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Bertrand v. G-force Transp., LLC

Court of Appeal of Louisiana, Third Circuit

December 10, 2014




Michael B. Miller, Jacqueline B. Manecke, Attorneys at Law, Crowley, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT: Gannon Bertrand.

Kirk L. Landry, Keogh, Cox & Wilson, LTD., Baton Rouge, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE: G-Force Transportation, LLC.

Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges. Cooks, J., dissents and assigns written reasons.


Page 742

[14-423 La.App. 3 Cir. 1] CONERY, Judge.

This case involves a workers' compensation claim in which claimant, Gannon Bertrand (Mr. Bertrand), was injured in the course and scope of his employment with G-Force Transportation (G-Force). G-Force, through its workers' compensation self-insurance fund, paid Mr. Bertrand both medical and indemnity benefits. Mr. Bertrand filed an appeal of a judgment by the Workers' Compensation Judge (WCJ) upholding G-Force's suspension of his weekly benefits until he submitted to a psychological evaluation in order to obtain clearance for a surgical procedure recommended by his physician.

G-Force raised the issue of the procedural posture of Mr. Bertrand's appeal on the basis that the WCJ's February 17, 2014 judgment was not a final judgment subject to appeal. We agree that the judgment that is the subject of this appeal is not final, but interlocutory in nature. Accordingly, we dismiss the appeal filed on behalf of Mr. Bertrand. We further decline to exercise our supervisory jurisdiction granted to this court under La.Const. art. 5, § 10(A) to convert the appeal to an application for supervisory writs.


The WCJ held an expedited hearing on December 6, 2013, to address two separate issues relating to the suspension/termination of Mr. Bertrand's benefits. G-Force claimed that Mr. Bertrand failed to submit to two medical examinations, whereupon G-Force suspended payment of benefits pursuant to La.R.S. 23:1201.1(K)(8)(d).[1] G-Force gave notice to the Office of Workers' Compensation [14-423 La.App. 3 Cir. 2] of the two separate incidents leading to the suspension/termination of Mr. Bertrand's benefits. The first issue involved an appointment for a second medical opinion with Dr. Gregory Gidman, which is not at issue here.[2] The only remaining issue

Page 743

remaining before us involved Mr. Bertrand's refusal to attend a psychological evaluation with Dr. Darren Strother, scheduled by G-Force pursuant to La. Admin. Code tit. 40, pt. I § 2011(A), which provides in pertinent part:

A. All operative interventions should be based on a positive correlation with clinical findings, the natural history of the disease, the clinical course, and diagnostic tests. A comprehensive assimilation of these factors should have led to a specific diagnosis with positive identification of the pathologic condition(s). It is imperative for the clinician to rule out non-physiologic modifiers of pain presentation, or [14-423 La.App. 3 Cir. 3] non-operative conditions mimicking radiculopathy or instability (peripheral compression neuropathy, chronic soft tissue injuries, and psychological conditions).

(Emphasis added.)

Mr. Bertrand's treating orthopedic surgeon, Dr. John Sledge, made a surgical recommendation. Pursuant to the procedures required as part of the pre-surgical decision making process, Dr. Sledge recommended that a psychological evaluation of Mr. Bertrand be conducted prior to the performance of elective surgery in accordance with the requirements of La.Admin. Code tit. 40, pt. I § 2011(A).

Based on Dr. Sledge's pre-surgical recommendation, G-Force scheduled a psychological evaluation for Mr. Bertrand with Dr. Darren Strother on October 14, 2014. Mr. Bertrand was given notice of the scheduled appointment through his counsel of record. In response to the notice of the appointment with Dr. Strother, counsel for Mr. Bertrand timely informed counsel for G-Force that the appointment should be canceled, and stated, " Mr. Bertrand did not select Dr. Darren Strother and would like to see Dr. Sandra Friedberg who can be contacted at (337) 232-7236 for ...

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