Barber v. La. Workforce Comm'n
266 So. 3d 368
La. Ct. App.2018Background
- In 2009 Louisiana enacted La. R.S. 23:1203.1 to create an evidence-based medical treatment schedule and delegate rulemaking to the OWC Director with a medical advisory council; the schedule was promulgated in 2011.
- Plaintiffs (injured workers, attorneys, and physicians) sued in 2013 challenging certain statutory provisions and implementing regulations governing authorization, tacit denial, variances, and administrative review (forms LWC-WC-1010/1009/1008).
- At preliminary injunction stage, several plaintiffs were dismissed for lack of standing; the trial court later granted a preliminary injunction as to multiple regulatory and statutory provisions; the case proceeded to a merits trial on permanent injunctive and declaratory relief.
- At trial the court permanently enjoined many provisions and ordered protections against indirect communications with OWC judges; defendants appealed.
- The appellate court reviews constitutional claims de novo and permanent injunctions for manifest error; it affirms the injunction protecting judicial independence but reverses as to nearly all other substantive and procedural challenges to the statutory/regulatory scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Plaintiffs argued attorneys/physicians and injured workers were harmed and had standing to challenge provisions. | Defendants argued several plaintiffs lacked standing to claim their own rights were affected. | Injured worker Edwards had standing; some attorneys/physicians lacked standing and were dismissed. |
| Tacit-denial regs (LAC 40:I.2715(E)(2),(H)) — automatic denial if payor fails to respond in 5 days | Tacit denial deprives property interest and is arbitrary, violates separation of powers and substantive due process. | Tacit denial mirrors prior practice, speeds access to review, prevents unnecessary treatment and protects providers—within delegated authority. | Regulation upheld: not an unconstitutional delegation, nor substantively arbitrary; injunction against these provisions was reversed. |
| Variance process (LAC 40:I.2715(L)) — "higher ranking" medical literature requirement | Term is vague; imposes impossible/unduly burdensome standard exceeding preponderance requirement (separation of powers). | "Higher ranking" literature is described in the schedule; regulation merely specifies the evidence needed to meet the statutory preponderance standard. | Regulation not unconstitutionally vague; does not exceed delegation; injunction reversed. |
| Non-covered treatment (La. R.S. 23:1203.1(M)) and incorporation of other states' guidelines (D(5)) | Incorporation of other states' guidelines is vague and unduly burdensome to identify. | Statute sets a clear standard and process; difficulty of proof does not equal vagueness. | Statute not unconstitutionally vague; injunction reversed. |
| Administrative appeal process (medical director review, 30-day decision, appeal to OWC judge with clear-and-convincing standard) | Process denies procedural due process (no opportunity to object to employer submissions, no hearing before medical director, restricted appellate review; clear-and-convincing standard is arbitrary). | Process is tailored administrative review, provides multi-level review, record access and opportunities to supplement at OWC; higher appellate standard rationally tied to evidence-based schedule. | Court upheld the review scheme: procedural due process satisfied; clear-and-convincing standard permissible; injunction reversed as to these provisions. |
| Judicial interference / ex parte communications and administrative influence over OWC judges | Plaintiffs alleged OWC administration evaluated and pressured judges, allowed ex parte influence undermining judicial independence. | Defendants denied directing judges how to rule; any complaint process complied with notice rules and was forwarded appropriately. | Plaintiffs proved interference as to instruction about retroactivity and improper influence; injunction against indirect communications and orders to insulate judges affirmed; injunctions banning all off-the-record communications were narrowed/reversed where unsupported. |
Key Cases Cited
- Church Mutual Ins. Co. v. Dardar, 145 So.3d 271 (La. 2014) (upholding evidence‑based medical treatment schedule policy rationale)
- State v. Alfonso, 753 So.2d 156 (La. 1999) (limits on agency rulemaking beyond statutory delegation)
- Arrant v. Wayne Acree PLS, Inc., 187 So.3d 417 (La. 2016) (agency rulemaking scope and delegation principles)
- Logan v. Zimmerman Brush Co., 455 U.S. 422 (U.S. 1982) (property interest in adjudicatory procedure; due process protection for claims)
- American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (U.S. 1999) (state-created claims can constitute protected property interests)
- Matthews v. Eldridge, 424 U.S. 319 (U.S. 1976) (balancing test for procedural due process)
- FCC v. Fox Television Stations, Inc., 567 U.S. 239 (U.S. 2012) (vagueness analysis: regulation invalid only if unclear what must be proved)
- Boudreaux v. Larpenter, 110 So.3d 159 (La. App. 1st Cir. 2012) (substantive due process standard against arbitrary government action)