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Arrant v. Wayne Acree PLS, Inc.

Court of Appeals of Louisiana, Second Circuit

April 15, 2015

CALVIN ARRANT, Plaintiff-Appellant,
v.
WAYNE ACREE PLS, INC. & LOUISIANA WORKERS, COMPENSATION CORPORATION, Defendants-Appellees

Page 322

Appealed fro the Office of Workers' Compensation - District 01-E Parish of Ouachita, Louisiana. Docket No. 13-03025. Honorable Brenza I. Jones, Judge.

STREET & STREET, C. Daniel Street, Counsel for Appellant.

JOHNSON, RAHMAN & THOMAS, Jeffrey J. Warrens, Counsel for Appellees.

Before CARAWAY, PITMAN & GARRETT, JJ.

OPINION

Page 323

[49,698 La.App. 2 Cir. 1] PITMAN, J.

Plaintiff Calvin Arrant[1] appeals the judgment of the Workers' Compensation Judge (" WCJ" ) in favor of Defendants Wayne Acree PLS, Inc., and its insurer, the Louisiana Workers' Compensation Corporation (" LWCC" ). For the following reasons, we affirm.

FACTS

On June 30, 2012, Mr. Arrant injured his back when the company vehicle he was driving was hit by an 18-wheeler that ran a red light. On May 1, 2013, Mr. Arrant filed a disputed claim for compensation (" Form 1008" ) seeking medical treatment, i.e., a lumbar MRI and a Left S1 nerve block. He alleged that Defendants refused to provide tests and procedures recommended by his treating physician and requested that Defendants pay penalties, court costs, attorney fees and the cost for tests and procedures.

On May 14, 2013, Defendants filed an answer and general denial. They asserted an exception of prematurity concerning the dispute over the medical necessity of a Left SI nerve block, stating that the medical director of the Office of Workers' Compensation (" OWC" ) must first issue a decision concerning the medical necessity of the procedure. They asserted an exception of no cause of action concerning the dispute over the medical necessity of an MRI, arguing that judicial review of the denial should be sought within 15 days of the determination.

On May 14, 2013, Mr. Arrant filed a first supplemental and amending 1008. He stated that Defendants refused to allow him to be seen and treated [49,698 La.App. 2 Cir. 2] by an orthopedic surgeon of his choice, i.e., Dr. Douglas Brown; and, therefore, his counsel had to pay $600 for this examination. Mr. Arrant contended that he is entitled to reimbursement for the $600 and for $800 paid for an MRI recommended by Dr. Brown that was denied by Defendants. He argued that Defendants should pay penalties and attorney fees for the wrongful refusal to provide treatment.

On May 15, 2013, Mr. Arrant filed a second supplemental and amending 1008, stating that Defendants refused to allow him to see the neurosurgeon of his choice, i.e., Dr. Bernie McHugh. Mr. Arrant also filed a motion for treating physician and requested that Defendants show cause why they should not pay for treatment by the physician of his choice.

On July 2, 2013, Defendants filed an answer to the first and second amended 1008, stating that the Louisiana Workers' Compensation Act (" LWCA" ) gives a claimant the right to choose a treating physician without prior approval. They asserted an exception of no cause of action as to Mr. Arrant's claim that he is entitled to reimbursement of $600 for the deposit made to Dr. Brown. They further contended that the LWCC is only required to pay for authorized treatment given in accordance with the medical treatment guidelines and is not required to pay deposits. They also reasserted their exception of no cause of action as to the $800 for an MRI and stated that the parties resolved the issue of choice of neurosurgeon.

On July 22, 2013, a hearing was held on the pretrial motions. The defense withdrew the exception of no cause of action because, as set forth in the Louisiana Code of Civil Procedure, evidence could not be

Page 324

introduced in [49,698 La.App. 2 Cir. 3] support of this exception and the pleadings did not contain sufficient information to support their arguments.

On the morning of trial, January 9, 2014, Defendants filed a peremptory exception of preemption, or alternatively, prescription,[2] stating that Mr. Arrant requested review of the medical director's denial of the request to perform an MRI more than 15 days after the denial. At Mr. Arrant's request, the WCJ referred the exception to the merits, and a trial began on the merits of the case.

The WCJ noted that the parties stipulated to Mr. Arrant's employment, that " he was involved in an accident within the course and scope of his employment" and that he was " receiving temporary, total disability benefits."

