STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-842
DARLENE VITAL
VERSUS
LANDMARK OF LAKE CHARLES, D/B/A LAKE CHARLES HEALTHCARE, LLC
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - District 3 PARISH OF CALCASIEU, NO. 12-08845 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Sylvia R. Cooks, J. David Painter, and Shannon J. Gremillion, Judges.
COOKS, Judge, concurs and assigns written reasons
AFFIRMED AND RENDERED.
Lawrence Bernard Frieman Juge, Napolitano, Guilbeau 330 N. New Hampshire Street Covington, LA 70433 (504) 831-7270 COUNSEL FOR DEFENDANT/APPELLANT: Landmark of Lake Charles Tina Louise Wilson Attorney at Law 723 Broad Street Lake Charles, LA 70601 (337) 436-6611 COUNSEL FOR PLAINTIFF/APPELLEE: Darlene Vital GREMILLION, Judge.
Landmark of Lake Charles (Landmark) appeals the judgment of the
workers’ compensation judge (WCJ) overturning the decision of the Medical
Director for the Office of Workers’ Compensation (OWC) and ordering that it
provide its injured employee, Darlene Vital, lumbar epidural steroid injections
(LESI). Ms. Vital also appeals the WCJ’s denial of an award for penalties and
attorney fees. For the reasons that follow, we affirm.
FACTS
Ms. Vital was injured in the course and scope of her employment with
Landmark on April 22, 2010, when she slipped and fell while showering a
Landmark resident. She alleged injuries to her shoulder and lumbar spine. Her
demands for medical treatment were submitted to the Office of Workers’
Compensation’s Medical Director, Dr. Christopher Rich. Dr. Rich opined that Ms.
Vital’s demands for shoulder surgery and for LESI were not appropriate under the
applicable OWC medical guidelines. Thereafter, Ms. Vital appealed Dr. Rich’s
decision to the WCJ. The WCJ found that Ms. Vital proved by clear and
convincing evidence that she was entitled to the LESI procedure, but not shoulder
surgery. Landmark appealed the WCJ’s decision. Ms. Vital has answered the
appeal and urged that the WCJ erred in not awarding her penalties and attorney
fees, and that we award her additional attorney fees for this appeal.
ANALYSIS
An employer’s obligation to furnish medical treatment to its injured
employee is governed by La.R.S. 23:1201, et seq. Louisiana Revised Statute
23:1203.1 provides for the creation of a medical treatment schedule to be
developed by “the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients, integrating
clinical expertise, which is the proficiency and judgment that clinicians acquire
through clinical experience and clinical practice, with the best available external
clinical evidence from systematic research.” The Director of the Office of
Workers’ Compensation is charged with creating this schedule, the oversight of
which is entrusted to an appointed medical advisory council composed of members
of various medical disciplines, such as orthopedic surgeons.
When a health care provider submits a request to the payor of workers’
compensation benefits that a given medical course of treatment or procedure be
authorized, and there is a dispute as to whether the treatment is in accordance with
the medical treatment schedule, the dispute is directed to the medical director of
the Office of Workers’ Compensation. The medical director then renders a
decision on whether the treatment requested is in accordance with the medical
treatment schedule. The decision of the medical director is appealable to the WCJ
by the filing of a Disputed Claim for Compensation. The medical director’s
decision can be overturned when it is shown by clear and convincing evidence that
the decision was not in accordance with Section 1203.1.
There is no jurisprudence to guide us on the standard of review of a WCJ’s
decision about the medical director’s application of the medical treatment schedule.
The WCJ’s analysis is necessarily fact-intensive; therefore we conclude that, as
with most findings of fact, the WCJ’s decision is subject to review under the
manifest error/clearly wrong standard. See Poissenot v. St. Bernard Parish
Sheriff’s Office, 09-2793 (La. 1/9/11), 56 So.3d 170. The manifest error standard
requires that we review the record in its entirety to determine not whether the WCJ
2 was wrong, but whether the record reflects a reasonable basis for the WCJ’s
decision. Id.
