In October 2018 the Louisiana 1st Circuit Court of Appeal rendered its decision in Barber v. Louisiana Workforce Commission, et. al. The case has not been released for publication yet and is therefore subject potentially to change.
This followed a trial court permanent injunction that precluded the commission and its agents "from applying and/or enforcing certain statutory provisions and regulations regarding the medical treatment schedule authorization and dispute resolution procedures."
The court recited that the dispute originated from 2009 legislative amendments to the Louisiana workers' compensation statute. The purpose was "to establish meaningful guidelines for the treatment of injured workers." This is similar to the Medical Treatment Utilization Schedule (MTUS) enacted by California, discussed recently in IMR in Florida and IMR and Due Process.
The California MTUS treatment guidelines were adopted from a publication of the American College of Occupational and Environmental Medicine (ACOEM), published by ReedGroup Ltd. Louisiana elected not to adopt any group's guidelines, but instead created its own.
In the two recent posts, it is suggested that independent medical review as a process needs the foundation of at least treatment guidelines. It is probable that the adoption of a pharmaceutical formulary is as necessary to the success of IMR. Each of these standards provides an objective and transparent representation of the appropriate care in the broad sense of a particular diagnosis, subject to narrowing to a more specific focus potentially as regards a particular patient.
When the Louisiana Legislature mandated the adoption of treatment guidelines, a constitutional challenge was raised. The Office of Workers' Compensation created guidelines and defined a process for determination of medical disputes. Disputes were to be administratively determined by "a medical director employed by the OWC and administrative appeals therefrom to the OWC judges."
In June 2015, the trial court concluded that the treatment guidelines and regulations were "unconstitutional as violative of the Due Process Clause of the 14th Amendment to the United States Constitution and Louisiana Constitution Article I, Section 2." It found fault in terms of specificity, "both substantive and procedural due process," and that the change "violates the separation of powers doctrine."
The trial court therefore issued a "preliminary injunction" and precluded the state from "applying and/or enforcing" the treatment guidelines.
The trial court was reversed in October 2015 by the Louisiana Supreme Court. It concluded that "the constitutional issue was not properly raised in the trial court." It identified other flaws in the trial court decision and transferred the appeal to the appellate court for review of the judgement.
This blog was critical of the trial court for allowing lawyers in the case draft the court's decision; drafting orders is the judge's job. In June 2016, the appellate court reversed the trial court injunction.
The matter thus returned to the trial court for consideration of the merits of the claims of constitutional infirmity. In March 2017, the trial court judgement was entered "permanently enjoining, restraining and prohibiting defendants from applying and/or enforcing" the treatment guidelines and process.
The court also "enjoined, restrained and prohibited the defendants from allowing anyone to attempt to communicate with judges of the OWC regarding pending workers' compensations claims."
The OWC judges were directed by the trial court to make decisions regarding medical claims based only upon "the facts and law presented to them on the record." This communication prohibition is consistent with both judicial independence and the prohibition on ex parte communications with judges.
The Circuit Court of Appeal addressed the separation of power complaint. It noted that the new legislative process, of review by the "medical director," was a significantly more rapid process than had previously existed. There was testimony regarding the overarching theme of workers' compensation, an "affirmative duty to provide all reasonable and necessary medical treatment and provides that such treatment shall be delivered in an efficient and timely manner."
The court recited the purpose and restraints of delegated legislative authority and separation of powers. It explained legislative delegation, and the ability of an agency to promulgate rules generally, as well as the specific promulgation authority stated in statute. Ultimately, the court concluded that the OWC director's adoption of guidelines and procedure were not violative of the separation of powers clause.
Turning to due process, the court explained "substantive" due process "may be broadly defined as the constitutional guaranty (sic) that no person shall be arbitrarily deprived of his life, liberty or property."
Focusing on the substantive, the court concluded that a "claim for workers' compensation benefits" is a "property interest" protected by due process. But the court agreed with the OWC contention that the regulations and guidelines were "rationally related to the legitimate government interest of protecting injured workers from undergoing medically unnecessary treatment, and doctors from rendering services without compensation."
Thus, the court concluded the challengers had not proven "that the tacit denial provisions are unconstitutional."
The court rejected the challengers' claims that the regulations were "fatally vague" and thus a violation of due process. The court explained that the standard for vagueness is "when a person of ordinary intelligence does not have a reasonable opportunity to know what is prohibited," or a law that does not include "a standard to prevent arbitrary and discriminatory application."
The court concluded that the challengers did not demonstrate that the regulations in this instance are "unconstitutionally vague."
Specifically regarding the process of medical denials being reviewed by the "medical director and thereafter to an OWC judge," the court addressed the challengers' allegations that procedural due process is not afforded, as "an injured worker is not provided an opportunity to be heard at any level." That is, there is no hearing.
And there is no opportunity to "object to information or documents," or any opportunity before the medical director to "present evidence, examine witnesses or be informed as to what information or documents have been submitted to the medical director."
The court explained that this challenge was one of "procedural due process." That right is to "be heard at a meaningful time and in a meaningful manner." How much procedural process is "due" is dependent upon the situation, as the court noted it is "a flexible standard."
The court concluded that in an "administrative action, the judicial model of an evidentiary hearing is neither required nor even the most effective method of decision-making in all circumstances," citing the United States Supreme Court.
The opportunity "to present their case" must be "meaningful," but not necessarily a hearing. The court cited the legislative intent, a "rational policy choice by the Legislature," to determine medical necessity in advance "to avoid case-by-case disputes and variations, and to streamline the process."
Ultimately, it concluded "the private interest affected by the statutory and regulatory provisions at issue is substantial," but the procedure for medical determinations by the medical director was not shown to violate procedural due process. It specifically noted that there is the right to review by an OWC judge that includes the right to present "additional evidence."
Admittedly, the standard in the OWC judge proceeding is "clear and convincing evidence," but it is an opportunity nonetheless. This is important because it means a worker faces a significant burden in seeking an OWC judge alteration of the medical director decision.
Of note, the same "clear and convincing" evidence standard has been adopted in regard to the opinions of expert medical advisers in Florida. In Louisiana, "clear and convincing" means "to demonstrate that the existence of the disputed fact is highly probable, in other words, much more probable than not."
The court acknowledged that the challengers did not agree with the procedural process adopted by the Legislature. However, it noted that disagreement "does not establish that the process itself is arbitrary."
The medical decision-making process outlined by the Louisiana Legislature is thus upheld by the Court of Appeal as regards all challenges raised in Barber. This outcome is not inconsistent with the California Court conclusion in Stevens v. Workers' Compensation Appeals Board, discussed at length in the two prior IMR posts mentioned above. A notable distinction, however, is that the Louisiana decision is not predicated upon a specific state constitutional provision or "plenary power," as mentioned in Stevens.
The singular important point on which the Barber court affirmed the trial court regarded the evaluation of OWC judge's performance. Though there was testimony that administrators were cautioned not to direct judges as to how they should rule in a case, the court held that "an independent and honorable judiciary is indispensable to justice in our society."
It conceded that OWC judges are not part of the judiciary, but acknowledged their judicial function. It stated that due process guarantees require the "essential" element of "an impartial decision-maker."
As such, the the court affirmed the trial court "judgment permanently enjoining defendants from allowing anyone to attempt to communicate with OWC judges regarding pending workers' compensation claims."
Administrative oversight of the finder of fact, the adjudicator, is not wholly precluded. However, the decision-making process has to be protected from both interference and the implication of interference or imbalance. This is consistent with the fundamental of judicial independence, which every adjudicator must strive to maintain. And that will be the subject of a future post.
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.
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