Suppose you're notified that an injured employee on workers compensation is in violation of his treatment plan? For example, suppose the employee is on worker's compensation and tests positive for marijuana three times and negative for pain medication prescribed?
The workers’ compensation law is not abundantly clear about a claimant’s refusal to comply with treatment that is not surgery related.
A possible statute that could be of use is Louisiana Revised Statute 23:1124 which applies to an employee’s refusal to submit to an examination or obstruct an examination requested by the employer. The statute states that when an employee refuses to submit to examination or obstructs an examination, the employee’s right to compensation and prosecution are suspended until the examination takes place. Paragraph B of the statute explains that an employer who wishes to compel a hearing will be granted an expedited hearing conducted as a rule to show cause.
It could be argued that an employee’s failure to comply with a treatment plan is a method of obstructing an examination, but it is unlikely the judge would interpret "examination" to mean treatment.
This is very little case law on this matter when treatment does not relate to surgery and failure to follow a treatment plan concerns pain medications and illegal drug use including the subsequent discharge from pain management due to that failure to follow the treatment plan.
One somewhat factually similar case I found is Blanchard v. Deta Marine Engineering, Inc. from the Louisiana 1st circuit in 1971. Though the case is old, there are not many cases reported with such similar facts. All of the cases I found, even the most recent one from 2004, have the same standard:
"An injured employee cannot, willfully and unreasonably, refuse to submit to treatment, or to a program of rehabilitation. His compensation benefits can be discontinued if he is suffering from a disability which can be remedied by treatment in which he refuses to cooperate... The burden is upon the employer to prove the defense that the employee’s willful failure to cooperate with medical treatment, or his willful misconduct, is the cause of the continued disability, and the proof to sustain this defense must be clear, convincing, and conclusive."
Blanchard v. Deta Marine Engineering, Inc, et al, 252 So. 2d 695. (La. App. 1 Cir. 9/2/1971).
In Blanchard, the employee-plaintiff injured his left knee which required surgery. The operating physician ordered Plaintiff to begin physical therapy shortly after his surgery. Plaintiff was treated in physical therapy for several months before he stopped going to therapy. Plaintiff did not tell his doctor that he was not attending therapy. Plaintiff’s injury worsened, though Plaintiff testified in court that he did all of the exercises given to him by his doctor and his therapist. The court found that the defense did not adequately show that the employee’s failure to attend physical therapy was the reason for his worsened condition as the physical therapists were not called to testify and one physician that saw Plaintiff testified that the surgeon’s therapy plan would not have been enough to prevent the plaintiff’s condition from deteriorating. Blanchard is an appeal from a suit for benefits.
In the instant matter, to meet the Blanchard burden that an employee’s continued disability is due to his failure to comply with the pain management treatment plan, the employer will have to prove the case by clear, convincing, and conclusive evidence.
One factor to consider from the medical records is whether pain rating decreased while testing positive for pain medications prescribed, compared to an increase when he tested negative for it. The doctor's testimony might be necessary to show that the employee would be getting better had he followed the treatment plan in place.
These are ideas worth considering. If there are any other ideas you have applied, please share. Otherwise, if you would like to discuss these issues in person, feel free to call me at 318-222-2426 or e-mail me at perkins@perkinsfirm.com.
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Take care,
Mark Perkins
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