Byron Gulley v. Hope Youth Ranch

• Court: Louisiana Court of Appeal
• Decided: April 6, 2016
• Docket: WCA-0015-1076
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

15-1076

BYRON GULLEY

VERSUS

HOPE YOUTH RANCH, ET AL.

**********

APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION – DISTRICT 02 PARISH OF RAPIDES, NO. 15-03681 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

MARC T. AMY JUDGE

Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese, Judges.

AFFIRMED.

Pickett, J., dissents and assigns written reasons.

William R. Mustian, III Stanga & Mustian, P.L.C. 3117 22nd Street, Suite 6 Metairie, LA 70002 (504) 831-0666 COUNSEL FOR PLAINTIFF/APPELLANT: Byron Gulley Matthew W. Tierney Tierney and Smiley, LLC 3535 S. Sherwood Forest, Suite 233 Baton Rouge, LA 70816 (225) 298-0770 COUNSEL FOR DEFENDANTS/APPELLEES: Bridgefield Casualty Insurance Company Hope Youth Ranch AMY, Judge.

The claimant sought review by the workers’ compensation court of a

decision of the Louisiana Medical Director denying approval for a trial of a spinal

cord stimulator. The workers’ compensation judge denied the claimant’s petition

for review. The claimant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the claimant, Byron Gulley, was hit by a golf cart

while working for the Hope Youth Ranch in 2009.1 The claimant asserts that he

suffered injuries to his head, shoulder, wrist, back, knee, hip, foot, and ankle as a

result of the accident. At issue in this appeal is the claimant’s request for a trial of

a spinal cord stimulator. According to the record, the claimant sought approval

from his insurer for the stimulator but was denied. The claimant thereafter sought

approval for the procedure from the Medical Director. However, the Medical

Director also denied approval for the procedure on the basis that the topography of

the claimant’s pain was not amenable to stimulation coverage. The claimant

appealed that decision to the workers’ compensation court. After a hearing, the

workers’ compensation judge found that the claimant failed to meet his burden of

proof. The workers’ compensation judge specifically noted that ―[t]his gentleman

has multiple painful areas. . . . So, I don’t think there’s clear and convincing

evidence that the medical director has failed to follow‖ the guidelines.

The claimant appeals,2 asserting that the workers’ compensation judge and

1 The record indicates that while the claimant named Summit—Southwest Region in his disputed claim for compensation, that the proper party is Bridgefield Casualty Insurance Company. 2 This court issued a rule to show cause why the appeal should not be dismissed on the basis that the judgment appealed was a non-appealable, interlocutory ruling. The claimant filed a Motion to Amend Judgment in the workers’ compensation court. After obtaining an Amended the Medical Director erroneously interpreted the Medical Treatment Guidelines to

require that the spinal cord stimulator address every painful area in the claimant’s

body.

Discussion

In Matthews v. Louisiana Home Builder’s Association Self Insurer’s Fund,

13-1260, pp. 4-5 (La.App. 3 Cir. 3/12/14), 133 So.3d 1280, 1283, a panel of this

court discussed the application of the Medical Treatment Guidelines, stating:

Louisiana Revised Statutes 23:1203.1 was enacted by the legislature in 2009 to provide for the establishment of a medical treatment schedule, and such a schedule was promulgated by the Louisiana Workforce Commission, Office of Workers’ Compensation Administration in June 2011. As a result, ―medical care, services, and treatment due, pursuant to R.S. 23:1203, et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule.‖ La.R.S. 23:1203.1(I). Section 1203.1 establishes a procedure whereby an injured employee’s medical provider can request authorization for medical services from a payor, usually the employer or its insurer, who must act on that request within five days. La.R.S. 23:1203.1(J)(1).

After the Medical Director has issued a decision on a claimant’s request for

medical treatment, any party aggrieved by that decision may appeal that decision to

the workers’ compensation court, and ―[t]he decision may be overturned when it is

shown, by clear and convincing evidence, the decision of the medical director or

associate medical director was not in accordance with the provisions of this

Section.‖ La.R.S. 23:1203.1(K). With regard to the appellate court’s review of the

workers’ compensation court’s judgment affirming or overturning the medical

director’s decision, this court has applied the manifest error-clearly wrong standard

of review where the workers’ compensation judge’s decision is necessarily fact-

Judgment dated December 2, 2015, the claimant filed a Motion to Supplement the Record in this court which was granted on December 10, 2015, and the rule to show cause was recalled.

2 intensive. See Guidry v. Am. Legion Hosp., 14-1285 (La.App. 3 Cir. 4/1/15), 162

So.3d 728; Lowery v. Jena Nursing & Rehab., 14-1106 (La.App. 3 Cir. 4/1/15),

160 So.3d 620; Vital v. Landmark of Lake Charles, 13-842 (La.App. 3 Cir.

2/12/14), 153 So.3d 1017.

