Maria Navarre Versus Peristyle Residences, LLC and Luba Casualty Insurance Company

MARIA NAVARRE NO. 22-C-249

VERSUS FIFTH CIRCUIT

PERISTYLE RESIDENCES, LLC AND LUBA COURT OF APPEAL

CASUALTY INSURANCE COMPANY STATE OF LOUISIANA

June 30, 2022

Susan Buchholz
First Deputy Clerk

IN RE PERISTYLE RESIDENCES, LLC AND LUBA CASUALTY INSURANCE COMPANY

APPLYING FOR SUPERVISORY WRIT FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7, PARISH OF WORKMENS COMP, STATE OF LOUISIANA, DIRECTED TO THE
HONORABLE SHANNON BRUNO BISHOP, NUMBER 21-4442

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

WRIT DENIED

On August 6, 2021, claimant-respondent, Maria Navarre, filed a Disputed
Claim for Compensation, alleging that she sustained injuries to her neck and back
on June 26, 2021, while restraining a disorderly patient in the course and scope of
her employment with Peristyle Residences, L.L.C. Defendant-employer, Peristyle,
filed an Answer, denying that an accident or subsequent compensable injuries
occurred.1

Peristyle subsequently filed a “Motion and Order to Appoint IME,” seeking
a court-appointed independent medical provider to evaluate claimant and render an
opinion pursuant to La. R.S. 23:1123. Peristyle claimed that due to the conflicting
opinions reached by claimant’s treating physician, Dr. Marco Rodriguez, and the
second medical opinion obtained by Peristyle from Dr. Christopher Cenac, Sr., an
independent medical examination would be appropriate in this case.

Upon evaluation and review of prior medical records, Dr. Cenac opined that
Ms. Navarre suffered from degenerative disc disease of the cervical, thoracic, and
lumbar spines, and that those diagnoses were unrelated to the June 26, 2021
accident. Dr. Cenac found that Ms. Navarre sustained no residual or physical
limitations related to the alleged accident, that “malingering is suspect[ed],” and

1
Claimant filed a first and second supplemental petition. In her second supplemental petition, claimant alleged that
defendant-employer committed fraud pursuant to La. R.S. 23:1208 when it represented that the earliest it received
notice of claimant’s accident was July 15, 2021.

22-C-249

that she was able to return to the same level of physical activity that she was
capable of prior to the accident. Dr. Marco Rodriguez’s medical report, however,
opined that Ms. Navarre suffered from cervical facet syndrome, thoracic spine
pain, and lumbrosacral facet joint syndrome with radiculopathy. Dr. Rodriguez
further opined that “[t]he patient’s diagnoses are directly related to the Work-
related injury on the above stated date [June 26, 2021].” Dr. Rodriguz further
opined that Ms. Navarre had not yet reached maximum medical improvement but
could tolerate employment with light-duty restrictions.

At the April 22, 2022 hearing, the OWC judge found that “there is a dispute
between causation and disability. But there’s also a dispute as far as whether…she
was involved in an accident, sustained an injury in the course []and scope of
employment.” The OWC judge took the matter under advisement. On May 5,
2022, the OWC judge issued a written judgment, denying Peristyle’s Request for
an IME. The written judgment stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
Defendant's Request for IME pursuant to LA[.] R.S. 23:1123 is denied.
Said request must be submitted to the Assistant Secretary of the Office
of Workers’ Compensation for consideration.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that a
request for IME pursuant to LA[.] R.S. 23:1124.1 is not warranted
under the current facts. Upon submission of the case, the Court will
review and weigh the evidence to determine causation. Should the
Court require an additional medical opinion, an IME pursuant to LA[.]
R.S. 23:1124.1 may be scheduled at that time.

In her written reasons for judgment, the OWC judge explained her
ruling as follows:

This cause came before the Court on Defendant’s Motion to Appoint
Independent Medical Examination (IME). Louisiana Revised Statute
23:1123 provides that either party may apply to the assistant secretary
to order an employee to be examined for an additional medical opinion.
In the instant case, defendant did not petition the assistant secretary.
Thus, the request for an IME pursuant to LA[.] R.S. 23:1124.l is not
applicable. Pursuant to Louisiana Revised Statute 23:1124.1, the
workers’ compensation judge on his own motion may order any
claimant appearing before it to be examined by other physicians. This
statute gives discretion to the judge to order an independent medical
examination. This court, in its discretion, declines to order an IME at
this time. Should the Court review the facts and evidence in this matter
and determine that an IME is warranted, one will be appointed. Further,
this Court will review and weigh the evidence to determine causation.
Should the Court require an additional medical opinion, an
IME pursuant to LA[.] R.S. 23:1124.1 may be scheduled at that time.

