Assistant Secretary Kellar Discusses New 45-Day 1008 Deadline

SB88 by Senator Luneau establishes a 45 day deadline to appeal decisions of the Medical Director as part of the LWC Form 1008 process. The bill passed the Legislature this Session and is on the Governor’s desk.

Office of Workers’ Compensation Administration Assistant Secretary Sheral Kellar spoke with Louisiana Comp Blog to discuss the new regulations and what they mean for getting treatment to injured workers faster.

Comp Blog: Was this bill requested by the Office of Workers’ Compensation Administration or did Senator Luneau take it up of his own accord?

Asst Secretary Kellar: SB88 was part of the “Governor’s Cabinet” package of legislation.

Comp Blog: When will the 45-day deadline go into effect?

Asst Secretary Kellar: It was sent to the Governor on June 4th for his signature. The deadline will become effective upon his signature or on August 1st. Other than that there are no other administrative things that need to be accomplished to implement it.

Asst Secretary Kellar | OWCA

Comp Blog: There was some controversy in Committee surrounding this bill. Can you explain why the appeal deadline was an issue in the first place?

Asst Secretary Kellar: The Arrant Supreme Court decision rendered in 2016 necessitated this bill. Simply, the Louisiana Supreme Court held that the agency cannot make a prescriptive period by rule, therefore, that rule was held to be unconstitutional.

The Medical Treatment Guidelines were implemented in 2011, and so in June of that year we realized that the statute which enacted the Medical Treatment Guidelines did not contain a provision for appealing the Medical Director’s decision to the workers’ compensation judge. It was just an oversight on the part of the drafters.

In an effort to fix the appeal delay, the agency amended Rule 5507 of the hearing rules to implement a 15 day delay period between the Medical Director’s decision and the appeal to the workers’ compensation judge. It’s 5507(C) of the hearing rules which says that any party aggrieved by the determination of the Medical Director may seek judicial review for filing a Form 1008 in a workers’ compensation district office 15 days from the date said determination is mailed to the parties.

At that point we felt that it would be quicker to implement the delay period by the administrative rule than by waiting for the next Legislative Session. If you read the Arrant decision what you’ll find is that an injured worker who was seeking medical treatment was denied the treatment he sought and he waited about six months and the judge found that the appeal was untimely because of the 15 days provided for in the rules. The Supreme Court reversed that decision.

Comp Blog: The original bill called for a 30-day deadline which was amended to 45 days. Do you think that’s a sufficient amount of time, or does that matter from an administrative standpoint?

Asst Secretary Kellar: I would have preferred to stay with the 30 days in the original bill because the intent of the Medical Treatment Guidelines is to return injured workers to work quickly. The shorter time period is in keeping with that effort, but I’m not unhappy with 45 days.

Comp Blog: As a consequence of this new deadline, do you think that parties will avoid some of the confusion surrounding Medical Director decisions?

Asst Secretary Kellar: I think that the appeal delay will clarify some of the issues that we have with the implementation of the Medical Treatment Guidelines. In the hearing rules, it says that the aggrieved party can bring the appeal. What had happened before, for example, is if a recommended medical treatment was approved by the Medical Director, the aggrieved party is the insurer. And so, if there is no provision to bring an appeal, there is a three year period to respond, according to the provision that the Supreme Court referred to in Arrant. We’re hoping that by implementing the 45 days it will bring a quicker conclusion.

Read further coverage of SB88 in Committee from Louisiana Comp Blog here.

Read the text of the bill and amendments here.

Courtesy of Louisiana Comp Blog

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