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Timberlake v. Christus Health Central Louisiana

Court of Appeals of Louisiana, Third Circuit

May 24, 2017

RHONDA TIMBERLAKE
v.
CHRISTUS HEALTH CENTRAL LOUISIANA D/B/A CHRISTUS ST. FRANCES CABRINI HOSPITAL

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 15-07478 JAMES L. BRADDOCK, WORKERS' COMPENSATION JUDGE

          John C. Turnage, Mayer, Smith & Roberts, L.L.P. COUNSEL FOR DEFENDANT-APPELLANT: Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital

          Maria A. Losavio Losavio Law Office, LLC COUNSEL FOR PLAINTIFF-APPELLEE: Rhonda Timberlake

          Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          ELIZABETH A. PICKETT JUDGE

         An 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.

         FACTS

         On 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.

         Rhonda 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.

         The 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.

         On June 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.

         In 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).

         On 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.

         After 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 IME's ...


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