Creole Steel, Inc. v. Ricky Stewart

• Court: Louisiana Court of Appeal
• Decided: March 7, 2012
• Docket: WCA-0011-1285
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

WCA 11-1285

CREOLE STEEL, INC.

VERSUS

RICKY STEWART

**********

APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - NUMBER THREE PARISH OF CALCASIEU, NO. 09-04688 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Billy Howard Ezell, Judges.

AFFIRMED AS AMENDED.

Scott James Pias 522 Alamo St. Lake Charles, LA 70601 (337) 436-1288 COUNSEL FOR DEFENDANT/APPELLANT: Ricky Stewart

Joseph Richard Pousson, Jr. Plauché, Smith & Nieset, LLC P. O. Box 1705 Lake Charles, LA 70602 (337) 436-0522 COUNSEL FOR PLAINTIFF/APPELLEE: Creole Steel, Inc. EZELL, Judge.

Ricky Stewart appeals a judgment of the Office of Workers’ Compensation

(OWC) refusing to award penalties and attorney fees for his employer’s failure to

authorize the purchase of Marinol, a prescription form of marijuana. Mr. Stewart

also complains that the workers’ compensation judge (WCJ) did not order that his

employer reimburse him the money he advanced to purchase the medication.

FACTS

Mr. Stewart injured his cervical spine in 2000 while employed by Creole

Steele, Inc. In October 2001, Mr. Stewart began treatment with Dr. Frank Lopez

who specializes in physical medicine and rehabilitation. In May 2009, Dr. Lopez

prescribed Marinol. In June 2009, Creole Steel filed a disputed claim form

disputing the reasonable medical necessity of Marinol.

In January 2011, a trial on the issue was held. After hearing testimony and

reviewing the evidence, the WCJ ordered an independent medical examination of

Mr. Stewart in the area of pain management by Dr. James H. Eddy. Later, a

judgment was signed by the WCJ who concluded that Dr. Lopez should proceed

with his current recommendation for the use of Marinol while investigating other

treatment alternatives. Mr. Stewart appealed the judgment due to its failure to

award penalties and attorney fees and order reimbursement of the amounts he has

already paid for the Marinol.

PENALTIES AND ATTORNEY FEES

Mr. Stewart argues the WCJ erred in not awarding penalties and attorney

fees for Creole Steele’s failure to authorize the prescribed Marinol and for failure

to reimburse him for his purchase of the prescribed medication.

Louisiana Revised Statutes 23:1201(E) provides: “[m]edical benefits

payable under this Chapter shall be paid within sixty days after the employer or 1 insurer receives written notice thereof.” Failure to pay timely subjects the

employer to penalties and attorney fees unless the claim is reasonably controverted

or nonpayment results from conditions over which the employer had no control.

La.R.S. 23:1201(F)(2). “A claim is reasonably controverted when the employer or

insurer produces factual or medical information that reasonably counters the

claimant’s evidence.” Bourgeois v. Brown’s Deli & Mkt., Inc., 09-290, p. 7

(La.App. 3 Cir. 10/14/09), 21 So.3d 1072, 1077. A WCJ’s decision on whether to

award penalties and attorney fees is subject to great discretion which will not be

disturbed absent an abuse of discretion. Briscoe v. McNeese State Univ., 11-872

(La.App. 3 Cir. 12/7/11), ___ So.3d ___.

On his office visit to Dr. Lopez on July 15, 2008, Mr. Stewart tested positive

for marijuana. Dr. Lopez told Mr. Stewart that he would no longer treat him if he

continued to test positive for marijuana. Mr. Stewart explained to Dr. Lopez that

the use of marijuana gave him some relief from his pain and improved his capacity

for sleep.

Dr. Lopez testified that he could offer Mr. Stewart a legal option in the form

of Marinol which would provide relief to Mr. Stewart. Dr. Lopez indicated that he

uses Marinol as an optional drug in order to refrain from increasing narcotic usage.

He prescribed Marinol to Mr. Stewart in May 2009.

On May 16, 2009, Cindy Moore, a claims representative with Creole

Steele’s insurance company, faxed a request to Dr. Lopez attaching information on

the prescribed drug and requesting the condition for which the Marinol was

prescribed. She never received information and followed up with additional

requests on May 28, 2009, and June 22, 2009, indicating that Marinol was

indicated for (1) anorexia associated with weight loss in patients with AIDS and

(2) nausea and vomiting associated with cancer chemotherapy in patients who have 2 failed to respond adequately to conventional antiemetic treatments. Ms. Moore

indicated that she had not been able to find any literature that suggested that

Marinol was used to treat injuries such as Mr. Stewart’s. She also expressed

concerned that Mr. Stewart had tested positive in July 2008.

Dr. Lopez admitted that he received the requests from Ms. Moore, which

were also included in his medical records. By June 2009, Creole Steele filed the

disputed claim form regarding the prescription of Marinol. In August of 2009, Dr.

Lopez finally complied with the requests and sent a letter to Ms. Moore

summarizing some studies.

Dr. Lopez admitted that the U.S. Food and Drug Administration (FDA) has

not approved Marinol for treating musculoskeletal chronic pain. He agreed that

Marinol has only been approved as medication for nausea induced from

chemotherapy and as helpful in individuals that need to improve their nutrition,

such as AIDS patients.

On December 17, 2009, Mr. Stewart saw Dr. Sandra Weitz with

Comprehensive Pain Management in Baton Rouge for a second opinion. Dr.

Weitz opined that a long-lasting pain medication may give Mr. Stewart a more

even level of pain control and did not see any indication for prescribing Marinol.

She further suggested that if Mr. Stewart’s pain was properly controlled, there

would be no need for Marinol because the Marinol only helps to decrease his

anxiety.

After a hearing on the matter and on order of the court, Dr. Eddy performed

an independent medical examination on April 15, 2011. He also suggested long-

lasting pain medications in addition to spinal cord stimulation.

While the WCJ decided that Dr. Lopez should proceed with his current

recommendation for the use of Marinol, we find she did not abuse her discretion in 3 refusing to assess penalties and attorney fees. In addition to two other doctors

recommending the use of long-lasting narcotics as opposed to Marinol, the FDA

does not even recommend Marinol for treatment of pain conditions related to

bodily injuries. Obviously, this drug is used in very limited circumstances.

REIMBURSEMENT

Mr. Stewart claims that the WCJ should have ordered Creole Steele to

reimburse him the money that he advanced to purchase the prescribed medication.

Evidence introduced at trial and testimony indicate that Mr. Stewart spent a

total of $420.54 on three prescriptions for Dronabinol, also known as Marinol.

Since the WCJ found that the prescription of Marinol was a necessary medical

expense pursuant to La.R.S. 23:1203, we find she erred in refusing to order

reimbursement to Mr. Stewart of the amounts he has already spent on the

medication. Therefore, we will amend the judgment to include reimbursement for

payment of these prescription expenses.

The judgment of the Office of Workers’ Compensation is amended ordering

Creole Steele, Inc. to reimburse Ricky Stewart the amount of $420.54 as

reimbursement for expenses he personally incurred in paying for the Marinol

prescription. In all other respects, the judgment of the Office of Workers’

Compensation is affirmed. All costs of this appeal are assessed to Creole Steele,

Inc.