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Harper v. Boise Paper Holdings, LLC

Court of Appeals of Louisiana, Third Circuit

December 6, 2017

LONNIE HARPER
v.
BOISE PAPER HOLDINGS, LLC, ET AL.

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 16-03317 ANTHONY PAUL PALERMO, WORKERS COMPENSATION JUDGE

          Thomas E. Townsley COUNSEL FOR PLAINTIFF/APPELLANT: Lonnie Harper

          Charles William Farr COUNSEL FOR DEFENDANTS/APPELLEES: Boise Paper Holdings, LLC Sedgwick Claims Management Services, Inc.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

          BILLY HOWARD EZELL, JUDGE.

         Lonnie 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.

         Mr. 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.

         After 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. Harper appeals.

         On 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. We agree.

         An 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 employees."

(Internal citations omitted).

         La. 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 ...

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