STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-408
MILDRED DELOACH
VERSUS
FARA INSURANCE SERVICES, ET AL.
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02 PARISH OF RAPIDES, DOCKET NO. 13-08230 HONORABLE JAMES L. BRADDOCK, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Marc T. Amy and John E. Conery, Judges.
AFFIRMED.
Amy, J., concurs and assigns reasons.
Conery, J., concurs in the result.
W. Jay Luneau Graham M. Brian Luneau Law Office 1239 Jackson Street Alexandria, LA 71301 (318) 767-1161 ATTORNEY FOR PLAINTIFF/APPELLANT Mildred Deloach
James D. “Buddy” Caldwell, Attorney General Leanne L. Bridges, Assistant Attorney General 429 Murray Street, 4th Floor P.O. Box 1710 Alexandria, LA 71309-1710 (318) 487-5944 ATTORNEY FOR DEFENDANT/APPELLEE State of Louisiana through FARA Insurance Services COOKS, Judge.
FACTS AND PROCEDURAL HISTORY
Claimant, Mildred Deloach, sustained a work-related head injury on October
6, 2009, while employed at the LSU Agricultural Center. FARA Insurance
Services, the third party administrator of Claimant’s workers’ compensation claim,
accepted her claim as compensable and she was approved for her choice of
physician, Dr. Arsham Naalbandian, a neurologist.
Claimant treated with Dr. Naalbandian from November, 2009 through
November 22, 2010, complaining of primarily of headaches and problems with her
vision. In his report issued on November 22, 2010, Dr. Naalbandian opined that
Claimant “neurologically has done well” and there “has been no recurrence of
headaches.” There was still a complaint of blurred vision and “some visual loss”
to the left side. Dr. Naalbandian concluded that Claimant’s “[p]ossible history of
post-traumatic headaches. . . seem to have resolved.” As to her complaints of
visual loss, Dr. Naalbandian noted she was being treated by “Dr. Lyons who is her
primary ophthalmologist in Shreveport regarding her history of ocular
histoplasmosis and hopefully will have his updated reports.” Dr. Naalbandian
scheduled Claimant “for re-evaluation and followup within the next two or three
months.”
Following the November 22, 2010 visit, Claimant did not return to see Dr.
Naalbandian again until March of 2013. Dr. Naalbandian requested an
Electroencephalogram (EEG), a Brain Stem Auditory Evoked Response test and
Visual Evoked Response test be performed on Claimant, which came back normal.
Claimant notes, despite the two and one-half year gap between visits with Dr.
Naalbandian, FARA approved the continued visits and tests recommended by Dr.
Naalbandian.
2 On October 14, 2013, Claimant requested an evaluation with Dr. Gerald
Leglue, a physiatrist. On November 19, 2013, Claimant filed a Form 1008
disputed claim, requesting to see Dr. Leglue and asserting entitlement to penalties
and attorney fees. On December 3, 2013, Claimant filed a Motion for Expedited
Hearing pursuant to La.R.S. 23:1121, which was set for December 16, 2013.
On December 8, 2013, FARA issued to Dr. Naalbandian a questionnaire
concerning Claimant’s current medical status in relation to her work accident of
October 6, 2009. FARA noted in the correspondence to Dr. Naalbandian that his
November 22, 2010 report opined that Claimant’s post-traumatic headaches
appeared to have resolved and that the March 27, 2013 diagnostic studies all
appeared to be normal. The following day, December 9, 2013, FARA issued a
1002 Notice of Controversion stating Claimant’s rights to medical benefits are
disputed and have been denied because causation of the current medical complaints
as related to the compensable injury was being disputed. It also stated that further
medical treatment was being controverted pending a response from Dr.
Naalbandian regarding causation.
On December 16, 2013, the workers’ compensation judge (WCJ) heard the
motion for expedited hearing seeking care from Dr. Leglue. In his oral reasons for
judgment, the WCJ ruled as follows:
At this time, the Court will deny the expedited motion to see Dr. Leglue. The basis the Court denies it is because I have no evidence of anything that Mr. Brian has argued to the Court with respect to Ms. Deloach. She’s presented no documentary evidence to support these arguments. She hasn’t testified today in support of the argument. Simply put, there’s no evidence to support her claim to see a physiatrist for a head injury and headaches associated with that injury.
