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Burnett v. Full Force Staffing, LLC

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018

LORAE BURNETT
v.
FULL FORCE STAFFING, LLC, & LUBA CASUALTY INSURANCE COMPANY

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 17-06905, DISTRICT "8" HONORABLE Catrice Johnson-Reid, The Office of Workers' Compensation

          Robert L. Manard ROBERT L. MANARD, PLC COUNSEL FOR PLAINTIFF/APPELLEE

          Stephen W. Brooks, Jr. Richard J. Voelker PUGH ACCARDO, L.L.C. COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown.

          Edwin A. Lombard Judge.

         The Appellants, defendants Full Force Staffing, LLC ("Full Force") and its insurer, LUBA Casualty Insurance Company ("LUBA"), seek review of the December 8, 2017 judgment of the Office of Workers' Compensation ("OWC") upholding a Medical Guidelines Dispute Decision, which granted a request for right shoulder surgery for the Appellee, plaintiff Lorae Burnett ("Mr. Burnett"). Finding that the decision of the OWC is not manifestly erroneous, we affirm.

         Facts and Procedural History

         Mr. Burnett was involved in a motor vehicle accident in New Orleans on the afternoon of August 27, 2016. He was riding as a passenger in a garbage truck owned by Metro Disposal, Inc., when it collided with another motor vehicle. Mr. Burnett asserts that he sustained various injuries in the accident, including to his right shoulder and back. At the time of the accident, he was employed by Full Force and, allegedly, by Metro Disposal, Inc. Following the accident, Mr. Burnett received medical treatment from three medical providers: Dr. John Craig Cornett; Dr. John Logan and Dr. Felix Savoie.

         Dr. Cornett treated Mr. Burnett from September 2016 through January 2017. His medical records reflect that Mr. Burnett was experiencing right shoulder pain immediately after the accident. Mr. Burnett was undergoing modality therapy with moist heat, as well as performing stretching exercises for the duration of his treatment with Dr. Cornett. Additionally, Dr. Cornett's notes reflect that Mr. Burnett's symptoms were causally related to the August 2016 accident, with a reasonable degree of medical certainty, and that Mr. Burnett complained of chronic right shoulder pain. Dr. Cornett later referred Mr. Burnett to Dr. Logan, an orthopedic surgeon, who ordered an MRI.

         Dr. Bernard Landry, a radiologist, reviewed the MRI of Mr. Burnett's right shoulder joint. Dr. Landry determined that Mr. Burnett had "an os acromiale[1] and degenerative subcortical pseudocyst[2] formation of the AC joint."[3] He further determined that there was "signal alteration of the superior labrum and posteroinferior labrum worrisome for tear" and recommended Mr. Burnett see an orthopedist.

         Thereafter, Dr. Logan referred Mr. Burnett to an orthopedic shoulder specialist, Dr. Savoie. Dr. Savoie's note of January 16, 2017, regarding his examination of Mr. Burnett, states:

. . .it seems the accident caused the front of the Os to punch into the rotator cuff;[4] options for this young patient would be to fix the os with cannulated screws; I would think the need for surgery would be related to the accident he described: . . .arthroscopy right shoulder with ORIF[5] os acromionale with accutrak cannulated screws; will be in sling for 2-6 weeks- I really need to see the MRI to know for sure.

         The Appellants maintain that Mr. Burnett filed a LWC WC Form 1008, asserting a claim for Workers' Compensation benefits in July 2017, Docket No. 17-04056. Nevertheless, this form is not a part of the record.

         In August 2017, a LWC WC Form 1010 was submitted by Dr. Savoie, on Mr. Burnett's behalf, to LUBA requesting authorization for right shoulder arthroscopy with open fixation of Os Acromiale. LUBA denied the request, stating the reason as being that LUBA does not "retro precert." LUBA avers it provided this explanation because there was no indication that Dr. Savoie was Mr. Burnett's choice of physician and because there was no request ...


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