Last week, the Louisiana Association of Business and Industry (LABI) held its annual workers’ comp seminar at L’Auberge Casino in Baton Rouge. Presenters addressed a wide variety of industry issues, including deposition strategies, functional capacity evaluations and physical therapy. However, opioids and policy controls surrounding them remained a major focus of the event, with a stirring speech from state Representative Chris Broadwater (R – Hammond).
Broadwater: Shameful to do nothing on opioids
The opioid epidemic, a national issue as well as a workers’ comp issue, has been in the news constantly for months as frightening statistics continue to wash over the populace. More Americans now die of overdoses than in car crashes, and 777 Louisianans died in 2014 alone.
Representative Broadwater, who also served as Director of the Office of Workers’ Compensation and is an attorney representing both employers/insurers and claimants, came out swinging, linking Louisiana’s length of disability in workers’ comp to the prevalence of opioids.
“Twenty-seven weeks,” he said, comparing Louisiana’s disability statistics to much lower lengths of time in Texas, Mississippi, Alabama and Arkansas. “It is unconscionable that in the state of Louisiana someone who gets temporarily totally disabled is out of work for six months.”
Noting that the likelihood of returning to work in full capacity after six months is only 50 percent, Broadwater doubled down on local failures. “Whatever your role in the comp system, you are partially at fault for that number.”
Broadwater offered up his own pharmacy formulary bill (which he voluntarily deferred last Regular Session in order to give the relevant regulatory bodies more time to reach consensus) as a starting point to get more suggestions from the industry, but he warned that inaction would not be an option.
Broadwater’s bill last session (HB 725) sought to impose a closed pharmacy formulary, which depends on a system of “Y” and “N” drugs, however, he said that he is open to suggestions and would prefer a condition specific formulary, which ties automatic approval for prescription drugs to certain conditions rather than a general list. “We ought to aspire to condition-specific, that’s the cream of the crop,” he said. Broadwater also emphasized that the formulary should not be based purely on cost or be rigidly applied, plus, legacy claims would have to operate under a different standard to avoid cutting injured workers off necessary medications.
“The CDC is calling this the worst drug crisis in American history,” he said. “This is the CDC – not a defense attorney […] I would prefer consensus, but if no action is taken, I plan to file another formulary bill, and this time it will move.”
Hubachek: Better claim notes, better depositions
Earlier in the seminar, local attorney Greg Hubachek, who represents injured workers with Metairie-based Workers’ Compensation LLC, spoke about “surviving depositions” from his perspective. Joking about lion taming given the largely defense-oriented audience, Hubachek quickly got serious, emphasizing the importance of claim notes to avoid being slapped with penalties and attorney’s fees.
“You want to testify on the things you can support based on claim notes versus trying to explain things after the fact,” he said. “You’re not expected to be a crystal ball […] it’s okay to say that you don’t remember. It’s very hard to fabricate an explanation, just stick with what you have because you don’t need to be F. Lee Bailey to find an inconsistency.”
Hubachek also offered warnings to claims professionals stemming from two recent appellate cases: Soniat v. Buick (see pdf below text for full decision) and Wilson v. Broadmoor. According to Hubachek, both cases serve as stern lessons for claims professionals regarding depending on utilization review decisions to deny treatment, especially when such decisions come from out of state companies.
“Do not rely on the [UR] paradigm to defend you in a claim for penalties and attorney’s fees,” he warned. “If that argument [in Soniat, denying treatment based on UR] can go through the Fifth Circuit, which is not known as a particularly liberal place, I submit to you that it could go through any of the courts.”
As for the Broadmoor case, in which the claimant was represented by his law partner Greg Unger, Hubachek hammered down on the “competent evidence” issue with out of state UR reports. “If it’s not ‘competent evidence’ we cannot base a judgment on that […] half the time [out of state UR doctors] are not using our Guidelines,” he said. “Look at those reports – they’re often using ODG instead of the Louisiana Medical Treatment Schedule.”
In concluding the talk, Hubachek offered a few key tips for claims professionals:
- First, review the claims file
- Second, attorney-client communications should not be reviewed in preparation for a corporate deposition [the type most adjuster will face] because that renders them discoverable by plaintiff’s counsel
- Third, if you can’t answer a question, try to offer up someone who can
- And lastly, beware of broad questions.
Landry and McLin: medical provider suits need careful analysis as soon as they come in
One of the final presentations of the seminar was given by defense attorneys Kirk Landry and Jenny McLin of Keogh Cox in Baton Rouge. It too focused on clear tips for claims professionals in handling legal matters. In this case, Landry and McLin addressed how to deal with suits from medical providers.
After reading the suit, Landry suggested a close look at the file to determine if the claim is actually defensible. “If what [the medical provider] did is not what they’re billing for [via CPT codes] – that’s defensible,” Landry said. However, Landry also urged utilizing escape routes when necessary – if you paid late or made a mistake, settle and get out for a reasonable fee.
Landry also offered a goodwill tip for the defense counsel in attendance. “Defense counsel doesn’t like to talk about it, but if the client has coordinated counsel, you need to get rid of that file and get it to coordinated counsel – the clients like it and it’s the right thing to do to get the matter resolved.”
For her part, McLin, who also has an extensive finance and accounting background as well as her practice, encouraged claims professionals to look at the relevant statutes (La. R.S. 23:1203; 1034.2; 1201; 1142) themselves. “I’ve listed the statutes in the materials – you can read just like us lawyers can,” she said.
LABI also provided copies of its 2016 Workers’ Compensation Desk Book to all attendees. The book is a staple in claims departments and provides full copies of the statutes references in McLin’s presentation, as well as other lectures during the seminar.