APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION. NO. 2013-02962, DISTRICT " EIGHT" . Honorable Robert Varnado, Workers' Compensation Judge.
John B. Fox, Robert W. Booksh, Jr., JOHN FOX & ASSOCIATES, L.L.C., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Roger A. Javier, Eric K. Buerger, THE JAVIER LAW FIRM, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Paul A. Bonin, Judge Joy Cossich Lobrano).
Joy Cossich Lobrano, J.
[2013-1492 La.App. 4 Cir. 1] Claimant, Malord Gales, appeals the July 15, 2013 judgment of the Office of Workers' Compensation (" OWC" ) granting the exception of prematurity filed bye defendant, Whole Food Company, Inc., and dismissing claimant's lawsuit with prejudice.
On November 15, 2001, claimant was shot while in the course and scope of his employment with the defendant, and has remained in a permanent vegetative state since that time. His mother, Dolter Gales,
is his caretaker and acts for him as his curatrix.
On April 26, 2013, claimant filed a disputed claim for compensation (Form LDOL-WC-1008) in which he requested an order requiring defendant " to pay for the former food authorized by claimant's doctors as well as for penalties and attorney's fees for arbitrarily stopping a prescribed food solely for reasons of money without any medical input." The disputed claim for compensation included the following allegations:
Claimant's doctors have ordered for many years that the paralyzed claimant be bowl fed Isosource 1.5 cal food that contains benefiber and claimant has tolerated this food well with normal bowel [2013-1492 La.App. 4 Cir. 2] function. Defendant has been paying for this food for many years. Recently, however, defendant arbitrarily has refused to approve and pay for this food because in defendant's view it is too expensive and, therefore, has only approved of different food in a different form which has caused significant bowel problems and which the claimant cannot tolerate. This new food is Isosource 1.5 cal that does not contain benefiber and comes in a bag form designed for pumping which does not work with the bowl feeding the claimant is used to.
The defendant filed a dilatory exception of prematurity arguing that the claimant has failed to follow the mandated administrative procedures necessary for a claim for medical treatment under La. R.S. 23:1203.1. Specifically, defendant argues that claimant was required to first submit a Form 1010 to defendant requesting additional medical treatment. Defendant also argued in the exception of prematurity that the claimant filed a claim for penalties and attorney's fees for failure to provide medical treatment on the same day that the medical treatment was recommended by claimant's physician.
Claimant opposed the exception of prematurity and attached the affidavit of claimant's mother. Claimant argued that the medical treatment guidelines set forth in La. R.S. 23:1203.1 did not go into effect until July 2011 and do not apply to medical treatment and care provided prior to that time. According to claimant, the food source at issue was initially ordered by his physicians in 2002 when he was hospitalized for injuries sustained in 2001 while within the course and scope of his employment with defendant.
Following a hearing, the OWC judge granted defendant's exception of prematurity and dismissed claimant's claim with prejudice. Claimant now appeals and argues that the lower court erred in granting the defendant's exception of [2013-1492 La.App. 4 Cir. 3] prematurity. He argues that the medical treatment guidelines promulgated pursuant to La. R.S. 23:1203.1 do not apply retroactively to this 2001 accident. He also argues that the guidelines do not apply because this case did not involve a new request for treatment and the guidelines do not cover supplies of food sources as are involved in the instant case.
An appellate court reviews a judgment sustaining a dilatory exception of prematurity under the manifest error standard. Jefferson Door Company, Inc. v. Cragmar Construction, L.L.C., 11-1122, p. 3 (La.App. 4 Cir. 1/25/12), 81 So.3d 1001, 1004.
La. R.S. 23:1203.1 was enacted by the Louisiana Legislature in 2009, and the medical treatment guidelines became effective in 2011. La. R.S. 23:1203.1 states, in pertinent part:
B. The director [of the office of workers' compensation administration] shall, through the office of workers' compensation administration, promulgate rules in accordance with the Administrative Procedure
Act, R.S. 49:950 et seq., to establish a medical treatment schedule.
(1) Such rules shall be promulgated no later than January 1, 2011.
(2) The medical treatment schedule shall meet the criteria established in this Section and shall be organized in an interdisciplinary manner by particular regions of the body and organ systems.
C. The schedule shall be developed by the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients, integrating clinical expertise, which is the proficiency and judgment that clinicians acquire through clinical experience and clinical practice, with the best available external clinical evidence from systematic research.
D. The medical treatment schedule shall be based on guidelines which shall meet all of the following criteria:
[2013-1492 La.App. 4 Cir. 4] (1) Rely on specified, comprehensive, and ongoing systematic ...