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2017 Regular Session
SENATE BILL NO. 121
BY SENATOR WARD
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CIVIL PROCEDURE. Provides relative to terminology of court-ordered and other
mandatory examinations in civil and administrative matters and claims. (gov sig)
1 AN ACT
2 To amend and reenact Code of Civil Procedure Articles 1421 and 1464, R.S. 23:1123, 1124,
3 1203(E), 1221(4)(s)(ii), 1307 and 1317.1, R.S. 39:1952(14)(e), and R.S.
4 46:2136(A)(4), relative to court-ordered and other mandatory physical and mental
5 examinations; to provide relative to such examinations in certain civil and
6 administrative matters, procedures, and claims; to provide for consistency in
7 terminology and nomenclature, and to provide for related matters.
8 Be it enacted by the Legislature of Louisiana:
9 Section 1. Code of Civil Procedure Articles 1421 and 1464 are hereby amended and
10 reenacted to read as follows:
11 Art. 1421. Discovery methods
12 Parties may obtain discovery by one or more of the following methods:
13 depositions upon oral examination or written questions; written interrogatories;
14 production of documents or things or permission to enter upon land or other
15 property, for inspection and other purposes; physical and mental examinations,
16 including compulsory examinations under Article 1464; request for release of
17 medical records; and requests for admission. Unless the court orders otherwise under
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1 Article 1426, the frequency of use of these methods is not limited.
2 * * *
3 Art. 1464. Order for compulsory physical or mental examination of persons
4 When the mental or physical condition of a party, or of a person in the
5 custody or under the legal control of a party, is in controversy, the court in which the
6 action is pending may order the party to submit to a compulsory physical or mental
7 examination by a physician or to produce for examination the person in his custody
8 or legal control, except as provided by law. In addition, the court may order the party
9 to submit to an a compulsory examination by a vocational rehabilitation expert or
10 a licensed clinical psychologist who is not a physician, provided the party has given
11 notice of intention to use such an expert. The order may be made only on motion for
12 good cause shown and upon notice to the person to be examined and to all parties
13 and shall specify the time, place, manner, conditions, and scope of the examination
14 and the person or persons by whom it is to be made.
15 Section 2. R.S. 23:1123, 1124, 1203(E), 1221(4)(s)(ii), 1307 and 1317.1 are hereby
16 amended and reenacted to read as follows:
17 §1123. Disputes as to condition or capacity to work; compulsory examination
18 under supervision of the director
19 If any dispute arises as to the condition of the employee, or the employee's
20 capacity to work, the director, upon application of any party, shall order an a
21 compulsory examination of the employee to be made by a medical practitioner
22 selected and appointed by the director. The medical examiner shall report his
23 conclusions from the examination to the director and to the parties and such report
24 shall be prima facie evidence of the facts therein stated in any subsequent
25 proceedings under this Chapter.
26 §1124. Refusal to submit to compulsory examination; effect on right to
27 compensation
28 If the employee refuses to submit himself to a compulsory medical
29 examination at the behest of the employer or an examination conducted pursuant to
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1 R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take
2 or prosecute any further proceedings under this Chapter may be suspended by the
3 employer or payor until the examination takes place. Such suspension of benefits by
4 the employer or payor shall be made in accordance with the provisions of R.S.
5 23:1201.1(A)(4) and (5). When the employee has filed a disputed claim, the
6 employer or payor may move for an order to compel the employee to appear for an
7 a compulsory examination. The employee shall receive at least fourteen days written
8 notice prior to the compulsory examination. When a right to compensation is
9 suspended no compensation shall be payable in respect to the period of suspension.
10 * * *
11 §1203. Duty to furnish medical and vocational rehabilitation expenses; prosthetic
12 devices; other expenses
13 * * *
14 E. Upon the first request for authorization pursuant to R.S. 23:1142(B)(1),
15 for a claimant's medical care, service, or treatment, the payor, as defined in R.S.
16 23:1142(A)(1), shall communicate to the claimant information, in plain language,
17 regarding the procedure for requesting an independent a compulsory medical
18 examination in the event a dispute arises as to the condition of the employee or the
19 employee's capacity to work, and the procedure for appealing the denial of medical
20 treatment to the medical director as provided in R.S. 23:1203.1. A payor shall not
21 deny medical care, service, or treatment to a claimant unless the payor can document
22 a reasonable and diligent effort in communicating such information. A payor who
23 denies medical care, service, or treatment without making such an effort may be
24 fined an amount not to exceed five hundred dollars or the cost of the medical care,
25 service, or treatment, whichever is more.
