FROM THE OFFICE OF WORKERS' COMPENSATION - # 3 PARISH OF
CALCASIEU, NO. 16-03317 ANTHONY PAUL PALERMO, WORKERS
E. Townsley COUNSEL FOR PLAINTIFF/APPELLANT: Lonnie Harper
Charles William Farr COUNSEL FOR DEFENDANTS/APPELLEES: Boise
Paper Holdings, LLC Sedgwick Claims Management Services, Inc.
composed of Ulysses Gene Thibodeaux, Chief Judge, Billy
Howard Ezell, and John E. Conery, Judges.
HOWARD EZELL, JUDGE.
Harper appeals the decision of the workers' compensation
judge below holding that he failed to prove that a
radio-frequency ablation procedure ordered by his doctor was
in accordance with Louisiana's workers' compensation
medical treatment guidelines (MTG). For the following
reasons, we hereby reverse the decision of the workers'
compensation judge and render judgment.
Harper was working at Boise Paper Holdings on August 6, 2012,
when he was struck in the face with a large pry bar. He was
rendered unconscious and airlifted to Lake Charles for
treatment for his injuries. Mr. Harper began having severe
headaches radiating from the back of his neck to the side of
his head. He was eventually diagnosed as having occipital
neuralgia and had several nerve blocks to alleviate his pain.
Mr. Harper filed a workers' compensation dispute against
Boise, seeking to have an occipital nerve stimulator
implanted as a longer term solution to his pain than frequent
nerve block injections. A prior workers' compensation
judge found that he had suffered a workplace injury, that the
injury caused him to suffer occipital neuralgia, and found
that he was entitled to receive the nerve stimulator, as well
as penalties and attorney fees for Boise's refusal to
allow the procedure.
the stimulator was implanted, Mr. Harper developed a severe
infection which necessitated its removal. Leery of again
undergoing surgery for a stimulator implant, Mr. Harper
sought alternative treatment. He was referred to Dr. Sanjiv
Jindia. Dr. Jindia gave Mr. Harper another nerve block but
recommended a radio-frequency (hereinafter "RF")
ablation procedure for longer-term pain relief. Dr. Jindia
requested approval for the procedure but was denied by Boise.
This decision was appealed to the medical director, who
likewise denied the claim, finding it not to be in line with
the MTG. Mr. Harper appealed that decision to the
workers' compensation judge below, who found that he had
not proved by clear and convincing evidence that the medical
director's decision was incorrect. The workers'
compensation judge denied his request for the RF procedure,
as well as his claims for penalties and attorney fees, and
dismissed his claims with prejudice. From that decision, Mr.
appeal, Mr. Harper asserts two assignments of error. He
claims that the workers' compensation judge erred in not
granting his treating physician's recommendation for the
RF ablation, and that the workers' compensation judge
erred in denying his claims for penalties and attorney fees.
employer's obligation to furnish medical treatment to its
injured employee is governed by La. R.S. 23:1201, et seq. In
Church Mut. Ins. Co. v. Dardar, 13-2351 (La.5/7/14),
145 So.3d 271, the Louisiana Supreme Court discussed the
creation of the MTG and stated:
Enacted by the legislature in 2009, La. R.S. 23:1203.1 is the
product of a combined endeavor by employers, insurers, labor,
and medical providers to establish meaningful guidelines for
the treatment of injured workers. Dissatisfied with a process
for obtaining needed medical treatment that was cumbersome,
uncertain and often fraught with expense, employers and their
insurers perceived a need for guidelines that would assure
them that the treatment recommended by a medical provider was
generally recognized by the medical community as proper and
necessary. In a similar vein, labor and their medical
providers were concerned about the unreasonable delays
regularly encountered in obtaining approval for treatment
when disputes arose as to the necessity for the treatment and
with having a procedure for obtaining approval for treatment
that might vary from established guidelines. Thus, La. R.S.
23:1203.1 was enacted with the express intent "that,
with the establishment and enforcement of the medical
treatment schedule, medical and surgical treatment, hospital
care, and other health care provider services shall be
delivered in an efficient and timely manner to injured
(Internal citations omitted).
R.S. 23:1203(A) states in part:
In every case coming under this Chapter, the employer shall
furnish all necessary drugs, supplies, hospital care and
services, medical and surgical treatment, and any nonmedical
treatment recognized by the laws of this state as legal, and
shall utilize such state, federal, public, or private