Second Medical Opinions in Louisiana Workers Compensation

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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 for 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.

Also, the injured employee is entitled to at least 14 days written notice prior to the Second Medical Opinion appointment.

And the workers compensation insurance company cannot require the employee to be examined by more than one physician in any one field or specialty unless prior consent has been obtained from the employee.

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 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) is to provide a basis on which the insurance company can deny workers compensation benefits due to 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.

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

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

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:

    1. The doctor that the employee chooses to be his or her treating physician for the employee's work-related injury;
    2. The doctor that the workers compensation insurance company chooses to provide it with a Second Medical Opinion (SMO); and
    3. 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.

The Employee's Treating Physician

The injured employee's treating physician is the doctor that the employee chooses to be his or her treating physician for the employee's work-related injury.

Importantly, this treating physician is the doctor who actually provides the treatment, unlike the doctors who provide infrequent Second Medical Opinions (SMOs) and one-time Independent Medical Evaluations (IMEs).

So for example, the injured employee's treating physician is the doctor who would actually perform a procedure, such as a surgery.

Also, the injured employee may have several treating physicians, if the employee needs to treat with different types of specialized doctors.

The Insurance Company's Second Medical Opinion (SMO) Physician

Under Louisiana law, the employer and the workers compensation insurance company have the right to have the injured employee examined by a doctor whom they choose.

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.

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.

Instead, 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. 

The Office of Workers Compensation's Independent Medical Examination (IME) Physician

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.

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

Like a Second Medical Opinion (SMO) doctor, a major difference between the Independent Medical Examination (IME) doctor and the injured employee's treating physician is that the Independent Medical Examination (IME) doctor would never actually treat the employee - such as actually perform a procedure, such as a surgery.

Instead, the Independent Medical Examination (IME) would only perform a one-time examination, and then write a report based on this examination and all the other evidence and medical records available to him or her, including the opinions of the injured employee's treating physician and the insurance company's Second Medical Opinion (SMO) doctor.

Typically, the Independent Medical Examination (IME) doctor will agree with either the employee's treating physician or the insurance company's Second Medical Opinion (SMO) doctor, and in most cases the Judge will rule in favor of whatever the Independent Medical Examination (IME) doctor decides.

Also, like a Second Medical Opinion (SMO) examination, if the employee refuses this Independent Medical Examination (IME), then the employee's lost wage payments may be temporarily suspended.

Second Medical Opinions versus the Utilization Review Process Work 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).

Instead of treatment, the purpose of the insurance company's Second Medical Opinion (SMO) 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) is to provide a basis on which the insurance company can deny workers compensation benefits due the employee. 

Utilization Review or Second Medical Opinion (SMO)?

So, 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. 

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

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

How to Handle a Second Medical Opinion Examination in Louisiana Workers Compensation

Again, under Louisiana law, an injured employee is required to submit to an examination by a physician provided for 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).

At the examination, the Second Medical Opinion doctor will take the employee's medical and accident histories, ask about current symptoms, and perform a physical examination.  

This SMO doctor will have reviewed the medical records in advance.

Some Second Medical Opinion doctors will actually watch an injured employee from the minute the employee leaves his or her car until the moment that the employee returns and drives away.

Second Medical Opinion 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 Second Medical Opinion (SMO) Examination 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 SMO physician know right away if the physician actually hurts the employee;
    • Be aware of the fact that the SMO physician is neither the employee's advocate nor 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 SMO, due to possible surveillance.

As for a list of things that an injured employee at an Second Medical Opinion (SMO) examination should NOT do:

    • Do not exaggerate or fake injuries, because many SMO 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 your 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 SMO doctor;
    • Do not discuss the specifics of the legal case; 
    • Do not discuss any conversations with the employee's lawyer. 

Overall, the most important point for the injured employee in a Second Medical Opinion examination is for the employee to be detailed and thorough, but not to exaggerate any injuries.

The Louisiana Statutes on Physician Choice in Louisiana Workers Compensation

The primary Louisiana statutes for Second Medical Opinions (SMOs) are La. R.S. 23:1121, La. R.S. 23:1122, La. R.S. 23:1123, La. R.S. 23:1124, and La. R.S. 23:1225. 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. 

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