House Labor Considers Senate Bills on Medical Director Appeal Deadlines and PTSD

The (Louisiana) House Labor and Industrial Relations Committee heard several bills last week, two regarding workers’ comp which have already passed through the same Senate Committee.

SB88 by Senator Luneau was considered late in the meeting after a highly contentious bill on local determinations of the minimum wage (HB422) by Rep. Duplessis) was involuntarily deferred.

SB88 would impose a specific deadline on appeals of a Medical Director decision (LWC Form 1008) from the date of the decision. This idea has been considered several times over the last several Legislative Sessions, but has always stalled. The bill was modified with an amendment at the behest of insurance interests to extend the initial 30 day proposal to 45 days. That amendment passed without opposition.

Senator Luneau testified along with Assistant Secretary of the Louisiana Workforce Commission Sheral Kellar and workers’ comp claimant attorney Trey Mustian explaining again that the impetus of the bill is the Arrant Louisiana Supreme Court decision, which said that the Office of Workers’ Compensation Administration (OWCA) did not have the authority to impose a prescriptive period.

As in the Senate Committee hearing, workers’ comp defense attorney and former OWCA Director Patrick Robinson along with several others testified against the bill, saying that it doesn’t solve the problem it is intending to solve. Robinson explained (in response to questioning from Senator Bagley) that the bill could have the unintended consequence of barring injured workers (especially those that are unrepresented) from recommended treatment if they miss the 45 days. The majority of Committee members were not convinced by this concern, saying that the bill seems to merely be a deadline in order to speed the process of approving treatment. The Committee voted to move the bill favorably 9 yeas, 5 nays.

The Committee then considered SB107

by Senator Ryan Gatti, which adds PTSD to the list of compensable presumptions under workers’ comp for first responders (state police, emergency medical personnel, volunteer firefighters, sheriff and sheriff’s deputies). The presumption under this proposal may only be rebutted by clear and convincing evidence. Present law allows these protected classes of employees to file a claim of PTSD, but they must first prove it is related to their employment by a preponderance of the evidence.

Senator Gatti clarified that he worked with Senator Peacock (who opposed the bill in Senate Committee) to ensure that creating the PTSD rebuttable presumption would not affect retirement funding. Several firefighters testified to explain the effects of untreated PTSD, everything ranging from failed marriages (the divorce rate for firefighters is 70 percent) to suicide attempts (firefighters have a 45-48 percent suicidal ideation rate).

Representative Seabaugh, while acknowledging the problem of PTSD and treatment barriers, questioned why this bill is not tied to a single traumatic event as opposed to cumulative trauma, like it is in some other states. Kellar responded by explaining that mental/mental claims are already compensable in Louisiana, but that this bill creates a presumption that “takes into consideration the risk and stresses inherent in the work that they do and gives them a leg up” in the claim. Seabaugh said that the presumption is his problem with the bill because he believes it is too broad in its current form. Gatti said that he would work with him on an amendment to clarify the presumption.

Defense attorney Wayne Fontana spoke on behalf of the Louisiana Association of Business and Industry (LABI) opposing the bill on the basis of the broad presumption. A representative from the Louisiana Municipal Association also opposed the bill, saying that the broad presumption will have fiscal effects for local governments. In response to this opposition, Seabaugh introduced an amendment that makes the presumption only applicable to a single traumatic event, rather than cumulative PTSD. That amendment was adopted without opposition, as was an amendment that bars personnel changes (such as demotions or transfers) as traumatic events. The bill moved favorably without opposition.

Courtesy of Louisiana Comp Blog

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