Appealed from the Office of Workers' Compensation,
District 1-E Parish of Franklin, Louisiana Trial Court No.
1201716 Brenza Irving Jones Workers' Compensation Judge
OF LOUISIANA DOTD EDDIE DAVID GILMER Assistant Attorney
General Counsel for Appellant
OFFICES OF STREET & STREET By: Curtis Daniel Street
Counsel for Appellee
MOORE, STONE, and McCALLUM, JJ.
workers' compensation case, the appellant, the State of
Louisiana, through the Department of Transportation
("DOTD"), denied the appellee, Robert Daniels',
request for an inpatient surgical procedure. Subsequently,
the Office of Workers' Compensation Administration,
through its Medical Director ("OWC"), also denied
that request. The workers' compensation judge
("WCJ") reversed the decision of the OWC and
ordered DOTD to provide and pay for the inpatient surgical
appeal, in light of the Louisiana Supreme Court holding in
Church Mut. Ins. Co. v. Dardar, 2013-2351 (La.
5/7/14), 145 So.3d 271, this Court reversed the decision of
the WCJ and remanded this matter for the parties to present
evidence to the WCJ to show by clear and convincing evidence
whether the medical director's conclusion was appropriate
pursuant to La. R.S. 23:1203. See Daniels v. State,
Dep't of Transp. & Dev., 48, 578 (La.App. 2 Cir.
6/25/14), 144 So.3d 1123.
the WCJ found in favor of Daniels and awarded costs of the
requested surgical procedure, penalties, attorney fees, and
payment for medical expenses associated with non-emergency
care. For the following reasons, we affirm the judgment of
BACKGROUND AND PROCEDURAL HISTORY
following facts are taken from this Court's prior 2014
On October 28, 2010, Daniels suffered a work-related accident
while employed by DOTD when he fell off a backhoe injuring
the right side of his body, in particular his right shoulder.
Payment of workers' compensation benefits associated with
Daniels' work-related accident was initiated without
dispute. An orthopedic physician, Dr. Douglas Brown,
performed surgery on Daniels' right shoulder on June 13,
2011. The DOTD covered all of these medical expenses.
Thereafter, Daniels began complaining of lower back pain.
After reviewing diagnostic tests, Dr. Brown recommended that
Daniels undergo inpatient surgery-L4-5, L5-S1 anterior lumbar
interbody fusion with LDR PEEK cages, bone marrow stem cells,
morselized allograft, and SEP monitoring. The DOTD sought a
second medical opinion from Dr. Powell Auer, who recommended
that Daniels undergo more testing. After receiving a
provocative lumbar discography report from Dr. John
Ledbetter, Dr. Brown again recommended surgery. F.A. Richard
& Associates, Inc. ("FARA"), as the insurance
representative for Daniels' employer, denied Dr.
Brown's request, finding that the recommended surgery did
not meet the criteria established for intensity of services
pursuant to the Louisiana Workers' Compensation Treatment
A disputed claim for medical treatment was filed with the
Office of Workers' Compensation Administration
("OWC") Medical Director on behalf of Daniels. The
medical director denied the appeal on March 6, 2012,
concluding that the evidence did not support approval of the
requested services per the Louisiana Medical Treatment
Guidelines ("MTG"). As a result, Daniels filed Form
1008 (disputed claim for compensation), initiating the
On February 21, 2013, this matter was heard by the WCJ, who
found that Daniels was entitled to the recommended surgery,
and further, that the MTG did not apply since they went into
effect after Daniels' accident.
filed an appeal of that judgment on March 18, 2013. This
Court reversed the judgment in favor of Daniels and remanded
the matter to the OWC to allow the parties to present
evidence to the WCJ to show by clear and convincing evidence,
whether the medical director's conclusion was
appropriate. This case was heard by the WCJ again on October
19, 2017. Following the presentation of Daniels'
case-in-chief, DOTD moved for involuntary dismissal. After
oral arguments regarding the motion for dismissal, both
Daniels and DOTD were instructed to provide briefs to the
court on the issue of whether or not the plaintiff had shown
by clear and convincing evidence that the decision of the OWC
Medical Director to deny the surgical treatment requested was
a misapplication of the MTG.
January 18, 2018, the WCJ rendered a decision denying
DOTD's motion to dismiss, and trial resumed on March 19,
2018. Before trial proceedings began, both parties entered
into a settlement for the indemnity portion of Daniels'
workers' compensation claim. The settlement agreement
reserved Daniels' right to proceed with the current
litigation and agreed to allow the medical portion of the
claim to continue. At the conclusion of trial, the WCJ found
in favor of Daniels, ordered DOTD to provide and pay for the
requested surgical procedure, and awarded $611 in medical
expenses associated with non-emergency care. Daniels'
demands for penalties and attorney fees were denied and
dismissed with prejudice.
