In Louisiana workers compensation, an injured employee is entitled to have all of his or her accident-related medical bills and expenses 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;
- Medical treatments;
- Surgeries and surgical treatment;
- Prescription drug medications;
- Medical supplies;
- Hospital care and stays;
- 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 that detail 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 treatment that costs over $750.00.
The Insurance Companies Frequently Deny Medical Treatment in Louisiana Workers Compensation
Unfortunately, Louisiana workers compensation insurance companies love to deny medical treatment to injured workers.
As horrible as it is, the best strategy for these workers compensation insurance companies' financial bottom lines is to delay and deny medical treatment.
In fact, in order to discourage injured employees from receiving full medical treatment, these workers compensation insurance companies have devised the complicated Utilization Review process.
Some insurance companies perform longer investigations for more expensive treatments, like hospitalizations and surgeries, and others just outright deny certain claims no matter what.
So these workers compensation insurance companies have made the process for approving medical so complicated and difficult, in the hopes that:
- Employees will give up on getting the full treatment they deserve;
- Medical providers will seek approval for less than what the employee deserves; and
- Attorneys, employees, and medical providers will not challenge the insurance companies on their denials.
In fact, the only way to ensure that an injured employee is receiving the full medical care he or she deserves is for the employee to work with an attorney and a doctor who understand the complicated workers compensation Utilization Review process, and are willing to fight to get the full medical care that the injured employee deserves.
Reasons Why Medical Benefits May Be Denied in Louisiana Workers Compensation
The medical benefits due to injured employees are regularly and wrongly denied.
In fact, a primary tactic of most workers compensation insurance companies is to deny, deny, deny.
Typical reasons that the workers compensation insurance companies deny medical benefits, in particular, include the following:
The workers compensation insurance company claims that there is insufficient supporting medical documentation. When a medical provider requests approval for medical treatment over $750, the medical provider must provide supporting medical documentation to justify the treatment. However, this issue of insufficient supporting medical documentation can be easily remedied by providing the full and proper supporting medical documentation. It certainly helps to have a medical provider experienced in solving such issues. An experienced workers compensation attorney can find such a medical provider for an injured employee.
The employee's request for workers compensation benefits may be denied for technical reasons. The Utilization Review process used to approve medical treatment over $750 is complicated, and it was designed by the insurance companies to be that way so that they could routinely deny medical treatment. Nevertheless, this issue can be easily remedied by resolving any technical issues. A knowledgeable medical provider can fix such issues, but so can an experienced workers compensation attorney.
The employee's medical condition does not fall under the Medical Treatment Guidelines. Certain treatments may not be covered for certain reasons under Louisiana's Medical Treatment Guidelines. But also, the workers compensation insurer may claim that a certain treatment is not covered under Louisiana's Medical Treatment Guidelines, when, in fact, it is. Really, only experienced workers compensation attorney willing to fight for an injured employee can handle such a dispute.
The employee refused to sign medical authorizations. The workers compensation insurers are entitled to receive the employee's medical records, and thus, in general, employees are generally required to sign medical authorizations that will allow the insurer to request the medical records directly from the employee's health care providers. However, sometimes the insurer's medical authorizations can go overboard and invade the employee's privacy by seeking medical records that do not relate to the work accident.
The workers compensation insurance company claims that the requested medical treatment is not "necessary." Louisiana law does require that the employee's medical treatment be reasonable and necessary. But often the insurance company's idea of "necessary" is just plain wrong. The insurance company may claim that there is a "less costly" way to treat the employee's injuries, despite the fact that the employee's treating physician - a medical doctor - is recommending such treatment. Typically, such a dispute will need to go through the Utilization Review process and is best handled by an experienced workers compensation attorney.
The workers compensation insurance company claims that the employee's injury is a pre-existing condition or caused by a pre-existing condition that was not aggravated by a work-place injury. This is a typical scenario, where the insurance company tells the injured worker that because the worker has had ongoing back problems in the past, that it will not cover medical treatment for the employee's back after a workplace injury. This is not necessarily true. In Louisiana, if an injury at work aggravates a pre-existing injury, then the treatment for this injury must be covered by workers compensation.
