New Developments In Workers Compensation Law Effective August 1, 2012

Provided below are updates in regards to the newly required Forms under the Louisiana's Workers' Compensation Medical Treatment Guidelines along with Utilization Rules and Policies which are now in effect.

Effective August 1, 2012:

A. LA. R.S. 1020.1(D) HAS BEEN AMENDED TO:
 
Remove the longstanding principle previously providing for liberal construction of statutes in favor of the employee. Now disputes are to be decided "on their merits."

B. LA. R.S. 23:1224 HAS BEEN AMENDED TO PROVIDE :
 
The waiting period for the payment of initial indemnity benefits has been reduced from six weeks to two weeks. Thus, the first week of benefits of indemnity benefits is due after a two week period. This is a significant new development.

C. LA. R.S. 23:1314(D)(E) HAS BEEN AMENDED AND ENACTED TO PROVIDE:
 
The employer is now authorized to file a Disputed Claim (1008) to controvert benefits or any other dispute. This is significant new development as the prior statute technically only allowed the employee to file a disputed claim.

D. LA. R.S. 23:1201.4(A)(B) HAS BEEN AMENDED AND ENACTED TO PROVIDE:
 
For the payment of medical expenses by the employer when an employee is injured in the course and scope of a work release or transitional work program while incarcerated. Thus, employers need to be aware while hiring prisoners on a work release program as they will be responsible for their medical care for work injuries.

E. LA. R.S. 23:1123 HAS BEEN REVISED TO PROVIDE:
 
Independent medical examiners chosen by the OWC Director, shall address the issue of capacity return to work and eliminates the IME opinion regarding the necessity of medical treatment, which is now covered under the Medical Treatment Guidelines.

F. LA. R.S. 23:1317.1 HAS BEEN AMENDED TO:
 
Delete the requirement that the IME must be requested prior to the pre-trial conference.

G. LA. R.S. 23:1472(12)(H), 23:1761(9) AND 23:1711(G) HAVE BEEN AMENDED AND ENACTED TO PROVIDE:
 
Penalties for the miss-classification of employees as independent contractors when dealing with "staffing service" companies and provides for a definition of "staffing service."

H. LA. R.S. 23:1209(A)(3)(4) HAS BEEN AMENDED AND ENACTED TO PROVIDE:
 
That the developmental injury prescription period exception to the general one-year rule, has been extended from two up to three years from the date of the incident in circumstances where "proceedings" are filed after two years from the date of the accident which entitles the employee to TTD indemnity benefits not to exceed six months, with no interruption for any other type of indemnity benefits. This is significant as the prior developmental prescription exception only provided for two years from the date of the incident and now it is three.


Effective February 13, 2013:
A. LA. R.S. 23:1201(F) and (H)(1)HAVE BEEN AMENDED TO PROVIDE:
 
The most significant new amendment under Louisiana Workers' Compensation Law is the enactment of La. R.S. 23:1203.1 and the associated rules, regulations and required forms under the Medical Treatment Guidelines and the Medical Utilization Review Rules and Regulations.

EFFECTIVE JULY 1, 2013, LA. R.S. 23:1201(E) AND 23:1203.2(D) HAVE BEEN AMENDED AND ENACTED TO PROVIDE:       

            A. That the payment of medical benefits must be provided within 30 days rather than the usual 60 days, "contingent" upon the medical provider adopting and utilizing e-billing rules and regulations. This is significant as this reduces by half the amount of time the required payment of a medical bill. Please note that the effective date is not until July 1, 2013 but this needs to be kept in mind.

Effective July 13, 2011: This provides a procedural process for the evaluation and adjudication of medical treatment and approval of such by employers in Louisiana. This is for treatment only, not to be combined with issues of causation or return to work issues.


The Guidelines are broken down into four parts:

A.     (1)        Spine Medical Treatment Guidelines (cervical and low back);

(2)        Pain Medical Treatment Guidelines (broken down by Chronic Pain Disorders and Complex Regional Pain Syndrome);

(3)        Neurological and Neuromuscular Disorders (broken down between Carpal Tunnel Syndrome and Thoracic Outlet Syndrome); and

(4)        Upper and Lower Extremity Guidelines (broken down between Lower Extremities and Shoulder Injuries).

