from the Office of Workers' Compensation, District 1-E
Parish of Ouachita, Louisiana Lower Court Case No. 1601833
Brenza Irving Jones Workers' Compensation Judge
A. DUNKELMAN TREY WARD CARTER Counsel for Appellants
DANIEL STREET Counsel for Appellee
STONE, COX, BLEICH (Pro Tempore), JJ. BLEICH, J. (Pro
Tempore), concurs in the result.
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.
AND PROCEDURAL HISTORY
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.
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." 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").
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.
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
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 ...