Another recent Louisiana Supreme Court case involving workers' compensation has the industry buzzing – Paula Clavier v. Coburn Supply Company. The case (full download below), decided in favor of the employer, was overshadowed by the Burgess choice of pharmacy ruling, (issued the same day last month) but advocates for injured workers say that Clavier could have even wider implications.
In this case, Paula Clavier injured her neck, shoulder and back in 2006, while attempting to lift a box that she initially thought was lighter than it actually was. Compensability and the details of the accident were not disputed.
Instead, at issue was a functional capacity evaluation (FCE) arranged by the defense that Clavier was ordered to attend. The Supreme Court accepted writs in the case (after the Third Circuit refused) after Clavier argued that it was improper to compel her to submit to an FCE since she was unable to choose her own medical provider to contest the results of said FCE. Clavier and her attorney, Crowley-based Mike Miller, argued that the employer should fund their alternate FCE and focused on the significance of the distinction between “physician” and “medical practitioner” in the statute. The defense FCE was performed by a physical therapist.
Mustian: Distinction without a difference
“It looks simple, but the Supreme Court has gotten really good at hiding the real issue in these opinions,” Miller explained. “The real issue here is who has the right to select a medical provider who is not a physician.” Justice Clark, writing for the majority, notes that the plaintiff argued that the choice of medical providers should belong to the employee, not the employer, and, that the term “medical practitioner” in Section 1121(A) should be interpreted to mean “physician.” Ultimately, the Supreme Court disagreed with this interpretation.
According to Miller, this opens up a load of problems for the balance of Louisiana's system, which depends upon choice of physician. “[The justices] in Clavier are saying that a medical practitioner is broader than a physician, so if the employer chooses a non-physician [to perform the FCE] then the safety valves just don't work or apply,” he said.
Trey Mustian, President of Louisiana Workers' Advocates, echoed Miller's concerns. “The terms ‘physician' and ‘medical practitioner' are used interchangeably throughout the comp act,” Mustian asserted. “In 1123 , IMEs are to be performed by a ‘medical practitioner' selected by the [Office of Workers' Compensation] Director. Is that not a physician? Section 1314 refers to filing suit where the employer fails to supply reports of medical practitioners. Are those not physicians? The choice of FCE provider can be outcome-determinative and is every bit as vital as choice of physician. The Clavier decision deprives injured workers of that right based upon a semantical distinction without a difference.”
Monson: Employers aren't responsible for funding the prosecution of the claim
By contrast, defense attorneys speaking about the case see it as relatively cut and dried. As Jeff Waltz, of the Waltz Law Group said, “it looks pretty clear to me.” He explained further: “The workers' compensation law is designed to efficiently and effectively return an injured worker back to the workforce. An FCE is used for the benefit of the employee to determine their abilities. As the court notes, the narrow issue was that the employee wanted the employer to pay for an FCE of her choice. Absent any recommended treatment plan that included a FCE, I don't see why the employer would be responsible for paying for employee's choice of FCE. Obviously the claimant can get her own, at her own cost, for trial purposes.”
Matthew Monson, of the Monson Firm, shared Waltz's analysis. “If the goal is to get healed and get back to work, then this decision makes sense,” he said. “The injured worker can whatever physician they want in basically any speciality they want to get medical treatment. You don't need an FCE for medical treatment. Here it looks like the plaintiff was trying to manipulate the statute to fund the prosecution of this claim.”
In response to this interpretation of the result, Miller asserted that most of his clients (“I'd say 98 percent”) cannot afford to fund their own FCE to compete with the employer's. He also noted that he has filed for a re-hearing and that the closeness of the decision (4-3) indicates that the justices understand the gravity of the case for choice of physician issues in Louisiana's system.
Nina Luckman is the writer and editor of New Orleans-based Louisiana Comp Blog, which launched in 2014 and is sponsored by LCI Workers' Comp. She is originally from Pennsylvania but lived most of her life in Florida. Her credentials include a Bachelor's and a Master of Arts degree from Tulane University, both in the study of English Literature.
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