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Greene v. Town of Lake Arthur

Court of Appeals of Louisiana, Third Circuit

January 8, 2020

MICHAEL GREENE
v.
TOWN OF LAKE ARTHUR

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 3 PARISH OF CALCASIEU, NO. 18-05115 DIANNE M. MAYO, WORKERS' COMPENSATION JUDGE

          Joy C. Rabalais Kyle N. Choate Borne, Wilkes & Rabalais, L.L.C. COUNSEL FOR DEFENDANT/APPELLANT: Town of Lake Arthur

          Michael B. Miller Jacqueline K. Becker Miller & Associates COUNSEL FOR PLAINTIFF/APPELLEE: Michael Greene

          Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.

          CANDYCE G. PERRET JUDGE

         This appeal arises from the Workers' Compensation Judge's ("WCJ") denial of the Town of Lake Arthur's ("Employer") 1008 Disputed Claim for Compensation. Employer challenged the Medical Director's approval of employee/claimant's surgery prior to Employer being able to obtain a scheduled second medical opinion and moved for an independent medical examination ("IME"). On appeal, we reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL BACKGROUND:

         Michael Greene, claimant, was injured in a work-related accident on September 23, 2008. Mr. Greene filed a 1008 Disputed Claim for Compensation thereafter. The case was stayed pursuant to a Joint Motion and Order to Stay dated April 15, 2014. On December 14, 2017, the stay was lifted and the 1008 was dismissed without prejudice. The December 14, 2017 Judgment also permitted either party to file another 1008 in the future.

         On March 3, 2018, Mr. Greene's treating physician, Dr. Mark McDonnell, requested a psychological evaluation for a discography/spine surgery. Employer denied the treatment "pending second medical opinion [("SMO")] with Dr. [Fraser] Garr[, ]" Employer's choice of orthopedist. Dr. Garr last evaluated Mr. Greene on May 12, 2014, and produced a report opining that Mr. Greene did not require further surgical intervention for his neck or low back. Instead, Dr. Garr opined that Mr. Greene was at maximum medical improvement. Dr. Garr's 2014 report was attached to Employer's denial.

         Due to Dr. Garr's death, Employer selected a new orthopedist, Dr. Alexander Michael, and scheduled an appointment for Mr. Greene on April 12, 2018. The appointment was noticed by certified mail to Mr. Greene's attorney and dated March 13, 2018. Mr. Greene failed to appear at the appointment. The appointment was rescheduled for May 10, 2018, and notice was delivered via certified mail to Mr. Greene's attorney on April 20, 2018. In response to Mr. Greene's May 2018 inquiry regarding Dr. Michael's licensing, Employer faxed Dr. Michael's curriculum vitae to counsel on May 4, 2018, prior to the appointment.

         Mr. Greene failed to appear for the second scheduled appointment with Dr. Michael on May 10, 2018. The appointment was rescheduled a third time for July 10, 2018, notice being delivered via certified mail on June 4, 2018. On June 8, 2018, Mr. Greene's counsel requested additional information from Employer regarding Dr. Michael. Employer provided the requested information on July 5, 2018.

         Before the third rescheduled appointment, Dr. McDonnell filed a second request for treatment around June 21, 2018, this time for approval of a "PLIF L4-5 [posterior lumbar interbody fusion][1], intraoperative epidural injection, post-op bracing, [and] spinal implants." Attached to the request were Dr. McDonnell's records as well as an evaluation by Dr. Jean Boudreaux, a licensed psychologist. Dr. Boudreaux opined on May 1, 2018: "Pre-surgical/preprocedural, psychological prognosis is poor at this time, dominated by concerns with regard to ETOH [ethyl alcohol] use. I recommend psychotherapy and consideration of recovery meetings. From a psychological perspective, surgical delay appears indicated and it may be advisable for him to be cleared by an addictionologist." On May 8, 2018, Dr. Boudreaux further advised:

[I]t is my impression that if he [Mr. Greene] does totally d/c ETOH as he claims he will, I believe medical professionals could verify this, and that would meet my concerns as well. That is, if it were medically documented he is free from ETOH, that would obviate the need for an addictionology consultation in my opinion.

