FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 15-07478 JAMES L. BRADDOCK,
WORKERS' COMPENSATION JUDGE
C. Turnage, Mayer, Smith & Roberts, L.L.P. COUNSEL FOR
DEFENDANT-APPELLANT: Christus Health Central Louisiana d/b/a
Christus St. Frances Cabrini Hospital
A. Losavio Losavio Law Office, LLC COUNSEL FOR
PLAINTIFF-APPELLEE: Rhonda Timberlake
composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D.
Kent Savoie, Judges.
ELIZABETH A. PICKETT JUDGE
employer appeals a judgment granting its former
employee's requests for surgery, penalties, and attorney
fees for the employer's failure to approve the requested
surgery and to timely pay one week of indemnity benefits. For
the following reasons, we affirm in part, reverse in part,
and award additional attorney fees for work performed by the
employee's attorney on appeal.
March 30, 2010, Rhonda Timberlake, a registered nurse
employed at Christus Health Central Louisiana d/b/a Christus
St. Frances Cabrini Hospital (Cabrini) in the intensive care
unit, claimed that she injured her left wrist and forearm
while repositioning a patient. Cabrini is self-insured; it
contracts with F. A. Richard & Associates, Inc. (FARA), a
third-party administrator, to manage its claims. Previously,
the parties appeared before this court to address issues
pertaining to supplemental earnings benefits, temporary total
disability benefits, penalties, and attorney fees. See
Timberlake v. Christus Health Cent. La., 13-166 (La.App.
3 Cir. 10/30/13), 124 So.3d 1201.
continued seeking medical treatment for issues associated
with her injury, and on May 17, 2016, the parties tried the
following issues to the workers' compensation judge (WCJ)
pursuant to an LDOL-WC-1008 filed by Rhonda: 1) did the
Medical Director err in denying Rhonda's request for
surgery; 2) was Cabrini's late payment of indemnity
benefits excusable; and 3) was Rhonda entitled to awards for
penalties and attorney fees? The WCJ granted Rhonda the
relief she sought, and Cabrini filed this appeal.
following events led Rhonda to file her LDOL-WC-1008.
Beginning in March 2011, Rhonda was treated by Dr. Robert
Morrow, an orthopedic surgeon, who specializes in hands and
upper extremities. See Timberlake, 124 So.3d 1201.
Dr. Morrow performed three surgeries on Rhonda's left
upper extremity. He retired in 2015, and the record indicates
that Rhonda's last appointment with him was in March
2015. Rhonda has also been treated by pain management doctors
and psychologists for pain-related issues.
8, 2015, Rhonda underwent an independent medical examination
(IME) performed by Dr. Gary Porubsky, an orthopedic surgeon,
who also specializes in hands and upper extremities. Dr.
Porubsky opined in his report that Rhonda had reached maximum
medical improvement and should be able to perform
light/sedentary work; however, he recommended that a
functional capacity examination be performed to determine
exactly what work she could perform.
October 2015, Rhonda began seeing Dr. Darrell Henderson, a
plastic surgeon. Like Drs. Morrow and Porubsky, Dr. Henderson
specializes in treating hands and upper extremities. After
examining Rhonda, performing x-rays, and reviewing her
medical history, Dr. Henderson recommended that she undergo a
left radical carpal fusion, Watson distal ulnar re-contouring
and insertion of EBI, which is a partial fusion of the wrist.
On October 16, 2015, Dr. Henderson submitted a LDOL-WC-1010,
seeking authorization for the partial fusion. Cabrini then
ordered a utilization review (UR).
October 22, 2015, the physician who performed the UR
recommended certification of the surgery. In his report, the
physician noted that the surgery was not covered in
Louisiana's Medical Treatment Guidelines and then
addressed the surgery request by performing an extensive
review of medical treatment guidelines adopted by other
states, as contemplated by La.R.S. 23:1203.1(D)(5), that
apply to the procedures recommended by Dr. Henderson. The
physician also cited pertinent medical review articles that
discussed the efficacy of the recommended procedures. That
same day, FARA approved the surgery with modifications
recommended by the UR physician, and Dr. Henderson was
notified of the approval. On October 27, 2015, the UR
physician reversed his initial recommendation and recommended
that the surgery not be approved. FARA notified Dr. Henderson
the surgery was denied. No explanation was given at that time
for the reversal.
being asked for an explanation for his reversal, the UR
physician explained that he reversed his opinion and withdrew
his initial recommendation for certification of the surgery
because he initially considered his review as presenting a
"tie" situation between the treating physician and
the IME physician. He reviewed the medical evidence again and
concluded that he had not given enough weight to the
IME's opinion. The physician then stated that the