The two-month regular session for the Louisiana legislature convenes on Monday, April 8, 2019. At the January Workers’ Compensation Advisory Council (WCAC) meeting, the Council discussed several state compensation-related bills that we may see at the upcoming legislative session.

Closed Pharmacy Formulary Bill

WCAC chair and director of the Office of Workers’ Compensation Administration (OWCA), Sheral Keller, advised that a closed pharmacy formulary bill may be introduced per the recommendation of the Louisiana Property and Casualty Commission. A closed formulary would limit the drugs prescribed by a treating physician to an approved list. Prescribing a medication which is excluded from the list would require pre-authorization. States such as Texas, Ohio, Washington, Oklahoma, and California, already have workers’ compensation drug formularies in place.

House Bill No. 257

The WCAC is also working to revive House Bill No. 257, which was introduced during the 2018 regular session. The bill would amend La. R.S. 23:1203.1 to create a 30-day deadline to file an appeal of an Office of Workers’ Compensation (OWC) Medical Director decision. There is no deadline currently in place per the Act; however, the Louisiana Supreme Court previously determined that the 3-year prescriptive period for claims for medical benefits under La. R.S. 23:1209(C) applies. Arrant v. Wayne Acree Pls, Inc., 187 So. 3d 417, 2015-0905 (La. 1/27/16).

Moving Away From Director-appointed Independent Medical Examinations

The WCAC also discussed the possibility of moving away from the director-appointed independent medical examinations allowed under La. R.S. 23:1123 of the Workers’ Compensation Act. Currently, upon application by any party, the director must select and appoint an independent medical examiner (“IME”) for disputes related to an employee’s condition or capacity to work. La. R.S. 23:1124.1 also allows for a judge to order an examination by a provider other than the treating or second medical opinion physician. The WCAC believes that judges are in a better position than the OWC Medical Services Division to select a doctor to evaluate an injured worker.

Whether this issue will actually make it to the legislature for the upcoming session is doubtful. Judge-appointed IME’s are only available when a case is in litigation; however, employers and carriers can only file a Form 1008 to allege fraud or to appeal a decision from the OWC Medical Director. The Act would likely have to be broadened in order to allow an employer or carrier to file a Form 1008 when seeking an IME, and the plaintiff’s bar is unlikely to agree to this.