The medical director’s denial of the LESI procedure was predicated upon the
fact that the date of injury was fourteen months and that Ms. Vital’s symptoms of
low back and leg pain had not changed. Specifically, it stated:
Rationale: All pertinent clinical records submitted were reviewed. (206 pages). The documentation does not support the approval of the requested services per the Louisiana Medical Treatment Guidelines (MTG) noted below. The date of injury is over 14 months ago. More than 200 pages of records were submitted, a significant amount was redundant with multiple copies; administrative, fax cover sheets, billing sheets, and other non-clinical material; Form 1009 submitter needs to only send pertinent clinical data. Most recent clinical record submitted dated 11.21.2012 noted low back and left leg pain, no change in pain; exam noted normal motor and reflex. Lumbar imaging report dated 08.07.2012 noted articular facet degeneration at L3/4 and L4/5 with neur0foraminal [sic] narrowing.
The medical director also stated:
The MTG notes the following: The emphasis within these guidelines is to move patients along a continuum of care and return-to-work within a six-month time frame, whenever possible. Return to Work is therapeutic, assuming the work is not likely to aggravate the basic problem or increase long- term pain. The practitioner must provide specific written physical limitations Therapeutic spinal injections may be used after initial conservative treatments, such as physical and occupational therapy, medication, manual therapy, exercise, acupuncture, etc., have been undertaken. The purpose of spinal injections is to facilitate active therapy by providing short-term relief through reduction of pain and inflammation. Epidural steroid injections are effective for patients with radicular pain or radiculopathy (sensory or motor loss in a specific dermatome or myotome). Maintenance care will be based on principles of patient self-management
3 Management of pain or injury exacerbations will emphasize initiation of active therapy techniques and may occasionally require anesthetic injection blocks.
The WCJ found that Ms. Vital has chronic pain for which conservative
treatment had proven ineffective and that she suffers from disc bulging and
degenerative changes that have resulted in neuroforaminal narrowing. This is
corroborated by the medical records.
An MRI ordered by Dr. Gunderson and performed on August 7, 2012, was
interpreted by the radiologist, Dr. Scott Mills, as demonstrating bilateral neural
foraminal narrowing at every level in Ms. Vital’s lumbar spine except L1-2. Ms.
Vital had undertaken active physical therapy for her condition. These two factors,
which are identified by the medical director as having been utilized under the MTG
to deny Ms. Vital the LESI procedure, are directly contradicted by the medical
records reviewed by the medical director. The record reflects a reasonable basis
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-842
DARLENE VITAL
VERSUS
LANDMARK OF LAKE CHARLES, D/B/A LAKE CHARLES HEALTHCARE, LLC
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - District 3 PARISH OF CALCASIEU, NO. 12-08845 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Sylvia R. Cooks, J. David Painter, and Shannon J. Gremillion, Judges.
COOKS, Judge, concurs and assigns written reasons
AFFIRMED AND RENDERED.
Lawrence Bernard Frieman Juge, Napolitano, Guilbeau 330 N. New Hampshire Street Covington, LA 70433 (504) 831-7270 COUNSEL FOR DEFENDANT/APPELLANT: Landmark of Lake Charles Tina Louise Wilson Attorney at Law 723 Broad Street Lake Charles, LA 70601 (337) 436-6611 COUNSEL FOR PLAINTIFF/APPELLEE: Darlene Vital GREMILLION, Judge.
Landmark of Lake Charles (Landmark) appeals the judgment of the
workers’ compensation judge (WCJ) overturning the decision of the Medical
Director for the Office of Workers’ Compensation (OWC) and ordering that it
provide its injured employee, Darlene Vital, lumbar epidural steroid injections
(LESI). Ms. Vital also appeals the WCJ’s denial of an award for penalties and
attorney fees. For the reasons that follow, we affirm.
