Thursday, February 13, 2014

When Judges Get in the Way

Louisiana is a troubled state.

With five Circuit Courts of Appeal, a state law may be interpreted in five different ways.  A new law may be found unconstitutional in one circuit, constitutional in another, and it may be that no constitutional question in raised in the others.  As a result, when the legislature makes a change to the law, it has to anticipate not just one unintended interpretation, but, potentially, five distinct interpretations existing simultaneously.  It also has to anticipate the possibility that none of those interpretations will allow the new law to do what it was intended to do.

Again, Louisiana is a troubled state. 

This is especially true when it comes to workers’ compensation.  The Louisiana State Legislature has made several attempts to promote responsible treatment of injured workers, but it seems that each attempt has been undermined by at least one of the five Circuit Courts of Appeal.

The legislature authorized independent medical examinations (IMEs), but the Fourth Circuit ruled that an injured employee can’t be compelled to attend an IME unless the employer already has medical evidence in its possession showing that an IME is necessary.

The legislature authorized utilization review, but the Third Circuit ruled that utilization review by itself was an insufficient basis for denying treatment.

The legislature authorized the Workers’ Compensation Administration to promulgate treatment guidelines in order to ensure that all injured workers were treated according to a single standard of care based on current medical evidence, but as of January 22nd, all but one of the appellate courts have effectively ruled that Louisiana has two standards of care for workers’ compensation claims.

On January 22nd, the Second Circuit Court of Appeals found that the medical treatment guidelines authorized by § 23:1203.1 did not apply to those cases because the date of injury in each case predated the effective date of the guidelines: July 13, 2011.

Following this ruling, a doctor treating an employee who was injured on July 13, 2011 will have to comply with an enumerated standard of care based on current medical research .  A doctor treating an employee who was injured on July 12, 2011 will have no such responsibility.

Louisiana law says that there will be new treatment guidelines with new effective dates every two years.  As Judge Caraway’s dissent points out, the majority’s interpretation would create different sets of law for each two year period.

Decisions like these are upsetting -- not just because they fail to address the problem of irresponsible treatment… not just because they create a new problem by creating (at least) two very different standards of care… but because they bind the hands of the only people who can fix that problem.

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