What Medical Benefits Is An Injured Employee Entitled to in Louisiana Workers Compensation?
In Louisiana workers compensation, an injured employee is entitled to have all of his or her accident-related medical bills paid by the employer's workers compensation insurance company.
These medical bills include all necessary and reasonable medical expenses pertaining to the work-related injury, such as:
- Doctors visits;
- Diagnostic tests such as X-rays and MRIs;
- Prescription drug medications;
- Medical supplies;
- Hospital care and stays;
- Medical treatments;
- Surgeries and surgical treatment;
- Bloodwork and lab tests;
- Medical tests;
- Physical therapy;
- Medical rehabilitation efforts required for physical recovery;
- Prosthetic devices;
- Medically necessary treatments recommended by the treating physician;
- Reasonable travel expenses for obtaining medical services, medicines, and prosthetic devices; and
- Any non-medical treatment recognized by the laws of Louisiana as legal and related to the work injury.
In fact, Louisiana workers compensation provides Medical Treatment Guidelines for what comprises reasonable and necessary medical treatment, as well as a Medical Fee Schedule to set the costs of specific medical care and treatments.
Also, except for emergency care, the workers compensation insurance company must approve in advance any treatments that cost over $750.00.
Payment of Medical Expenses and Bills
Medical bills for approved treatment must be paid by the workers compensation insurance company within 60 days, unless the medical provider sends the bill electronically, wherein the time limit for payment is 30 days.
So therefore, under Louisiana law, all medical treatment should be authorized and/or paid within 60 days from date the insurance company receives written notice of the treatment and expense.
So if an employee receives any medical bills for treatment relating to his or her work-related injury, the employee should immediately send the medical bills to the employer or preferably to the workers compensation insurance company.
Or, if an employee incurs out-of-pocket medical expenses, then this employee should immediately send to the employer or the workers compensation insurance company an itemized list of out-of-pocket medical expenses and receipts paid by the employee, so that the employee can be reimbursed as soon as possible.
Medical Records, Notes and Reports
An injured employee is entitled to a copy of all of the medical records, notes and reports created by any doctor or therapist that examines the employee during the course of a workers compensation claim.
However, Louisiana law also provides that a health care provider who has at any time treated the employee related to the workers compensation claim shall release any requested related medical information and records to:
- The employer;
- The employee's workers compensation insurance company;
- Another health care provider examining the employee; and
- Any vocational rehabilitation counselor assigned to the employee's claim.
So the employee should certainly obtain a copy of all of these medical records, notes and reports, so as to be aware of and understand exactly what information the workers compensation insurance company has regarding the employee.
This is important because the workers compensation insurance company will be working hard to deny or minimize the employee's claim based on this very information.
Expiration or Prescription of the Ability to Claim Medical Benefits
An injured employee generally must file a claim for medical benefits within one year of the date of the accident, or the employee will lose the right to medical care.
Also, if the employee had already received medical benefits paid for by the workers compensation insurer, then the injured employee must file a claim for medical benefits within three years from the date of the last payment of a medical benefit, or the employee will lose the right to any further medical benefits.
Emergency Care and the Initial Medical Treatment in Louisiana Workers Compensation
An injured employee is entitled to see a doctor right away.
In fact, if an employee is injured at work, the employee should seek medical attention and medical treatment right away.
An injured employee not wait to get treatment, because delaying medical care can cause the employee's condition to worsen, resulting in more time missed from work and a worse medical situation.
So if the employer refuses to authorize or arrange medical care for an injured employee, the employee should just go ahead get treatment on his or her own as soon as possible, even if the employee has to pay for it up front.
The insurance company will reimburse these expenses, so in such a situation, the employee should make sure to keep all the related billing information.
Emergency Medical Care or Treatment
Typically, an injured employee is usually required to receive approval from the workers compensation insurance company for any first appointment with a new provider.
And if this approval is not obtained, the workers compensation insurance company may only be responsible for first $750.00 of treatment.
However, no approval is necessary if an emergency room doctor certifies that the employee had a genuine medical emergency.
Nonetheless, the employee should request from the doctor a written work release prescription or statement that explains the return-to-work status.