Phillip Deal, a personal injury attorney, testified that he consulted with Mr. Arrant about the automobile accident.[3] He noted that Mr. Arrant continued to work after the accident, but that his condition worsened with pain radiating into his legs. Mr. Deal stated that, from his years of personal injury work, he recognized this symptom as a lumbar disc injury that necessitated examination by an orthopedist or a neurosurgeon and an MRI. He testified that his office scheduled an appointment for Mr. Arrant with Dr. Brown, whose policy was to be paid in advance or to have approval from an insurer and then bill the insurer. He further testified that he had to pay $600 for the August 16, 2012 appointment because he was unable to [49,698 La.App. 2 Cir. 4] determine the identity of the workers' compensation carrier prior to the appointment, despite inquiries to the employer by himself, Mr. Arrant and Dr. Brown's office. Mr. Deal stated that Dr. Brown suspected that Mr. Arrant had a lumbar disc injury and wanted to have an MRI performed to confirm or rule out that suspicion. He also stated that, in late August or early September 2012, the LWCC denied the MRI request on two occasions. After each denial, he filed a 1009 form with the medical director of the OWC to review the LWCC's denial, and both were denied by the medical director. Mr. Deal testified that he then paid $800 for the MRI because Mr. Arrant was still experiencing pain in his legs. He noted that, in October 2013, he was reimbursed the $600 deposit by Dr. Brown.

Mr. Arrant testified that he worked for Wayne Acree PLS, Inc., as a surveyor and that he was involved in a work-related accident on June 30, 2012, while operating a company vehicle. He stated that, after the accident, he returned to work and spoke with Mr. Acree about the pain he was experiencing. He testified that he told Mr. Acree on multiple occasions that he would like to see a doctor, and Mr. Acree responded that he did not have any insurance information. Mr. Arrant noted that the pain in his back worsened and he had trouble working, so he contacted an attorney, Mr. Deal, to help him receive medical treatment for his back. He further noted that he and the staff at Dr. Brown's office unsuccessfully attempted to obtain information on workers' compensation, so Mr. Deal paid the $600 deposit for him to see Dr. Brown. He stated that he met several times with Dr. Brown, who recommended an MRI, but several MRI

Page 325

requests were denied by [49,698 La.App. 2 Cir. 5] Defendants. Mr. Deal then paid $800 for him to have an MRI. Mr. Arrant noted that he began seeing a neurosurgeon and a pain management doctor with the help of his current attorney, Daniel Street. He described his pain as lower back pain that radiates into his legs and feet and pain and tingling in his shoulder, noting that he uses a cane due to the numbness in his left leg. He also stated that he stopped working two months after the accident.

Mr. Acree testified that he was Mr. Arrant's employer and that Mr. Arrant was an instrument man whose duties included carrying a 20-pound survey instrument in the woods and over rough terrain. He stated that he discussed the accident with Mr. Arrant, but could not recall him indicating that he was injured or requesting to see a doctor. Mr. Acree noted that he received a letter from Mr. Deal and then contacted the LWCC. He also stated that he did not recall having conversations with Mr. Deal or Dr. Brown's office about workers' compensation.

Margaret Dearman, a senior claims representative with the LWCC, testified that the LWCC received a letter from Mr. Street requesting that he be allowed to exercise his choice of neurosurgeons. She stated that she faxed approval directly to Dr. McHugh. She also testified about a HIPPA form from Dr. Brown with the date of service as August 16, 2012, in the amount of $600 that was sent to the LWCC, noting that this bill was paid in October 2013 according to the Louisiana Fee Schedule.

Both parties filed post-trial briefs.

On April 21, 2014, the WCJ provided oral reasons for judgment. Regarding the timely payment of the $600, the WCJ stated that Defendants [49,698 La.App. 2 Cir. 6] received the bill on October 17, 2013, and that it was paid November 30, 2013, which was within the 60-day requirement of La. R.S. 23:1201(E)(1). Regarding the exception of prescription, the WCJ stated that, pursuant to Section 40.I.2715(K) of the Utilization Review Procedures, a party feeling aggrieved by a determination of the medical director shall seek judicial review within 15 days of the determination. She stated that the medical director faxed his determinations on September 18, 2012, and October 19, 2012, but that a 1008 form appealing the decision was not filed until May 1, 2013. Accordingly, the WCJ stated that she was precluded from reviewing the issue of whether the medical director failed to appropriately apply the medical treatment guidelines in denying the MRI. Regarding the ...


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