         Employer denied the second request for treatment on June 25, 2018, "pending the SMO scheduled for 7/10/18[.]"

         Based on Employer's denial, on June 27, 2018, before the third re-scheduled SMO appointment, Mr. Greene filed a 1009 Disputed Claim for Medical Treatment requesting review by the Medical Director. Employer responded and provided the Medical Director with Dr. Garr's 2014 SMO report, Dr. Boudreaux's psychiatric report, and Mr. Greene's last MRI that Employer had on file. Employer also advised the Medical Director that a SMO appointment was scheduled for July 10, 2018.

         In the interim, Mr. Greene failed to appear a third time for the scheduled SMO on July 10, 2018. Thereafter, the appointment was rescheduled for August 17, 2018, and notice received on July 18, 2018.

         However, prior to the fourth rescheduled SMO, the Medical Director issued an opinion on July 18, 2018, approving the PLIF surgery that Dr. McDonnell requested. The Medical Director reviewed the records submitted and concluded that the treatment requested was covered by the medical treatment schedule. Specifically, the Medical Director noted: "The patient has radicular pain and failure of conservative therapy per the guidelines."

         Employer appealed the Medical Director's decision on July 27, 2018, by filing a 1008 Disputed Claim for Compensation, along with filing a motion to compel claimant to submit to a medical examination. The motion to compel was dismissed after Mr. Greene appeared for the fourth scheduled appointment with Dr. Michael. In its 1008, Employer argued that the Medical Director's opinion was premature, as it was made before the SMO was obtained, despite being informed that said appointment was scheduled. Employer argued that in rendering his opinion, the Medical Director deprived Employer of its statutory right to a SMO under La.R.S. 23:1121.

         After obtaining the SMO, and based on Dr. Michael's opinion, Employer asserted that the SMO contradicted Dr. McDonnell's opinion for surgery. Therefore, Employer also filed a request for a court-appointed independent medical examiner ("IME") pursuant to La.R.S. 23:1124.1. Mr. Greene opposed the request, arguing that the issues are rightfully decided by the Medical Treatment Guidelines, not by an IME.

         Both the appeal of the Medical Director's decision and the motion for an IME were heard on December 19, 2018. The WCJ denied both, finding that Employer failed to prove by clear and convincing evidence that the Medical Director's decision was not in accordance with the Medical Treatment Guidelines. Regarding the SMO procedural issue, the WCJ stated:

A review of the record and the evidence that was presented here today is that the SMO report was submitted after the decision by the medical director was made, and in the content of the SMO report as well as arguments of counsel, the Court here finds that there is no clear and convincing evidence to overturn the medical director's decision. In fact, the problem that occurred here has not been addressed in the medical guidelines, so I can only impose and follow the law that is on the record as it is now, and the evidence that was presented today does not rise to that clear and convincing, which I must have . . . .

         Thereafter, the WCJ ruled on the motion to compel an IME:

I'm going to deny that request also because the psychiatrist said that his would [sic] be poor and he recommended certain things that should be down [sic], but he also said that it was a medical decision. The SMO never pointed to anything in the medical guidelines that would prohibit the medical necessity for the surgery and, therefore, based upon that, I am going to deny both the appeal and the request for an IME.

         This appeal from the WCJ's denials now follows. Employer assigns two assignments of error:

I. Whether the WCJ committed error in failing to find that the Medical Director's premature decision was in violation of the employer's statutory right to obtain a second medical opinion for submission prior to decision; whether the WCJ used an inappropriate standard of review on Employer's appeal; and whether the WCJ committed error in refusing to grant Employer's request for court-appointed IME physicians;
II. Whether the Medical Director's premature decision to approve a surgery, despite [Employer] advising that an SMO appointment was pending which would directly address the issue of medical necessity, deprived [Employer] of its statutory right to have the SMO examination to allow the Medical Director to base his decision on medical necessity with all information required by law.

         Employer also requests that this court remand the case to obtain an IME and to re-submit all medical evidence to the ...


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