Written By: Meghan T. Gomez
Generally, an injured employee has the right to select one treating physician in any field or specialty. If denied this right, the employee may file an LWC-WC-1008 Disputed Claim for Compensation and, pursuant to La. R.S. 23:1201.1(K)(8), is entitled to an expedited summary proceeding hearing to take place no more than thirty (30) days after filing the request for the hearing.
Failure to authorize the employee’s choice of physician also opens up the workers’ compensation payor (you) to penalties and attorney fees (“P&A”) . La. R.S. 23:1201(F) specifically provides for the assessment of penalties in the amount of fifty ($50) dollars per calendar day for any day in which consent is withheld, subject to the maximum of $2,000, plus “reasonable” attorney fees.
However, the same statute provides that an award of P&A may only be awarded following a “hearing on the merits.” Therefore, the issue becomes whether a hearing on expedited summary proceeding for failure to authorize choice of physician is a “hearing on the merits” such that P&A may be awarded at that time or if the award of P&A must be deferred until after trial when the defense has had an opportunity to “reasonably controvert” the claim.
Louisiana workers’ compensation district courts, and even the appellate courts in which they sit, have approached this issue rather inconsistently over time. As defense attorneys, we always object to the request for an award of P&A at choice of physician hearing arguing it is an authorized use of summary proceedings. While more often than not, in my experience, the workers’ compensation judge will agree and defer the award of P&A until after trial, some judges—particularly those whose courts sit within the Third Circuit Court of Appeal, have begun to more consistently award P&A at the choice of physician hearing.
For example, Judge Thomas Townsley in District 03 in Lake Charles recently awarded P&A at the choice of physician hearing citing Scott v. Packing Corp. of Am., a hearing loss case in which the Third Circuit affirmed an award of P&A at a choice of physician hearing.
Notably, this past month (Feb 2025), in Newman v. Concordia Electric Cooperative, Inc., the Third Circuit, relying on Scott, reversed Judge Brenza Irving Jones (District 1-E)’s denial of P&A at a choice of physician hearing reasoning that not only may P&A be awarded at expedited summary proceeding, but also the defense provided no legal basis of denying the claimant’s choice of physician.
When considering choice of physician (and really any issues involving potential for P&A), it is important to take into account your judge, district, and appellate circuit. We always recommend consulting your defense attorney for guidance in making these decisions.