April 10, 2018, Daniels filed a motion for new trial for
re-argument, alleging that the judgment signed by the WCJ was
incorrect because it did not reflect the decisions of the
court or Daniels' demands as addressed in the WCJ's
reasons for judgment. On May 4, 2018, Daniels also filed a
motion to enforce settlement agreement, alleging that DOTD
had failed and refused to pay the proceeds of the settlement
agreement for the indemnity claim. Daniels' motion for
new trial was heard before the WCJ on May 14, 2018. After the
hearing, the court granted Daniels' motion for new trial
and set a hearing for oral arguments to be heard on August
11, 2018, Daniels' motion to enforce settlement agreement
was heard by the WCJ. After the hearing, the WCJ's oral
reasons for judgment were announced in open court. A judgment
ordering DOTD to pay $14, 400 in penalties for the settlement
and $1, 500 in attorney fees was signed and rendered on June
18, 2019. DOTD filed a motion for new trial on June 29, 2018,
requesting that the June 18, 2018, judgment be withdrawn, and
that the issues of the enforceability of the settlement, and
penalties and attorney awards be reconsidered by the court.
the hearing on August 13, 2018, the WCJ announced her reasons
for judgment in open court, and ordered that the judgment
signed on June 28, 2018, be revoked and rescinded; ordered
DOTD to provide and pay for the surgery recommended by Dr.
Brown; awarded $611 in expenses related to non-emergency
care; and, denied Daniels' request for the payment of
penalties and attorney fees. That same day, the WCJ also
heard DOTD's motion for new trial. After the hearing, the
WCJ denied that motion. DOTD filed the instant appeal.
for Lumbar Interbody Fusion Surgery
first issue presented in this case is whether the WCJ erred
in granting Daniels' requested claim for surgery. In its
first and second assignment of error, DOTD questions both the
WCJ's decision and the reasons in support of the decision
to grant Daniels' claim and order DOTD to pay for the
La. R.S. 23:1203.1(I), the claimant's initial burden on
appeal before the medical director remains one of proof by a
preponderance of the evidence. Church Mut. Ins. Co. v.
Dardar, 145 So.3d 271, supra; Gilliam v.
Brooks Heating & Air Conditioning, 49, 161 (La.App.
2 Cir. 7/16/14), 146 So.3d 734. However, a claimant seeking
judicial review of a decision made by the medical director
must prove the necessity of the sought-after medical
treatment by clear and convincing evidence. Gilliam,
supra; Friedman v. Ecolab, Inc., 50, 358 (La.App. 2 Cir.
2/3/16), 187 So.3d 491.
clear and convincing standard in a workers' compensation
case is an intermediate standard falling somewhere between
the ordinary preponderance of the evidence civil standard and
the beyond a reasonable doubt criminal standard.
Hatcherson v. Diebold, Inc., 00-3263 (La. 5/15/01),
784 So.2d 1284; Young v. Physicians & Surgeons
Hosp., 39, 348 (La.App. 2 Cir. 3/2/05), 895 So.2d 723.
To prove a matter by clear and convincing evidence means to
demonstrate that the existence of the disputed fact is highly
probable or much more probable than its nonexistence.
Young, supra; Hollingsworth v. Steven
Garr Logging, 47, 884 (La.App. 2 Cir. 2/27/13), 110
the claimant has carried his burden of proof and whether
testimony is credible are questions of fact to be determined
by the WCJ. See Buxton v. Iowa Police Dep't,
2009-0520 (La. 10/20/09), 23 So.3d 275; City of
Shreveport v. Casciola, 43, 132 (La.App. 2 Cir.
3/26/08), 980 So.2d 203. Factual findings in workers'
compensation cases are subject to the manifest error or
clearly wrong standard of appellate review. Buxton,
supra; Casciola, supra.
case, DOTD asserts that the WCJ largely based its decision to
grant Daniels' claim on its own incorrect conclusion
relating to utilization of inessential discretionary
indicators. Specifically, DOTD takes issue with the the
WCJ's conclusion that the OWC Medical Director's
decision denying the surgical procedure recommended was based
on discretionary indicators not required for a spinal fusion.
To that end, DOTD argues that Daniels failed to meet his
burden and show by clear and convincing evidence that the
decision of the medical director to deny the surgical
treatment recommended by his treating physician Dr. Brown was
a misapplication of the MTG.
disagree. Following the trial on the merits, the WCJ, in her
oral reasons for judgment, stated:
A review of the medical evidence and the MTG revealed the
medical director denied the requested surgery based upon
discretionary indications for a spinal fusion. The
requirements for the spinal fusion were clearly met. Medical
records revealed all pain generators were adequately defined
and treated. Physical medicine and manual therapy
interventions are noted. The MRI and discography clearly
showed disc pathology on the two levels at issue.
In regard to the last indicator, jurisprudence has held the
psychosocial evaluation is unnecessary unless the treating
physician feels it needs to be done. A psychosocial
evaluation is required only when the surgeon has concerns
about the relationship between symptoms and findings or when
the surgeon is aware of indications of psychosocial
consultations or risk factors.
According to Louisiana Revised Statute 23:1203.1(K), after
the issuance of the decision by the medical director, any
party who disagrees with the decision may then appeal by
filing a disputed claim for compensation, which is LWC Form
1008. The decision may be overturned when it is shown by
clear and convincing evidence that a decision of the medical