Iberia Parish School Board v. Broussard

854 So. 2d 464, 2003 La.App. 3 Cir. 0151, 2003 La. App. LEXIS 2429
CourtLouisiana Court of Appeal
DecidedSeptember 10, 2003
DocketNos. 03-0151, 02-1299
StatusPublished
Cited by3 cases

This text of 854 So. 2d 464 (Iberia Parish School Board v. Broussard) 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
Iberia Parish School Board v. Broussard, 854 So. 2d 464, 2003 La.App. 3 Cir. 0151, 2003 La. App. LEXIS 2429 (La. Ct. App. 2003).

Opinion

| LAUNDERS, J.

Applicant, Patsy Broussard, seeks review of a decision of the Office of Workers’ Compensation ordering her to submit to medical examination by Dr. Roger Smith, a neurosurgeon, in accordance with La. R.S. 23:1124.1, regarding the issue of disability.

FACTS

The applicant, Patsy Broussard, suffered a neck injury on April 1, 1998, while in the course and scope of her employment with the Iberia Parish School Board. Ms. Broussard originally chose Dr. R.C. Llewellyn, a neurosurgeon in New Orleans, as her choice of physician after the accident. Under the provisions of La.R.S. 23:1121(A), Iberia Parish School Board had Ms. Broussard examined by Dr. John Clifford, a neurosurgeon in Baton Rouge. Dr. Clifford examined Ms. Broussard on several occasions and eventually recommended surgical intervention.

This case originally came to litigation in 1999, after Dr. Clifford recommended cervical spine surgery for Ms. Broussard. Dr. Clifford requested that he be allowed to consult with his partner. This request was refused by Iberia Parish School Board’s insurance company. The employer apparently refused to authorize the second opinion by Dr. Clifford’s partner due to a desire to seek a second opinion from a physician outside the practice group of Dr. Clifford. Instead, the employer requested a second opinion by. Dr. Jack Hurst, a neurosurgeon in Lafayette. After Ms. Broussard refused to submit to examination by Dr. Hurst, Iberia Parish School Board filed a motion seeking approval of a second opinion with the Office of Workers’ Compensation. The trial court granted the employer’s request and Ms. Broussard sought a supervisory writ from this court to review the trial court’s decision.

At the time of this first litigation, the employer took the position that Ms. 12Broussard. had made Dr. Clifford her de facto choice of physician, and therefore, it should be allowed a second neurosurgeon of its choosing. Ms. Broussard disputed the contentions of the employer, specifically, that the employer was entitled to a new physician of its choosing under the provisions of La.R.S. 23:1121(A) when she became compliant with the directives of its original choice of physician.

The workers’ compensation judge held that Ms. Broussard’s selection of Dr. Clifford as her de facto physician allowed the employer to obtain a second opinion by the neurosurgeon of- its choice. This court granted the writ and held that School Board’s choice of physician under La.R.S. 23:1121(A) was Dr. Clifford. The mere fact that Ms. Broussard chose to accept [466]*466the treatment and recommendations of the employer’s chosen physician did not allow the employer to avoid the clear language of the statute prohibiting the employer from forcing an employee to be examined by more than one physician in any one field or specialty.

This latest dispute arose in April of 2002, when the employer filed a disputed claim for compensation requesting that Ms. Broussard undergo medical evaluation on the issue of her extent of disability. Dr. Clifford, the employer’s original choice of physician has stated that, in his opinion, Ms. Broussard is permanently disabled. Ms. Broussard filed a reconventional demand seeking a declaration that she is totally and permanently disabled and an Exception of Res Judicata, or in the alternative, that the law of the case doctrine applies to this matter, based on this courts prior ruling on the 1999 supervisory writ. The trial court denied Ms. Broussard’s exception and ordered that she be evaluated by Dr. Roger Smith, a neurosurgeon practicing in New Orleans.

Once again, Ms. Broussard requests a supervisory writ from this court to | «review the decision of the workers’ compensation judge. She presents the following issues for review:

1) Did the trial court err in denying the Peremptory Exception of Res Judica-ta brought by Patsy Broussard, or in the alternative, the estoppel principal of “law of the case”?
2) Did the trial court err, on its own motion pursuant to La.R.S. 23:1124.1, in appointing a neurosurgeon to evaluate Patsy Broussard where no medical dispute existed, and the plaintiff (de facto) and defendant (de jure) jointly chose neurosurgeon, Dr. John Clifford?

LAW AND ARGUMENTS

RES JUDICATA AND LAW OF THE CASE:

In City of Jennings v. Clay, 98-225, p. 4 (La.App. 3 Cir. 10/14/98), 719 So.2d 1164, 1166, we provide a clear articulation of the application of the law of the case doctrine in reviewing matters previously decided by this court.

Generally, review of an issue previously addressed by this court would be precluded by the law of the case doctrine. Barnett v. Jabusch, 94-819 (La.App. 3 Cir. 2/1/95); 649 So.2d 1158. The doctrine applies to all decisions of an appellate court and not merely those arising from the full appeal process. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96); 676 So.2d 619, writ denied, 96-1650 (La.10/25/96); 681 So.2d 365. However, the doctrine is not an absolute bar to reconsideration; rather it is discretionary. See Ducote v. City of Alexandria, 97-947 (La.App. 3 Cir. 2/4/98); 706 So.2d 673. Courts should apply the doctrine only when there is no obvious injustice or manifest error. Id; Martin v. Provencher, 97-1648 (La.App. 3 Cir. 5/6/98); 718 So.2d 975.

The Iberia Parish School Board states that “[i]t should be noted that the second opinion sought 1999 by Employer was solely on the question of whether surgery was needed and, if so, what type of surgery was needed.” Therefore, it argue that the theories of res judicata and law of the case do not apply in this instance, as its request for second opinion is related to a different matter than that raised in the original trial in this case. We find this argument is without merit.

l4La.R.S. 23:1121(A) provides for the examination of an employee by a medical doctor of the employer’s choosing as follows:

[467]*467An 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 and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter. The employer or his workers’ compensation carrier shall not require the employee to be examined by more than one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee.

(Emphasis added).

The issue of whether the employer is allowed to seek a “second opinion” from another neurologist merely because it disagrees with the recommendations or diagnoses made by its original choice of physician is the specific issue that was litigated three years ago. The matter that the employer was seeking a second opinion on, namely a recommendation of surgery, was immaterial to our decision. The language of the statute is clear, and it shall be applied as written. An employer is entitle to request examination of the employee by only one physician within any given field or specialty.

This court has previously held that a claimant is not entitled to treatment by a second orthopedic surgeon of his choice merely because the first orthopedist has released him to go back to work.

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Bluebook (online)
854 So. 2d 464, 2003 La.App. 3 Cir. 0151, 2003 La. App. LEXIS 2429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iberia-parish-school-board-v-broussard-lactapp-2003.