26 * * *
27 §1221. Temporary total disability; permanent total disability; supplemental earnings
28 benefits; permanent partial disability; schedule of payments
29 Compensation shall be paid under this Chapter in accordance with the
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1 following schedule of payments:
2 * * *
3 (4) Permanent partial disability. In the following cases, compensation shall
4 be solely for anatomical loss of use or amputation and shall be as follows:
5 * * *
6 (s)(i) * * *
7 (ii) In any claim for an injury, it must be established by clear and convincing
8 evidence that the employee suffers an injury and that such resulted from an accident
9 arising out of and in the course and scope of his employment. Nothing herein shall
10 limit the right of any party to obtain a second medical opinion or, in appropriate
11 cases, the opinion of an independent a compulsory medical examiner pursuant to
12 R.S. 23:1123.
13 * * *
14 §1307. Information to injured employee
15 Upon receipt of notice of injury from the employer or other indication of an
16 injury reportable under R.S. 23:1306, the office shall mail immediately to the injured
17 employee and employer a brochure which sets forth in clear understandable language
18 a summary statement of the rights, benefits, and obligations of employers and
19 employees under this Chapter, together with an explanation of the operations of the
20 office, and shall invite the employer and employee to seek the advice of the office
21 with reference to any question or dispute which the employee has concerning the
22 injury. Such brochure shall specifically state the procedure for requesting an
23 independent a compulsory medical examination in the event a dispute arises as to
24 the condition of the employee or the employee's capacity to work and the procedure
25 for appealing the denial of medical treatment to the medical director as provided in
26 R.S. 23:1203.1. If such brochure has previously been mailed to an employer within
27 the calendar year, the office shall not mail such employer an additional brochure
28 unless the employer specifically requests such.
29 * * *
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1 §1317.1. Independent Compulsory medical examinations
2 A. Any party wishing to request an independent a compulsory medical
3 examination of the claimant pursuant to R.S. 23:1123 and 1124.1 shall be required
4 to make its request at or prior to the pretrial conference. Requests for independent
5 compulsory medical examinations made after that time shall be denied except for
6 good cause or if it is found to be in the best interest of justice to order such
7 examination.
8 B. An examiner performing independent compulsory exams pursuant to R.S.
9 23:1123 shall be required to prepare and send to the office a certified report of the
10 examination within thirty days after its occurrence.
11 C. The report of the examination shall contain the following, when
12 applicable:
13 (1) A statement of the medical and legal issues the examiner was asked to
14 address.
15 (2) A detailed summary of the basis of the examiner's opinion, including but
16 not limited to a listing of reports or documents reviewed in formulating that opinion.
17 (3) The medical treatment and physical rehabilitative procedures which have
18 already been rendered and the treatment, if any, which the examiner recommends for
19 the future, together with reasons for the recommendation.
20 (4) Any other conclusions required by the scope of the independent
21 compulsory medical examination, together with reasons for the conclusion reached.
22 (5) A curriculum vitae of the examiner.
23 (6) A written certification personally signed by the examiner that the report
24 is true. The substance of the certification shall be: "I certify that I have caused this
25 report to be prepared, I have examined it, and to the best of my knowledge and
26 belief, all statements contained herein are true, accurate, and complete."
27 D. If a physical examination of the claimant was conducted, the certified
28 report shall contain all of the following additional information:
29 (1) A complete history of the claimant, including all previous relevant or
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1 contributory injuries with a detailed description of the present injury.
2 (2) The complaints of the claimant.
3 (3) A complete listing of tests and diagnostic procedures conducted during
4 the course of the examination.
5 (4) The examiner's findings on examination, including but not limited to a
6 description of the examination and any diagnostic tests and X-rays.
7 E. When the independent compulsory medical examiner's report is presented
8 within thirty days as provided in this Section:
9 (1) The examiner shall be protected from subpoena except for a single trial
10 deposition. However, upon a proper motion for cause, the workers' compensation
11 judge may order further discovery of the independent compulsory medical examiner
12 as deemed appropriate.
13 (2) Except to schedule the deposition or further discovery as described above,
14 the office of the independent compulsory medical examiner shall not be contacted
15 regarding the claimant by any party, attorney, or agent.
16 F. Objections to the independent compulsory medical examination shall be
17 made on form LDOL-WC-1008, and shall be set for hearing before a workers'
18 compensation judge within thirty days of receipt. No mediation shall be scheduled
19 on disputes arising under this Section.
20 Section 3. R.S. 39:1952(14)(e) is hereby amended and reenacted to read as follows:
21 §1952. Definitions
22 Unless the context requires otherwise, the following words shall have the
23 following meanings:
24 * * *
25 (14) "Minority" means a person who is a citizen or permanent resident of the
26 United States residing in Louisiana and who is any of the following:
27 * * *
28 (e) Person with a disability: a person who has a permanent physical
29 impairment which includes any physiological disorder or condition, cosmetic
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1 disfigurement, or anatomical loss affecting one or more of the following body
2 systems: neurological, musculoskeletal, speech organs, skin, and endocrine, which
3 substantially limits at least one major life activity of an individual, as defined in R.S.
