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Crescent City Surgical Care Centre Facility, LLC v. Beverly Industries, LLC

Court of Appeal of Louisiana, Fourth Circuit

March 25, 2015


APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION. NO. 2012-04711, DISTRICT " 8". Honorable Diane R. Lundeen, Workers' Compensation Judge.



Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Sandra Cabrina Jenkins. BELSOME, J., DISSENTS WITH REASONS. JENKINS, J., DISSENTS FOR THE REASONS ASSIGNED BY BELSOME, J.


Daniel L. Dysart, Judge

Page 1255

[2014-0552 La.App. 3 Cir. 1] In this worker's compensation matter, plaintiff-appellant, Crescent City Surgical Centre, L.L.C. (" Crescent City" ), appeals the denial of its claim for special reimbursement pursuant to the Louisiana Administrative Code, Title 40, Part I, § 2505. For the reasons that follow, we affirm.


Byron Mitchell injured his back on April 3, 2007, during the course and scope of his employment with Beverly Industries, L.L.C. He received treatment thereafter, ultimately undergoing a laminectomy and three-level lumbar fusion three years later, on July 7, 2011 at Crescent City Surgical Centre, for which Mr. Mitchell was hospitalized for three days.

Beverly Industries' worker's compensation insurer, The Gray Insurance Company (" Gray" ), paid the per diem for Mr. Mitchell's surgery as set forth in the Louisiana Reimbursement Schedule, but denied Crescent City's claim for special reimbursement consideration. Crescent City appealed to the Office of Workers' Compensation (" OWC" ), and by letter dated July 27, 2012, the OWC Medical [2014-0552 La.App. 3 Cir. 2] Services Director recommended reimbursement for the implants used in Mr. Mitchell's surgery, plus twenty percent, but denied the request for special reimbursement consideration on the basis that " the documentation does not satisfy the outlier criteria for recommendation."

Crescent City then filed a Disputed Claim for Compensation with the OWC, seeking reimbursement for the full amount of Crescent City's charges for Mr. Mitchell's surgery ($179,800.27).[1] A trial on the merits was held on December 19, 2012, and judgment was rendered on December 23, 2013. The OWC judge ruled in favor of Gray, finding that Crescent City was

Page 1256

" not entitled to special reimbursement consideration under L.A.C. 40:I.2519(B) because it failed to carry its burden that Mr. Mitchell's case was atypical in nature due to case acuity causing unusually high charges when compared to the provider's usual case mix." In her reasons for judgment, the OWC judge noted:

Mr. Mitchell's condition was neither acute nor of an emergency nature. He had waited for over two years for this surgery. Dr. Voorhies testified that Mr. Mitchell's surgery and in patient stay was for the same amount of time a similar case without any complications would have taken in a traditional hospital setting that handles this type of surgery. Dr. Voorhies confirmed that Mr. Mitchell's surgery did not involve any complications, and that the patient had a good result .... The hospital failed to demonstrate that Mr. Mitchell's essentially ordinary, non-emergency and successful [2014-0552 La.App. 3 Cir. 3] surgery or care would entitle them to special reimbursement consideration under L.A.C. 40:I.2519(B).

Crescent City timely appealed this judgment.

Standard of Review

It is well-settled that, " [i]n worker's compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC's findings of fact is the [']manifest error-clearly wrong' standard." Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp., 11-0179, p. 3 (La.App. 4 Cir. 6/29/11), 70 So.3d 988, 990, quoting Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. As a reviewing court, we are not to decide whether the fact finder " was right or wrong, but whether the fact finder's conclusion was a reasonable one." Hahn v. X-Cel Air Conditioning, Inc., 12-0236, p. 4 (La.App. 4 Cir. 1/9/13), 108 So.3d 262, 266, citing Bell v. Mid City Printers, Inc., 2010--0818, p. 7 (La.App. 4 Cir. 12/22/10), 54 So.3d 1226, 1232. Accordingly, " if the evidence contained in the record on appeal supports the factual determinations of the trier of fact, we are required to affirm the findings." Id., 12-0236, p. 5, 108 So.3d at 266.

This Court has recognized that, " [w]hen legal error interdicts the fact-finding process in a workers' compensation proceeding, the de novo, rather than the manifest error, standard of review applies." MacFarlane v. Schneider Nat. Bulk Carriers, Inc., 07-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188, citing Brantley v. Delta Ridge Implement, Inc., 41,190, p. 8 (La.App. 2 Cir. 6/28/06), 935 So.2d 308, 314. The MacFarlane Court also noted that " [t]he interpretation [2014-0552 La.App. 3 Cir. 4] of statutes pertaining to workers' compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct." Id., quoting Lirette v. Patterson Services, Inc., 05-2654, p. 4 (La.App. 1 Cir. 11/17/06), 951 So.2d 223, 226.

In the instant matter, we do not find any legal error on the part of the OWC judge which " interdict[ed] the fact-finding process" such that a de novo review of the record is necessary. Accordingly, we apply the manifest-error standard of review.[2] And, as will be discussed more fully herein, we find no we find no error in the OWC court's judgment.


Under our comprehensive worker's compensation system, an employer is responsible

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for the payment of " all necessary drugs, supplies, hospital care and services, medical and surgical treatment" of its employees who are injured in the course and scope of its employment. See Authement v. Shappert Engineering, 02-1631, p. 8 (La. 2/25/03), 840 So.2d 1181, 1187; La. R.S. 23:1203A. Our worker's compensation laws provide for the reimbursement of those expenses by the employer, and under La. R.S. 23:1034.2 A and B, the director of the OWC is to " establish and promulgate a reimbursement schedule for drugs, supplies, hospital care and services, medical and surgical treatment" and " to adopt, in accordance with the Administrative Procedure Act, rules and regulations necessary to establish [2014-0552 La.App. 3 Cir. 5] and implement a reimbursement schedule for such care, services, treatment, drugs, and supplies."

The statute further provides that charges are " limited to the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies." La. R.S. 23:1034.2 C. " Fees in excess of the reimbursement schedule shall not be recoverable against the employee, employer, or workers' compensation insurer." La. R.S. 23:1034.2 D.

The hospital inpatient reimbursement schedule is set forth in Louisiana Administrative Code (the " Code" ), Title 40, Part I, ยง 2505, which provides that " [r]eimbursement for inpatient hospital services will be limited to the lesser of covered billed charges or the per diem amount." LAC 40:I.2505 A. The per diem amounts vary by locality and, for the New Orleans area, the rate is ...

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