The Louisiana Association of Self-Insured Employers (LASIE) hosted its annual Legislative Recap and Open Forum in Baton Rouge on July 13th. Jeffrey Napolitano, who represented LUBA in a recent Louisiana Supreme Court case regarding choice of pharmacy, led the morning with a discussion about the status of the Medical Treatment Guidelines (MTGs).
Napolitano began by explaining the compromise that led to the MTGs passage and eventual implementation in 2011. From there, he delineated potential threats to the process on the judicial and executive fronts framed by the question, “Are the Guidelines being allowed to work?”
Constitutional challenge to the MTG process/Medical Director
One of the more pressing issues in the employer community regarding the status of the MTGs concerns the pending constitutional challenge to the 1009 process (Barber v. Louisiana Workforce Commission). The case centers around several arguments regarding the status of the Medical Director as a de facto judge, the submission of new evidence, and other issues, which the plaintiffs contend violates workers’ right to due process.
The case proceeded to the Louisiana Supreme Court late last year, where the Court found that it lacked jurisdiction over the matter because the trial court had failed to actually issue a formal judgment declaring the 1009 process unconstitutional. The First Circuit Court of Appeal then received the case, refusing to grant a preliminary injunction sought by the plaintiffs to stop the 1009 process. They reasoned that a preliminary injunction would not be appropriate because it would not preserve the status quo, since the MTGs went into effect five years ago. Currently, the case is pending in the 19th Judicial District Court in Baton Rouge where it will receive a full trial on its merits.
While the entire workers’ compensation community waits to see how the case will play out, Napolitano offered his perspective on the issue in the context of several cases that have come out since the MTGs went into effect.
“How likely are the plaintiffs to ultimately succeed in striking down the Guidelines and the 1009 process?” Napolitano asked the audience. “All three complaints presented in the Barber case have no support in jurisprudence. Chicken Little keeps crying, ‘The sky is falling, I can’t get my medical treatment!’ Wrong! If they used the process as designed, and went to the Medical Director to get a medical decision, they would get they wanted.”
Napolitano: Unclear if Edwards administration will target comp, have faith in new OWC Director
Regarding Louisiana’s new Governor John Bel Edwards, a conservative Democrat who defeated three Republicans to win the office, Napolitano acknowledged that some trepidation on the employer/carrier side is understandable. “He’s threatened LSU football in the Fall – so there may be no limit on what he might threaten in this arena [of workers’ comp]!” he joked.
However, Napolitano proceeded to reassure LASIE members, noting that although the new Executive Director of the Louisiana Workforce Commission, Ava DeJoie, “leans to the left,” he was confident that she is suitably balanced – whether or not workers’ comp becomes a significant agenda item for the Edwards administration.
A comp reform scenario seems unlikely given that, as several speakers noted, Louisiana’s budget catastrophe and attempts to reform the tax code will likely dominate the Legislature and political discourse more generally for years to come.
Napolitano offered further positive commentary on the new Director of the Office of Workers’ Compensation Administration (OWCA) Sheral Kellar. Director Kellar, a familiar face since she most recently served as Chief Workers’ Compensation Judge for the OWC, started in January and has been at work building her team, which includes a new Medical Director, Dr. Jason Picard.
“I’ve known Director Kellar for over 20 years now,” Napolitano said. “She is extremely fair […] and in all of the conversations I’ve had with her I believe she sees the merits of [the MTGs] and I believe that she will defend the merits of the system if called upon. Ultimately, it will be up to the Governor if it survives, but at the very least, we’re going to get good information in front of the administration with Director Kellar at the helm.”
In the same vein, Napolitano also spoke about his impressions of the new Medical Director (and that office in general) in terms of Dr. Picard’s effect on the MTGs as they were interpreted under the previous administration.
“The administration is considering some changes in its approach to processing the 1009s,” Napolitano explained. “Part of this is in response to doctor’s complaints saying that the process is just too bureaucratic. I suspect that some changes will be made where, instead of 60 percent of forms being denied because of procedural or technical issues – I think that number will do down. I also think the Medical Director will be a little more generous in terms of deciding what is and what is not in compliance with the Guidelines,” he predicted. “Basically, it probably won’t be the strict adherence to the hard and fast rules that we’ve been used to.”