Independent Medical Examinations in Louisiana Workers Compensation

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What Is An Independent Medical Examination in Louisiana Workers Compensation?

If there are opposing doctors' opinions regarding an injured employee's condition or capacity to work, the Office of Workers' Compensation Administration or the workers compensation Judge can appoint an Independent Medical Examiner to examine the employee, or simply to review the employee's medical records.

This examination is called an Independent Medical Examination, or simply an IME.

For a technical definition, the AMA (American Medical Association) defines an Independent Medical Examination (IME) as a unique and specialized examination and report, ideally performed by a medical physician with special training and experience in the field of Independent Medical Examinations.

So basically, an Independent Medical Examination (IME) is when a neutral third doctor is chosen to "break the tie" between the employee's doctor and the insurance company's doctor when they disagree.

Basic Information on Independent Medical Examinations

Either the workers compensation insurance company or the employee can file a Form LWC-WC 1015: Request for Independent Medical Examination, with the Medical Services Section of the Office of Workers' Compensation Administration (OWCA). 

A copy of the actual LWC-WC Form 1015 is available here.

The Director of the Office of Workers' Compensation Administration (OWCA) will select the doctor to handle the Independent Medical Examination (IME), and will also set the cost of the Independent Medical Examination (IME).

The workers compensation insurance company will pay for the Independent Medical Examination (IME).

The independent medical examiner has 30 days from the date of the examination to issue a report, and any objections to this IME report shall be made by filing a Form LWC-WC 1008: Dispute for Compensation, which will take the matter to Court in front of the workers compensation Judge.

A copy of the actual LWC-WC Form 1008 is available here.

The injured employee can bring a family member, friend or attorney to the Independent Medical Examination (IME), but if the employee refuses this Independent Medical Examination (IME), then the employee's lost wage payments may be temporarily suspended.

It is typically improper to obtain an Independent Medical Examination for the purpose of addressing questions of causation, as the current position of the Office of Workers' Compensation is to deny IME requests based on causation questions.

It is also typically improper to obtain an Independent Medical Examination for the purpose of addressing questions of medical necessity (ie does the employee need this treatment, or should it be approved), since these questions of medical necessity should be instead handled through the Utilization Review process. 

A Second Medical Opinion is NOT an Independent Medical Examination

It is fairly typical for an injured employee to be asked to undergo an Independent Medical Examination, especially if the employee requires surgery or another expensive procedure, or suffers from long-term disability.

And most injured employees will be required to undergo a Second Medical Opinion (SMO).

But all injured employees need to know that an Independent Medical Examination is NOT Second Medical Opinion (SMO).

Why is this important?

It is important because Independent Medical Examination physicians are appointed by the state, while Second Medical Opinion (SMO) physicians are chosen by the workers compensation insurance company.

So in that sense, an Independent Medical Examination may actually help support the employee's case or position, though it could also undermine the employee's claim as well.

Nevertheless, the workers compensation insurance company representatives often tell injured employees that they have set up an Independent Medical Examination, when in reality, they have set up a Second Medical Opinion.

Written notice of a real Independent Medical Examination will be sent directly from the Louisiana Office of Workers Compensation Medical Services Division or from the Louisiana Workers Compensation Court, not from the workers compensation insurance company.

Also, an Independent Medical Examiner is not actually the employee's doctor, which means that the Independent Medical Examiner will not actually treat the employee.

But more importantly, this means that there is no doctor-patient privilege between an employee and an Independent Medical Examiner, so nothing that the employee says will be confidential, and anything the employee says will likely become part of the Independent Medical Examiner's report and possibly used against the employee. 

Independent Medical Examinations are NOT Entirely Conclusive

Louisiana courts have ruled that while an Independent Medical Examination report should be given "significant weight" because the IME doctor is an objective party, the IME report is not conclusive and the judge must evaluate all of the medical evidence.

In other words, just because an Independent Medical Examination report goes against an employee, does not mean that the Judge will decide against that employee.

And just because an Independent Medical Examination report goes in favor of an employee, does not mean that the Judge will decide in favor of that employee.

Again, the workers compensation Judge will evaluate all of the medical evidence, and make an impartial decision.

But, nevertheless, the opinion of the Independent Medical Examination report will be strongly considered, and usually the workers compensation Judge will make a decision that is in agreement with the Independent Medical Examination report. 

