SUPERVISORY WRITS TO THE OFFICE OF WORKERS' COMPENSATION,
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
AND PROCEDURAL HISTORY
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.
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
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.
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.
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. 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."
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."
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.
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.
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."
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 ...