This written work release prescription should be a note that states whether or not the employee can go back to work, and (if the employee can go back to work) whether the employee can work light-duty or full-duty.
Choice of Physician in Louisiana Workers Compensation
Under Louisiana workers compensation law, an injured employee is entitled to choose one treating physician in each field or specialty.
Since the treating physician will usually determine the employee's disability, or inability to work, as well as the employee's future medical treatment, the employee's choice of physician is absolutely critical.
An emergency room physician is not considered the choice of physician for the employee.
But also, the insurance company may compel employee to attend a Second Medical Opinion (SMO) exam with a physician of their choice, if the insurer disagrees with the opinion of the employee's doctor.
So basically, the accepted rule is that both the employee and the employer have their choice of physicians, with the employee's choice being the “treating physician” and the employer's choice serving as a “second opinion” physician.
Or, if the employee's doctor and the insurance company's doctor disagree, either party can request an Independent Medical Exam (IME) with a physician from the Louisiana Office of Workers' Compensation Medical Services Division or a physician selected by the court.
The Physician's Choice Form
Again, in Louisiana workers compensation, an injured worker has the right to select his or her own doctor.
But unfortunately, this right of choice of physician can be easily waived by the employee if the employee signs a Physician's Choice Form stating that he chooses to treat with the insurance company's doctor.
In fact, the employer or its workers compensation insurance company regularly provides this Physician's Choice Form to the employee in order to entice the employer into choosing the insurance company's doctor as the employee's treating physician.
However, an injured employee should NOT sign a Physician's Choice Form until the employee has properly chosen his or her own doctor, and the employee should complete the Physician's Choice Form indicating that the employee has properly chosen his or her own doctor and who exactly this doctor is.
If the employee fails or refuses to sign the Physician's Choice Form, the insurance company may suspend medical benefits until such time as the employee complies with the law, and seek an expedited hearing to be held within ten days in order to compel the employee to comply with the law on physician choice.
But having the employee's payments temporarily suspended (which rarely even happens) is much better for the employee than agreeing to choose the insurance company's doctor as the employee's treating physician.
The Importance of Choosing the Right Doctor
Choosing the right doctor is absolutely critical in an injured employee's workers compensation case for two main reasons:
- Choosing the right doctor will be essential in getting the best medical treatment that the employee seeks; and
- Choosing the right doctor will be essential in getting the best legal outcome for the employee's workers compensation claim.
For these reasons, the two most important decisions that an injured worker will make in his or her workers compensation claim are (1) who is the employee's attorney; and (2) who is the employee's doctor.
For example, the treating physician will be essentially deciding:
- Whether an injury or medical condition is considered a disability;
- Which medical treatments are necessary; and
- Whether the injury or medical condition is a result of a work-related accident.
The injured employee should never choose the insurance company's doctor as the employee's treating physician.
This is one of the biggest mistakes an injured worker can make in his or her workers compensation claim.
By far, the best way to find the right doctor in a workers compensation claim is to take the advice and recommendations of a knowledgable and experienced workers compensation attorney.
A good workers compensation attorney will know:
- Which doctors are experienced in handling workers compensation claims;
- Which doctors have a history of fighting for injured workers in workers compensation claims;
- Which doctors have a reputation as great medical doctors; and
- Which doctors have offices that are efficient and organized.
If the injured employee does not have a good workers compensation attorney, then he or she should hire one.
The Typical Three Different Types of Doctors in Louisiana Workers Compensation
Generally speaking, there are three main different types of doctors that an injured employee might see during the course of the employee's workers compensation claim.
These three types of doctors are:
- The doctor that the employee chooses to be his or her treating physician for the employee's work-related injury;
- The doctor that the workers compensation insurance company chooses to provide it with a Second Medical Opinion (SMO); and
- The doctor that the workers compensation Judge or the Louisiana Office of Workers Compensation Medical Services Division selects to perform an Independent Medical Evaluation (IME).
These three different categories of doctors will perform different roles during the course of an injured employee's workers compensation claim.