Independent Medical Examinations versus the Utilization Review Process in Louisiana Workers Compensation

Under Louisiana law, an injured employee has the right to select one treating physician in any field or specialty.

But at the same time, an injured employee is required to submit to an examination by a physician provided and paid for by the employer or the workers compensation insurance company, as soon after the accident as demanded.

Typically, if the injured employee's treating physician and the insurance company's Second Medical Opinion (SMO) doctor disagree on the employee's condition or disability, the parties will have an Independent Medical Examination (IME) performed by a third doctor.

Either the employee or the workers compensation insurance company can request this Independent Medical Examination (IME) by completing an OWC Form 1015 and forwarding it to the Medical Services Section of the Office of Workers' Compensation Administration.

However, this Independent Medical Examination (IME) physician will be chosen by either workers compensation Judge or the Louisiana Office of Workers Compensation Medical Services Division.

Like Utilization Review, the Purpose of the Independent Medical Examination is for the Insurance Company to Dispute the Claim

Instead of treatment, the purpose of the Independent Medical Examination (IME) is for the workers compensation insurance company to dispute the opinion and treatment plan of the injured employee's treating physician.

In other words, the purpose of the insurance company's Second Medical Opinion (SMO) doctor is to provide another basis on which the insurance company can deny workers compensation benefits due the employee. 

Then again, the purpose of the Utilization Review process is also for the workers compensation insurance company to dispute - and ultimately deny - the employee's claim.

So when is each one used?

Utilization Review or Independent Medical Examination (IME)?

So, an Independent Medical Examination (IME) can be extremely helpful to the workers compensation insurance company, because they are used to deny medical treatment to an injured employee.

However, disputes over whether medical treatment is necessary are decided through the Utilization Review process (beginning with the OWC Medical Services Division), and not by a doctor performing an Independent Medical Examination (IME).

The purpose of an Independent Medical Examination (IME) is instead to address questions of medical causation, the employee's physical condition, and the extent of the employee's work capabilities.

In other words, if the workers compensation insurance company and the injured employee dispute whether a particular type of treatment recommended by the treating physician is medically necessary, the Utilization Review process is the appropriate forum to resolve this dispute.

But if the workers compensation insurance company claims that the employee's complaints are not related to the work accident, or if it disputes the employee's inability to work, then the workers compensation insurance company should have the employee examined by an Independent Medical Examination (IME) doctor. 

Of course, an Independent Medical Examination (IME) doctor could give an opinion on what he or she thinks is reasonable and necessary medical care, in order for the workers compensation Judge to consider.

But Louisiana law requires that a decision first be made by the Medical Director in the Utilization Review process, before the OWC Judge determines whether the Medical Director's decision was correct (and potentially at that point considers the opinion of the Independent Medical Examination doctor). 

 

The Louisiana Statute for Independent Medical Examinations in Louisiana Workers Compensation

The primary Louisiana statutes on Independent Medical Examinations are La. R.S. 23:1123, La. R.S. 23:1124, La. R.S. 23:1124.1, La. R.S. 23:1125 and La. R.S. 23:1317.1. These statutes read as follows:

§1123. Disputes as to condition or capacity to work; additional medical opinion regarding an examination under supervision of the secretary

If any dispute arises as to the condition of the employee, or the employee's capacity to work, the secretary, upon application of any party, shall order an additional medical opinion regarding an examination of the employee to be made by a medical practitioner selected and appointed by the secretary. The medical examiner shall report his conclusions from the examination to the secretary and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

Amended by Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 2010, No. 3, §1, eff. May 11, 2010; Acts 2012, No. 235, §1; Acts 2017, No. 381, §2, eff. June 23, 2017.

§1124. Refusal to submit to an additional medical opinion regarding an examination; effect on right to compensation

If the employee refuses to submit himself to an additional medical opinion regarding a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter may be suspended by the employer or payor until the examination takes place. Such suspension of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A)(4) and (5). When the employee has filed a disputed claim, the employer or payor may move for an order to compel the employee to appear for an additional medical opinion regarding an examination. The employee shall receive at least fourteen days written notice prior to the additional medical opinion regarding an examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.

Acts 1997, No. 393, §1; Acts 2013, No. 337, §1; Acts 2017, No. 381, §2, eff. June 23, 2017.

