Rep. Broadwater Discusses his Most Controversial Pending Legislation, Warns Against Failure to Act

Representative Chris Broadwater, a former Director of the Office of Workers’ Compensation and sponsor of several comp-related bills this Session, is ready to “raise eyebrows” regarding his most controversial measures. The veteran legislator sat down with Louisiana Comp Blog after a Committee meeting last Thursday in which his group Fund regulation bill (HB 280) was reported favorably.

Below, Representative Broadwater takes on what he feels is complacency on all sides regarding the opioid epidemic, plus the reason behind his push to change the status of workers’ compensation judges.

Follow our “Comp in the Capitol” coverage for weekly updates on legislative happening for all relevant bills. Note: HB 575, changing the comp judges’ status, was deferred until next Session.

Comp Blog: In your Workers’ Compensation Advisory Council presentation on HB 575, you explained that one of your reasons for the amendment was to attract better-quality candidates for workers’ comp judgeships, since unclassified service isn’t beholden to the same payscale limits of classified service. Can you expand on that in terms of your previous experience as OWCA Director?

Rep. Broadwater: It presented some challenges in terms of the pool of candidates. In the time that I was there we ultimately found qualified individuals. However, what we found more often than not was that we had a large number of people that did not have experience with workers’ compensation law, and that lacked the level of expertise that you would expect to see from a judge on the issue. The number of people that did have that expertise was just very small compared to the whole pool. In certain cases we had to go out and recruit people, and even though we were starting the pay at the highest level [possible] under the civil service rules, we were not competitive in the market. [Changing the status of judges from classified to unclassified] would help us to compete.

Comp Blog: You’ve also mentioned previously that changing the status and imposing the five year term limit correctly for the unclassified comp judges could help de-politicize the bench. Can you expound on that?

Rep. Broadwater: By that comment I’m not suggesting that judges are necessarily doing anything improper [currently]. But we are all human and we all have certain beliefs that influence our interpretation of the law – either conservative or liberal. A five year term is beneficial because the idea that you have to ask to continue your work is a great motivator. I equate it to my job as a state legislator. At the end of the day I have to ask individuals to let me represent them again. The aim is to approach things in a thoughtful, responsible and fair way so that, even if they may disagree with you, they know that you have a very good reason for doing what you did.

Comp Blog: How do you think this bill will fare when it goes to Committee?

Rep. Broadwater: I brought a very similar bill in 2012. I got through two Committees and then chose not to bring it on the Floor. I think there was a lot of misinformation spread about what I was doing and who I was trying to impact. There were rumors spread that I was trying to unseat existing workers’ comp judges – which was completely false.

Comp Blog: This measure would not affect existing comp judges, correct?

Rep. Broadwater: That’s correct. I wouldn’t do that, and frankly, it would be unconstitutional if I were to do that.

It does offer an opportunity to current judges though. If the Director is authorized to pay more in an unclassified workers’ comp judge position, nothing would prohibit the Director from offering an existing judge a five year appointment after that individual resigned and reapplied. And then that judge could get paid more – what some of them are clearly worth. So, existing judges would only be impacted by this if they chose to be impacted by this.

Comp Blog: Your other particularly controversial comp bill this session is HB 725, which would impose an ODG formulary on claims beginning in 2017. Formularies are a hot button issue. What led you to choose ODG for this bill and what can you tell me about the motivation for it? Is it just related to the opioid crisis we’re experiencing nationally and in Louisiana?

Rep. Broadwater: My primary motive was to put a shot across the bow of the stakeholders who have sat on their hands and, in my opinion, done damage to the citizens of Louisiana. And I put that on the backs of all the stakeholders – the medical profession, those who represent injured workers, and those who represent employers. The fact that we are having this discussion several years after we had very clear data showing the high level of opioid abuse specifically within workers’ compensation – and that no one has offered a solution – is embarrassing.

I had some conversations with colleagues within the system that are often on the opposite side of these issues from me and told them, “I am putting this out there, I will not try to force this issue.” I asked them to stand with me and basically said, “If they don’t solve the problem, then allow me to solve it the way that I choose to solve it.” That’s the message.

There are strengths and weaknesses to ODG, ACOEM, the Colorado guidelines and our Louisiana guidelines. The specific formulary is not as important to me as putting something out there to raise some eyebrows – fix it, or else I’ll point out to my colleagues that I’ve asked and [the stakeholders] failed.

Comp Blog: Regarding the various stakeholders, can you explain how each plays into this failure as you see it?

Rep. Broadwater: It is incredibly frustrating to me when those who represent injured workers, and who have an obligation to obtain benefits for them, but also a moral responsibility for their well-being, know of damage that is occurring and either turn a blind eye or enable the situation. I want to be very clear to that group: if they really are concerned about the people they represent, then they ought to be at the table proposing something that is rational in order to protect them. And if they don’t, I will try my damnedest to do something that probably goes further than what they would like. I’m not saying that I could pass it, but I would fight like hell and I could probably get close.

For those on the payers’ side, that have only taken a position of cost-cutting rather than doing what is best for the injured worker, they might want to get reasonable or I’ll be pursuing something that they don’t like.

Comp Blog: The fear with formularies seems to be halting a claimant’s opioid prescription and then doing nothing to address the pain issue – with alternative medicine, therapy, whatever it may be. How do you respond to that?

Rep. Broadwater: At the end of the day, every element of this discussion needs to center around getting that injured worker returned to gainful employment as soon as possible in the most responsible way. If you do that, I believe that on the payer side, it provides a cost benefit because you’ve done your job well. It may cost more in medical upfront, but you save on indemnity.

From the plaintiff side of this, the focus should also be on getting back to work, which means that they are giving something up from the settlement value of the case. But if our focus is on settlement value and not making the worker whole, then we’ve got a bastardized system.

Comp Blog: What else do you have to say as far as the volatility of this issue is concerned?

Rep. Broadwater: When we know that there is a problem, and public safety is involved, and the people that are responsible or most knowledgeable about it refuse to act, ultimately we have no choice as legislators but to act. Often, our solution will not be as good as what they could come up with on their own, but we can’t just sit back.

Issues like this have an odd way of unifying forces that would otherwise be opposed. When you say that you gave the responsible parties a chance and they did not act, [legislators and regulators] will band together and do something that makes everyone mad.

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