Medical Choices Left to The Insurance Company
The workers compensation insurance company - and not the injured employee - typically gets to choose and decide:
- Which pharmacy will provide the necessary prescription medication drugs to the injured employee;
- Which facility will perform diagnostic tests such as X-rays and MRIs on the injured employee;
- Who will act as the injured employee's nurse care manager; and
- Who will act as the injured employee's Functional Capacity Evaluation (FCE) provider in order to determine the employee's ability to return to work.
However, the injured employee may choose his or her Functional Capacity Evaluation (FCE) provider when the FCE is being issued for treatment purposes, such as a diagnostic reference to assess the employee's medical progress or to determine an endpoint for the employee's treatment.
Utilization Review - The Medical Treatment Approval Process In Louisiana Workers Compensation
Unfortunately, Louisiana workers compensation insurance companies love to denial medical treatment to injured employees.
In fact, in order to discourage the injured employee from receiving full medical treatment, these workers compensation insurance companies have devised a complicated process called Utilization Review.
"Utilization Review" in Louisiana workers compensation is a set rules in Louisiana workers compensation that require the use of appropriate procedures in order to:
- Establish standards of care for medical professionals;
- Determine the necessity and advisability of proposed medical treatment (such as doctor's visits, hospital care, or surgical treatment); and
- Determine the necessity and advisability of proposed non-medical treatment recognized under Louisiana law.
The Approval Process for Medical Treatment
The workers compensation insurance company must provide an injured worker with “all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal.”
However, the workers compensation insurance company's advance approval is required for medical treatment beyond $750, unless the medical treatment is provided under emergency circumstances.
So these "Utilization Review" rules also provide appropriate procedures and deadlines to be followed when an injured employee seeks approval from the workers compensation insurance company to begin or continue treatment beyond the limit of $750.
The basic typical Utilization Review process for paying workers compensation medical claims is as follows:
- The process begins with the health care provider (who is seeking authorization for over $750 of medical services) submitting a request to the workers compensation insurer on a Form LWC-WC 1010 (Request of Authorization/Carrier or Self Insured Employer Response). The Form LWC-WC 1010 and all supporting medical documentation are to be faxed to the workers' compensation insurer and/or the designated utilization review representative.
- Within five business days of receipt of the Form LWC-WC 1010, the workers compensation insurer will issue a response of either approval, denial, or approval with modification of the requested treatment on the Form LWC-WC-1010, and return the form to the requesting health care provider.
- The workers compensation insurer and/or utilization review representative may send a Form LWC-WC-1010A (First Request) when the medical documentation submitted with the Form LWC-WC-1010 is not sufficient to complete the review for the requested medical services.
- The health care provider must then respond to the request for additional information within 10 business days from receipt of the Form LWC-WC-1010A.
- If the workers compensation insurer denies the requested treatment, or does not respond within 5 days, then within 15 calendar days of the date of denial, the health care provider must file a Form LWC-WC 1009 (Disputed Claim for Medical Treatment) to request a review by the OWCA Medical Director. The Form LWC-WC 1009 must be accompanied by a copy of the Form LWC-WC 1010 (and Form LWC-WC 1010A, if applicable), and a copy of the supporting medical records.
- Within 30 days after receipt of the Form LWC-WC 1009 and supporting documentation, the OWCA Medical Director will render a decision as to whether the medical treatment should be approved.
- Any party who disagrees with the decision of the OWCA Medical Director can seek a judicial review by filing a Form LWC-WC 1008 (Disputed Claim for Compensation) with the appropriate OWCA district office within 15 days of the date of which the Medical Director's decision is mailed to the parties. The filed Form LWC-WC 1008 shall include a copy of the Form LWC-WC 1009, and a copy of the determination of the OWCA Medical Director. An expedited hearing will be held within 15-30 days, and the decision of the OWCA Medical Director may be overturned if it is shown by clear and convincing evidence that the determination was not in accordance with the Medical Treatment Guidelines.
Unfortunately, this process unfolds very frequently, because the workers compensation insurance companies regularly and routinely ignore or deny requests for medical treatment and testing.
