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Burnett v. Village of Estherwood

Court of Appeals of Louisiana, Third Circuit

May 1, 2019

JAMES BURNETT, SR.
v.
VILLAGE OF ESTHERWOOD

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 4 PARISH OF ACADIA, NO. 07-03423 SHARON MORROW, WORKERS' COMPENSATION JUDGE.

          Michael Benny Miller Attorney at Law COUNSEL FOR PLAINTIFF-APPELLANT: James Burnett, Sr.

          Christopher Richard Philipp Attorney at Law COUNSEL FOR DEFENDANT-APPELLEE: Village of Estherwood.

          Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.

          ELIZABETH A. PICKETT JUDGE.

         James Burnett, Sr. appeals the judgment of the workers' compensation judge (WCJ) denying his request for treatment by his choice of pain management physician, denying penalties and attorney fees, and denying prescription medication to the claimant.

         FACTS

         Mr. Burnett was injured in the course and scope of his employment with the Village of Estherwood in May 2006. Mr. Burnett and Estherwood settled his claim for indemnity benefits, and Estherwood continued paying for certain medical treatment.

         On April 18, 2018, Mr. Burnett filed a Motion and Order to Compel Choice of Physician and Motion for Penalties and Attorney's Fees. Mr. Burnett alleged that his only treating physician was Dr. Daniel Hodges, a pain management specialist, but that Dr. Hodges released Mr. Burnett on April 30, 2015. Mr. Burnett then sought treatment with Dr. Michael Haydel, another pain management physician, but Estherwood would not authorize payment for the treatment. Mr. Burnett argued that because he was receiving no other medical treatment, the court should order Estherwood to pay for medical treatment by Dr. Haydel and penalties and attorney fees for failure to timely pay for the treatment. Mr. Burnett attached documents showing that Dr. Hodges requested that Mr. Burnett see a different doctor and a letter from Dr. Haydel dated July 14, 2015 advising that his appointment had been cancelled because of the failure of Estherwood to authorize treatment.

         Estherwood responded to Mr. Burnett's motion by denying that Mr. Burnett was entitled to treatment with Dr. Haydel. Estherwood argued that it was not reasonable to allow treatment with a third pain management specialist and because he had a history of misusing prescription medications.

         At a hearing on May 31, 2018, Tara Shelton, the claims adjuster for Mr. Burnett's case, testified, as did Mr. Burnett. The medical records of Dr. Fraser Landreneau (who had previously treated Mr. Burnett), Dr. Jyoti Pham, and Dr. Hodges were introduced. Pharmacy records were also introduced, as well as correspondence relating to Mr. Burnett's treatment. The WCJ denied Mr. Burnett's motion to compel treatment and for penalties and attorney fees. The WCJ did note that Mr. Burnett could seek medical treatment with a physician at Estherwood's expense, but that Estherwood is not required to pay for any prescription medication. Mr. Burnett now appeals the judgment of the trial court.

         ASSIGNMENTS OF ERROR

         On appeal, Mr. Burnett asserts three assignments of error:

1. The workers' compensation judge erred in terminating Mr. Burnett's prescription medication, as the issue was not before the workers' ...

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