APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT
7 STATE OF LOUISIANA NO. 18-1388 HONORABLE SHANNON BRUNO
BISHOP, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, RALPH STRETZINGER Suzette
COUNSEL FOR DEFENDANT/APPELLANT, WAL-MART ASSOCIATES, INC.
AND/OR WAL-MART STORES, INC. D/B/A WAL-MART STORES AND/OR ALL
ITS SUBSIDIARIES AND AFFILIATES Patrick F. Robinson.
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Hans J. Liljeberg.
A. CHAISSON, JUDGE.
workers' compensation case concerning the denial of
requested medical treatment, Wal-Mart appeals a judgment from
the Office of Workers' Compensation which declared that
Ralph Stretzinger was entitled to receive the requested
medical treatment, a L4-5-S1 lumbar interbody fusion, and
awarded him penalties and attorney's fees. For the
following reasons, we affirm the judgment in part and reverse
the judgment in part.
AND PROCEDURAL HISTORY
undisputed that on March 9, 2014, Mr. Stretzinger slipped and
fell on a wet floor while working at Wal-Mart and sustained
multiple serious injuries to his neck, back and lower
extremities. In the months and years following the accident,
Mr. Stretzinger received medical treatment for pain and other
symptoms for his lower back from multiple medical providers.
In 2016, following a course of conservative treatment which
failed to prevent deteriorating symptoms, Mr.
Stretzinger's orthopedist, Dr. K. Samer Shamieh,
recommended a L4-5-S1 lumbar interbody fusion. The claims
adjuster initially denied this request for treatment as not
medically necessary and appropriate according to the
Louisiana Workers' Compensation Treatment Guidelines. In
accordance with the procedures set forth in these guidelines,
Mr. Stretzinger sought review of this denial with the Medical
Director of the Office of Workers' Compensation
("OWC"). In a January 19, 2017 letter, the medical
director, following a review of the documentation, supported
the denial of the requested surgery, but noted, "[t]he
patient has criteria except for a psychosocial evaluation as
required per the guidelines." Mr. Stretzinger submitted
to the psychological examination in February, 2017, and was
found to be a good candidate for surgery.
November 8, 2017, Dr. Shamieh again requested authorization
for the spinal fusion surgery. On December 22, 2017,
Wal-Mart, through its adjustor, denied the requested medical
treatment as "not related to the on the job injury"
and "not in accordance with the Medical Treatment
Schedule or R.S. 23:1203.1(D)."
Stretzinger again sought review of this denial with the OWC
Medical Director, who, in January, 2018, rejected Mr.
Stretzinger's application on the basis that disputes
relating to compensability and/or causation (such as whether
the requested medical treatment is "not related to the
on the job injury") are not addressed by the medical
director. The medical director made no findings as to whether
the requested spinal surgery fell within the medical
March 6, 2018, Mr. Stretzinger filed a disputed claim for
compensation with the OWC. In its answer, Wal-Mart denied
that Mr. Stretzinger is entitled to the proposed lumbar
fusion surgery because the treatment is contrary to La. R.S.
23:1203.1 and unrelated to Mr. Stretzinger's work
hearing on the claim was held on October 22, 2018. At the
start of the hearing, Wal-Mart abandoned its argument that
the proposed surgery was unrelated to Mr. Stretzinger's
work accident and stipulated that there was no dispute in
terms of compensability. At the hearing, the parties
contested whether the surgery was medically necessary. After
taking the issue under advisement, the OWC judge, on January
28, 2019, issued a judgment with written reasons in favor of
Mr. Stretzinger and against Wal-Mart. Specifically, the judge
decreed Mr. Stretzinger entitled to the lumbar fusion
recommended by Dr. Shamieh and ordered Wal-Mart to pay $4,
000 in penalties as well as attorney's fees and costs
pursuant to La. R.S. 23:1201(I) and La. R.S. 23:1201(F).
appeal, Wal-Mart raises the following assignments of error:
1) Whether the judge legally or manifestly erred in finding
the lumbar fusion surgery proposed by Dr. Shamieh as
necessary under La. R.S. 23:1203, La. R.S. 23:1203.1, and the
Louisiana Workers' Compensation medical treatment
2) Whether the judge legally or manifestly erred in assessing
penalties and attorney's fees based on the denial of
treatment purportedly disallowed under the medical treatment
3) Whether the judge legally or manifestly erred in awarding
two separate penalties based on a single denial of treatment.
Mr. Stretzinger has filed an answer to Wal-Mart's appeal
seeking an award of costs, including attorney's fees,
incurred in opposing this appeal. We address these
assignments of error in turn in our discussion below.
first assignment of error, Wal-Mart argues that the trial
court legally erred in determining Mr. Stretzinger had met
his evidentiary burden of proving entitlement to lumbar
fusion surgery, because, according to Wal-Mart, Mr.
Stretzinger had a heightened burden. Accordingly, our