Louisiana's Medical Treatment Guidelines
Louisiana's Medical Treatment Guidelines are the rules which the OWC Medical Director uses to decide whether or not proposed medical treatment should be authorized.
The purpose these Medical Treatment Guidelines is to assist with the decision making process regarding proposed medical treatment for the injured worker.
The actual Medical Treatment Guidelines are available at: http://www.laworks.net/WorkersComp/OWC_MedicalGuidelines.asp.
All medical providers and workers compensation insurance carriers are expected to comply with Louisiana's Medical Treatment Guidelines.
Requests for medical treatment which do not comply with the Medical Treatment Guidelines will not be approved unless the injured employee can prove by a preponderance of scientific medical evidence that a variance is appropriate under the specific circumstances of the employee's case.
Louisiana's Medical Reimbursement Fee Schedule
In Louisiana workers compensation, the amounts that can be billed by the medical providers for medical services and treatments - or rates for reimbursement - are set forth in Louisiana's Medical Reimbursement Fee Schedule.
That is, the amounts that a medical provider can charge for its services are limited by the Medical Reimbursement Fee Schedule, and payments for all medical fees are limited to the Medical Reimbursement Fee Schedule.
Any fees in excess of the Medical Reimbursement Fee Schedule are not recoverable against the employee, the employer or the workers compensation insurance company.
But when the workers compensation insurance company denies the compensability of the employee's claim from the beginning, it must pay the actual medical expenses incurred - not the amounts listed in the Medical Reimbursement Fee Schedule.
Some Medical Treatments Do Not Need to Undergo the Utilization Review Process
Even though all medical providers and insurance carriers are expected to comply with the Utilization Review rules, not all medical treatment is subject to the Utilization Review rules.
- An injured employee does not have to get pre-approval from the workers compensation insurance company if the cost of the medical treatment is less than $750.00.
- Emergency treatment is not subject to the Utilization Review rules. However, the injured employee must be able to prove that the treatment was indeed of an emergency nature.
- Though an individual office visit with a doctor rarely costs more than $750, office visits with the employee's doctor usually are subject to the Utilization Review rules (and thus need pre-approval), because the office visits will be considered as a group of visits over a period of time. Specifically, once injured employee has reached the initial $750 limit on non-emergency care, the health care provider must request authorization from the workers compensation insurance company to continue treating the employee. Once this initial authorization request is approved, the health care provider will not be required to submit another authorization request for additional office visits during the 12 months following the accident date, or 12 visits, whichever comes first. But these 12 visits include the visits billed prior to when the employee reached the $750 limit.
Again, these medical treatments do not need to undergo the Utilization Review process in Louisiana workers compensation.
The Second Medical Opinion of the Insurance Company's Doctor 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.
This examination by the the insurance company's doctor is called a Second Medical Opinion (SMO).
If the employee refuses this examination, the employee's lost wage payments may be temporarily suspended.
Last, the injured employee should be aware that the employee's Second Medical Opinion appointment is a time in which the workers compensation insurance company is most likely to employ video surveillance by a private investigator on the employee.
This is because the insurance company knows where the employee is and where the employee is going on the day of the employee's Second Medical Opinion appointment.
The Insurance Company's Second Medical Opinion Doctor Does Not Actual Treat the Employee
A major difference between the insurance company's Second Medical Opinion (SMO) doctor and the injured employee's treating physician is that the insurance company's Second Medical Opinion (SMO) doctor would never actually treat the employee - such as actually perform a procedure, such as a surgery.
In fact, the insurance company's Second Medical Opinion (SMO) doctor will only meet with the employee one time, and usually for a short evaluation.
Specifically, Louisiana law holds that "the employer or his workers' compensation carrier shall not require the employee to be examined by more than one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee."
The Purpose of the Insurance Company's Second Medical Opinion Doctor is to Dispute the Claim
Instead of treatment, the purpose of the insurance company's Second Medical Opinion (SMO) doctor is 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 a basis on which the insurance company can deny workers compensation benefits due the employee.
Typically, if the injured employee's treating physician and the insurance company's Second Medical Opinion (SMO) doctor disagree on the employee's condition, disability, or proper course of treatment, the parties will have an Independent Medical Examination (IME) performed by a third doctor.
