The first Workers’ Compensation Advisory Council (WCAC) meeting since April 2016 was held at the Department of Insurance in Baton Rouge this week. Office of Workers’ Compensation Administration (OWCA) Director Sheral Kellar introduced the new members of the Council as appointed by Governor John Bel Edwards and spoke about the results of the OWCA’s September “Town Hall Meetings” across the state.
Now that the new members of the WCAC are officially in place, Director Kellar discussed by-laws and organizational matters to begin the meeting. She emphasized the role of the Council as advisers to the Legislature as the Regular Session approaches, and indicated a possible need for a procedure to re-assess legislation after it has been initially reported favorably by the Council, since bills can change significantly in Committee.
“There’s no mechanism by which we can come back together to vote again on the amendments to the legislation […] so that’s what I’ve tried to do here [in the new proposed WCAC by-laws]. I’m not asking the Council members to vote on the passing of these by-laws […] but we will vote on them at the next meeting,” Kellar explained.
Julie Cherry, a veteran WCAC member representing the AFL-CIO, suggested creating an “executive committee” drawn from the Council and with the same makeup of the Council to vote on amendments to legislation, since it can be difficult to get the entire Council together. Michael Morris, another veteran member representing the Homebuilders’ SIF, countered that such action may not be necessary based on his past experience. Members of the Council and the public raised the issue that if such a committee were to exist it could potentially violate the open meetings law and the thought was tabled until the next meeting.
Kellar: Davoli is new WCAC Vice-Chair, Director’s Advisory Council to be announced soon
Kellar had previously stated that she intends to appoint a Director’s Advisory Council, but she is delaying the official announcement.
“The statute provides that the Director may appoint five individuals to confer with regarding workers’ compensation legislation,” Kellar explained. “All I can tell you at this point is that I have five individuals under consideration. One is an appellate court judge, one is a workers’ compensation judge, a plaintiff’s attorney, a defense attorney and a doctor. I have not talked to them to ensure that they are still willing to serve on the Director’s Advisory Council, so I will not make their names public at this time.”
As the industry waits for that announcement, Director Kellar was prepared to name a Vice-Chair of the WCAC. She noted that the previous Director did not appoint one, but that since there is no prohibition against it in the statute she wanted to create the position so that someone could act in her stead if necessary. Baton Rouge-based attorney and veteran labor representative on the Council Chuck Davoli was her choice.
“There’s a lot of familiar faces in this room, we’ve all worked together,” Davoli said addressing the crowd after the announcement. “I think most of you know from my participation in the Council in the past that there are two sides to every story, every issue. Whatever workers’ comp system we have in the future, it needs to have balance between business and labor.”
Town Hall Meetings Reveal MTGs Complaints
In addition to the business of settling into the new Council and the five months since the last meeting, this WCAC meeting came on the heels of a month of “Town Hall Meetings” conducted by Director Kellar across the state. Explaining that the impetus of the meetings was to provide a forum for transparency and to recognize that the Medical Treatment Guidelines “are not going as smoothly as we would like,” Kellar identified the main problems that workers’ comp system participants repeatedly brought up at the meetings, as follows:
- Tacit denials
- Delay for appealing a denial (tacit or otherwise) is too quick (Kellar said some meeting participants suggested 30 days instead of 15)
- Lack of an official record of documents submitted to the Medical Director
- Unclear requirements for variances
- Questions as to whether or not prescription drugs are subject to the MTGs (appellate courts are split on this issue and a case concerning it has been submitted to the Louisiana Supreme Court but writ has not yet been accepted)
- Confusion regarding the necessity of a form 1010 for office visits
- Carrier/payer inaction after a 1009 approval from the Medical Director
- Raising a causation issue after a 1009 approval (Kellar stated that some suggested a “raise it or waive it” policy)
- Confusion regarding the provision in the form 1010 that “approval is not a guarantee of payment”
- Approval discrepancy between carrier/payer and the utilization review company (adjuster approves and UR representative does not, or vice versa)
Task Forces updated | Davoli closes meeting by warning against unequal treatment for injured workers under ODG formulary
Kellar said that the MTGs issues raised in the Town Hall Meetings will fall to the Council as a whole and to a special task force which is chaired by Michael Morris. Further, she extended the life of several other task forces, namely: the disability and vocational rehabilitation task force, chaired by Ray Peters; the drug task force which mainly concerns the work of the Louisiana Commission on Preventing Opioid Abuse; the workplace safety task force chaired by Corey Gaines of the OSHA consultation department at the Louisiana Workforce Commission; the employer misclassification fraud task force chaired by Julie Cherry and state Senator Edwin Murray; and the legislative task force which will review pending legislation.
Kellar also noted that in addition to the MTG task force, she is “actively working with the plaintiffs” in the 19th JDC case to resolve the issues with 2715 (i.e. the MTGs statute) before the trial on the merits, which is scheduled for May 2017. She said this is a priority because the case had been sent back only on procedural grounds and that “there is no reason to believe” that Judge Johnson will change his previous decision that the process is unconstitutional.
Before adjourning the meeting, newly appointed WCAC Vice-Chair Chuck Davoli asked to address the room specifically about the debate over opioid abuse in the state and the role workers’ compensation may or may not have in that debate.
“There are forces nationally, but particularly in our state, and it’s no secret, to push for and adopt an ODG closed formulary,” Davoli said. We have an opioid abuse problem which leads to a heroin abuse problem in this state and in this country. So the opioid utilization issue is a health care problem. It’s not an injured worker problem. I’ve made my position crystal clear on this. Injured workers shouldn’t be treated any differently than everybody in this room that has health insurance […] The Texas-style closed formulary is too harsh, it’s a cost containment initiative and it is not a utilization initiative. I personally don’t have a problem with a formulary because it makes sense […] but the medical community needs to take leadership and police their own industry on this issue.”
The next WCAC meeting is tentatively scheduled for December 15th, as listed on the Louisiana Workforce Commission website.
The new full WCAC member list is below:
Julie Cherry – representing labor
Shannon Dartez – representing claimant/injured workers attorneys
Charles Davoli – representing labor
Daniel Gallagher M.D.
Sheral Kellar – OWCA Director
Mark Kruse D.C.
Shannon Lindsey – representing the 1st Public Service Commission District
Michael Morris – representing self insured industries in Louisiana
Senator Edwin Murray – representing the 3rd Public Service Commission District
Pierce Nunley PhD – representing the Louisiana Orthopedic Association
Alejandro Perkins – representing employer/insurer attorneys
Richard Williams – representing 5th Public Service Commission District