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Alabama

I wanted to update everyone about a new case which causes me concern with respect to employer authorized medical care. The case is Overnite Transportation v. McDuffie, 2005 Ala. Ct. Civ. App. Lexis 672. This case involves a situation that we have seen so many times before in handling claims. Here, the authorized treating physician, Dr. Hackman, completed his course of treatment and then referred the plaintiff to a pain management physician, Dr. Kelsey. The initial physician, Dr. Hackman, was chosen off a panel of four pursuant to § 25-5-77(a), Code of Alabama (1975), as amended. However, the employer did not authorize Dr. Kelsey and then directed the plaintiff to Dr. Moon for this treatment. This physician was clearly allowable under Alabama Administrative Code (Department of Industrial Relations) Rule 480-5-5-.12 which provides: The employer's authorized treating physician (other than emergency medical services) shall be the physician of record for attending or referral purposes. All referrals shall be pre-approved by the employer/agent. The employer/agent shall keep all interested parties involved in the compensable case informed of any authorized change of treating physicians. This administrative rule was adopted in 1996 as authorized by § 25-5-293, Code of Alabama (1975), as amended. This is a physician that I have advocated and recommended many times based on the authority of this administrative code section which was given statutory authority by the enabling legislation. However, the Alabama Court of Civil Appeals granted the employee's request to be treated by Dr. Kelsey and rejected the employer's claim that referral should be pre-approved under this rule. The court held that § 25-5-77(a) does not allow the employer to pre-approve referrals made by the authorized treating physician and, once such a referral has been made to a referral doctor, that physician becomes the authorized physician of record. The court did restrict this to reasonable and necessary care and also indicated that the employer could assert utilization review for medical necessity. See the situation applied in this case. I believe this is a terrible decision for employers since it gives the authorized treating physician unfettered discretion in selecting the referral doctor. This is a choice clearly within the employer's discretion, as it should be. This case is currently on appeal to the Alabama Supreme Court and I will continue to keep you advised of any developments at the appellate level. Please let me know if you would like a copy of this case or if you have any comments, thoughts, or questions. All are welcome.

         Louisiana

DEGAN, BLANCHARD & NASH A PROFESSIONAL LAW CORPORATION TEXACO CENTER 400 POYDRAS STREET, SUITE 2600 NEW ORLEANS, LOUISIANA 70130

SIDNEY W. DEGAN, III

TELEPHONE (504) 529-3333 FACSIMILE (504) 529-3337 WRITER'S DIRECT E-MAIL SDEGAN@DEGAN.COM

DATE: February 21, 2006 STATUTORY CHANGES TO LOUISIANA WORKERS' COMPENSATION ACT The Louisiana legislature has recently amended several sections of the Workers' Compensation Act. One of these changes is that now a mandatory pre-trial mediation conference must be held no fewer than thirty (30) days prior to trial. In second injury fund cases, the venue for appeals was changed to require all second injury fund claims to be filed in the 19th Judicial District Court for the Parish of East Baton Rouge. La. R.S. 23 §1101 D was repealed. The former statute provided that any suit against a third person to recover amounts paid under this Chapter or any intervention in an action against a third person involving an employee who has received benefits shall be tried before a district court judge only. In addition to the foregoing, the legislature amended La. R.S. 23:1310.3 E to broaden the jurisdiction of the worker's compensation judge. The amendment broadened the scope of the judge's authority to include group self-insurance indemnity contract disputes and concursus proceedings concerning entitlement to worker's compensation benefits, payment for medical treatment or attorney fees arising out of an injury subject to this Chapter. The legislature has also increased the attorney's fees paid by the employee to 20% for all amounts recovered.

Sincerely, DEGAN, BLANCHARD & NASH Sidney W. Degan, III