Second Medical Opinion or Utilization Review Process (SMO)?
Second Medical Opinions (SMOs) 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 a Second Medical Opinion (SMO).
The purpose of a Second Medical Opinion 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 a Second Medical Opinion doctor.
Independent Medical Examinations in Louisiana Workers Compensation
If there are opposing doctor's opinions regarding an injured employee's condition or capacity to work, the Office of Workers' Compensation Administration or the workers compensation Judge will 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.
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.
Either the workers compensation insurance company or the employee can request an Independent Medical Examination.
Either the workers compensation Judge or 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 Second Medical Opinion is NOT an Independent Medical Examination
All injured employees need to know that an Independent Medical Examination is NOT Second Medical Opinion (SMO).
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.
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.
How to Order an Independent Medical Examination
Louisiana law allows for either party - the workers compensation insurance company or the employee - to request an Independent Medical Examination (IME) from the Office of Workers' Compensation.
There are two ways in which the Independent Medical Examination can be ordered:
- An Independent Medical Examination where the IME physician is selected by the Office of Workers Compensation Medical Services Division; and
- An Independent Medical Examination where the IME physician is selected by the workers compensation Judge.
If a claim is already in workers compensation court, then the parties can request an Independent Medical Examination through the Office of Workers' Compensation Medical Services Division, or through the presiding workers compensation Judge.
If a claim is not already in workers compensation court, then the parties are limited to requesting an Independent Medical Examination through the Office of Workers' Compensation Medical Services Division.
Following the Independent Medical Examination, the Independent Medical Examiner will draft a report on the examination, and will send a certified report directly to the Louisiana Office of Workers Compensation Medical Services Division or to the Louisiana Workers Compensation Judge who requested the IME.
How to Handle an Independent Medical Examination
At the examination, the Independent Medical Examination doctor will take the employee's medical and accident histories, ask about current symptoms, and perform a physical examination.
The Independent Medical Examination doctor will have reviewed the medical records in advance.
At an Independent Medical Examination, the injured employee can expect:
- Prepared questionnaires in advance of the examination;
- Pain scales and drawings during the examination;
- Detailed questions during the examination; and
- A detailed Independent Medical Examination Report following the examination.
Some Independent Medical Examination doctors will actually watch an injured employee from the minute the employee leaves his or her car until the moment the employee returns and drives away.
Independent Medical Examination doctors have regularly issued reports which say things like “the patient ran from his car into the building, but then began to limp when he entered the examination room.”
An injured employee at an Independent Medical Examination (IME) should:
- Be honest in all aspects;
- Be polite and respectful;
- Be specific and detailed in describing injuries and symptoms;
- Include all injuries and symptoms that are related to the accident;
- Be truthful about the employee's physical limitations;
- Explain why the employee's previous injuries are different from the employee's work-accident injuries;
- Stay calm, and let the IME physician know right away if the physician actually hurts the employee;
- Be aware of the fact that the IME physician is neither the employee's advocate or the employee's medical doctor;
- Be mindful that the employee may be surveilled by an insurance investigator, by wearing braces and using canes; and
- Limit activities on the day before, the day of and the day after the IME, due to possible surveillance.
As for a list of things that an injured employee at an Independent Medical Examination (IME) should NOT do:
- Do not exaggerate or fake injuries, because many IME doctors will note exaggeration in the IME report;
- Do not downplay pain or symptoms;
- Do not attempt to over-react when touched or prodded;
- Do not be offended by the doctor's questions;
- Do not ask medical questions about treatment;
- Do not answer questions that are not asked;
- Do not contribute information beyond the scope of the examination;
- Do not make small talk;
- Do not overly compliment the IME doctor;
- Do not discuss the specifics of the legal case; and
- Do not discuss any conversations that the employee had with the employee's lawyer.
Overall, the most important points for the injured employee in an Independent Medical Examination are for the employee to be detailed and thorough, but not exaggerate any injuries.