The Louisiana Administrative Code addresses operative procedures for

chronic pain management, including the implantation of a spinal cord stimulator in

40 La.Admin.Code. Pt. I, § 2113. That Section states, in relevant part:

2. Neurostimulation a. Description — Neurostimulation is the delivery of low- voltage electrical stimulation to the spinal cord or peripheral nerves to inhibit or block the sensation of pain. This is a generally accepted procedure that has limited use. May be most effective in patients with chronic, intractable limb pain who have not achieved relief with oral medications, rehabilitation therapy, or therapeutic nerve blocks, and in whom the pain has persisted for longer than six months. Particular technical expertise is required to perform this procedure and is available in some neurosurgical, rehabilitation, and anesthesiology training programs and fellowships. Physicians performing this procedure must be trained in neurostimulation implantation and participate in ongoing injection training workshops, such as those sponsored by the Internal Society for Injection Studies or as sponsored by implant manufacturers.

.... c. Surgical Indications — Failure of conservative therapy including active and/or passive therapy, medication management, or therapeutic injections. Preauthorization is required. Habituation to narcotic analgesics in the absence of a history of addictive behavior does not preclude the use of neurostimulation. Only patients who meet the following criteria should be considered candidates for neurostimulation: i. A diagnosis of a specific physical condition known to be chronically painful has been made on the basis of objective findings; and

ii. All reasonable surgical and non-surgical treatment has been exhausted; and

3 iii. Pre-surgical psychiatric or psychological evaluation has been performed and has demonstrated motivation and long-term commitment without issues of secondary gain; and

iv. There is no evidence of addictive behavior. (Tolerance and dependence to narcotic analgesics are not addictive behaviors and do not preclude implantation.); and

v. The topography of pain and its underlying pathophysiology are amenable to stimulation coverage (the entire painful area has been covered); and

vi. A successful neurostimulation screening test of two-three days. A screening test is considered successful if the patient (a) experiences a 50 percent decrease in pain, which may be confirmed by visual analogue scale (VAS), and (b) demonstrates objective functional gains or decreased utilization of pain medications. Functional gains may be evaluated by an occupational therapist and/or physical therapist prior to and before discontinuation of the trial.

vii. For spinal cord stimulation, a temporary lead is implanted at the level of pain and attached to an external source to validate therapy effectiveness. (For peripheral nerve screening, a nerve block is performed to define the specific nerve branch but if multiple branches are involved, a screening test for spinal cord stimulation may be indicated.) Long-term functional improvement is anticipated when objective functional improvement has been observed during time of neurostimulation screen exam.

d. Contraindications — Unsuccessful neurostimulation test – either inability to obtain functional improvement or reduction of pain, those with cardiac pacemakers, patient unable to properly operate the system. It should not be used if future MRI is planned. The Medical Director denied the claimant’s request for a neurostimulator

with the following comments:

 Clinical indications have not been met. The MTG specifically note that the topography of pain and its underlying pathophysiology are amenable to stimulation coverage (the entire painful area has been covered).

 The sole indication for this diagnostic screening trial is one of several criteria for implantable neuro-stimulator for which the requested diagnostic test is solely clinically intended.

 Regardless of the results of a diagnostic Spinal Cord Stimulator Trial, the patient’s multi-focal topography of pain would not be

4 compliant with another required clinical indication for an implantable spinal cord stimulator.

The claimant contends that, in the decision denying the request for a trial of

the neurostimulator, the Medical Director’s comments indicate that the primary

barrier to approval is that the entire area in which the claimant is experiencing pain

would not be covered. The claimant submitted medical records, including records

from his pain management physician, Dr. Domangue. A review of those records

indicates that the claimant reported pain in his left shoulder, low back, left hip, left

ankle and foot pain.

Dr. Domangue had previously noted that the claimant failed all conservative

treatment, including medication, physical therapy, and injections. Further, in notes

dated May 5, 2014, and June 30, 2014, Dr. Domangue opined that a ―[spinal cord

stimulator] is his best option at this time‖ and that ―a [spinal cord stimulator] is the

only other option for long-term pain control.‖ In a note dated May 8, 2015, Dr.

Domangue noted that the neurostimulator would address the claimant’s

―significant low back, left hip, and leg pain which is a primary contributor to his

pain issues.‖ He also noted that ―NO ONE PROCEDURE WILL ADDRESS ALL

AREAS OF THIS PATIENT[’]S PAIN‖ (emphasis in original).