This appeal followed, wherein Claimant asserts the WCJ committed legal error by
placing the burden of proof on Claimant, when the burden should have rested with
FARA to show the treatment requested by Claimant was not medically necessary. 3 ANALYSIS
Louisiana Revised Statutes 23:1121(B)(1), which concerns an employee's
right to select a physician, states:
B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8), when denied his right to an initial physician of choice. . . . The workers’ compensation judge shall order the employer or payor to authorize the claimant’s choice of physician unless the employer or payor can show good cause for his refusal. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
(Emphasis added.)
Thus, the statute provides an injured employee has an absolute right to select one
physician in any field without the approval of the employer. Smith v. Southern
Holding Inc., 02-1071 (La. 01/28/03), 839 So.2d 5. The selection of a new
physician in a different specialty does not require approval. Thompson v. The
Animal Hosp., 39,154 (La.App. 2 Cir.12/15/04), 889 So.2d 1193, citing Davis v.
Sheraton Operating Corp., 97-2784 (La.App. 4 Cir. 5/20/98), 713 So.2d 814.
However, La.R.S. 23:1201(F)(2) also provides that “[t]his subsection shall
not apply if the claim is reasonably controverted[.]” Where a claim has been
reasonably controverted, the imposition of penalties and attorney fees under
La.R.S. 23:1201 is precluded. Nelson v. Windmill Nursery of La., L.L.C., 04-1941
(La.App. 1 Cir. 9/23/05), 923 So.2d 709, writ denied, 05-2294 (La. 3/10/06), 925
So.2d 516. The law is clear that to determine if a claim has been reasonably
controverted, “a court must ascertain whether the employer or his insurer engaged
in a nonfrivolous legal dispute or possessed factual and/or medical information to
reasonably counter the factual and medical information presented by the claimant.”
Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890. 4 We find the WCJ applied the wrong legal standard in this case. Claimant
was given the burden to produce evidence to support her claim to see Dr. Leglue.
The burden of proof should have rested with FARA to reasonably controvert
Claimant’s request to see Dr. Leglue. Ewing v. Hilburn, 11-1243 (La.App. 3 Cir.
3/7/12), 88 So.3d 640.
However, we find FARA put forth evidence and testimony to reasonably
controvert Claimant’s continued need for any medical treatment. The evidence
showed Claimant had been approved and was treated by Dr.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-408
MILDRED DELOACH
VERSUS
FARA INSURANCE SERVICES, ET AL.
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02 PARISH OF RAPIDES, DOCKET NO. 13-08230 HONORABLE JAMES L. BRADDOCK, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Marc T. Amy and John E. Conery, Judges.
AFFIRMED.
Amy, J., concurs and assigns reasons.
Conery, J., concurs in the result.
W. Jay Luneau Graham M. Brian Luneau Law Office 1239 Jackson Street Alexandria, LA 71301 (318) 767-1161 ATTORNEY FOR PLAINTIFF/APPELLANT Mildred Deloach
James D. “Buddy” Caldwell, Attorney General Leanne L. Bridges, Assistant Attorney General 429 Murray Street, 4th Floor P.O. Box 1710 Alexandria, LA 71309-1710 (318) 487-5944 ATTORNEY FOR DEFENDANT/APPELLEE State of Louisiana through FARA Insurance Services COOKS, Judge.
FACTS AND PROCEDURAL HISTORY
Claimant, Mildred Deloach, sustained a work-related head injury on October
6, 2009, while employed at the LSU Agricultural Center. FARA Insurance
Services, the third party administrator of Claimant’s workers’ compensation claim,
accepted her claim as compensable and she was approved for her choice of
physician, Dr. Arsham Naalbandian, a neurologist.
Claimant treated with Dr. Naalbandian from November, 2009 through
November 22, 2010, complaining of primarily of headaches and problems with her
vision. In his report issued on November 22, 2010, Dr. Naalbandian opined that
Claimant “neurologically has done well” and there “has been no recurrence of
headaches.” There was still a complaint of blurred vision and “some visual loss”
to the left side. Dr. Naalbandian concluded that Claimant’s “[p]ossible history of
post-traumatic headaches. . . seem to have resolved.” As to her complaints of
visual loss, Dr. Naalbandian noted she was being treated by “Dr. Lyons who is her
primary ophthalmologist in Shreveport regarding her history of ocular
histoplasmosis and hopefully will have his updated reports.” Dr. Naalbandian
scheduled Claimant “for re-evaluation and followup within the next two or three
months.”