Mileage and Travel Costs Reimbursement in Louisiana Workers Compensation
An employee injured on the job in Louisiana is entitled to be compensated for the cost of traveling to and from any medical appointments or treatments, and for the cost of traveling to and from any pharmacies in order to obtain any medications related to necessary care, and for the cost of traveling to and from any vocational rehabilitation.
In order to be reimbursed for mileage expenses, the injured employee must submit a mileage reimbursement form monthly.
The amount of transportation reimbursement is based on the miles (or "mileage") traveled to and from the medical provider or pharmacy.
As of 2019, this mileage reimbursement rate is $0.54 (or 54 cents) per mile.
Thus, if an injured worker traveled a total of 100 miles in a month to and from medical providers and pharmacies, then this worker would be entitled to $54.00 in mileage reimbursement for that month.
Prescription Medication Cost Reimbursement in Louisiana Workers Compensation
In Louisiana workers compensation, an injured employee is entitled to have all of his or her accident-related prescription medications paid for by the employer's workers compensation insurance company.
Typically, no advance approval by the workers compensation insurance company is required for prescription medications.
Nonetheless, many times the workers compensation insurance company will already have submitted its billing information to the pharmacy, thereby freeing the injured employee from having to pay for the prescription medications up front and out-of-pocket.
Also, some insurance companies provide a prescription card to the employees, so that the employee can just use the prescription card at the pharmacy, and not have to pay any out-of-pocket co-payment or deductible.
The Louisiana Statutes on Medical Benefits in Louisiana Workers Compensation
The most important Louisiana statutes on medical benefits are La. R.S. 23:1121, La. R.S. 23:1122, La. R.S. 23:1123, La. R.S. 23:1124, La. R.S. 23:1125, La. R.S. 23:1142, La. R.S. 23:1203, La. R.S. 23:1203.1, and La. R.S. 23:1317.1. These statutes read as follows:
§1121. Examination of injured employee
A. An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter. The employer or his worker's compensation carrier shall not require the employee to be examined by more than one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee.
B.(1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8), when denied his right to an initial physician of choice. The workers' compensation judge shall set the hearing date for the matter within three days of receiving the employee's motion for the expedited hearing. The hearing shall be held not less than ten nor more than thirty days after the employee or his attorney files the motion for an expedited hearing. The workers' compensation judge shall provide notice of the hearing date to the employer and insurer 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 choice of physician to mediation nor go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause. The workers' compensation judge shall order the employer or payor to authorize the claimant's choice of physician unless the employer or payor can show good cause for his refusal. After his initial choice the employee shall obtain prior consent from the employer or his workers' compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
(2)(a) If the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician.
(b) When the employee is specifically directed to a physician by the employer or insurer, that physician may also be deemed as the employee's choice of physician, if the employee has received written notice of his right to select one treating physician in any field or specialty, and then chooses to select the employer's referral as his treating specialist after the initial medical examination as signified by his signature on a choice of physician form. The notice required by this Subparagraph shall be on a choice of physician form promulgated by the assistant secretary of the office of workers' compensation and shall contain the notice of the employee's rights provided under R.S. 23:1121(B)(1). Such form shall be provided to the employee either in person or by certified mail.
(3) Paragraph (2) of this Subsection shall not apply to other physicians to whom the employee is referred by the physician selected by the employer unless the employer or insurer has obtained the choice of physician form provided for under Subparagraph (2)(b) separately for any such physician after the initial medical examination with that physician.
(4) In instances where the employee is illiterate or has a language barrier, an authorized representative of the employer or insurer shall attest by his signature on the form that he has reasonably read and explained the form to such employee prior to their signatures.
(5) If the employee fails or refuses to sign the form as provided in Subparagraph (2)(b) and Paragraph (3) of this Subsection, the employer or payor may suspend medical benefits until such time as the employee complies with Subparagraph (2)(b) and Paragraph (3) of this Subsection. Suspension of medical 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 return the form.
C. Repealed by Acts 2003, No. 1204, §2.
D. After all examinations have been conducted but prior to any order directing the injured employee to return to work, the employee shall be permitted, at his own expense, to consult with and be examined by a physician of his own choosing. Such report shall be considered in addition to all other medical reports in determining the injured employee's fitness to return to work. Should disagreement exist, after such consultation and examination, as to the fitness of the employee to return to work, the provisions of R.S. 23:1123 shall be followed.