The Medical Director’s comments in denying the requested procedure

arguably reflect that the Medical Director felt that the claimant’s ―multi-focal

topography of pain‖ was not compliant with the Medical Treatment Guidelines’

requirement that ―[t]he topography of pain and its underlying pathophysiology are

amenable to stimulation coverage (the entire painful area has been covered)[.]‖

See 40 La.Admin.Code Pt. I, § 2113(A)(2)(c)(v). The claimant argues that

requiring the procedure to address all painful areas of the body is an unreasonable

5 interpretation of the Medical Treatment Guidelines. In denying the claimant’s

application for review in the workers’ compensation court, the workers’

compensation judge concluded that the Guidelines required ―every bit‖ of a

worker’s painful areas ―have to be amenable to neurostimulation,‖ and denied the

application for review on the basis that all of a worker’s injured body parts had to

be amenable to neurostimulation.

However, we note that the workers’ compensation judge’s reasons are ―not

binding or appealable; only the judgment itself has judicial effect and is subject to

appeal.‖ Lestage v. Nabors Drilling Co., 10-728, p. 4 (La.App. 3 Cir. 12/8/10), 54

So.3d 133, 136 (quoting Guidry v. Gulf Coast Coil Tubing, 09-621 (La.App. 3 Cir.

12/9/09), 24 So.3d 1019), writ denied, 11-88 (La. 2/25/11), 58 So.3d 458. Under

the particular facts of this case, we do not find that the Medical Director’s decision

necessarily indicates that the Medical Director actually required the procedure to

address all painful areas of the claimant’s body. Instead, the language used by the

Medical Director generally indicated that ―the clinical indications have not been

met‖ and that ―the [Medical Treatment Guidelines] specifically note that the

topography of pain and its underlying pathophysiology are amenable to stimulation

coverage (the entire painful area has been covered).‖ In other words, the finding

may alternatively be viewed as a finding that the claimant’s medical records do not

adequately document that the areas of the body identified by Dr. Domangue and

the associated underlying pathophysiology are amenable to stimulation coverage.3

3 Moreover, we note that, in their appellate brief, the appellees assert that the claimant could have sought a variance pursuant to La.R.S. 23:1203.1(I). That provision states that:

Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it is demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably

6 Accordingly, we do not disturb the workers’ compensation judge’s

conclusion that the claimant failed to show by clear and convincing evidence that

the Medical Director’s decision was not in accordance with La.R.S. 23:1203.1.

See La.R.S. 23:1203.1(K). This assignment of error is without merit.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation court

dated December 2, 2015, is affirmed. Costs of this appeal are assessed to the

appellant, Byron Gulley.

required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances.

Id.

However, although the claimant requested a variance in his pre-trial brief to the workers’ compensation court and the issue was discussed at the hearing, the claimant has not asserted that issue on appeal.

7 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Pickett, J., dissenting.

I respectfully dissent from the majority opinion. As the majority points out,

Mr. Gulley suffered multiple injuries in a work-related accident. According to the

pain management doctor who recommended neurostimulation, no single treatment

would alleviate his shoulder pain and his back pain and his hip pain and his leg

pain and his ankle pain and his foot pain. Yet the Medical Director denied the

request for neurostimulation because the entire “topography of pain and its

underlying pathophysiology” were not “amenable to stimulation coverage.”

I disagree with the majority opinion’s failure to consider the WCJ’s

reasoning in determining whether the trial court committed manifest error. The

issue before us is the application of the Medical Treatment Guidelines on

neurostimulation to Mr. Gulley’s case. In applying the Guidelines, we are called

upon to determine what Section 2113(2)(c)(v) means when it states:

The topography of pain and its underlying pathophysiology are amenable to stimulation coverage (the entire painful area has been covered).

The trial court determined that the Guidelines only allowed approval of

neurostimulation if “every bit” of the claimant’s pain was relieved. I find that

reading of the Guidelines creates an impossible situation in a case like Mr.

Gulley’s. Because Mr. Gulley sustained multiple injuries as a result of a single work accident, and no treatment, neurostimulation or otherwise, is available to

treat all of his pain related to all of his injuries, then neurostimulation for a discrete

injured area could never be approved.

Dr. Domangue recommended the treatment for Mr. Gulley’s lower back,

hip, and leg pain because Mr. Gulley met all the criteria for neurostimulation under

the Medical Treatment Guidelines, including treating the topography of pain across

that discrete area of his body. I find that his shoulder and ankle injuries are

separate injuries, and Mr. Gulley need not show that those areas would be treated

by neurostimulation in order for the Medical Director to approve this treatment.

I would reverse the judgment of the WCJ and the Medical Director, and

approve the neurostimulation requested by Mr. Gulley.