Maximum Medical Improvement in Louisiana Workers Compensation

Img 3126

What Is Maximum Medical Improvement in Louisiana Workers Compensation?

In Louisiana workers compensation, Maximum Medical Improvement - or “MMI” for short - is generally defined as the point at which the injured employee's medical condition has stabilized and is unlikely to improve any further.

In other words, Maximum Medical Improvement means that the injured worker has reached a state where his or her medical condition cannot be improved any further, or that a treatment plateau in the employee's healing has been reached.

Of course, just because the injured employee worker has reached Maximum Medical Improvement does not mean that he or she is 100% fully healed.

Instead, Maximum Medical Improvement simply means that the injured worker's medical condition is generally "as good as it is going to get."

So in this sense, Maximum Medical Improvement could be a state reached both by an injured employee who is 100% fully healed and a different injured employee who is not healed at all.

Despite the fact that physicians often refer to Maximum Medical Improvement as the goal of medical treatment, it is frequently the case where an injured employee reaches Maximum Medical Improvement, but this employee still suffers pain, symptoms and impairments.

In fact, unfortunately, an injured employee could be at Maximum Medical Improvement, even though his or her medical condition might deteriorate or get worse. 

But, a determination of Maximum Medical Improvement can be positive for an injured employee because it can signal that the employee's workers compensation claim is near an end and that settlement is likely to occur soon.

Who Determines Maximum Medical Improvement in Louisiana Workers Compensation?

In Louisiana workers compensation, Maximum Medical Improvement is generally determined by the treating physician of the injured worker.

Really, this is because no other individual or party is in a better position to determine whether or not the employee has reached the point at which the injured employee's medical condition has stabilized and is unlikely to improve any further.

However, the workers compensation insurance company will often request that its own doctor conduct a Second Medical Opinion (SMO) - or a third doctor conduct an Independent Medical Examination (IME) - to determine if the injured employee is truly at Maximum Medical Improvement.

If the employee's treating physician and the insurance company's SMO or IME doctor are in disagreement, the matter will often be presented to the OWC workers compensation Judge for a hearing and determination.

Finally, it is important to recognize that an injured employee can be determined to be at Maximum Medical Improvement by one of his or her physicians, but not by another different of his or her physicians. 

For example, an injured employee's pain management doctor may determine that the employee is at Maximum Medical Improvement, while the employee's spinal surgeon may find that the employee requires surgery and therefore is not at Maximum Medical Improvement. 

Why is Maximum Medical Improvement Important in Louisiana Workers Compensation?

In Louisiana workers compensation, a determination of Maximum Medical Improvement will be important for several reasons.

Again, Maximum Medical Improvement means that the injured worker has reached a state where his or her medical condition cannot be improved any further.

First, if an employee's treating physician finds that the employee has, in fact reached Maximum Medical Improvement, then this may affect the injured worker's eligibility for certain types of lost wage (indemnity) benefits.

For example, if an injured employee reaches Maximum Medical Improvement, but remains totally disabled, it is very likely that this employee will be eligible to receive Permanent Total Disability (PTD) benefits.

Also, if an injured employee reaches Maximum Medical Improvement, but remains partially disabled, it is very likely that this employee will be eligible to receive Permanent Partial Disability (PPD) benefits, or Supplemental Earnings Benefits (SEBs).

And, if an injured employee reaches Maximum Medical Improvement, it is extremely unlikely that this employee would be eligible to continue receiving Temporary Total Disability (TTD) benefits since the employee's disability is no longer temporary in nature because the employee's condition has stabilized or plateaued. 

So in this sense, a determination of Maximum Medical Improvement - particularly when the injured employee is able to return to some type of work - can often mean less future lost wage (indemnity) benefits. 

Second, because of the ramifications that a determination of Maximum Medical Improvement can have on a workers compensation claim, it is not uncommon for either the injured employee or the workers compensation insurance company to challenge a determination of Maximum Medical Improvement.

Additionally, once a treating physician makes a determination of Maximum Medical Improvement, the workers compensation insurance company will often begin the vocational rehabilitation process - in order to reduce or eliminate an employee's lost wage benefits - if the employee cannot return to full employment.

Finally, a determination of Maximum Medical Improvement often creates a situation where it is an ideal time to attempt settlement negotiations since the employee's medical situation will no longer be changing or improving.

The workers compensation insurance company will likely be eager to pursue settlement negotiations at this point, and ideally, the employee's attorney should already have presented a settlement demand in the matter.  

Settlements and Maximum Medical Improvement in Louisiana Workers Compensation

Typically, in a Louisiana workers compensation claim, settlement most frequently occurs once a determination of Maximum Medical Improvement has been made by the injured employee's treating physician.

Again, Maximum Medical Improvement means that the injured worker's medical condition is generally "as good as it is going to get" and not going to improve.

And because the employee's medical condition is generally not going to improve, both the employee and the workers compensation insurance company should be able to properly evaluate the settlement value of the employee's claim, since both sides should be able to estimate and predict the employee's future lost wage (indemnity) benefits and future medical expenses.

Timing in Workers Compensation Settlements 

So, once an injured employee reaches Maximum Medical Improvement, the employee's workers compensation claim is prime (or ripe) for settlement. 

But if either the injured employee or the workers compensation insurance company fails to recognize that the employee has reached Maximum Medical Improvement, then unnecessary costs, expenses, and time can be added to a workers compensation claim.

And on the flip side, settling an employee's workers compensation claim too soon is rarely in an injured worker's interest because the workers compensation insurance company at that point will assume that the employee needs little to no more medical treatment, and thus will undervalue the employee's claim.

