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Lowery v. Jena Nursing & Rehab Center

Court of Appeal of Louisiana, Third Circuit

December 23, 2014



Curtis Daniel Street, Street & Street, Monroe, LA, COUNSEL FOR PLAINTIFF/APPELLANT: Gay Lowery.

Stephanie L. Cheralla, Degan, Blanchard & Nash, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE: Jena Nursing & Rehab Center.

Court composed of Jimmie C. Peters, James T. Genovese and John E. Conery, Judges.


Page 217

[14-1106 La.App. 3 Cir. 1] PETERS, Judge.

This court, on its own motion, issued a rule for the appellants, Jena Nursing and Rehabilitation Center and Technology Insurance Company, to show cause, by brief only, why this appeal should not be dismissed as having been taken from a non-appealable, partial judgment. The appellants have filed a brief in response to this court's rule to show cause. For the reasons given below, we recall the rule to show cause and maintain the appeal.

The claimant, Gay Lowery, sustained a back injury in a work related incident. Ms. Lowery's physician, Dr. Michael Drerup, recommended surgery. Since the parties disagreed as to whether this procedure was necessary for the injuries sustained in the work related incident, this recommendation was presented to the Medical Director for the Office of Workers' Compensation seeking approval pursuant to La.R.S. 23:1203.1. The Medical Director denied approval for the surgery. Therefore, Ms. Lowery filed a Form 1008, Disputed Claim for Compensation with the Office of Workers' Compensation appealing the Medical Director's decision. Ms. Lowery also prayed for an award of penalties and attorney fees, with interest and costs.

The employer and its compensation insurer, appellants herein, responded by filing an exception of no cause of action directed only against the claim for penalties and attorney fees. They also answered the petition and filed affirmative defenses. Additionally, being of the opinion that the surgery should not be authorized, the appellants filed a motion seeking to have the OWC judge enter an order compelling Ms. Lowery to attend a functional capacity evaluation (FCE). Appellants also sought an expedited hearing on Ms. Lowery's appeal of the [14-1106 La.App. 3 Cir. 2] Medical Director's decision, and the OWC judge set the matter for hearing on June 30, 2014.

Thus, at the start of the hearing held on June 30, the attorney for the appellants began arguing the merits of their motion to compel the FCE. In response to appellants' counsel's statements to the court, the attorney for Ms. Lowery opined that the question of whether Ms. Lowery should be compelled to undergo an FCE should, logically, be the last issue examined by the court. Instead, Ms. Lowery's counsel contended that the first issue should be the merits of the appeal from the Medical Director's decision to deny Ms. Lowery's back surgery. Specifically, Ms. Lowery's counsel stated:

I think that [the FCE] would be the last one we would get to. We filed for this Court to review--we filed for an appeal of the medical director's decision denying the surgery. It would appear to me that would be the first thing that would need to be address [sic], because if she's entitled to surgery, she certainly doesn't need to be having to undergo a functional capacity test until she's had her surgery and gotten well, which is essentially the same situation we were in before. But in this case they have filed--let's see if I can find it here. They filed an exception of no cause of action on the claim for penalties and attorney fees that we brought in this connection, which-- And as I understand it, they set our appeal for hearing today on an expedited basis. So we're here--we're here to try our case on whether she's entitled to the surgery. And then-- And so, I don't know what order the Court wants to take all that in. But as I understand it, all of that is at issue today.

Page 218

The OWC judge agreed; therefore, Ms. Lowery's counsel began presenting the case against the Medical Director's decision.

Not only did Ms. Lowery's counsel express the opinion that all issues were to be presented to the OWC court on June 30, appellants' counsel commented at the conclusion of her argument that, even if the OWC court determined that the medical director's decision should not be upheld, the award of penalties should not be assessed against the appellants. And finally, near the completion of Ms. [14-1106 La.App. 3 Cir. 3] Lowery's counsel's arguments to the OWC judge, he again argued that penalties and ...

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