Sherry Usie v. Lafayette Parish School System

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-294

SHERRY USIE

VERSUS

LAFAYETTE PARISH SCHOOL SYSTEM

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT FOUR
PARISH OF LAFAYETTE, NO. 12-02687
ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Janice Hebert Barber
Jennifer B. Valois
Barber Law Firm
111 Mercury Street
Lafayette, LA 70503
(337) 232-9893
COUNSEL FOR PLAINTIFF/APPELLANT:
Sherry Usie

Dawn L. Morris
The Dill Firm, APLC
825 Lafayette St.
Lafayette, LA 70501
(337) 261-1408
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette Parish School System

EZELL, Judge.

Sherry Usie appeals the decision of the workers’ compensation judge. That

decision upheld the findings of the Medical Director denying her additional

physical therapy as not medically necessary under the Louisiana Medical

Treatment Guidelines. For the following reasons, we affirm the decision of the

workers’ compensation judge.

On March 15, 2007, Ms. Usie sustained a work-related injury to her shoulder

and neck while working for the Lafayette Parish School System (LPSS). The

injury required surgery and physical therapy. In October of 2011, Dr. Harold

Granger prescribed physical therapy for four weeks. This order was repeated in

November of that year and in January of 2012. Her pain did not completely

resolve, but Ms. Usie did see improvement. There was a delay in approving the

January round of physical therapy, but it was administered. Dr. Granger ordered a

fourth round of physical therapy on February 28, 2012. This round of therapy was

denied by LPSS’s third-party workers’ compensation administrator as medically

unnecessary.

Ms. Usie then filed a 1009 claim form requesting review of the treatment

denial by the Office of Workers’ Compensation Administration Medical Director

under La.R.S. 23:1203.1. The Medical Director reviewed her claim and medical

records and found that:

According to the physical therapy clinical records submitted[,]
the patient has received therapy from 10.18.2011 through 2.28.2012.
Therapy has exceeded recommended frequency and maximum
durations. Some documentation for improvement and functional gain
is noted. The office visit of 2.28.2012 documented excellent range of
motion, and all provocative tests were negative. Patient needs to be on
a home program per the Guidelines. Maximal independence will be
achieved through the use of home exercise programs and educational

programs.

Following that decision, Ms. Usie filed a 1008 claim form with the workers’

compensation judge seeking review of the Medical Director’s decision. The

workers’ compensation judge allowed Ms. Usie to present evidence and testimony

beyond that which was before the Medical Director. The workers’ compensation

judge ultimately ruled that there “was no showing by clear and convincing

evidence that the decision of the medical director was not in accordance with the

provisions of the Louisiana Workers’ Compensation Medical Treatment

Guidelines and Louisiana Revised Statutes 22:1203.1.” From that decision, Ms.

Usie appeals.

Ms. Usie asserts two assignments of error on appeal. She claims that the

workers’ compensation judge erred in divesting itself of original jurisdiction under

La.R.S. 23:1310.3(F) and that the workers’ compensation judge erred in applying

the clear and convincing evidence burden of proof to her case. Ms. Usie does not,

in any way, challenge the factual findings of the workers’ compensation judge as

error or claim that the Medical Director’s findings were not in compliance with the

guidelines. Instead, she simply makes the above legal arguments.

At the time the decision was rendered, La.R.S. 23:1203.1(K) read1:

After the issuance of the decision by the medical director of the
office, any party who disagrees with the medical director’s decision,
may then appeal by filing a “Disputed Claim for Compensation,”
which is LWC Form 1008. The decision of the medical director may
be overturned when it is shown, by clear and convincing evidence, the
decision of the medical director was not in accordance with the
provisions of this Section.

1
The statute was amended in 2013 to include language providing for the position of
Associate Medical Director.

2

Ms. Usie’s first argument is that the workers’ compensation judge somehow

divested itself of jurisdiction by following the framework set up by La.R.S.

23:1203.1. We disagree. She makes much in her brief about the review of the

Medical Director’s decision being treated like “an appeal.” However, she admits

in her 1008 claim form that she is, indeed, appealing the decision of the Medical

Director. More importantly, La.R.S. 23:1203.1(K) (emphasis added) itself directly

states that “any party who disagrees with the medical director’s decision, may then

appeal” that decision. Her assignment of error is made even more vacuous upon a

review of the record, which clearly shows that she was indeed afforded a full trial

on the merits of her claim. While the workers’ compensation judge originally

sought to exclude evidence and witnesses not heard by the Medical Director, Ms.

Usie was ultimately allowed to put on this additional evidence over the objection

of the LPSS. The workers’ compensation judge considered this evidence in

making his ruling, and there is nothing in the record that indicates he limited the

scope of his review. This assignment of error is without merit.

Finally, Ms. Usie argues that, because the workers’ compensation judge

heard the additional evidence she sought to introduce, the burden of proof laid out

by La.R.S. 23:1203.1 should become preponderance of the evidence rather than

clear and convincing evidence. The language of the statute could not be more clear.

“The decision of the medical director may be overturned when it is shown, by

clear and convincing evidence, the decision of the medical director was not in

accordance with the provisions of this Section.” La.R.S. 23:1203.1(K) (emphasis

added). The workers’ compensation judge obviously applied the correct burden of

proof to his review of the Medical Director’s findings. This argument is utterly

devoid of merit.

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For the above reasons, the decision of the workers’ compensation judge is

hereby affirmed. Costs of this appeal are assessed against Ms. Usie.

AFFIRMED.

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