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Gabriel v. Delta Air Lines, Inc.

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

CARL E. GABRIEL
v.
DELTA AIR LINES, INC. AND ACE AMERICAN INSURANCE COMPANY

         ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 STATE OF LOUISIANA NO. 16-6179 HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

          PLAINTIFF/APPELLANT, CARL E. GABRIEL In Proper Person

          COUNSEL FOR DEFENDANT/APPELLEE, DELTA AIR LINES, INC. AND ACE AMERICAN INSURANCE COMPANY Lindsay F. Louapre

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert M. Murphy

          ROBERT M. MURPHY, JUDGE.

         In this workers compensation case, the claimant, Carl Gabriel, appearing pro se, appeals the March 28, 2017 judgment in favor of defendants, Delta Airlines, Inc. and Ace American Insurance Company (collectively "Delta"), which (1) sustained Delta's exception of prematurity, (2) denied Mr. Gabriel's rule to show cause seeking to have Delta ordered to pay the costs of medical procedures recommended by his treating physician, and (3) dismissed the matter, with prejudice. For the following reasons, we affirm the judgment of the Workers Compensation Court.

         FACTS AND PROCEDURAL HISTORY [1]

         Mr. Gabriel began working for Delta as a "Ready Reserve" employee in August of 2008. Less than two months later, on October 19, 2008, while working in the course and scope of his employment with Delta, Mr. Gabriel was injured when a tow bar that he was disconnecting from an airplane fell onto his left foot. Mr. Gabriel filed his first Disputed Claim for Compensation, Form 1008, with the Office of Workers' Compensation ("OWC") in November 2009 ("2009 disputed claim"), asserting that Delta failed to pay indemnity benefits and failed to timely pay and/or authorize medical benefits. Following trial of the matter, judgment was rendered on October 31, 2011, in favor of Mr. Gabriel and against Delta finding that Mr. Gabriel had proven an injury by accident during the course and scope of his employment with Delta and that he was entitled to benefits. On appeal, this Court affirmed the judgment issued by the workers compensation judge ("WCJ") ordering Delta to pay temporary total disability payments to Mr. Gabriel from January 3, 2009 through February 15, 2011, the date of Mr. Gabriel's independent medical exam indicating he was able to return to gainful employment.[2] This Court also affirmed the WCJ's finding of a causal connection between Mr. Gabriel's back complaints and his 2008 work-related foot injury.[3]

         Mr. Gabriel filed a second Disputed Claim for Compensation, Form 1008, with the OWC on December 30, 2013 in case number 14-49 ("2013 disputed claim"), alleging that Delta had failed to properly pay the amounts owed to him under the October 31, 2011 judgment.[4] Mr. Gabriel sought penalties pursuant to La. R.S. 23:1201(F) and (G) for Delta's failure to properly pay. Additionally, Mr. Gabriel alleged that a "worsening of his medical condition" caused him to be temporarily totally disabled again as of September 25, 2013.[5]

         Delta answered Mr. Gabriel's 2013 disputed claim with a general denial of compensability and averred that it had paid to Mr. Gabriel all benefits owed pursuant to the prior judgment. According to Delta, Mr. Gabriel was not entitled to future indemnity benefits.

         A hearing on Mr. Gabriel's 2013 disputed claim was held on July 31, 2014, at which time the WCJ addressed solely the issue of whether Delta had properly paid Mr. Gabriel the correct amount of indemnity benefits ordered to be paid pursuant to the prior October 31, 2011 judgment. On November 2, 2016, the WCJ issued a final judgment, which determined that Mr. Gabriel's average weekly wage was $429.73, with a corresponding compensation rate of $286.50.[6] These amounts were later affirmed by this Court on appeal.[7] The issue regarding whether Mr. Gabriel was entitled to indemnity benefits and medical expenses, based on allegations that new medical evidence determined a "worsening of his medical condition" resulting in his being temporarily totally disabled anew, was not addressed by the WCJ in the November 2, 2016 judgment.

         In regards to his alleged worsening back condition, Mr. Gabriel sought treatment from two physicians in Atlanta, Georgia; namely, Dr. Pallavi Cherukupally, a physiatrist, and Dr. James Chappuis, an orthopedic surgeon. Drs. Cherukupally and Chappuis recommended to Mr. Gabriel that he undergo radiofrequency nerve ablation at L4-SI to alleviate his worsening condition. According to Delta, neither Mr. Gabriel nor his treating physicians ever properly requested approval for the recommended treatment through a Form 1010 submitted to Mr. Gabriel's adjuster. Instead, Mr. Gabriel informally sought approval via faxes sent to his adjuster. Delta contends that, despite his improper submission of the request for approval, the adjuster presented Mr. Gabriel's request to utilization review, at which time it was determined that the treatment was not medically necessary as it did not fall under the guidelines of Louisiana's medical treatment schedule. Consequently, Delta denied Mr. Gabriel's requests for authorization to undergo the recommended radiofrequency nerve ablation treatments. Delta argues that at no time did Mr. Gabriel's physicians ever appeal to the OWC Administrative Medical Director seeking review of Delta's denial of diagnostic testing and/or dispute its determination as to the medical necessity of radiofrequency nerve ablation under the medical treatment guidelines.