So by settling a claim too early (which usually means for too little an amount), the injured worker could be left uncompensated for future medical expenses, which the employee will likely have to pay for out-of-pocket, without any opportunity to reopen his or her claim.

But at the same time, an injured employee should always be proactive regarding settlement negotiations and should never wait for the workers compensation insurance company to make the first move when it comes to settling a workers compensation claim.  

For these reasons, an injured worker should always be represented by an experienced licensed workers compensation attorney, especially prior to any settlement negations.

Nonetheless, a determination of Maximum Medical Improvement remains a very important event in the course of any Louisiana workers compensation claim, and the injured employee and the employee's attorney must recognize this determination as a prime opportunity to reach a full and final settlement with the workers compensation insurance company.

The Louisiana Statute for Vocational Rehabilitation in Louisiana Workers Compensation

The primary Louisiana statute for vocational rehabilitation is La. R.S. 23:1226, which reads as follows:

§1226.  Rehabilitation of injured employees

A.  When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.  Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.

B.(1)  The goal of rehabilitation services is to return a worker with a disability to work, with a minimum of retraining, as soon as possible after an injury occurs.  The first appropriate option among the following must be chosen for the worker:

(a)  Return to the same position.

(b)  Return to a modified position.

(c)  Return to a related occupation suited to the claimant's education and marketable skills.

(d)  On-the-job training.

(e)  Short-term retraining program (less than twenty-six weeks).

(f)  Long-term retraining program (more than twenty-six weeks but not more than one year).

(g)  Self-employment.

(2)  Whenever possible, employment in a worker's local job pool must be considered and selected prior to consideration of employment in a worker's statewide job pool.

(3)  (a)  The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training.  Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided.  The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8).  The workers' compensation judge shall set a hearing date within three days of receiving the motion.  The hearing shall be held not less than ten, nor more than thirty days, after the employer or payor receives notice, delivered by certified or registered mail, of the employee's motion.  The workers' compensation judge shall provide notice of the hearing date to the employer and payor at the same time and in the same manner that notice of the hearing date is provided to the employee or his attorney.  For the purposes of this Section, an employee shall not be required to submit the dispute on the issue of vocational services to mediation or go through a pretrial conference before obtaining a hearing.  The hearing shall be conducted as a rule to show cause.

(b)  An employee shall have no right of action against a vocational counselor for tort damages related to the performance of vocational services unless and until he has exhausted the administrative remedy provided for in Subparagraph (a) of this Paragraph.  The running of prescription shall be suspended during the pendency of the administrative proceedings provided for in this Paragraph.

(c)   Upon refusal by the employee, the employer or payor may reduce weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), by fifty percent for each week of the period of refusal.  Reduction of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E).

C.(1)  Rehabilitation services required for workers with disabilities may be initiated by:

(a)  An insurer or self-insured employer by designating a rehabilitation provider and notifying the office.

(b)  The office by requiring the insurer or self-insured employer to designate a rehabilitation provider.

(c)  The employee, through a request to the office.  The office shall then require the insurer to designate a rehabilitation provider.

(2)  Rehabilitation services provided under this Part must be delivered through a rehabilitation counselor approved by the office.

D.  Prior to the workers' compensation judge adjudicating an injured employee to be permanently and totally disabled, the workers' compensation judge shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.

E.  When it appears that a retraining program is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to a reasonable and proper retraining program for a period not to exceed twenty-six weeks, which period may be extended for an additional period not to exceed twenty-six additional weeks if such extended period is determined to be necessary and proper by the workers' compensation judge.  However, no employer or insurer shall be precluded from continuing such retraining beyond such period on a voluntary basis.  An injured employee must request and begin retraining within two years from the date of the termination of temporary total disability as determined by the treating physician.  If a retraining program requires residence at or near the facility or institution and away from the employee's customary residence, reasonable cost of board, lodging, or travel shall be borne by the employer or insurer.  A retraining program shall be performed at facilities within the state when such facilities are available.

F.  Temporary disability benefits paid pursuant to R.S. 23:1221(1) shall include such period as may be reasonably required for training in the use of artificial members and appliances and shall include such period as the employee may be receiving training or education under a retraining program pursuant to this Section.

G.  The permanency of the employee's total disability under R.S. 23:1221(2) cannot be established, determined, or adjudicated while the employee is employed pursuant to an on-the-job training or a retraining program as provided in Subsections B and E of this Section.

Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 1989, No. 23, §1, eff. June 15, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §6, eff. Jan. 1, 1990; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2003, No. 980, §1; Acts 2004, No. 341, §1, eff. June 18, 2004; Acts 2005, No. 257, §1; Acts 2013, No. 337, §1; Acts 2014, No. 811, §12, eff. June 23, 2014.

Putting Our Clients First

Our clients always come first. Putting our clients first means we always offer free consultations, and free off-street parking, just one block off the highway in New Orleans. Putting our clients first also means we have a strict 24-hour communications policy, wherein our clients’ phone calls are always returned within 24 hours, if not sooner. That also means that our clients never have an issue getting through to their attorney, whether on the phone or in person.

A Proven Track Record of Success

We have successfully recovered millions of dollars in settlements for our clients in personal injury claims, auto accidents, and insurance claims. The reason that our opponents settle our clients’ cases for full value is because they know we prepare all our clients’ cases for trial from the start. In fact, we are known for not being afraid to take cases to trial, and thus our opponents know they are in for a fight when going against our clients.

Menu