Types of Independent Medical Examinations in Louisiana Workers Compensation

Fullsizeoutput 3074

Two Main Types of Independent Medical Examinations in Louisiana Workers Compensation

Two typical types of Independent Medical Examinations in Louisiana workers compensation are:

    1. Impairment Rating Independent Medical Examinations; and
    2. Return to Work Duty Independent Medical Examinations.

Impairment Rating Independent Medical Examinations

Impairment is not necessarily the same as a disability.

Specifically, "impairment" is a medical condition meaning an anatomical or functional abnormality or loss following maximum rehabilitation, while "disability" is a legal term describing when an individual is unable to have gainful activity because of an impairment.

Impairment ratings in Louisiana are based on the 6th AMA Guides to the Evaluation of Permanent Impairment.

Impairment ratings can only be determined if the examinee is at Maximum Medical Improvement (MMI), which means the completion of all contemplated treatment, or that all the treatment that has been offered that has been declined.

Concerning the impairment rating:

    • The IME will indicate which reference is being used to determine the rating;
    • The IME will reference specific pages, tables, figures used in determining the rating;
    • Impairment ratings are different for each body part;
    • Impairment ratings are converted to "whole person" impairment ratings; and
    • When different body parts are affected then the impairment ratings are "combined" as defined by the reference.

Return to Work Duty Independent Medical Examinations

When an Independent Medical Examination gives an opinion on the employee's ability to return to full work duty, or to return to light-duty work, the Independent Medical Examination report will:

    • Provide a job description for an evaluation of a specific job; and
    • Provide the examiner's opinion of the employee's ability to perform certain tasks.

A functional capacity evaluation (FCE) is typically obtained to give the examiner some objective evidence, since the FCE can:

    • Test for validity;
    • Measure the employee's abilities; and
    • Be performed by a physical therapist with experience in performing this evaluation.

A Return to Duty Independent Medical Examination can:

    • Be done before Maximum Medical Improvement (MMI) is reached;
    • Release the examinee to regular or modified duty despite the need for further treatment;
    • Analyze a job description that is available for review and determination; and
    • Give modifications or restrictions as appropriate for the employee's condition, if a job description is not available.

An Independent Medical Examiner is One of Three Typical 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 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 an injured employee's workers compensation claim.

#1: The Employee's Treating Physician

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

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 surgery.

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

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

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.

In other words, the employer and the workers compensation insurance company have the right to have the injured employee examined by a doctor which they choose.

This examination by 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 to the employee. 

In fact, 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 workers compensation insurance company knows where the employee is and where the employee is going on the day of the employee's Second Medical Opinion appointment.

#3: 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.

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.

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 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, 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.

The Louisiana Statutes for Independent Medical Examinations in Louisiana Workers Compensation

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

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

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

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

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

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

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

§1124.1.  Cumulative medical testimony; medical examination

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

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

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

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

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

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

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

§1317.1. Additional medical opinion regarding medical examinations

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

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

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

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

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

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

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

(5) A curriculum vitae of the examiner.

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

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

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

(2) The complaints of the claimant.

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

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

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

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

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

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

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

Putting Our Clients First

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

A Proven Track Record of Success

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

Menu