The Workers’ Compensation Advisory Council (WCAC) hosted its September meeting Thursday, September 26th, in Baton Rouge. Agenda items included a new member, legislative changes to the statutes governing independent medical evaluations, and processes for updating the Medical Fee Reimbursement Schedule.
WCAC Chair and Louisiana Workforce Commission (LWC) Assistant Secretary Sheral Kellar began the meeting by addressing proposed legislative changes to R.S. 23:1123 and 1124.1 (see full document below article text).
Asst. Secretary Kellar explained that the drafting of the changes took into account previous concerns about the authority of the workers’ comp judges in certain cases. “When we talked about this issue before, combining 1123 and 1124, to take from the Director the authority it has now to appoint IME physicians, one of the responses that I had from a Council member was that they were afraid if the workers’ compensation judge had the sole authority to appoint the IME that the workers’ compensation judge would deny that,” she explained. “As the statute exists currently under 1124.1, if a party were to ask a workers’ compensation judge to appoint a physician they could decline to do so…So when we looked at re-drafting the statute to give workers’ compensation judges sole authority, we divided it into a request for an IME when there is no pending 1008 and requests for an IME after the 1008. So if the request for an IME comes in before a 1008 is filed, the statute still retains the shall provision that the judge has to appoint an IME physician.” Kellar further explained that the concern many judges have is that attorneys will use the request for an IME to get a continuance on the claim.
The language primarily changes the authority to choose an IME doctor from the LWC Assistant Secretary (i.e. Office of Workers’ Compensation Director) to the workers’ compensation judge. It would also change “medical practitioner” to “physician.” The language further delineates that the IME physician submits their findings to the workers’ compensation judge and adds the following:
“Neither the claimant nor the respondent in a hearing before the workers’ compensation judge shall be permitted to introduce the testimony of more than two physicians where the evidence of any additional physician would be cumulative testimony.”
Under this proposal, 1124.1 would be repealed in its entirety.
Asst. Secretary Kellar then took some time to introduce Dr. Kevin Darr, MD, the new WCAC member representing the Louisiana Orthopedic Association. Dr. Darr practices orthopedic surgery in Covington with an emphasis on shoulder, hip and knee.
The next agenda item involved the filing of 1008s solely to subpoena medical records, which relates to the Louisiana Supreme Court’s decision in Soileau. As Asst. Secretary Kellar explained, the district offices do not refuse any filings so this practice has become an issue.
LWC attorney and Second Injury Board Director Meridith Trahant researched the issue for the WCAC. “One of the legal points that was made in [Soileau v. Wal-Mart Stores] is that if a 1008 is filed and the four corners of petition do not meet the requirements of Louisiana Revised Statute 23:1314, then it will be dismissed pursuant to a prematurity exception,” Trahant explained. She further stated that after looking into the issue, it appears as though medical offices are refusing to release the records because there are injured workers who do not sign a HIPPA release. WCAC Co-Chair chimed in to say that workers’ comp under the federal rules is HIPPA-exempt, but the doctors won’t release the information without a HIPPA form.
Trahant said that she is proposing a discovery form for medical records subpoenas that would be issued by the medical records section of the Office of Workers’ Compensation. This form would involve attestations from the employer and a notice to the injured worker that they can get a protective order if they don’t agree with the subpoena.
The long-awaited update of the Medical Fee Reimbursement Schedule appeared to gain traction at this month’s meeting as well, with Asst. Secretary Kellar saying that the Office is currently drafting the RFP for the fee schedule update, which will go to the Louisiana purchasing office by the end of October, followed by several 25 day periods during which proposals will be accepted. She invited any interested party to participate in the process. “One of the most important things we’ll have to decide is what to do with the current fee schedule while we’re looking for proposals,” Kellar said. “Are we going to rip the Band-Aid off the entire thing and say it no longer exists pending the update? Or what rules are we going to put in place pending this process? And I need help from all of you guys to determine that.” There will be a meeting scheduled to discuss that in the near future.
The LWC also has a new form for fax filing confirmations and associated fees (see second document below article text).
The next WCAC meeting will be held on October 24th.
Members present: Philip Hunter, Bray Williams, Kevin Darr, Vincent Forte, Larry Stokes, Shannon Lindsey, Sheral Kellar, Chuck Davoli, Julie Cherry, Michael Morris, Shannon Dartez, Marc Zimmerman
Image Credit: Louisiana Dept. of Culture, Recreation and Tourism