Recent Development in Louisiana Workers’ Compensation Law: First Circuit Rules on the Barber Case

In an effort to keep our clients apprised of recent developments in Louisiana workers’ compensation law, member Beth Bernstein summarizes and explains the 17-page Barber decision, which was recently decided by the First Circuit Court of Appeals.

The Barber Case – Background

As a brief background, in 2011, Medical Treatment Guidelines were made effective by the Louisiana legislature in an effort to provide meaningful guidelines for the treatment of injured workers, and what many have come to know as “Form 1009 procedure”.  In 2013, several plaintiffs (including Janice Hebert Barber) filed suit against the Office of Workers’ Compensation Administration (OWCA) arguing that the Medical Treatment Guidelines and Form 1009 procedure were unconstitutional.

The procedure, which many of you are familiar with, looks like this:

  1. Injured worker desires specific treatment;
  2. Medical provider requests the treatment on a Form 1010, which is sent to the adjuster;
  3. The adjuster can do any of the following:
    1. Authorize the treatment on the Form 1010
    2. Deny the treatment on the Form 1010
  • Issue no response to the 1010, which is considered “tacit denial”
  1. If the treatment is denied, a Form 1009 is filed with the Medical Director, and the Medical Director issues a decision on whether the treatment should be authorized based on whether it falls within the Medical Treatment Guidelines;
  2. If a party is aggrieved by the determination of the medical director, judicial review may be sought by filing a Form 1008
    1. In other words, if the Medical Director recommends authorization of treatment that the Carrier believes is properly denied, the Carrier can file a Form 1008 and have the judge address the issue
    2. Similarly, if the Medical Director agrees that denial was appropriate, the Claimant can file a Form 1008 to try and get the judge to overturn the Medical Director’s decision
  3. Upon receipt of the 1008 on the Medical Director’s decision, the judge holds a hearing on the medical dispute.  The judge can overturn the medical director’s decision if it shown by clear and convincing evidencethat the decision was not in accordance with the Medical Treatment Guidelines.

The Barber Decision

The Barber case has been making its way through the court for several years, and sought permanent injunctions against a range of OWCA procedures. The Barber case centered around five issues in which the plaintiffs argued that workers’ constitutional rights were violated. The First Circuit ruled against the plaintiffs on all but one of the five issues.

  1. Procedural and substantive due process

Due process is a constitutional guarantee that no person shall be arbitrarily deprived of life, liberty, or property. In the Barber case, the plaintiffs argued they had a property interest in their claim for workers’ compensation medical benefits, and that “tacit denial” provisions (see #2 below) arbitrarily deny them of this right. The court found that the plaintiffs failed to establish that tacit denial provisions were unconstitutional.

This doesn’t have a major impact on day to day claims handling, but keep reading …

  1. Automatic tacit denial of medical care

Currently, if the adjuster doesn’t respond to the Form 1010 requesting treatment within 5 days, the treatment is considered denied—this is “tacit denial”—i.e. a denial without doing anything. The injured worker can then initiate the Form 1009 procedure. Plaintiffs argued that if there is no response to the Form 1010, the requested treatment should be deemed approved. The court disagreed and the current procedure of “tacit denial” remains in place.

This is extremely favorable—could you imagine if a triple level spinal fusion was deemed approved because a fax machine was broken and you never saw the Form 1010?

  1. Variance procedures

The current statute says that if medical treatment is requested that varies from the Medical Treatment Guidelines, it is owed if it is demonstrated to the Medical Director “by a preponderance of the scientific medical evidence” that a variance is reasonably required to treat the worker. The scientific medical evidence, according to the statute, must be “higher ranking and more current than the scientific medical literature contained in the medical treatment schedule”.

For example, let’s say the Medical Treatment Guidelines say Medicine X is approved for Condition A. If the doctor wanted to prescribe Medicine X for Condition B, he would request a variance. If medical evidence is produced that is “higher ranking and more current than the scientific medical literature contained in the medical treatment schedule”, and shows that Medicine X is reasonably required to treat Condition B, then the Medical Director would recommend authorization of the variance.

The Plaintiffs argued that the burden of proof was too vague and that the statute failed to specifically identify what “higher ranking” medical literature is. They also argued that OWC imposed an “extremely high and unrealistic burden of proof” on the injured worker. The Court disagreed and found that the language was not unconstitutionally vague and the burden of proof was reasonable.

Again, this is not an aspect of the decision that will necessarily impact day-to-day claims handling, but it is favorable insofar as it upholds the higher burden of proof required for a variance. 

  1. Treatment not covered by the Medical Treatment Guidelines

As it stands, the statute provides that if the injured worker wants treatment that is not covered by the medical treatment guidelines, he can seek approval by showing by a preponderance of the scientific medical evidence that the treatment should be approved. The statute suggests that other states’ statutes regarding medical treatment can be used as evidence.

Plaintiffs argued that this is unconstitutionally vague because an ordinary person would not know which states have guidelines and it would be unduly burdensome to research this information. The Court afforded no credit to the plaintiff’s argument, and stated that “a statute is not vague because it may at times be difficult to prove”.

This holding is favorable for Carriers because it upholds the burden of proof that a claimant must meet to get treatment not covered by the Medical Treatment Guidelines approved.

  1. Judicial independence and separation of powers

The plaintiffs asserted that the OWCA’s process of evaluating judges, holding meetings to direct OWC judges on how they should rule in certain situations, and permitting ex parte communications from attorneys violates their right to due process. This goes back to a two-year process undertaken by the OWC to create more uniformity between district offices. The court found that this interference was a violation of due process. This last part of the Barber decision prevents anyone from attempting to communicate with OWC judges regarding pending workers’ compensation claims by using any employee of the OWCA as an intermediary.

This holding does not impact day-to-day claims handling.

Conclusion – if you read nothing else, read this!

Hopefully, this helps you understand the Medical Treatment Guidelines and the Form 1009 procedure a little bit better. The important thing to take out of this decision is that the Court upheld the constitutionality of most of the OWC’s procedures, and injured workers must meet their burden of proof to establish entitlement to treatment beyond the medical treatment guidelines.

A few things to remember:

  1. The 1009 procedure only applies when reasonableness and necessity of medical treatment is not in dispute. It does not apply to disputes regarding causation—the Medical Director does not address causation. Many doctors will file a 1009 any time treatment is denied, regardless of the reason—this is not proper!
  2. The Medical Treatment Guidelines and 1009 procedure were established in 2011, so they are still fairly new, and there are still a lot of unanswered questions that even the judges aren’t sure how to handle.
  3. If you’re not sure how to handle a situation, just ask!