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What should an employer do if an employee refuses to attend a doctor's appointment due to coronavirus contamination fears?

Technically, the employee has the burden of proof to demonstrate, usually through medical opinions, that he or she continues to suffer some form of temporary or permanent total disability or that he or she falls into the supplemental earnings benefits (SEB) category whereby the injury causes an ability to earn wages equal to 90% or more of the wages at time of injury. This latter SEB entitlement is set out La. R.S. 23:1221(3) of the Louisiana Workers' Compensation Act. With respect to visits with the employee's treating choice of physician, the employee, in all likelihood, would not be punished for not keeping a regular appointment with his physician. As you might expect, this is completely uncharted waters, but given the spread of COVID-19, the Louisiana Governor's proclamation, and all local, state, and federal leaders urging cancellation of all elective surgery and, at times, postponement of non-critical medical appointments, we would not expect, under the existing circumstances, that the typical workers' compensation judge would find it justified to cut an employee's benefits for failure to attend a medical appointment.

That said, there perhaps should be some effort to see if treating physicians are still seeing patients and if the employee and physician have the capability of some form of telemedicine which would not require the employee to appear at the doctor's office. If both the physician and employee have the means to conduct the visit remotely, and the employee still refuses, this may present a different situation. Typically, changing an employee's benefits can't be accomplished until a release of some sort from the treating physician occurs or, at the very least, the employer obtains a second medical opinion (SMO) which suggests that the employee can return to work full duty or can return to some other light duty modified employment. Since Louisiana law provides greater weight to be given to the testimony and opinions of a treating physician over that of a doctor who merely examines a worker on one occasion, employers don't often prevail when the treating physician and the SMO physician disagree on work capabilities. Nevertheless, Louisiana does have a state independent medical examination (IME) procedure that may be utilized. This state IME tool, however, might well be hampered by the dire current medical landscape and, of course, the employee's willingness to attend such an examination.

There is, under normal circumstances and times, another mechanism which we put into the law within the last several years, which involves the ability of an employer to suspend benefits if an employee fails to attend a timely scheduled SMO. Outside the unique circumstances of present day, the employee would have to come in and petition the court to reinstate the benefits. This procedure is covered by La. R.S. 23:1123 and La. R.S. 23:1124. Again, when and if an employee seeks to have his benefits reinstated, it is anybody's guess how each individual judge will react when the excuse for failing to show up at the examination revolves around COVID-19.

In short, failing to attend an examination and/or visit with one's own treating physician may not automatically trigger benefit suspension or termination if the last opinion of the treating physician continued to disable the employee. The SMO step may have to be taken by the employer with no absolute assurance that the trier of fact won't find a failure to attend the SMO appointment due to Coronavirus fears was a reasonable and a valid excuse. It should be noted, however, and again under normal circumstances, that when the suspension is a proper one, and usually until the employee attends the SMO, the employee shall not be entitled to compensation benefits during the period of such suspension. Thus, if there was no valid excuse for the no-show, the employer is not required to pay the employee for weeks between the missed appointment and the date the SMO is finally conducted.