FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 3
PARISH OF CALCASIEU, NO. 18-05115 DIANNE M. MAYO,
WORKERS' COMPENSATION JUDGE
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
composed of Shannon J. Gremillion, Candyce G. Perret, and
Jonathan W. Perry, Judges.
CANDYCE G. PERRET JUDGE
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.
AND PROCEDURAL BACKGROUND:
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
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.
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.
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.
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], 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.
denied the second request for treatment on June 25, 2018,
"pending the SMO scheduled for 7/10/18[.]"
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.
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.
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."
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.
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.
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
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 . . . .
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.
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
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.
also requests that this court remand the case to obtain an
IME and to re-submit all medical evidence to the ...