FACTS
Ms. Vital was injured in the course and scope of her employment with
Landmark on April 22, 2010, when she slipped and fell while showering a
Landmark resident. She alleged injuries to her shoulder and lumbar spine. Her
demands for medical treatment were submitted to the Office of Workers’
Compensation’s Medical Director, Dr. Christopher Rich. Dr. Rich opined that Ms.
Vital’s demands for shoulder surgery and for LESI were not appropriate under the
applicable OWC medical guidelines. Thereafter, Ms. Vital appealed Dr. Rich’s
decision to the WCJ. The WCJ found that Ms. Vital proved by clear and
convincing evidence that she was entitled to the LESI procedure, but not shoulder
surgery. Landmark appealed the WCJ’s decision. Ms. Vital has answered the
appeal and urged that the WCJ erred in not awarding her penalties and attorney
fees, and that we award her additional attorney fees for this appeal.
ANALYSIS
An employer’s obligation to furnish medical treatment to its injured
employee is governed by La.R.S. 23:1201, et seq. Louisiana Revised Statute
23:1203.1 provides for the creation of a medical treatment schedule to be
developed by “the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients, integrating
clinical expertise, which is the proficiency and judgment that clinicians acquire
through clinical experience and clinical practice, with the best available external
clinical evidence from systematic research.” The Director of the Office of
Workers’ Compensation is charged with creating this schedule, the oversight of
which is entrusted to an appointed medical advisory council composed of members
of various medical disciplines, such as orthopedic surgeons.
When a health care provider submits a request to the payor of workers’
compensation benefits that a given medical course of treatment or procedure be
authorized, and there is a dispute as to whether the treatment is in accordance with
the medical treatment schedule, the dispute is directed to the medical director of
the Office of Workers’ Compensation. The medical director then renders a
decision on whether the treatment requested is in accordance with the medical
treatment schedule. The decision of the medical director is appealable to the WCJ
by the filing of a Disputed Claim for Compensation. The medical director’s
decision can be overturned when it is shown by clear and convincing evidence that
the decision was not in accordance with Section 1203.1.
There is no jurisprudence to guide us on the standard of review of a WCJ’s
decision about the medical director’s application of the medical treatment schedule.
The WCJ’s analysis is necessarily fact-intensive; therefore we conclude that, as
with most findings of fact, the WCJ’s decision is subject to review under the
manifest error/clearly wrong standard. See Poissenot v. St. Bernard Parish
Sheriff’s Office, 09-2793 (La. 1/9/11), 56 So.3d 170. The manifest error standard
requires that we review the record in its entirety to determine not whether the WCJ
2 was wrong, but whether the record reflects a reasonable basis for the WCJ’s
decision. Id.
The medical director’s denial of the LESI procedure was predicated upon the
fact that the date of injury was fourteen months and that Ms. Vital’s symptoms of
low back and leg pain had not changed. Specifically, it stated:
Rationale: All pertinent clinical records submitted were reviewed. (206 pages). The documentation does not support the approval of the requested services per the Louisiana Medical Treatment Guidelines (MTG) noted below. The date of injury is over 14 months ago. More than 200 pages of records were submitted, a significant amount was redundant with multiple copies; administrative, fax cover sheets, billing sheets, and other non-clinical material; Form 1009 submitter needs to only send pertinent clinical data. Most recent clinical record submitted dated 11.21.2012 noted low back and left leg pain, no change in pain; exam noted normal motor and reflex. Lumbar imaging report dated 08.07.2012 noted articular facet degeneration at L3/4 and L4/5 with neur0foraminal [sic] narrowing.
