Brown v. East Carroll Parish Police Jury

56 So. 3d 1052, 2010 La. App. LEXIS 1767, 2010 WL 5177537
CourtLouisiana Court of Appeal
DecidedDecember 22, 2010
DocketNo. 45,851-WCA
StatusPublished
Cited by1 cases

This text of 56 So. 3d 1052 (Brown v. East Carroll Parish Police Jury) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. East Carroll Parish Police Jury, 56 So. 3d 1052, 2010 La. App. LEXIS 1767, 2010 WL 5177537 (La. Ct. App. 2010).

Opinions

GASKINS, J.

lain this workers’ compensation case, the employer appeals the denial of its motion to dismiss. In its motion, the employer alleged that the claimant failed to obtain a [1054]*1054court-ordered neuropathy workup within a reasonable period of time and should be penalized. We affirm in part and amend in part.

FACTS

In March 2002, the claimant, Patricia Brown, injured her right knee, leg and foot while working for the East Carroll Parish Police Jury. She slipped in a puddle of water at the Head Start office; the puddle was the result of a leaky ceiling.

In June 2004, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC). She asserted that the employer refused to pay her medical bills or authorize her to see an | sorthopedic doctor and a neurologist for treatment of her right knee, leg and foot. She requested that the employer be ordered to pay her medical bills relating to the accident and to pay for her to be seen by an orthopedic doctor and a neurologist. The employer answered with a general denial.

The parties stipulated that the claimant injured her right knee while performing services arising out of and in the course and scope of her employment with the employer; that some compensation and medical benefits were paid; and that she was released to return to work without restrictions by her treating physician, Dr. Douglas Brown, an orthopedist.1 The matter was tried on the issues of the nature and extent of her disability, the employee’s entitlement to payment of medical expenses, an order for her to be examined and treated by a neurologist of her choice, and her request for penalties and attorney fees.

Trial was continued on several occasions pursuant to motions by both sides. The matter was finally tried on January 5, 2007. The evidence showed that, following her March 2002 injury, the claimant was initially released by Dr. Brown to return to work in May 2002. However, she returned to the doctor in January 2003, complaining of numbness extending from her right knee to foot. She was found to have peripheral neuropathy in her lower extremities. In late January 2003, upon Dr. Brown’s referral, the claimant |4saw Dr. Vipul Shelat, a neurologist, whose report stated that she should have “a neuropathy work-up.” The record did not indicate that such a workup had been done.

The workers’ compensation judge (WCJ) ordered the employer to pay certain medical bills of the claimant that related to treatment of her right knee, leg or foot following the accident. The WCJ also found the claimant was entitled to have Dr. Lawrence Chenier as her physician of choice in general medicine. Penalties and attorney fees were denied. Most importantly for purposes of the instant appeal, the WCJ also ruled that the claimant was “entitled to a neuropathy work-up, as suggested by Dr. Shelat, to be performed by a neurologist designated by claimant.”2 Judgment was signed February 8, 2007.

On October 2, 2009, the employer filed a motion to dismiss for failure to comply with the judgment of the court. It asserted that in more than two years, the claimant had failed to obtain the court-ordered neuropathy workup, despite the employer’s efforts to assist her. The employer stated that it had recently learned that the doctor selected by the claimant as her neurologist, Dr. Gonzalo Hidalgo, did not accept workers’ compensation patients. Consequently, pursuant to the WCJ’s continuing [1055]*1055jurisdiction under La. R.S. 28:1310.8, the employer requested that the claimant’s claim for | ¡¡benefits be dismissed with prejudice due to her failure to comply with the judgment in a reasonable amount of time. In support of its argument, the employer stated that since it would be sanctioned if it had failed to comply with the court’s order, the claimant should be held to the same standard. Also, the employer contends that it would be prejudiced if the claimant were permitted to undergo the neuropathy workup now due to the substantial amount of time that had passed since the 2002 injury.

The claimant filed an opposition in which she asserted that she had done all she could to comply with the court’s judgment. Specifically, she stated that she repeatedly encountered complications in making appointments (e.g., a doctor who relocated after Hurricane Katrina, her inability to make payment arrangements). She denied being told that Dr. Hidalgo, who was located in Alexandria, Louisiana, no longer accepted workers’ compensation cases until June 2009. The claimant further asserted that the WCJ was authorized under La. R.S. 23:1810.8 to make all appropriate orders to make her whole.

The matter was heard on November 6, 2009. The claimant testified about her many efforts to obtain a neuropathy workup after it was ordered, the exchanges of letters between the attorneys, the necessity of referrals, and the confounding issue of payment for the appointments. She stated that | r,every time she was asked about payment for the exam and she mentioned workers’ compensation, the doctors’ offices said they were full or could not help her. She emphatically denied the assertion that Dr. Hidalgo’s office told her several times that his office did not do workers’ compensation exams.

Around the fall of 2009, the claimant found a neurologist in Vicksburg, Mississippi, Dr. Mohammed Ahmed. He agreed to see her; however, due to the difficulties in getting paid, he would not accept workers’ compensation and she had to pay him out of pocket. The claimant testified that she was required to make a $500 down payment for an $1,800 MRI in October 2009. In order to get a neuropathy workup on her right leg, she testified that it would cost $1,375 and that she would have to pay 30 percent, or about $414, as a down payment. She also stated that she has continued to see Dr. Chenier in Tallu-lah and that he helped her stay as comfortable as possible. She said she paid for his services herself because no one asked her about seeing him.

The WCJ denied the employer’s motion to dismiss. She noted that all the parties had made efforts toward getting the neu-ropathy workup done; however, their efforts had been frustrated by the chosen doctors’ refusals to accept workers’ compensation or their confusion as to what a neuropathy workup included. The WCJ also ruled that the employer was required to pay 17the total cost of the MRI done on October 28, 2009, to the River Region Health System and that the claimant was entitled to be evaluated by Dr. Bernie McHugh, a neurosurgeon, at the employer’s cost. In so ruling, the WCJ stated that since it appeared Dr. Ahmed recommended the MRI as part of the neuropa-thy workup, it was included in the judgment. Additionally, the WCJ stated that she would not hold it against the claimant that she went to Mississippi to seek help. The WCJ specifically found the claimant to be credible in her account of unsuccessfully trying to obtain assistance from various doctors in Louisiana. As to her appointment of Dr. McHugh, the WCJ noted that he was a Louisiana doctor who accepted workers’ compensation patients and that payment to him would be made pursuant to the Louisiana workers’ compensation [1056]*1056fee schedule. Judgment was signed November 24, 2009.

The employer applied for supervisory writs to this court. We treated the writ application as a motion for appeal and remanded the matter to the workers’ compensation court for perfection of the appeal.

MOTION TO DISMISS

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Bluebook (online)
56 So. 3d 1052, 2010 La. App. LEXIS 1767, 2010 WL 5177537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-east-carroll-parish-police-jury-lactapp-2010.