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Clavier v. Coburn Supply Co., Inc.

Supreme Court of Louisiana

June 29, 2017

PAULA CLAVIER
v.
COBURN SUPPLY COMPANY, INC., ET AL.

         ON SUPERVISORY WRITS TO THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 4

          CLARK, J. [*], [**]

         Following the denial of writs by the appellate court in this workers' compensation case, we granted the employee's writ application to review whether the employee has a right to select a non-physician medical provider to perform a functional capacity evaluation ("FCE") at the employer's expense for the purpose of contesting the results of a prior FCE that was performed by an employer-referred physical therapist. For the following reasons, we affirm the decision of the Office of Workers' Compensation ("OWC") and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         The workers' compensation claimant in this case, Paula Clavier, injured her neck, shoulder, and back on May 16, 2006, while attempting to lift what she thought was a lightweight box, but which actually contained a heavy cast iron sink; the accident occurred within the course and scope of her employment with Coburn Supply Co., Inc. ("Coburn"). Ms. Clavier sought medical treatment on the day of the accident, and she continued to receive treatment as of the hearing date.[1]

         Ms. Clavier first filed a claim with the OWC for her work-related injuries on October 1, 2007, naming as defendants Coburn and its insurer, CNA Insurance Companies. The matters initially presented were settled by a consent judgment rendered on January 13, 2010, which established that Ms. Clavier was entitled to temporary total disability benefits in the amount $344.02 per week, beginning May 17, 2006, as well as all reasonable and necessary medical treatment. In addition, Ms. Clavier was awarded $4, 000 in penalties and $8, 500 in attorney fees.[2]

         Upon the July 22, 2013 issuance of a work status report by Ms. Clavier's treating physician, Dr. Hodges, which stated that "[t]he patient is unable to work pending treatment, " the defendants sought to have her examined by a physician of their choice. On August 20, 2013 Ms. Clavier was examined by the defendants' physician, Dr. W. Stan Foster. Dr. Foster opined that Ms. Clavier exhibited "significant signs of symptom magnification" and that she had reached maximum medical improvement. He recommended an FCE to determine her work status.

         On Ms. Clavier's refusal to attend an FCE, scheduled by the defendants for October 18, 2013 at the Fontana Center in Lafayette, Louisiana, the defendants filed a "Motion to Compel Functional Capacity Evaluation or Alternatively to Reduce Benefits or in the Further Alternative for Appointment of an IME.

         Following a December 20, 2013, OWC hearing, Ms. Clavier was ordered to attend an independent medical examination ("IME") with Dr. Clark Gunderson, in accordance with La. R.S. 23:1317.1 and La. R.S. 23:1124.1.[3] Dr. Gunderson was directed by the OWC, in a February 6, 2014 letter, to "address claimant's ability to return to work and disability status."

         The examination by Dr. Gunderson was conducted on April 29, 2014, and he issued a report on May 2, 2014 in which he opined that Ms. Clavier had reached maximum medical improvement. In addition, Dr. Gunderson recommended an FCE "with validity testing" and "a release to return to work within the parameters identified."

         The defendants subsequently rescheduled an FCE for Ms. Clavier at the Fontana Center, to be performed on June 11, 2014. Ms. Clavier responded by filing a motion to quash the FCE. When Ms. Clavier did not attend the scheduled FCE, the defendants filed a motion to compel the FCE and, alternatively, the suspension or reduction of the claimant's benefits. Following a July 14, 2014 hearing, the OWC granted the motion to compel and ordered Ms. Clavier to attend a FCE "to be arranged by the Defendants, " and an order so stating was signed on July 23, 2014.

         Ms. Clavier applied to the Third Circuit for supervisory review of the order compelling the FCE, and her application was denied. Clavier v. Coburn Supply Co., 14-0883 (La.App. 3 Cir. 10/28/14) (unpublished). Ms. Clavier then filed a writ application with this Court, which was also denied. Clavier v. Coburn Supply Co., 14-2503 (La. 3/6/15), 161 So.3d 15.

         Ms. Clavier underwent the FCE by the employer's choice of provider, Fontana Center, on April 9, 2015. On May 6, 2015 the defendants filed a rule to show cause why the FCE report should not be forwarded to the court-appointed independent medical examiner, Dr. Gunderson, "for his review and comment on [Ms. Clavier's] ability to return to work." On June 1, 2015 Ms. Clavier filed a "Motion and Order to Compel Defendant[s] to Authorize and Pay for a[n] FCE to be Performed by a Physical Therapist of Paula Clavier's Choice." In her motion Ms. Clavier stated that she did "not agree with the findings of the report from the Fontana Center" and that it would be "improper to submit the FCE performed by the defendants' physical therapist without having a[n] FCE prepared by [her] choice of facility to compare with the Fontana Center FCE."

         The defendants' rule and the claimant's motion to compel were heard on August 19, 2015, and the OWC judge ruled on August 28, 2015 in favor of the defendants, denying the claimant's motion and ordering that the Fontana Center FCE be sent to Dr. Gunderson for review; an order so stating was signed on September 4, 2015. The claimant again filed a supervisory writ application with the Third Circuit, which was denied. Clavier v. Coburn Supply Co., 15-1005 (La.App. 3 Cir. 3/2/16) (unpublished). The claimant ...


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