Bertrand v. G-Force Transportation, LLC

154 So. 3d 741, 14 La.App. 3 Cir. 423, 2014 La. App. LEXIS 2915, 2014 WL 6911365
Louisiana Court of Appeal·Decided December 10, 2014·No. No. 14-423·Published

Opinions

CONERY, Judge.

11 This case involves a workers’ compensation claim in which claimant, Gannon Bertrand (Mr. Bertrand), was injured in the course and scope of his employment with G-Force Transportation (G-Force). G-Force, through its workers’ compensation self-insurance fund, paid Mr. Bertrand both medical and indemnity benefits. Mr. Bertrand filed an appeal of a judgment by the Workers’ Compensation Judge (WCJ) upholding G-Force’s suspension of his weekly benefits until he submitted to a psychological evaluation in order to obtain clearance for a surgical procedure recommended by his physician.

G-Force raised the issue of the procedural posture of Mr. Bertrand’s appeal on the basis that the WCJ’s February 17, 2014 judgment was not a final judgment subject to appeal. We agree that the judgment that is the subject of this appeal is not final, but interlocutory in nature. Accordingly, we dismiss the appeal filed on behalf of Mr. Bertrand. We further decline to exercise our supervisory jurisdiction granted to this court under La. Const, art. 5, § 10(A) to convert the appeal to an application for supervisory writs.

FACTS AND PROCEDURAL HISTORY

The WCJ held an expedited hearing on December 6, 2013, to address two separate issues relating to the suspension/termination of Mr. Bertrand’s benefits. G-Force claimed that Mr. Bertrand failed to submit to two medical examinations, whereupon G-Force suspended payment of benefits pursuant to La.R.S. 23:1201.1(K)(8)(d).1 G-Force gave notice to the Office of Workers’ Compensation |2of the two separate incidents leading to the suspension/termination of Mr. Bertrand’s benefits. The first issue involved an appointment for a second medical opinion with Dr. Gregory Gidman, which is not at issue here.2 The only remaining issue [743] remaining before us involved Mr. Bertrand’s refusal to attend a psychological evaluation with Dr. Darren Strother, scheduled by G-Force pursuant to La.Admin.Code tit. 40, pt. I § 2011(A), which provides in pertinent part:

A. All operative interventions should be based on a positive correlation with clinical findings, the natural history of the disease, the clinical course, and diagnostic tests. A comprehensive assimilation of these factors should have led to a specific diagnosis with positive identification of the pathologic condition(s). It is imperative for the clinician to rule out non-physiologic modifiers of pain presentation, or | .¡non-operative conditions mimicking radiculopathy or instability (peripheral compression neuropathy, chronic soft tissue injuries, and psychological conditions).

(Emphasis added.)

Mr. Bertrand’s treating orthopedic surgeon, Dr. John Sledge, made a surgical recommendation. Pursuant to the procedures required as part of the pre-surgieal decision making process, Dr. Sledge recommended that a psychological evaluation of Mr. Bertrand be conducted prior to the performance of elective surgery in accordance with the requirements of La.Admin.Code tit. 40, pt. I § 2011(A).

Based on Dr. Sledge’s pre-surgical recommendation, G-Force scheduled a psychological evaluation for Mr. Bertrand with Dr. Darren Strother on October 14, 2014. Mr. Bertrand was given notice of the scheduled appointment through his counsel of record. In response to the notice of the appointment with Dr. Strother, counsel for Mr. Bertrand timely informed counsel for G-Force that the appointment should be canceled, and stated, “Mr. Bertrand did not select Dr. Darren Strother and would like to see Dr. Sandra Fried-berg who can be contacted at (337) 232-7236 for clearance for surgery. Please have your adjuster contact Dr. Friedberg’s office to give the necessary approval for this evaluation.”

Mr. Bertrand did not attend the October 14, 2013 appointment with Dr. Strother. Thus, on October 17, 2013, G-Force filed a “NOTICE OF PAYMENT, MODIFICATION, SUSPENSION, TERMINATION OR CONTROVERSION OF COMPENSATION OR MEDICAL BENEFITS” (Notice) with the Office of Workers’ Compensation. In the Notice, G-Force stated that Mr. Bertrand’s “Compensation and/or Medical Benefits” had been terminated on the basis that “Mr. Bertrand [refused] per surgery psychological evaluation— 10/14/13.”

l40n October 21, 2013, Mr. Bertrand filed with the Office of Workers’ Compensation his “NOTICE OF DISAGREEMENT,” which stated, “Mr. Bertrand is entitled to pre surgery psychological evaluation with his choice of psychologist, Dr. Friedberg. Mr. Bertrand has never refused a psychological evaluation.”

G-Force claimed that La.R.S. 23:1121 (A) provided statutory authority for its right to choose the medical practitioner [744] that would conduct the psychological or psychiatric examination for surgical clearance mandated by the Administrative regulation. Louisiana Revised Statute 23:1121(A) provides:

An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this chapter.

Mr. Bertrand urged the application of La.R.S. 28:1121(B)(1), which states in pertinent part, “The employee shall have the right to select one treating physician in any field or specialty.” However, the WCJ based its decision on the only issue before the WCJ, whether Mr. Bertrand had shown good cause for refusing to submit to the psychological evaluation mandated by the regulations. The WCJ’s oral reasons state, in pertinent part:

I’m following you, Mr. Miller.

I’m going to start by referring to 1201.KK) 8(d) and its requirement that good cause be shown. If we were here simply on a motion to compel evaluation on behalf of either party, it would be a different type of discussion and potentially different ruling. But good cause has to be shown for the refusal, and there is nothing in the statute that I am aware of in the jurisprudence under these particular facts that indicate that the employee has to see his choice first.
I am reminded of the arguments that I get in motions to compel discovery sometimes. I’m not answering until he answers mine. Or, I’m not providing my client for deposition until I get my responses for | ^discovery. It’s all well and good to try and lay out something that makes sense and that makes things flow easily, but there’s really no law saying who goes first.
What is a little bit different about this also, is under the “new medical guidelines,” a psychosocial evaluation is required prior to surgery. There have been denials for surgery because of the failure to get the psychosocial evaluation. So, this isn’t a determination. This being a psychological evaluation, it’s not a determination based on necessity of psychological treatment. It is directed by the guidelines’ requirement of psychological clearance. So, it’s not the normal procedure where the employee sees his doctor, that doctor makes recommendations as to medical necessity, and then the employer gets a second opinion on those recommendations of necessity.

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Bertrand v. G-Force Transportation, LLC, 154 So. 3d 741, 14 La.App. 3 Cir. 423, 2014 La. App. LEXIS 2915, 2014 WL 6911365 (La. Ct. App. 2014).

154 So. 3d 741 (Bertrand v. G-Force Transportation, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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