In this writ application, relator, Peristyle, seeks review of the OWC
judge’s denial of its Request for IME. Peristyle argues only that the
appointment of an IME is mandatory under La. R.S. 23:1123 when a dispute
arises concerning an employee-claimant’s condition or capacity to work.
Peristyle contends that, when such a dispute arises, which it contends is

2

evident from the two conflicting medical opinions rendered in this case, an
IME is statutorily mandated under La. R.S. 23:1123. Claimant opposes the
appointment of an IME, at this time, asserting that the statute provides
Peristyle must seek an IME pursuant to the instructions provided in the
Workers’ Compensation Act, set forth in La. R.S. 23:1123, by the filing of a
Request for Independent Medical Examination (LWC-WC Form 1015) from
the Assistant Secretary with the Office of Workers’ Compensation Medical
Services Division.

Peristyle filed its Request for IME pursuant to La. R.S. 23:1123, which
provides:

If any dispute arises as to the condition of the employee, or the
employee's capacity to work, the assistant secretary, upon application
of any party, shall order an additional medical opinion regarding an
examination of the employee to be made by a medical practitioner
selected and appointed by the assistant secretary. The medical examiner
shall report his conclusions from the examination to the assistant
secretary and to the parties and such report shall be prima facie
evidence of the facts therein stated in any subsequent proceedings under
this Chapter.

La. R.S. 23:1123.

This Court has recently explained that the “starting point in interpretation of
any statute is the language of the statute itself.” Handy v. Par. of Jefferson, 20-122
(La. App. 5 Cir. 6/1/20), 298 So.3d 380, 389. The language of the statute itself is
considered the best evidence of the legislature’s intent and will. Id. It is a basic
principle of statutory construction that the legislature is presumed to have intended
every word and phrase included in a statute to have some meaning and that none
was inserted by accident. Id., citing ABL Management, Inc. v. Board of Sup’rs of
Southern University, 00-0798 (La. 11/28/00), 773 So.2d 131,135(quotations
omitted). Conversely, it is not presumed that the legislature inserted idle,
meaningless, or superfluous language in a statute or that it intended any part of the
statute to be meaningless, redundant, or useless. Id.

The statutory language set forth in La. R.S. 23:1123 specifically
provides that, upon application of any party, the assistant secretary shall order
an additional medical opinion regarding an examination of the employee…by
a medical practitioner selected and appointed by the assistant secretary.
(emphasis added). The title “assistant secretary” is defined in La. R.S. 23:1201
of the Workers’ Compensation Act as “the assistant secretary of the office of
workers’ compensation administration.” Accordingly, it appears, from the
plain language of the statute, that the Act contemplates a procedure to be
followed in requesting an IME under La. R.S. 23:1123 that Peristyle failed to
comply with in this instance.2 We cannot read the statute and interpret the

2
We point out that La. R.S. 23:1317.1, in pertinent part, provides:
Any party wishing to request an additional medical opinion regarding a medical examination of the claimant
pursuant to R.S. 23:1123 and 1124.1 shall be required to make its request at or prior to the pretrial conference.
Requests for additional medical opinions regarding medical examinations made after that time shall be denied
except for good cause or if it is found to be in the best interest of justice to order such examination.
* * *
Objections to the additional medical opinion regarding a medical examination shall be made on form LDOL-WC-
1008, and shall be set for hearing before a workers’ compensation judge within thirty days of receipt. No mediation
shall be scheduled on disputes arising under this Section.
3

statutory language to render meaningless the instruction that the “assistant
secretary” appoint an IME upon request of a party pursuant to La. R.S.
23:1123.

Upon review of the writ application and attachments thereto, we find
that the OWC judge correctly declined to appoint an IME as requested under
La. R.S. 23:1123. Accordingly, this writ is denied.

Gretna, Louisiana, this 30th day of June, 2022.

FHW
SMC
JGG

4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 06/30/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-C-249
E-NOTIFIED
Office of Workers' Compensation, District 7 (Clerk)
Hon. Shannon Bruno Bishop (DISTRICT JUDGE)
Timothy E. Benedetto (Respondent)

MAILED
Eric J. Waltner (Relator)
Attorney at Law
Post Office Box 81129
Lafayette, LA 70598