         Mr. Gabriel filed a third Disputed Claim for Compensation, Form 1008, with the OWC on September 29, 2016 ("2016 disputed claim"), alleging that Delta had refused to authorize the radiofrequency nerve oblation treatments recommended by his treating physician(s) and, thus, should be compelled to pay the costs of the treatment (as well as any other procedure ordered by his treating physician(s)) due to Delta's violations of La. R. S. 23:1142(E) and La. R.S. 23:1203(E). Mr. Gabriel further alleged that he was entitled to penalties, interest, and all other relief afforded by law.

         Mr. Gabriel also filed a rule to show cause why Delta should be not ordered to pay the cost of the medical procedures recommended by his treating physician(s) due to its violations of La. R. S. 23:1142(E) and La. R.S. 23:1203(E). Specifically, Mr. Gabriel averred that, under La. R. S. 23:1142(E), because of Delta's general denial of compensability set forth in its January 30, 2014 answer to his prior 2013 disputed claim, medical authorization for the nerve ablation treatment (and, arguably, any other recommended medical procedures) was no longer necessary.[8] Additionally, Mr. Gabriel argued that Delta was in violation of La. R.S. 23:1203(E) because, upon his first request for authorization for medical care to treat his worsening condition, Delta failed to communicate information to him regarding the proper procedure for requesting an independent medical examination ("IME") in the event a dispute arose as to his medical condition as well as the procedure for appealing a denial of medical treatment to the OWC medical director as provided in La. R.S. 23:1203.1.[9] According to Mr. Gabriel, under La. R.S. 23:1203(E), a payor who has denied medical care, service or treatment without providing documentation evidencing a reasonable and diligent effort to communicate to the claimant notice of his rights is subject to being fined. Consequently, Mr. Gabriel argues that Delta's failure to provide him notice of his rights and the proper procedure for requesting an IME and an appeal to the medical director, in effect, eliminated Delta from the decision-making process regarding his care and medical treatment.

         In response to Mr. Gabriel's 2016 disputed claim, Delta filed an exception of prematurity and an answer with the OWC on October 11, 2016.[10] Delta asserted that the dispute involving whether or not it was medically necessary for Mr. Gabriel to undergo the recommended radiofrequency nerve ablation was premature on the basis that, pursuant to La. R.S. 23:1203.1, the dispute had not first been submitted to the OWC Medical Director through the Form 1009 process prior to Mr. Gabriel's filing of his 2016 disputed claim.[11] Delta posited that, pursuant to La. R.S. 23:1203.1(J), it is only after the issuance of a decision from the OWC Medical Director that a party who disagrees with the medical director's decision may take an appeal by filing a disputed claim. Accordingly, Delta maintained that because Mr. Gabriel failed to exhaust his administrative remedies, the filing of his 2016 disputed claim was premature and should, therefore, be dismissed.

         Delta also filed an opposition to Mr. Gabriel's rule to show cause denying that it had violated either La. R.S. 23:1142(E) or La. R.S. 23:1203(E).

         Additionally, Delta argued that the rule to show cause constituted the improper use of summary proceedings and that Mr. Gabriel's claims should be litigated via an ordinary proceeding.

         Mr. Gabriel's rule to show cause and Delta's exception of prematurity came for hearing on November 4, 2016, at which time the WCJ took the matter under advisement. Thereafter, on December 8, 2016, the WCJ issued judgment, with written reasons, denying Mr. Gabriel's rule to show cause finding that Delta had not violated either La. R.S. 23:1142(E) or La. R.S. 23:1203(E), and sustaining Delta's exception of prematurity.[12] On March 28, 2017, the OWC issued an amended judgment in favor of Delta and against Mr. Gabriel, sustaining Delta's exception of prematurity on the ground that Mr. Gabriel had failed to exhaust his administrative remedies pursuant to La. R.S. 23:1203.1 prior to filing his 2016 disputed claim concerning Delta's refusal to authorize the recommended nerve ablation treatment. Accordingly, the WCJ dismissed the matter with prejudice. It is from the March 28, 2017 amended judgment that Mr. Gabriel timely filed the instant pro se appeal.

         ISSUE PRESENTED FOR REVIEW

         The sole issue presented for our review is whether the WCJ erred in overruling Mr. Gabriel's rule to show cause when she failed to find that Delta had been eliminated from the decision-making process regarding Mr. Gabriel's request for medical treatment (i.e., radiofrequency nerve ablation) due to Delta's purported violations of La. R.S. 23:1142(E) and La. R.S. 23:1203(E).[13]

         LAW AND ANALYSIS

         Standard of Review

         Factual findings in a workers compensation case are subject to the manifest error or clearly wrong standard of appellate review.[14] In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one.[15] If the fact finder's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.[16] However, when legal error interdicts the fact-finding process in a workers' compensation proceeding, the de novo, rather than the manifest error, standard of review applies. Likewise, the interpretation of a statute pertaining to workers' compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct.[17]

         Delta's Alleged Violation of La. R.S. 23:1142(E)

         On appeal, Mr. Gabriel contends that the WCJ erred in determining that La. R.S. 23:1142(E) does not apply in this case and that Delta was not eliminated from the decision-making process regarding his medical treatment. The WCJ concluded that, although Delta's answer to Mr. Gabriel's 2013 disputed claim contained a general denial, in light of the evidence presented at the hearing establishing that Delta had paid "all reasonable and necessary medical treatment, " Mr. Gabriel failed to prove that Delta had actually denied the compensability of his claim. To the contrary, based on the evidence, the WCJ determined that Delta had, in fact, accepted Mr. Gabriel's claim as it was continuing to pay for the ongoing reasonable and ...


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