B. REQUISITE TIME DEADLINES, FORMS AND THE PROCESS:

Effective April 20, 2012, when seeking authorization for medical treatment exceeding the $750.00 statutory medical limit, the healthcare provider is required to complete Form 1010 a Request for Authorization to the Carrier/Self-Insured Employer for a response to the request for medical care. (See Attached Form). The 1010 Form and all supporting medical documentation are to be faxed or emailed to the carrier/self-insured employer. Significantly, the carrier/self-insured employer must respond within five business days by returning the Form 1010 (Section 3) to the healthcare provider with their decision on the request for medical care by fax or email and also to the claimants' attorney. Also, a complete copy of the Form 1010 and all records provided to the healthcare provider must also be sent regular mail to the claimant's last known address. The options of the carrier/employer would be to:

(a)        approve the medical care,

(b)        approve the medical care with modifications or a variance of medical

care,

(c)        a denial, or

(d)        a suspension of the time limitations due to the lack of information or need to process the form by submitting the Form 1010 and Form 1010A. (See Attached Form).

In the absence of submitting the appropriate Form 1010 by the healthcare provider, the denial for medical care by the carrier or self-insured employer is prima facie evidence that the denial is not arbitrary and capricious and not in compliance with the Guidelines.

Thus, the 5 business day deadline is of utmost importance for the appropriate medical utilization review process to take place to respond with specifics under the Louisiana Medical Treatment Guidelines.

Any "aggrieved party" is then entitled to file within 15 calendar days after any dispute arises involving the request for medical care, an appeal with the Office of Worker's Compensation Administration Medical Director, a Form 1009, to dispute the denial or approval with modifications of a request for medical care. (See Attached Form). The Medical Director then renders a decision as soon as practical, but in no event not more than 30 calendar days from the date of the filing. The Medical Director's decision shall determine whether:

(1)        Whether the recommend care is in accordance with the Guidelines, or

(2)        A variance of the treatment under Guidelines is reasonably required, or

(3)        The recommended care is not covered by the Guidelines.

Thereafter, any party who disagrees with the Medical Director's decision may appeal that decision by filing a Disputed Claim (Louisiana Workers' Compensation Form 1008) within fifteen calendar days of the mailing of the decision of the Medical Director. This is filed with the Louisiana Workers' Compensation District Office and the workers compensation judge shall immediately set the matter for an expedited hearing to be held not less than 15 and no more than 30 calendar days after receipt of the appeal.

The significance of the Medical Director's decision is that it may only be overturned when it is shown by "clear and convincing evidence" that the decision of the Medical Director was not in accordance with the provisions of the Guidelines. This is huge!

Without providing the necessary medical documentation and basis for a denial or an approval with modifications for medical care, the only evidence the Medical Director will have to make his decision will be the medical documentation and evidence provided by the claimant's healthcare provider and realistically the claimant's attorney. Specifically, under the newly enacted Utilization Rules, namely under LAC 40:2715(G), it is specifically provided that within 5 business days of receipt of a Form 1009 appeal to the Medical Director, the carrier/self-insured employer, shall provide to the Medical Director "any evidence it thinks pertinent to the decision regarding the request being denied, approved with modification, deemed denied, or that a variance from the medical treatment scheduled is warranted." Thus, within a very short timeline, we are required to provide all pertinent evidence and documentation and the detailed findings of the Utilization Review Provider on our behalf to the Medical Director for him to consider in making his decision. Otherwise, the scales are "tipped" in favor of the Medical Director finding in accordance with the claimant's healthcare provider and accepting the requested treatment. With a very difficult burden to overturn the Medical Director's decision (clearly convincing) the majority of the findings of the Medical Director will stand.

Also significantly, under LAC 40:2715(D)(2), the carrier/self-insured employer is required to provide to the Louisiana Office of Workers' Compensation a fax number and/or email address to be used for purposes of these new Medical Treatment Guidelines and the Utilization Review Rules and particularly for use with the Form 1010 and Form 1010(A). If the fax number and/or email address provided is for a Utilization Review Company contracted with the carrier/employer, then the carrier/employer shall provide the name of the Utilization Review Company to the Louisiana Office of Workers' Compensation. The healthcare provider then is required to use the fax number and/or email address found on the Louisiana Office of Workers' Compensation Website (when requesting medical care). By following this policy, this will prevent a request for medical care "slipping through the cracks" and the request not being timely responded to inadvertently.