§1124.1.  Cumulative medical testimony; medical examination

Neither the claimant nor the respondent in hearing before the hearing officer shall be permitted to introduce the testimony of more than two physicians where the evidence of any additional physician would be cumulative testimony.  However, the hearing officer, on his own motion, may order that any claimant appearing before it be examined by other physicians.

Acts 1988, No. 938, §2, eff. Jan. 1, 1989.  Acts 1989, No. 260, §1, eff. Jan. 1, 1990.

§1125.  Right of employee to written report of medical examination; penalty for failure to furnish

A.  Whenever an employee who is being treated by his choice of medical provider shall, at the request of the employer, the employer's insurer, or the representative of the employer or its insurer, submit to any type of medical examination and a medical report is received by said requester, such employee or his representative shall be entitled to a copy of the written report of the results of said examination within thirty days from the date the requester receives the report.

B.  Whenever an employee has accepted medical treatment by a health care provider referred by the employer, the employer's insurer, or the representative of the employer or its insurer, he shall be entitled to receive a copy of any medical records of the medical provider that are in the possession of the employer or its insurer within thirty days from the date of the written demand upon the employer, the employer's insurer, or the representative of the employer or its insurer.

C.  Such written report or records shall be furnished to said employee or his representative at no cost to the employee.  Any employer who without just cause fails to furnish such report or records to an employee so requesting same within the thirty-day period provided for above shall be liable to the employee for a civil penalty in the amount of two hundred fifty dollars, plus reasonable attorney fees for the collection of such penalty.

Added by Acts 1976, No. 243, §1; Acts 1999, No. 134, §1, eff. June 9, 1999.

§1317.1. Additional medical opinion regarding medical examinations

A. Any party wishing to request an additional medical opinion regarding a medical examination of the claimant pursuant to R.S. 23:1123 and 1124.1 shall be required to make its request at or prior to the pretrial conference. Requests for additional medical opinions regarding medical examinations made after that time shall be denied except for good cause or if it is found to be in the best interest of justice to order such examination.

B. An examiner performing additional medical opinion exams pursuant to R.S. 23:1123 shall be required to prepare and send to the office a certified report of the examination within thirty days after its occurrence.

C. The report of the examination shall contain the following, when applicable:

(1) A statement of the medical and legal issues the examiner was asked to address.

(2) A detailed summary of the basis of the examiner's opinion, including but not limited to a listing of reports or documents reviewed in formulating that opinion.

(3) The medical treatment and physical rehabilitative procedures which have already been rendered and the treatment, if any, which the examiner recommends for the future, together with reasons for the recommendation.

(4) Any other conclusions required by the scope of the additional medical opinion regarding a medical examination, together with reasons for the conclusion reached.

(5) A curriculum vitae of the examiner.

(6) A written certification personally signed by the examiner that the report is true. The substance of the certification shall be: "I certify that I have caused this report to be prepared, I have examined it, and to the best of my knowledge and belief, all statements contained herein are true, accurate, and complete."

D. If a physical examination of the claimant was conducted, the certified report shall contain all of the following additional information:

(1) A complete history of the claimant, including all previous relevant or contributory injuries with a detailed description of the present injury.

(2) The complaints of the claimant.

(3) A complete listing of tests and diagnostic procedures conducted during the course of the examination.

(4) The examiner's findings on examination, including but not limited to a description of the examination and any diagnostic tests and X-rays.

E. When the additional medical opinion medical examiner's report is presented within thirty days as provided in this Section:

(1) The examiner shall be protected from subpoena except for a single trial deposition. However, upon a proper motion for cause, the workers' compensation judge may order further discovery of the additional medical opinion by a medical examiner as deemed appropriate.

(2) Except to schedule the deposition or further discovery as described above, the office of the additional medical opinion medical examiner shall not be contacted regarding the claimant by any party, attorney, or agent.

F. Objections to the additional medical opinion regarding a medical examination shall be made on form LDOL-WC-1008, and shall be set for hearing before a workers' compensation judge within thirty days of receipt. No mediation shall be scheduled on disputes arising under this Section.

Acts 1995, No. 328, §1, eff. June 16, 1995; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2012, No. 235, §1; Acts 2017, No. 381, §2, eff. June 23, 2017.  

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