First Circuit Rules that Employee’s Right to Select a Treating Physician is Mandatory
In Nelson v. Windmill, the court found that LSA-R.S. 23:1121B(1) made an employee’s right to select a treating physician mandatory and without exception. The First Circuit added that there was no time frame for exercising that right and there is no requirement that any prior medical examination be conducted. Importantly, that Court found that an employee’s right to select a treating physician does not first require proof of causation of the accident. At this time, it appears that this rationale has only been followed by the First Circuit and the lower courts under the First Circuit.
In Nelson, the employer argued that compensability had not yet been established at the time of the hearing on the claimant’s motion for choice of physician. The Court found that despite this argument, the claimant was still entitled to attorney fees and penalties for his employer’s failure to authorize an evaluation of claimant’s choice of physician.
Can Showing Good Cause Relieve Employers from Liability Related to the Employee’s Right to Select a Treating Physician?
In 2013, LSA-R.S. 23:1121 was revised. Interestingly the new provision states: “The workers’ compensation judge shall order the employer or payor to authorize the claimant’s choice of physician unless the employer or payor can show good cause for his refusal.” (emphasis added) The use of the words “shall order” conflict with the latter words “unless the employer or payor can show good cause for his refusal”. In light of this conflict, it will be interesting to see how Courts interpret this provision. Will it be interpreted as a legislative overruling of Nelson, thus allowing employers to deny treatment with plaintiff’s choice of physician until compensability is established? Or will the Courts hold that the use of the word “shall” indicates that there has in fact been no change? Regardless of the ultimate interpretation, it seems unlikely that this question will remain unanswered for long.
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.