while you cannot tell judges how to rule, you can put them together and let them talk about their decisions, and some conformity will come out of that. As such, judges went from meeting once a year to four times a year.”

At one of these meetings, Hataway stated that the agency’s position was that the Medical Treatment Guidelines apply retroactively, although “each judge was left to make up their own decision.” The defendants were instructed in the decision to take all necessary action to insulate OWC judges from influence stemming from these meetings or future efforts at conformity.

On the other hand, Guidry did not find the ex parte communication piece to be legitimate, since the defendants failed to prove that complaints or communications about workers’ compensation district office judges were forwarded from the OWC to the judges.

Regarding this single piece of the trial court ruling that was upheld, Kellar and Louisiana Workforce Commission Secretary Ava Dejoie said that they are working toward a more unified system. “Under the Edwards’ administration, LWC has taken steps to guarantee a fair process,” Kellar said. “No influence of OWCA judges has occurred or will occur.”

Dejoie acknowledged that the Medical Treatment Guidelines were a significant part of the Barber dispute. “The Barber decision is a win-win for everyone. Now, the real work begins,” she said in a statement to Louisiana Comp Blog. “Assistant Secretary Kellar is enthusiastic to make adjustments to the Guidelines so they are more user friendly and less confusing. Since those adjustments will not be made without the input and constructive suggestions of all members of the workers’ compensation community, we solicit your patience and your cooperation as we go through this process.”

The OWCA released a draft of the updated Chronic Pain Guideline last month, seeking comments from all system stakeholders before a Notice of Intent is published. It is unclear how long the process of updating the Guidelines will continue.

The LWC/OWCA won on the other four issues at hand in the case.

On the tacit denial of medical care as a violation of due process, the court agreed with the defendants, reasoning that “tacit denial provisions are rationally related to the legitimate government interest of protecting injured workers from undergoing medically unnecessary treatment and doctors from rendering services without compensation.”

Testimony concerning what is considered “higher ranking” medical evidence sunk the plaintiffs’ argument that the statutes governing the variance procedure of the Medical Treatment Guidelines is unconstitutionally vague. Former OWC Medical Director Dr. Christopher Rich stated that although “higher ranking” medical literature is not defined anywhere in the statute or associated regulations, “the majority of published medical literature has a specified level of evidence attached to it.”

The plaintiffs made a similar argument to their medical literature claim when they asserted that the part of the Medical Treatment Guidelines addressing non-covered treatment, is also too vague. At issue is a line in the statute that provides for, in the event of non-covered treatment, the Medical Treatment Guidelines to be based on that of another state. The plaintiffs argued that researching all state guidelines is unduly burdensome, however, the court disagreed, stating that “a statute is not vague because it may at times be difficult to prove.”

The final piece of the case, in which the OWCA also prevailed, concerns the LWC Form 1009 process, in which a disputed claim for treatment is sent to the Medical Director for review. The plaintiffs argued that because workers do not have an opportunity to object to information submitted to the Medical Director, among other contentions, that the statute is a violation of due process. The court countered in the opinion, saying that “the review process provides claimants with an opportunity to present their claim for review at multiple levels, including the right to a hearing before an OWC judge, where additional evidence may be submitted […] the risk of erroneous deprivation is low.”

It was not immediately clear whether or not the plaintiffs intend to take any further action.



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