from the Office of Workers' Compensation, District 06
Parish of Livingston State of Louisiana Case No. 17-07115
Honorable Robert Varnado, Judge
S. Watson Counsel for Plaintiff/Appellant Baton Rouge, LA
Ronny Crowder Dawn Danna Marullo Counsel for
Defendants/Appellees Kaye N. Courington Transport
Leasing/Contract Inc., Steven Lozes Statewide Transport,
Inc., and the Jeffrey M. Burg Louisiana Insurance Guaranty
Association Troy N. Bell Daniel R. Estrada New Orleans, LA
BEFORE: WHIPPLE, C.J., GUIDRY, AND CRAIN, JJ.
workers' compensation matter, the employee challenges the
judgment of the Office of Workers' Compensation (OWC).
The OWC associate medical director approved surgical
intervention for the employee. The workers' compensation
judge (WCJ) reversed that decision. For the reasons that
follow, we reverse the judgment in part and remand the matter
to the OWC for further proceedings.
AND PROCEDURAL HISTORY
Crowder was employed as a truck driver with Statewide
Transport, Inc., and was injured in a work-related motor
vehicle accident in May of 2012. As a result of his injuries,
Crowder underwent surgeries for neck and arm pain in 2012 and
2016. Later, in 2017, as a result of continued complaints of
pain, Crowder was recommended for a third surgical
intervention, a laminectomy, by his treating physician, Dr.
K. Samer Shamieh.
accordance with the OWC Medical Treatment Guidelines, on July
10, 2017, Dr. Shamieh submitted a LWC Form 1010, requesting
authorization from the employer's insurer, Louisiana
Insurance Guaranty Association (LIGA), for the recommended
laminectomy surgery, which request was denied. To appeal the
denial of services, on July 28, 2017, Dr. Shamieh submitted
to the OWC Form 1009, a disputed claim for medical treatment.
On August 21, 2017, it was determined by the associate
medical director, Dr. Jason Picard, that the medical care
recommended by Dr. Shamieh was covered by the medical
on November 3, 2017, Crowder filed a disputed claim for
compensation with the OWC against Statewide Transport and
LIGA. In Crowder's claim for compensation, filed because
his recommended surgery was approved by the associate medical
director, but not authorized by his employer, Crowder
disputed the denial of office visits and surgery proposed by
his treating physician. In response, Statewide Transport and
LIGA answered, asserting among other defenses, that they had
continuously undertaken reasonable efforts to ascertain the
extent of Crowder's medical condition, and that Crowder
was not entitled to further medical benefits as pled.
an unsuccessful mediation between the parties, followed by a
trial on the matter, the WCJ issued a judgment on October 12,
2018, reversing the decision of the associate medical
director and declaring that Crowder is not in need of the
recommended surgery. Crowder now appeals.
Revised Statute 23:1203.1 (K), which provides the process by
which any party who disagrees with the medical director's
decision may seek review of that decision, states:
After the issuance of the decision by the medical director or
associate medical director of the office, 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, the decision of the medical
director or associate medical director was not in accordance
with the provisions of this Section.
See also Arrant v. Wayne Acree PLS, Inc., 15-0905,
pp. 4-5 (La. 1/27/16), 187 So.3d 417, 420. In order to appeal
a decision of the medical director, a party must file his
claim with the OWC. Arrant, 15-0905 at p. 5, 187
So.3d at 420.
to La. R.S. 23:1203.1 (K), Statewide Transport and LIGA had a
right to appeal the decision of the associate medical
director by filing a Form 1008. However, because the record
is devoid of such a form being filed by Statewide Transport
and LIGA, we must conclude that the employer and insurer
herein waived their right to challenge or address the
decision made by the associate medical director. At the trial
on the matter, rather than limiting its review to the failure
of Statewide Transport and LIGA to authorize the recommended
surgery, as raised by Crowder's ...