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Diel v. Defenders Security Co.

Court of Appeals of Louisiana, Second Circuit

June 21, 2017

DENNIS DIEL, Plaintiff-Appellee
v.
DEFENDERS SECURITY CO. AND TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, Defendants-Appellants

         Appealed from the Office of Workers' Compensation, District 1-E Parish of Ouachita, Louisiana Lower Court Case No. 1601833 Brenza Irving Jones Workers' Compensation Judge

          ROBERT A. DUNKELMAN TREY WARD CARTER Counsel for Appellants

          CURTIS DANIEL STREET Counsel for Appellee

          Before STONE, COX, BLEICH (Pro Tempore), JJ. BLEICH, J. (Pro Tempore), concurs in the result.

          STONE, J.

         Appellee, Dennis Diel, began receiving indemnity benefits and necessary medical expenses after he injured his back while working for Defenders Security Company. Thereafter, the physician treating him for his back requested authorization for a lumbar discography. The request was denied by his workers' compensation carrier, Travelers Property & Casualty Company of America, and thereafter, the Office of Workers' Compensation. Appellee appealed to the WCJ, and after a hearing, the WCJ reversed the decision of the OWCA and granted authorization for the lumbar discography. For the ensuing reasons, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         On August 10, 2015, Dennis Diel ("Diel") suffered a back injury while working for Defenders Security Company ("Defenders"). As a result of Diel's injuries and continuous pain, Diel's treating physician, Dr. Bernie McHugh ("Dr. McHugh"), filed a form 1010 requesting authorization for Diel to undergo a lumbar discography ("discogram"). The request was sent to Defenders' insurer, Travelers Property and Casualty Company of America ("Travelers"). Travelers deemed the discogram unnecessary and denied the request.

         Dr. McHugh timely filed a form 1009 to request a medical review of the claim with the Office of Workers' Compensation Administration ("OWCA"). The OWCA rendered a decision denying the discogram. This decision was made by Dr. Kevin Martinez ("Dr. Martinez"), who was designated as "Assistant Medical Director, ad hoc."[1] Diel timely filed a form 1008 Disputed Claim for Compensation, seeking to have the denial reviewed by the Workers' Compensation Judge ("WCJ"). Defenders and Travelers (jointly, "Defendants") filed exceptions of no subject matter jurisdiction and prematurity arguing Dr. Martinez was a private physician and not a statutorily qualified "Medical Director" or "Associate Medical Director, " as required by La. R.S. 23:1203.1 ("Article 1203.1").

         In the midst of these proceedings, Travelers had Diel examined by Dr. Donald Smith ("Dr. Smith"), who opined Diel could return to work. Since Dr. Smith's opinion contradicted Dr. McHugh's, Defendants scheduled an independent medical examination ("IME") for Diel. Diel filed a motion for a protective order to have any such examination stayed until the WCJ ruled on whether the discogram was necessary. Thereafter, the WCJ overturned Dr. Martinez's ruling and ordered the discogram be done. Additionally, the WCJ denied Defendants' exceptions, finding there was no evidence indicating Dr. Martinez was not a full-time physician with the OWCA, or that he was engaged in private practice during the time he acted as ad hoc Assistant Medical Director.

         At some point, the OWCA tendered a letter wherein it stated Dr. Martinez was not a full-time employee of the OWCA. Consequently, Defendants filed a motion for a new trial on the subject matter jurisdiction and prematurity issues. The WCJ granted the motion for new trial. After hearing and reviewing the newly presented evidence, the WCJ maintained its previous ruling, ordering the discogram be done. The WCJ also granted Diel's protective order, ruling the IME would not take place until the results of the discogram were received and acted upon. Defendants now appeal the WCJ's judgment denying its exceptions and granting Diel's protective order.

         STANDARD OF REVIEW

         Factual findings in workers' compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dept., 2009-0520 (La. 10/20/09), 23 So.3d 275; Hill v. IASIS Glenwood Regional Med., 50, 531 (La.App. 2 Cir. 05/18/16), 195 So.3d 536, writ denied, 2016-1357 (La. 11/07/16), 209 So.3d 104. Under this rule, the reviewing court does not decide whether the WCJ was right or wrong, but only whether its findings are reasonable. Id. When there are two permissible views of the evidence, the WCJ's choice between them can never be manifestly erroneous or clearly wrong. Id. The reviewing court is emphatically not permitted to ...


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