Wednesday, July 1, 2015

Another Unconstitutional Statute - and its not Florida

Florida has been a follower in workers' compensation in recent years. One of the leaders has been Louisiana. It has pioneered electronic medical billing and has been at the forefront of the move adopting treatment guidelines. Just last week, its advisory counsel began discussing how to institute a drug formulary despite its legislature's inaction on that issue. California is also innovating in recent years, and is likewise currently working on a formulary. 

But in late June, a trial judge in Louisiana concluded that Louisiana's statute regarding dispute resolution in medical claims, another of its recent innovations, is unconstitutional. The story broke on WorkCompCentral on June 30. A very disappointing part of the story says that this Judge has declined to prepare an order. It reports that the judge issued "a two page document stating what his decision will be." The Judge then "directed counsel for the plaintiffs to draft a written judgement for him to sign." 

Drafting orders is the judge's job, and it is always disappointing to hear a judge has delegated that responsibility of the impartial adjudicator to one of the partisan litigants in a case. Would a doctor say "O.K., I have decided your appendix is the problem, you need to take it out yourself?"

The judge has already issued an injunction that essentially prevents Louisiana from using its current medical dispute resolution process. There is dispute and discussion as to how broadly that injunction will be enforced. Certainly, Louisiana cannot employ that process regarding the disputes/claims of the plaintiffs who sought the relief in civil court. Will Judge Johnson's order preclude the use of the process in other workers' claims? Undoubtedly, there is a great deal of effort being expended in Louisiana's adjudication system this week. It will have to quickly decide how to resolve medical claim disputes in light of the injunction, whether limited to the cases of those who sought the injunction or more broadly. 

As a side note, a problem with injunctions is that they generally tell someone not to do something, but they do not usually offer any direction or advice as to what to do instead. Thus, it is not uncommon for a judge or court to say that a process or procedure is not acceptable, but the agency is then left to find some way to fulfill its mandate (determining medical claims) through some other means. 

Under the Louisiana treatment guidelines, decisions about medical care were removed from the jurisdiction of the administrative law judges, who adjudicate other workers' compensation issues. The process there used to be similar to the Florida system. An injured worker would file a claim for the treatment sought and "an administrative law judge would get to decide the issue." Since Louisiana adopted treatment guidelines in 2009, "it's been up to OWC's (Office of Workers' Compensation) medical director to apply the guidelines to the disputed request for treatment and deny or approve requests."

It is difficult today to understand why the Louisiana process is unconstitutional. Difficult because we do not know the judge's reasoning. That will not be known until the plaintiff's attorney, J. Arthur Smith, III, explains the infirmity in the order that he is drafting for Judge Johnson's signature. Foreshadowing how his order will likely read, Mr. Smith was quoted as saying "that the ruling will be a 'tremendous benefit to workers in Louisiana' since it halts the use of an administrative process that has 'systematically violated their right to access medical care and treatment for their work injuries."

Mr. Smith argued that the medical director decision process denies "workers due process, and it also runs afoul of separation of powers doctrine by limiting judicial independence of the ALJs." According to WorkCompCentral, the judge agreed with these two arguments. 

There is disagreement among lawyers in Louisiana regarding the purpose of the treatment guidelines and this medical dispute resolution process. One of the plaintiff's attorneys in this case contends that the OWC "simply became an arm of the insurance lobby" and the resulting medical dispute resolution process has resulted in frustration for injured workers who saw their requests for treatment denied. A defense lawyer quoted in the article says that he finds the process consistent with due process and disagrees with the outcome. He explained that the process is intended to "have a trained medical professional apply guidelines" rather "than have a bunch of lawyers who can argue anything."

At its essence, this disagreement seems to be about who should make determinations of the need for medical care. I have attended national conferences where this dichotomy has been debated. One judge once told a group "how am I supposed to know, I am not a doctor." I responded that most juries are not doctors either, and in workers' comp that jury responsibility belongs to the judge. The job is not to be the doctor, but to decide which medical evidence or testimony is most persuasive. 

Regardless, there are many who think that the appropriate methodology for medical dispute resolution has to involve a medical professional. Florida's legislature has agreed with that theory, imposing the mandatory use of expert medical advisers on the process. 

