Written by: Meghan Trahan
Choice of Physician: An Absolute Right
The Louisiana Workers’ Compensation Act (“LWCA”), specifically section B(1), provides an injured employee with the right to select one physician in any filed or specialty. This is commonly referred to as the employee’s “choice of physician.”
Failure to consent to an employee’s choice of physician within a reasonable time may result in the imposition of a penalty in the amount of $50 per day for every day consent is withheld (subject to a $2,000 cap) and reasonable attorney fees. The purpose of this is to deter inaction or indifference on behalf of the workers’ compensation payor.
But what if the claim is denied? Should you still consent to the employee’s choice of physician or deny the request in light of the denial of the claim?
According to the Louisiana Supreme Court, an injured employee has an absolute right to his/her initial choice of physician. Lower Louisiana courts have, in turn, interpreted this to mean that an employee is entitled to his/her initial choice of physician regardless of whether the claim has been denied or whether the payor has had the opportunity to investigate the claim or conduct discovery regarding entitlement to same.
Therefore, with the exception for an instance in which there is concrete evidence that the individual was not an employee at the time of the alleged accident, we recommend that you always allow the employee to see his/her initial choice of physician. Not only is it seemingly required by law, but also, doing so reduces the total potential penalty award for the denied claim from $6,000 ($2,000 for the failure to authorize choice of physician, $2,000 for nonpayment of indemnity benefits and $2,000 for the nonpayment of medical benefits) to just $4,000 ($2,000 for nonpayment of indemnity benefits and $2,000 for the nonpayment of medical benefits) plus reasonable attorney fees. Further, as the law currently stands, consenting to the employee’s choice of physician does not constitute an admission of liability or serve as a basis to interrupt prescription of indemnity of medical benefits.