The insurance company claims that the employee can return to work safely and that he or she no longer needs medical care at all. This situation frequently occurs when the injured employee uses the insurance company's doctor as the employee's treating physician. An injured employee should always select the employee's own doctor - and never use the insurance company's doctor - and preferably have an experienced workers compensation attorney help to select the employee's treating physician, before it is too late.
The employer or its workers compensation insurance company made a mistake. Sometimes people just make mistakes. Other times, people say they just made a mistake, when the mistake is actually the company policy. It is critical to identify the mistake and resolve it as soon as possible. And having an experienced workers compensation attorney can send a message to the insurance company that "mistakes" will not be tolerated.
The workers compensation insurance company claims that the injury is not work-related. Workers compensation insurers frequently claim that "the employee's medical condition is not actually a result of a workplace accident." Unfortunately, the only way to handle such a dispute is to fight back by gathering the appropriate evidence to support the claim and presenting it to the workers compensation in a proper fashion. This evidence could be witness testimony of co-workers, or a doctor's testimony, or medical records. Or it could be a proper legal argument presented to the workers compensation Judge. Either way, really, the employee's only chance for success against the insurance companies' attorneys is to hire an experienced workers compensation attorney who is willing to fight for the injured worker.
Typical reasons that the workers compensation insurance companies deny workers compensation benefits in general, include the following:
The employer never reported the injury to its workers compensation insurer. Once the employer is notified of the injured employee's injury, the employer has ten days to notify its workers compensation insurance company. In fact, the employer must file a form called the First Report of Injury or Illness with the insurance company within ten days. If the employer is self-insured, it must file the First Report of Injury or Illness with the Office of Workers Compensation. Failure of the employer to notify the insurer or file a First Report of Injury or Illness will delay the employee's benefits.
The employer did not report the injury to the workers compensation insurer within the proper time limit. Failure of the employer to notify the insurer or file a First Report of Injury or Illness within ten days will delay the employee's benefits. However, it is not a valid excuse for a delayed payment.
The employer does not have the required workers compensation insurance. Despite the fact that all employers are required to have workers compensation insurance or be self-insured, some employers either let their coverage lapse, have improper coverage, or even just outright ignore their legal responsibilities and requirements. If the employer does not have workers compensation insurance, it can and should be sued directly, not only for the workers comp benefits, which the employee is typically entitled but also for the penalties and attorney's fees due to the fact that it failed to maintain the required workers compensation insurance. Typically, if the employer does not have the proper insurance, then it does not understand the proper way to handle a claim, including when and how payments must begin.
The workers compensation insurer's claim file got misplaced or forgotten. Workers compensation insurance companies often claim that they lost a file, or misplaced claim file, or forgot about it. Whether these excuses are true or not is irrelevant. Again, indemnity benefits should be paid no later than the fourteenth day after the employer, or their insurance company is notified of the employee's injury.
The workers compensation insurer is still processing the claim. Workers compensation insurance companies love to remark that they are "processing" an injured employee's claim. But again, this is no excuse. Lost wage benefits should be paid no later than the fourteenth day after the employer, or their insurance company is notified of the employee's injury.
The workers compensation insurer is conducting an investigation of the claim. The workers compensation insurance company often claims that it has not issued a payment because it is "investigating" the claim of an injured employee. Typically, this means witness statements, medical records, and employment records. Like its explanation of claim "processing," this is not a valid excuse. The insurer can investigate all it wants, but it must issue the payment within 14 days of notification unless there is a valid reason otherwise.
The workers compensation insurer denied the claim, but the employee was not notified about the denial. Sometimes, an injured employee is simply not notified of a claim denial. This is typically the fault of the insurer. However, such an error is important and must be handled appropriately by the employee or the employee's legal representative, since the employee will want to maintain all legal rights to file an appeal of a claim denial.
The employee missed the deadline for filing a claim. Under Louisiana law, the employee must report his or her injury to the employer within 30 days. Though, in practice, a good attorney can get around this deadline, an employee should report the injury right away. Otherwise, the insurer will likely delay or deny the claim, especially if it was reported over 30 days after the injury. Also, at the time the injury is reported to the employer, the employee should request from the employer some written proof that the injury was, in fact, reported, such as a written accident report or injury report or simply an email.