Following the November 22, 2010 visit, Claimant did not return to see Dr.
Naalbandian again until March of 2013. Dr. Naalbandian requested an
Electroencephalogram (EEG), a Brain Stem Auditory Evoked Response test and
Visual Evoked Response test be performed on Claimant, which came back normal.
Claimant notes, despite the two and one-half year gap between visits with Dr.
Naalbandian, FARA approved the continued visits and tests recommended by Dr.
Naalbandian.
2 On October 14, 2013, Claimant requested an evaluation with Dr. Gerald
Leglue, a physiatrist. On November 19, 2013, Claimant filed a Form 1008
disputed claim, requesting to see Dr. Leglue and asserting entitlement to penalties
and attorney fees. On December 3, 2013, Claimant filed a Motion for Expedited
Hearing pursuant to La.R.S. 23:1121, which was set for December 16, 2013.
On December 8, 2013, FARA issued to Dr. Naalbandian a questionnaire
concerning Claimant’s current medical status in relation to her work accident of
October 6, 2009. FARA noted in the correspondence to Dr. Naalbandian that his
November 22, 2010 report opined that Claimant’s post-traumatic headaches
appeared to have resolved and that the March 27, 2013 diagnostic studies all
appeared to be normal. The following day, December 9, 2013, FARA issued a
1002 Notice of Controversion stating Claimant’s rights to medical benefits are
disputed and have been denied because causation of the current medical complaints
as related to the compensable injury was being disputed. It also stated that further
medical treatment was being controverted pending a response from Dr.
Naalbandian regarding causation.
On December 16, 2013, the workers’ compensation judge (WCJ) heard the
motion for expedited hearing seeking care from Dr. Leglue. In his oral reasons for
judgment, the WCJ ruled as follows:
At this time, the Court will deny the expedited motion to see Dr. Leglue. The basis the Court denies it is because I have no evidence of anything that Mr. Brian has argued to the Court with respect to Ms. Deloach. She’s presented no documentary evidence to support these arguments. She hasn’t testified today in support of the argument. Simply put, there’s no evidence to support her claim to see a physiatrist for a head injury and headaches associated with that injury.
This appeal followed, wherein Claimant asserts the WCJ committed legal error by
placing the burden of proof on Claimant, when the burden should have rested with
FARA to show the treatment requested by Claimant was not medically necessary. 3 ANALYSIS
Louisiana Revised Statutes 23:1121(B)(1), which concerns an employee's
right to select a physician, states:
B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8), when denied his right to an initial physician of choice. . . . The workers’ compensation judge shall order the employer or payor to authorize the claimant’s choice of physician unless the employer or payor can show good cause for his refusal. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
(Emphasis added.)
Thus, the statute provides an injured employee has an absolute right to select one
physician in any field without the approval of the employer. Smith v. Southern
Holding Inc., 02-1071 (La. 01/28/03), 839 So.2d 5. The selection of a new
physician in a different specialty does not require approval. Thompson v. The
Animal Hosp., 39,154 (La.App. 2 Cir.12/15/04), 889 So.2d 1193, citing Davis v.
Sheraton Operating Corp., 97-2784 (La.App. 4 Cir. 5/20/98), 713 So.2d 814.
However, La.R.S. 23:1201(F)(2) also provides that “[t]his subsection shall
not apply if the claim is reasonably controverted[.]” Where a claim has been
reasonably controverted, the imposition of penalties and attorney fees under
La.R.S. 23:1201 is precluded. Nelson v. Windmill Nursery of La., L.L.C., 04-1941
(La.App. 1 Cir. 9/23/05), 923 So.2d 709, writ denied, 05-2294 (La. 3/10/06), 925
So.2d 516. The law is clear that to determine if a claim has been reasonably
controverted, “a court must ascertain whether the employer or his insurer engaged
in a nonfrivolous legal dispute or possessed factual and/or medical information to
reasonably counter the factual and medical information presented by the claimant.”
Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890. 4 We find the WCJ applied the wrong legal standard in this case. Claimant
was given the burden to produce evidence to support her claim to see Dr. Leglue.
The burden of proof should have rested with FARA to reasonably controvert
Claimant’s request to see Dr. Leglue. Ewing v. Hilburn, 11-1243 (La.App. 3 Cir.
3/7/12), 88 So.3d 640.
However, we find FARA put forth evidence and testimony to reasonably
controvert Claimant’s continued need for any medical treatment. The evidence
showed Claimant had been approved and was treated by Dr. Naalbandian, her
choice of physician, since 2009. After Dr. Naalbandian’s report of November 22,
2010, declaring that Claimant’s post-traumatic headaches from the work accident
appeared to have resolved, there was a two and one-half year gap in treatment
before she saw Dr. Naalbandian again in March of 2013. FARA approved her
continuing treatment with Dr. Naalbandian, as well as a recommended
Electroencephalogram (EEG), a Brain Stem Auditory Evoked Response test and
Visual Evoked Response test. All these tests came back normal. It was not until
FARA received a request to see Dr. Leglue that it conducted an investigation
which revealed Dr. Nallbandian believed her post-traumatic headaches were
resolved back in November of 2010 and the March 2013 tests were normal. FARA
then filed the appropriate 1002 Notice controverting the claim for medical benefits.
Claimant submitted no evidence or testimony to rebut FARA’s submissions
supporting its position that the requested medical treatment was not medically
necessary.
The WCJ denied the request to see Dr. Leglue, finding there was nothing in
the record to support additional medical treatment pending the follow-up report
from Dr. Naalbandian, who was the Claimant’s treating physician. The record
5 supports this finding, and the judgment appealed from is affirmed. All costs of this
appeal are assessed to Claimant-Appellant, Mildred Deloach.
6 NUMBER 14-408
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
AMY, J., concurring.
I agree with the majority that an affirmation is warranted in this case and
with the majority’s conclusion that the trial court inappropriately shifted the burden
of proof to the claimant, thus warranting a de novo review. See Tulane Univ.
Hosp. & Clinic v. Lockheed Martin Corp., 11-179 (La.App. 4 Cir. 6/29/11), 70
So.3d 988. However, I write separately in light of my view of the interplay
between La.R.S. 23:1121 and La.R.S. 23:1201(F).
Ms. Deloach’s disputed claim for compensation requested a determination
regarding FARA’s denial of her choice of physician as well as penalties and
attorney fees. La.R.S. 23:1121(B)(1) requires “good cause” on the part of the
employer in refusing the claimant’s choice of physician, and this court has noted
that La.R.S. 23:1121(B) “must be read in conjunction with La.R.S. 23:1203(A),
which requires that treatment be medically necessary in order for the employer to
be responsible for the expenses.” Krogh v. Tri-State Refrigeration, 11-697, p. 2
(La.App. 3 Cir. 11/2/11), 79 So.3d 445, 447. Violations of La.R.S. 23:1121 can
subject the employer or insurer to penalties and attorney fees pursuant to La.R.S.
23:1201. La.R.S. 23:1201(F). However, an employer or insurer will not be liable
for penalties and attorney fees if the claim is reasonably controverted. La.R.S.
23:1201(F)(2). In my view, FARA provided sufficient evidence to prove that it had “good
cause” for denying Ms. Deloach’s request to see the physiatrist, Dr. Leglue. As
detailed by the majority, Dr. Naalbandian commented in 2010 that Ms. Deloach’s
work-injury-related headaches appeared to have resolved. Thereafter, there was a
significant gap in Ms. Deloach’s treatment and, when Ms. Deloach returned,
several medical tests showed normal results. Ms. Deloach failed to rebut this
evidence. Accordingly, I conclude that FARA showed that the request was not
medically necessary and met its burden of proof to show that it had good cause for
denying Ms. Deloach’s request. Having determined that no violation of La.R.S.
23:1121(B) exists, it is unnecessary to address whether or not the claim was
reasonably controverted.
For these reasons, I concur in the majority opinion.