CARL E. GABRIEL
DELTA AIR LINES, INC. AND ACE AMERICAN INSURANCE COMPANY
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
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Robert M. Murphy
M. MURPHY, JUDGE.
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.
AND PROCEDURAL HISTORY 
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. This Court also
affirmed the WCJ's finding of a causal connection between
Mr. Gabriel's back complaints and his 2008 work-related
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. 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,
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
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. These amounts
were later affirmed by this Court on appeal. 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.
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
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.
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. 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. 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
response to Mr. Gabriel's 2016 disputed claim, Delta
filed an exception of prematurity and an answer with the OWC
on October 11, 2016. 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. 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.
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).
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
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. 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.
PRESENTED FOR REVIEW
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).
findings in a workers compensation case are subject to the
manifest error or clearly wrong standard of appellate
review. 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. 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. 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
Alleged Violation of La. R.S. 23:1142(E)
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 ...