E. Nothing in this Section shall be construed so as to provide that a physician who, regarding the work-related injury, administered emergency treatment only shall be the physician of choice of either the employee or the employer.
Acts 1986, No. 726, §1; Acts 1987, No. 492, §1; Acts 1988, No. 617, §1; Acts 1997, No. 393, §1; Acts 1997, No. 452, §1, eff. June 22, 1997; Acts 1999, No. 324, §1, eff. June 16, 1999; Acts 2003, No. 886, §1; Acts 2003, No. 1204, §2; Acts 2013, No. 337, §1.
§1122. Employer's duty to cause examination of employee; rights of employee
The employer shall cause the examination provided for in the preceding Section to be made immediately after knowledge or notice of the accident, and to serve a copy of the report of such examination made by the employer's physician upon the employee within six days after the employer's receipt of the report of such examination. If the examination is not made and the report is not furnished by the employer within that time, the employee shall furnish a report of the examination made by his own physician to the employer, for which the employee shall be entitled to receive from the employer the actual cost of the examination and the actual cost of the report. The physician's invoice or receipt shall be prima facie proof of the cost. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes the report or any statement therein, shall notify the other of that fact within six days, otherwise the report shall be prima facie evidence of the facts therein stated in subsequent proceedings under this Chapter.
Amended by Acts 1978, No. 210, §1.
§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.
§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.
§1142. Approval of health care providers; fees
A. Definitions. For the purposes of this Section, the following terms shall have the following meanings unless the context clearly indicates otherwise:
(1) "Payor" shall mean the entity responsible, whether by law or contract, for the payment of the medical expenses incurred by a claimant as a result of a work related injury.
(2) "Utilization review company" shall mean the company or entity which contracts with the payor, and which entity reviews the claimant's medical records and information and makes the determination of medical necessity in accordance with this Chapter, for the purposes of assisting the payor with the authorization of the claimant's medical care, services and treatment requested pursuant to this Chapter.
B. Nonemergency care.
(1)(a) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer's workers' compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
(b)(i) The payor may contract with a utilization review company to assist the payor in determining if the request for nonemergency diagnostic testing or treatment, in an amount which exceeds seven hundred fifty dollars, is a medical necessity as provided pursuant to this Chapter.
(ii) A medical necessity determination by a utilization review company and the payor's consent to authorize the requested nonemergency diagnostic testing and treatment shall require only a review of the claimant's medical records and shall not require an examination of the employee.
(2)(a) When the payor has agreed to the diagnostic testing or treatment, the health care provider shall not issue any demand for payment to the employee or his family until the payor denies liability for the diagnostic testing or treatment. Notwithstanding the foregoing, the health care provider may reasonably communicate with the employee or his attorney or representative for the purpose of pursuing its claim against the payor.
(b) A health care provider who knowingly and willfully violates this Paragraph may be ordered by the workers' compensation judge to pay penalties not to exceed two hundred fifty dollars per violation plus reasonable attorney fees. The penalty shall not exceed one thousand dollars for any demand for payment to an employee or his family which is issued after the health care provider has been penalized for a previous demand for payment to that employee or his family.
C. Emergency care.
(1) In no event shall prior consent be required for any emergency procedure or treatment deemed immediately necessary by the treating health care provider. Any health care provider who authorizes or orders emergency diagnostic testing or treatment, when said diagnostic testing or treatment is held not to have been of an emergency nature, shall be responsible for all of the charges incurred in such diagnostic testing or treatment. Said health care provider shall bear the burden of proving the emergency nature of the diagnostic testing or treatment.
(2) Fees for those services of the health care provider held not to have been of an emergency nature shall not be an enforceable obligation against the employee or the employer or the employer's workers' compensation insurer unless the employee and the payor have agreed upon the treatment or diagnostic testing by the health care provider, except as provided in R.S. 23:1272(D).