Florida statute section 440.13(9) provides that "if there is a disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee's complaints or the need for additional medical treatment, of if two health care providers disagree that the employee is able to return to work, the department (division of workers' compensation) may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request . . . order the injured employee to be evaluated by an expert medical advisor."

The findings and conclusions of the Florida Expert Medical Advisor (EMA) are cloaked in a presumption of correctness, as are the treatment guideline decisions of the Louisiana OWC Medical Director. Presumptions are merely conclusions that are "correct" until someone proves that they are not. The simplest example of this for most people is the long ingrained "innocent until proven guilty" we all heard a million times on prime-time television, second in our youth only to the Miranda warning for frequency in court and police shows. This is merely a presumption of innocence. Similarly, the Florida EMA and Louisiana Medical Director conclusions are correct until proven incorrect. 

In the law, there are tools we call burdens of proof. They define how much evidence is required to prove a point. The burden in most civil matters is called "preponderance of the evidence." This is generally described as "more likely than not." Some phrase this as "over 50% likely," and asked how much over 50%, they answer "it does not matter how much over, just over." This can be compared to the burden in most criminal matters which is "beyond a reasonable doubt," a higher burden. It is because of the difference between these two that we can see someone like OJ Simpson acquitted (not guilty) of criminal charges, but still held responsible for civil damages for that same event (the deaths of his ex wife and  Mr. Goldman). 

Both the Florida EMA decisions and the Louisiana Medical Director decisions are presumptively correct. But either can be overcome with evidence that is "clear and convincing." This is an evidence burden that is not as difficult as "beyond a reasonable doubt," but is more difficult than a "preponderance of the evidence." So, in each, there is a medical decision made by a medical professional, and that decision can be overcome if there is "clear and convincing" evidence. That is "compelling" evidence. 

In 2013, California began using a similar process called IMR. There, at the expense of the employer, medical disputes are submitted to an independent medical review, or IMR. These are provided by independent medial review organizations (IMROs) that agree to provide such dispute resolution processes and contract with the Division of Workers' Compensation to do so. It is a process similar to Florida's EMA, but applied in a much broader context. There are also challenges to that process in the California system. 

It remains unclear whether the judge's decision in Louisiana will apply only to the plaintiffs who sought relief and sued or whether it will apply to all injured workers' cases throughout the state. There is discussion as to whether and when the decision might be appealed, and many are confident that there is a path directly, and therefore rapidly, to the Louisiana Supreme Court for a question such as this. 

Currently, Louisiana is in a similar situation to Florida's last August when the trial court ruled in Padgett. There will be much discussion and debate in coming days. Padgett caused a stir and a great volume of discussion over the last ten months. 

It is unfortunate that Judge Johnson has elected not to draft an order in Louisiana. Often in the course of my practice, I heard the lament that "who knows what the judge thought, s/he just signed the order that _________ (insert party name or attorney) drafted." I have long believed that judges should draft orders, that is our job. When a judge drafts an order, and makes findings, and explains what s/he finds relevant and persuasive, parties tend to feel like they got their day in court. It brings transparency and credibility to the process. It helps people feel they know what the judge thought was important. 

When a judge does not fulfill this responsibility, s/he opens the decision to the criticism that the order does not, or does not fully, represent the judge's thoughts and conclusions. There are those who argue that the judge must read these proposed orders, and if the judge did not agree it would not be signed. Despite this argument, there are many who find no comfort in lawyer-generated orders. They argue that such orders are self-serving and at times even inflammatory or pejorative. 

So, time will tell what conclusions can be drawn from Judge Johnson's order once Mr. Smith has drafted it and the judge has signed it. Whether the decision is appealed, and when, will be interesting, as will be any appellate decision ultimately reached. Until then, the main curiosity will be whether the injunction and decision bind the Louisiana DWC to abandon the DWC Medical Director review process in all cases until some appellate court decision, such as the recent reversal in Padgett

There was much discussion of Padgett at the 2014 workers' compensation educational conference. That decision was issued days prior to the annual gathering in Orlando. In 2015, it is likely that much of the discussion will instead be about this Louisiana decision, or the recent determinations in Tennessee and New Mexico, each finding constitutional flaws in their respective workers' compensation statutes. 

Workers' compensation is an intriguing subject. The fact that each state has a statute, and that they are different, makes for interesting comparisons and discussions. I look forward to hearing more about these recent Louisiana, New Mexico and Tennessee conclusions. 


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