What sort of communication can the adjuster, nurse case manager and voc rehab counselor have with the doctor without having to put the attorney or injured worker on notice?
What does the law say?
Louisiana Revised Statute 23:1127 addresses, in part, this question. Specifically, the stature indicates that a health care provider, without the necessity for a subpoena or other discovery device, shall verbally discuss medical information regarding the injured employee with another health care provider examining the employee, a case manager, or vocational rehabilitation counselor assigned to provide rehabilitation to the injured worker.
However, the statute does impose some requirements regarding certain communication. Specifically, the statute requires that any verbal communication, or personal conference, between the vocational rehabilitation counselor and any healthcare provider, for the purpose of providing rehabilitation services, the employee or his representative shall cooperate in scheduling a reasonable date and time for such communication or conference and the employee or his agent or representative shall be given fifteen days notice of any such communication or conference, and shall be given the opportunity to attend or participate in the communication or conference.
Additionally, any other duty or responsibility, provided by law, a case manager or vocational rehabilitation counselor who is a party to a verbal communication with the health care provider regarding an employee, shall within five working days of the communication, mail a written summary of the communication and any work restrictions or modifications required for the employee’s reasonable return to employment to the employee, his representative, and the health care provider. In addressing the manner of mailing and the content of the summary, the statue indicated that the summary must be sent via certified mail and it shall include a narration of any diagnosis or opinion given or discussed, any conclusions reached concerning the vocational rehabilitation plan, any return to work opportunities discussed consistent with the vocational rehabilitation plan, and the medical evaluation of the health care provider.
Finally, any medical information released in writing shall be furnished to the employee at no cost to him simultaneously with it being furnished to the employer, its insurer, agent, or representative.
What does this mean?
When the word “shall” is used in the Louisiana Revised Statutes, it is indicative of a mandatory compulsion. The duty imposed upon a health care provider to verbally discuss medical information concerning the employee with another health care provider, case manager, or vocational rehabilitation counselor. However, the very next subsection of the statute imposes certain limitations on verbal communications and in-person conferences between the vocational rehabilitation counselor and the medical provider. Specifically, it requires that the employee or his agent/representative be given notice at least fifteen  days prior to the communication/conference and be afforded an opportunity to attend.
A plain reading of the statute reveals two basic requirements for the notice requirement to apply:
- Anticipated communication between a vocational rehabilitation counselor and a medical provide, and
- That the communication be either verbal or in the form of a personal conference.
It would appear that some sections of the statute would only apply to vocational rehabilitation counselors, while others specifically address nurse case managers. However, the only restriction imposed by the statute with regard to nurse case managers is that a nurse case manager, who is a party to a verbal communication with a medical provider, mail a summary of the communication to the employee, his representative, and the health care provider.
Moreover, with respect to written communications, the statute requires that all written communications from a healthcare provider to an employer, its insurer, or their agent/representative must be furnished to the employee and his representative simultaneously. This section does not address vocational rehabilitation counselors or nurse case managers. Thus, the applicability to those individuals would turn on the extent to which a vocational rehabilitation counselor or nurse case manager could be considered an agent or representative of the employer or insurer.
What do the Courts say?
In Hargrave v. Diaz, (Hargrave v. Diaz, 2015-189 (La.App. 3 Cir. 0/28/15))the claimant was injured in the course and scope of his employment with the DOTD. He began vocational rehabilitation services pursuant to 1126(A). Ultimately, Diaz was appointed as the rehabilitation counselor. However, claimant’s counsel refused to permit Diaz to provide such rehabilitation services unless he complied with an enumerated list of demands including, but not limited to,  that meetings be held at the attorney’s office,  that he agree not to question claimant on facts beyond what is necessary to provide services, and  that he be copied on all communications made to anyone concerning his client.
Diaz declined to abide by such rules reasoning that he practiced in accordance with the ethics and standards of his license. As a result, claimant and his attorney filed suit arguing that
[…] Diaz violated La.R.S. 23:1127, which requires that an employee be given notice of any verbal communication or conference at least fifteen days in advance and “shall be given the opportunity to attend or participate in the communication or conference.” Appellant alleges a violation of this statute occurred when Diaz communicated with the physician’s staff without providing notice to Appellant or giving him the opportunity to attend.