D. Fees and expenses. If the payor has not consented to the request to incur more than a total of seven hundred fifty dollars for any and all nonemergency diagnostic testing or treatment when such consent is required by this Section, and it is determined by a court having jurisdiction in an action brought either by the employee or the health care provider that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer or the insurer shall be liable to the employee or health care provider bringing the action for reasonable attorney fees related to this dispute and to the employee for any medical expenses so incurred by him for an aggravation of the employee's condition resulting from the withholding of such health care provider services.
E. Exception. In the event that the payor has denied that the employee's injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.
Acts 1988, No. 617, §1; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 1472, §1; Acts 2012, No. 235, §1.
§1203. Duty to furnish medical and vocational rehabilitation expenses; prosthetic devices; other expenses
A. In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services. Medical care, services, and treatment may be provided by out-of-state providers or at out-of-state facilities when such care, services, and treatment are not reasonably available within the state or when it can be provided for comparable costs.
B. The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers' compensation administration utilization review rules.
C. The employer shall furnish to the employee the necessary cost of repair to or the replacement of any prosthetic device damaged or destroyed by accident in the course and scope and arising out of such employment, including but not limited to damage or destruction of eyeglasses, artificial limbs, hearing aids, dentures, or any such prosthetic devices whatsoever.
D. In addition, the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section, and for the vocational rehabilitation-related mileage traveled by the employee at the direction of the employer. When the employee uses his own vehicle, he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business. The office shall inform the employee of his right to reimbursement for mileage.
E. Upon the first request for authorization pursuant to R.S. 23:1142(B)(1), for a claimant's medical care, service, or treatment, the payor, as defined in R.S. 23:1142(A), shall communicate to the claimant information, in plain language, regarding the procedure for requesting an additional medical opinion regarding a medical examination in the event a dispute arises as to the condition of the employee or the employee's capacity to work, and the procedure for appealing the denial of medical treatment to the medical director as provided in R.S. 23:1203.1. A payor shall not deny medical care, service, or treatment to a claimant unless the payor can document a reasonable and diligent effort in communicating such information. A payor who denies medical care, service, or treatment without making such an effort may be fined an amount not to exceed five hundred dollars or the cost of the medical care, service, or treatment, whichever is more.
Amended by Acts 1952, No. 322, §1; Acts 1956, No. 282, §1; Acts 1968, No. 103, §1; Acts 1975, No. 583, §6, eff. Sept. 1, 1975; Acts 1976, No. 400, §1; Acts 1977, No. 530, §1. Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1987, No. 290, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989; Acts 1989, No. 260, §1, eff. June 26, 1989; Acts 1997, No. 452, §1, eff. June 22, 1997; Acts 2001, No. 898, §1; Acts 2012, No. 235, §1; Acts 2017, No. 381, §2, eff. June 23, 2017.
§1203.1. Definitions; medical treatment schedule; medical advisory council
I. After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203 et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it is demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances.
J.(1) After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers' compensation administration medical director or associate medical director on a form promulgated by the assistant secretary. The medical director or associate medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.
(2) If either party, the medical director, or associate medical director believes that a potential conflict of interest exists, he shall communicate in writing such information to the assistant secretary, who shall make a determination as to whether a conflict exists within two business days. The assistant secretary shall notify in writing the patient, the physician, and, if applicable, the attorney of his decision within two business days.
K. After the issuance of the decision by the medical director or associate medical director of the office, any party who disagrees with the decision, may then appeal by filing a "Disputed Claim for Compensation", which is LWC Form 1008. The decision may be overturned when it is shown, by clear and convincing evidence, the decision of the medical director or associate medical director was not in accordance with the provisions of this Section.
L. It is the intent of the legislature that, with the establishment and enforcement of the medical treatment schedule, medical and surgical treatment, hospital care, and other health care provider services shall be delivered in an efficient and timely manner to injured employees.
Acts 2009, No. 254, §1; Acts 2010, No. 619, §1, eff. June 25, 2010; Acts 2012, No. 573, §1; Acts 2012, No. 811, §6, eff. July 1, 2012; Acts 2013, No. 317, §1; Acts 2014, No. 791, §9; Acts 2018, No. 380, §1, eff. June 30, 2018.
§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.