The medical director also stated:
The MTG notes the following: The emphasis within these guidelines is to move patients along a continuum of care and return-to-work within a six-month time frame, whenever possible. Return to Work is therapeutic, assuming the work is not likely to aggravate the basic problem or increase long- term pain. The practitioner must provide specific written physical limitations Therapeutic spinal injections may be used after initial conservative treatments, such as physical and occupational therapy, medication, manual therapy, exercise, acupuncture, etc., have been undertaken. The purpose of spinal injections is to facilitate active therapy by providing short-term relief through reduction of pain and inflammation. Epidural steroid injections are effective for patients with radicular pain or radiculopathy (sensory or motor loss in a specific dermatome or myotome). Maintenance care will be based on principles of patient self-management
3 Management of pain or injury exacerbations will emphasize initiation of active therapy techniques and may occasionally require anesthetic injection blocks.
The WCJ found that Ms. Vital has chronic pain for which conservative
treatment had proven ineffective and that she suffers from disc bulging and
degenerative changes that have resulted in neuroforaminal narrowing. This is
corroborated by the medical records.
An MRI ordered by Dr. Gunderson and performed on August 7, 2012, was
interpreted by the radiologist, Dr. Scott Mills, as demonstrating bilateral neural
foraminal narrowing at every level in Ms. Vital’s lumbar spine except L1-2. Ms.
Vital had undertaken active physical therapy for her condition. These two factors,
which are identified by the medical director as having been utilized under the MTG
to deny Ms. Vital the LESI procedure, are directly contradicted by the medical
records reviewed by the medical director. The record reflects a reasonable basis
for the WCJ’s finding that the denial was overturned by clear and convincing
evidence.
Ms. Vital argues that the WCJ erred in not awarding her penalties and
attorney fees for the denial of the LESI procedure. We likewise affirm the WCJ on
this point. Penalties and attorney fees for failing to authorize medical treatment by
an employer or insurer are governed by La.R.S. 23:1201(F). That section does not
authorize penalties or attorney fees if the claim is reasonably controverted by the
employer or insurer. La.R.S. 23:1201(F)(2). The MTG governs all treatment to
patients unless it can be demonstrated to the medical director that treatment not in
accordance with the MTG is reasonably required by a preponderance of the
medical evidence. La.R.S. 23:1203.1(I) An employer is entitled to rely upon the
4 decision of the medical director that any treatment proposed is beyond the scope of
the MTG.
Ordinarily, a workers’ compensation claimant is entitled to additional
attorney fees on appeal when she successfully defends a judgment. Phillips v.
Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/02), 869 So.2d 313.
Accordingly, we award Ms. Vital attorney fees of $2,000.00 for work by her
counsel on appeal.
5 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
COOKS, J., concurring in the result.
Although I agree with the majority’s conclusion to affirm the WCJ’s
judgment denying penalties and attorney fees, I do not agree with the reasons it
relies on for that decision. The majority finds the employer is entitled to rely on
the Medical Director’s decision and abide by it. I believe this reasoning ignores
the provisions of La.R.S. 23:1201(F) which provides for the award of penalties and
attorney fees for an employer’s “failure to provide payment in accordance with this
Section…” The employer’s denial of benefits was based on the same medical
records relied upon by the Medical Director which the majority correctly finds
“directly contradicted” Rich’s conclusion that the requested procedure should be
denied as not in line with the MTG. When the employer denied the requested
treatment it was not relying on a decision by the Medical Director. The employer’s
actions must be gauged at the time of its initial refusal. The mere fact that the
Medical Director agreed with the employer does not exonerate the employer for its
actions if it acted improperly. The workers’ compensation statutes make no such
exception. Louisiana Revised Statute 23:1201(F)(2) provides: “This subsection
shall not apply if the claim is reasonably controverted or if such nonpayment
results from conditions over which the employer or insurer had no control.”
However, other evidence in the record, other than the Medical Director’s opinion,
does not suggest the WCJ erred in finding the employer did not act unreasonably or capriciously in denying the doctor’s request for the injections. Thus, there is no
basis to overturn the WCJ’s decision regarding penalties and attorney fees.