However, the court disagreed reasoning that it was claimant’s attorney that unilaterally canceled the conference with the physician. Additionally, had employee’s counsel not canceled the meeting and left the premises, he would have had ample opportunity to participate in the impromptu discussion with the physician’s staff.”
What is the takeaway?
A vocational rehabilitation counselor is required to provide notice and opportunity for claimant and his attorney to participate in verbal communication and/or personal conference with a medical provider.
In Flores v. A & Z Tobacco, (Flores v. A & Z Tobacco, LLC, 2014-505 (La. App. 3 Cir. 11/19/14)), the claimant, Ms. Flores, reported having sustained a work-related injury on April 14, 2012 while working in the course and scope of her employment with defendant, A & Z. During trial, claimant argued that her employer made improper contact with her treating physicians. The trial court agreed. Reasoning that any verbal communication or personal conferences with her medical providers should have been made pursuant to La. R.S. 23:1127. The third circuit upheld the decision of the trial court stating that the contact made by the employer with the intent to question whether the alleged accident was work-related was required to be made in accordance with La. R.S. 23:1127.
What is the takeaway?
Verbal communications and personal conferences between employer and a medical provider are subject to the limitations of La. R.S. 23:1127.
In Reed, (Reed v. St. Francis Med. Ctr., 44,211 (La. App. 2 Cir. 4/8/09), 8 So. 3d 824) claimant, Reed, was employed as a housekeeper for St. Francis Hospitable. Claimant was injured in July 2005. She chose Dr. Bulloch as her choice of physician. However, in March 2007, St. Francis learned that claimant had not seen Dr. Bulloch in over a year. The company retained a nurse case manager, Jennifer McClain, to expedite her rehabilitation.
On March 20, 2007, claimant returned to Dr. Bulloch, who ordered an MRI and follow-up appointment. Ms. McClain scheduled a rehabilitation conference with Dr. Bulloch immediately following the appointment. The court noted that Ms. McClain notified Ms. Reed’s counsel of this conference as required by La. R.S. 23:1127(C).
The appointment proceeded as scheduled; however, the testimony of claimant and Ms. McClain differed as to how the appointment played out. Claimant testified that she expected Ms. McClain to talk to Dr. Bulloch after the examination, but instead Ms. McClain came right into the examination room during it. Claimant testified that she asked Ms. McClain to leave the room, but she refused, monopolizing the discussion with the doctor. Then, after she left, Ms. McClain continued to speak with the doctor. Feeling that Dr. Bulloch no longer had her best interest at heart, claimant requested a new orthopedic surgeon.
Meanwhile, Ms. McClain testified that she sat with the claimant in the waiting room before her appointment. When the nurse called claimant for her appointment, Ms. McClain escorted her to the examination room and then waited outside in the hall. However, Dr. Bulloch’s nurse promptly advised her that there would be no examination, only a review of MRI results. As a result, claimant told her (Ms. McClain) through the open door to come in. She did, and claimant never instructed her to leave.
Admittedly, the court did not squarely address the issues of 1127 on appeal. Rather, it focused on whether claimant was entitled to a change in choice of orthopedist pursuant to 1121. In pertinent part, the court did hold that, “Aside from Ms. Reed’s own testimony, there is no evidence that anything done by St. Francis or Ms. McClain altered Dr. Bulloch’s delivery of medical care; to the contrary, the doctor firmly stated that Ms. McClain’s involvement did nothing to affect his professional judgment.”
What is the takeaway?
A nurse case manager is also required to comply with notice requirements of La. R.S. 23:1127C.
Although the language in Louisiana Revised Statute 23:1127 requiring notice to be sent to an employee and his/her representative prior to any verbal communication or personal conference with the employee’s medical provider only appears to apply to vocational rehabilitation counselors, current jurisprudence applies this section to nurse case managers and employers as well. Further, with regard to written communication, Louisiana Revised Statute 23:1121 specifically requires that any writing furnished by the employee’s medical provider to the employer or insurer be simultaneously furnished to the employee and his/her representative.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.