On the very last day of the 2009 legislative session the medical guidelines bill (SB 303) successfully passed both houses and was signed by the Governor on July 1, 2009 (Act No. 254). The legislation was the product of several months of work by the members of the Workers Compensation Advisory Council (the members are appointed by the Governor and include representatives from business, labor, insurers and medical providers).

Much of the groundwork for this legislation was laid by the efforts of LASIE (La. Association of Self-Insured Employers) in the previous session. With the leadership of the Director of the Office of Workers Compensation, Chris Broadwater, the conflicting interests of the various parties were resolved. The purpose of the bill was to establish meaningful guidelines for the treatment of injured workers. Employers and insurers wanted guidelines that would assure them that the treatment recommended by a medical provider was general recognized by the medical community has proper and necessary. Labor and the medical providers were concerned about unreasonable delays in getting approval for treatment and a procedure for obtaining approval for treatment that may vary from the guidelines.

Under the legislation there is created a new provision, R.S. 23:1203.1. The director of the OWC is to promulgate rules no later than September 30, 2010 to establish a medical treatment schedule. The director is authorized to appoint a Medical Advisory Council (MAC) composed of medical providers from the various professional associations. The director will also appoint a Medical Director to assist the council in developing the medical treatment schedule. The schedule will be based on guidelines that are to meet specific criteria as outlined in the statute. The director of the OWC and the council are mandated to update the treatment schedule no less often than every two years.

Treatment that varies from the schedule is not considered reasonable medical care under the workers' compensation statute and thus the fee for that treatment is not owed by the employer. The statute does provide a procedure for a provider to seek approval of treatment outside of the schedule. The provider is required to first seek approval for the treatment from the employer. If the treatment is outside of the schedule the employer is to notify the provider within five working days of the request. The provider would have fifteen days to file an appeal to the Medical Director who has thirty days to render an opinion.

Anyone who disagrees with the decision of the Medical Director can file a disputed claim (Form 1008) with the OWC but the burden to prove the Director's opinion was in error is "clear and convincing".

It is the hope of the Workers Compensation Advisory Council that this legislation will reduce the need for labor and business to engage in a battle over "choice of physician". Rather than requiring the employee to be treated by a medical provider selected by the employer, the treatment guidelines permit the employee to select the treating physician while assuring the employer that this does not become a "blank check" for the provider. The schedule developed by a council of his piers will assure the employer that the treatment is reasonable and necessary. The schedule is also designed to speed up the treatment process and avoid the delays with having second medical opinions (SMO).

If the treatment is in accordance with the schedule there is no need for a SMO. If the treatment is outside of the schedule, no SMO is needed and the employer can refuse to authorize the treatment. The burden would then shift to the provider to have the Medical Director of the OWC approve the treatment.

There is much to be done between now and the promulgation of the schedule on September 30, 2010. The director of the OWC will soon be appointing a Medical Director for the OWC and begin the appointment of the members of the Medical Advisory Council. We will keep you posted as these appointment are made.

© Copyright 2009 by Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, PLC. Reprinted with permission.