4 28:477(3)(a), as verified by two physicians or as certified by the United States
5 Department of Veterans Affairs as meeting the qualifications and approved by the
6 division. The division may require an additional independent compulsory medical
7 examination by a physician chosen by the division, at the applicant's expense, prior
8 to approval of an application. For the purpose of this Subparagraph, "disability" shall
9 not mean mental impairment, temporary impairment, alcohol or drug addiction,
10 sexual or behavioral disorders, or substantially limiting illnesses including human
11 immunodeficiency virus.
12 * * *
13 Section 4. R.S. 46:2136(A)(4) is hereby amended and reenacted to read as follows:
14 §2136. Protective orders; content; modification; service
15 A. The court may grant any protective order or approve any consent
16 agreement to bring about a cessation of domestic abuse as defined in R.S.
17 46:2132(3), or the threat or danger thereof, to a party, any minor children, or any
18 person alleged to be incompetent, which relief may include but is not limited to:
19 * * *
20 (4)(a) Ordering a compulsory medical evaluation of the defendant or the
21 abused person, or both, to be conducted by an independent court-appointed evaluator
22 who qualifies as an expert in the field of domestic abuse. The evaluation shall be
23 conducted by a person who has no family, financial, or prior medical relationship
24 with the defendant or abused person, or their attorneys of record.
25 (b) If the compulsory medical evaluation is ordered for both the defendant
26 and abused person, two separate evaluators shall be appointed.
27 (c) After an independent a compulsory medical evaluation has been
28 completed and a report issued, the court may order counseling or other medical
29 treatment as deemed appropriate.
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1 * * *
2 Section 5. This Act shall become effective upon signature by the governor or, if not
3 signed by the governor, upon expiration of the time for bills to become law without signature
4 by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
5 vetoed by the governor and subsequently approved by the legislature, this Act shall become
6 effective on the day following such approval.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Jerry G. Jones.
DIGEST
SB 121 Original 2017 Regular Session Ward
Present law provides that in civil proceedings the parties may obtain discovery by various
methods, including physical and mental examinations.
Present law further provides that when the mental or physical condition of a party, or of a
person in the custody or under the legal control of a party, is in controversy, the court in
which the action is pending may order the party to submit to a physical or mental
examination by a physician or to produce for examination the person in his custody or legal
control, except as provided by law. In addition, the court may order the party to submit to
an examination by a vocational rehabilitation expert or a licensed clinical psychologist who
is not a physician, provided the party has given notice of intention to use such an expert.
Present law further provides that such court orders for mandatory examinations may be made
only on motion for good cause shown and upon notice to the person to be examined and to
all parties and shall specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made.
Proposed law retains present law and adds reference to such examinations as compulsory
physical and mental examinations.
Present law relative to employer and employee administrative procedures and claims
provides that if a dispute arises as to the condition of an employee, or the employee's
capacity to work, the employee may be ordered to undergo an examination to be made by
a medical practitioner selected and appointed by the director. The medical examiner shall
report his conclusions from the examination to the director and to the parties and such report
shall be prima facie evidence of the facts therein stated.
Present law further provides procedures for such examination and resulting report, including
communications to the employee regarding such examination, and requesting by any party
of such examination in a dispute prior to pretrial conference. Further provides for potential
sanctions for an employee who refuses to submit himself to such examination, including
suspension by the employer or payor of the employee's right to compensation or action until
the examination takes place.
Present law refers to such examinations as independent medical examinations and the
examiner as an independent medical examiner. Proposed law changes references to
compulsory medical examinations and compulsory medical examiners.
Present law relative to Minority and Women's Business Enterprise Act provides that for the
purpose of determining whether a person is disabled the state may require an additional
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medical examination by a physician chosen by the state, at the applicant's expense, prior to
approval of an application. Proposed law changes reference from independent medical
examination to compulsory medical examination.
Present law relative to the Protection From Family Violence Act provides that in domestic
abuse cases the court may grant any protective order or approve any consent agreement to
bring about a cessation of domestic abuse, or the threat or danger thereof, to a party, any
minor children, or any person alleged to be incompetent, which relief may include but is not
limited to, ordering a medical evaluation of the defendant or the abused person, or both.
Proposed law changes reference from medical evaluation to compulsory medical evaluation.
Effective upon signature of governor or lapse of time for gubernatorial actions.
(Amends C.C.P. Arts. 1421 and 1464, R.S. 23:1123, 1124, 1203(E), 1221(4)(s)(ii), 1307 and
1317.1, R.S. 39:1952(14)(e), and R.S. 46:2136(A)(4))
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