The employee failed to file an Employee's Monthly Report of Earnings. When an injured worker in Louisiana is entitled to Supplemental Earnings Benefits (SEBs), the worker must file every month a Form 1020 - Employee's Monthly Report of Earnings. The purpose of this Form 1020 is to report to the insurance company whether the employee had income during the month so that the insurer can reduce indemnity by that amount. The insurance company will typically delay any indemnity payments until it receives a completed Form 1020 each month.
The employee filed the claim after leaving the job. Workers compensation insurers will typically deny claims that were filed after the employee was fired, laid off, or quit. However, just because the claim was filed after the employee was fired, laid off, or quit, does not mean that the injured employee is not entitled to workers compensation benefits. If the worker was injured in the course and scope of the worker's employment, then the injured worker is entitled to workers compensation benefits, regardless if the claim was made after the employee left the job.
The employee's initial medical records indicate the presence of illegal drugs. If an employee's medical records show illegal drugs in the employee's system soon-after a work-related accident, the workers compensation insurer is almost definitely going to deny workers compensation benefits on the basis of the failed drug test. However, a failed drug test does not disqualify an employee workers compensation benefits, it only creates a presumption against the employee. Often, an experienced workers compensation attorney can overcome this presumption and get the workers compensation benefits awarded to the employee. Plus, if the drug test was not pursuant to a written promulgated drug testing policy, then the drug test results will be inadmissible, and thus unusable as a basis to deny workers compensation benefits to the employee.
Penalties and Attorneys Fees in Louisiana Workers Compensation
If an injured employee's benefits are delayed or denied, the employee may ultimately file a claim with the Office of Workers Compensation. The claim is initiated by filing a Form 1008 - Disputed Claim for Compensation.
Within this Disputed Claim for Compensation, the injured employee may request penalties and attorney's fees in addition to regular workers compensation benefits.
Under Louisiana law, the employer or the workers compensation insurer will not owe penalties and attorneys fees "if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control."
Does the Insurance Company Have A Valid Reason for Its Denial of Benefits?
Additionally, if the employer or the workers compensation insurance company stops paying indemnity benefits without a valid reason, then the injured employee may be entitled to penalties and attorney's fees in addition to the regular workers compensation benefits.
Specifically, according to Louisiana law, "Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims."
The critical determining factor here as to whether penalties and attorney's fees are appropriate is whether the insurance company's actions were "arbitrary, capricious and without probable cause."
In other words, did the insurance company have a good reason to deny the payments? All too often, the answer is NO.
When to Get an Attorney in Louisiana Workers Compensation
Sadly, most injured employees wait too long before hiring an attorney.
It is never a good idea for an injured employee to wait until he or she "needs" an attorney, as by that time, the employee's rights have likely already been reduced, and the employee's claim value already diminished.
During the time before an employee hires an attorney, the insurance company is likely devaluing the employee's claim, and on the road to denial by stripping away the rights of the injured employee.
For example, besides simply delaying an employee's claim, the insurance company will:
- Send the employee to the doctor of its choice, not of the employee's choice, which can produce medical records that can drastically limit or eliminate the claim;
- Unfairly limit or deny appropriate medical care, often causing permanent negative health and legal effects;
- Improperly calculate the number and amount of indemnity payments due to the employee;
- Wrongly force or pressure the employee to return to work, which will eliminate indemnity payments and limit medical care going forward;
- Insist upon inappropriate vocational rehabilitation, which can irreversibly eliminate indemnity payments to the employee;
- Pressure an injured employee into a low-ball settlement, by leveraging against the employee the present financial and medical stress of the employee; and
- Falsely claim that its settlement offer is a take-it-or-leave-it offer, even though it is never a take-it-or-leave-it offer.
In short, if an injured employee is not represented by a skilled Louisiana workers compensation attorney, then the employee is not effectively protected by the Louisiana workers compensation laws.
The Louisiana Statutes for Denials of Health Care Providers and Fees in Louisiana Workers Compensation
The Louisiana statutes controlling the denials of health care providers and their expenses and fees are La. R.S. 23:1142, La. R.S. 23:1203, and La. R.S. 23:1203.1, which read as follows:
§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.