Decision Finding Medical Treatment Guidelines Unconstitutional Appears Susceptible to Challenge

On June 25, 2015, Judge Donald R. Johnson of the 19th Judicial District Court rendered his decision in Barber v. Louisiana Workforce Commission, No. 621,071. In a broad and far-reaching decision, Judge Johnson found many of the key features of the Medical Treatment Guidelines of the Louisiana Worker's Compensation laws to be unconstitutional, and enjoined their continued use. The district court reached its conclusions despite substantial contrary evidence.

To begin with, the court addressed 40 L.A.C. 2715(E)(2)(a) and 40 L.A.C. 2715(H), finding that they violate the federal and state constitutions' due process clauses. Under these provisions, a medical provider's request for authorization of treatment to a carrier/employer is deemed denied if the carrier/employer fails to respond within five days of the request. But the Office of Worker's Compensation (OWC) adopted the provision for three reasons: (1) it was consistent with prior practice before the enactment of the OWC's Medical Treatment Guidelines; (2) it provided for a tacit denial (rather than a tacit approval) to prevent the chance that an injured worker might undergo treatment that would later be determined to be medically unnecessary; and (3) it ensured that doctors would not administer care that would later be determined not to be medically necessary (jeopardizing their compensation for the care they provided).

The court also addressed 40 LAC 2715(L), finding it to be unconstitutionally vague and violative of the federal and state due process clauses. This provision addresses variances from the medical treatment schedule. Contrary to the court's finding, the evidence presented established that it is comparatively simple for a health care provider to perform the necessary research to support a claim for a variance. Although the regulation requires a variance request to be supported by "scientific medical literature that is higher ranking and more current than the scientific medical literature" in the schedule, this is consistent with the Louisiana legislature's intent to ensure that all treatment provided through the worker's compensation system be supported by the most current and reliable medical literature and evidence.

The court next found that the "statutory and administrative system" is "unconstitutional as the systems violate both substantive and procedural due process." This exceedingly nebulous finding seemingly accepted plaintiffs' complaints about whether the governing statutory framework provided sufficient standards to guide the OWC, and enough procedural protections to guard against potential abuse. But the regulations promulgated by the OWC furnish detailed procedures for claimants to follow in initiating grievances, submitting evidence, and obtaining a fair hearing before the OWC. The OWC's medical director is fully qualified to review 1099 submissions (and, indeed, only reviews clinical data to determine if a particular submission meets the criteria in the Guidelines, and does not himself assess medical necessity).

Finally, the court found that "the workers' compensation system implemented by the OWC unconstitutionally violates the separation of powers doctrine." The court's finding appear to have largely been based on an evaluation program conducted from 2011 to 2013 by Carey Holliday, who was employed as a Special Assistant to the then-Director of the OWC, Lance Hataway. But the evidence presented to the court showed that Holliday's program was designed only to review worker's compensation courts and how they operated, with the goal of making them more efficient. The program was not designed to influence judicial decisionmaking in any manner, nor was there any evidence presented that it did so (and, in any event, was terminated over a year ago).

In sum, the district court's decision is unsupported by the federal and state constitutions, and jeopardizes a system that was designed to have injured workers be treated faster in order to speed both their recovery and their return to work.