Peggy Edwards v. Plant Works

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1112

PEGGY EDWARDS

VERSUS

PLANT WORKS, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 13-02553 (4)
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Jimmie C. Peters, Judges.

AFFIRMED.

Jeffrey J. Warrens
Amanda H. Carmon
Johnson, Rahman, & Thomas
P. O. Box 98001
Baton Rouge, LA 70898-8001
(225) 231-0934
COUNSEL FOR DEFENDANTS/APPELLANTS:
Plant Works
Louisiana Workers’ Compensation Corporation

Jennifer B. Valois
Barber Law Firm
111 Mercury Street
Lafayette, LA 70503
(337) 232-9893
COUNSEL FOR PLAINTIFF/APPELLEE:
Peggy Edwards

PETERS, J.

The defendants, Plant Works and Louisiana Workers’ Compensation

Corporation (LWCC), appeal from the judgment of the workers’ compensation

judge (WCJ) ordering an independent medical examination of the plaintiff, Peggy

Edwards. For the following reasons, we affirm the WCJ judgment ordering the

independent medical examination.

DISCUSSION OF THE RECORD

In 2001, Ms. Edwards had undergone a corpectomy at C6, with anterior

fixation and fusion at C5 through C7. Sometime thereafter, she became employed

by Plant Works, a Scott, Louisiana business, as a plant-care technician. On

November 8, 2005, she sustained work-related injuries when the company vehicle

she was driving was hit by another vehicle. Following the accident, she was

treated for neck and low-back pain by numerous doctors, with treatments including

physical therapy and psychological evaluations.

On November 26, 2013, she was seen by Dr. Jason Cormier, a Lafayette,

Louisiana neurosurgeon, at the request of her doctor, Dr. Joseph Bozzelle, Jr., a

Lafayette, Louisiana physician specializing in pain medicine. After updating Ms.

Edwards’ lumbar and cervical MRIs, Dr. Cormier noted disc herniations at L3-4

and L5-S1, for which he recommended conservative treatment. However, in

regards to her cervical spine, Dr. Cormier’s January 31, 2013 notes reflected that:

[S]he has evidence of cervical spondylosis and post-operative changes.
At C3-4 there is a small protruding disc fragment measuring 3 to 4
mm. At C4-5 there is moderate anterior spurring and a central broad
based disc bulge. At C5-6 postoperative change indicates evidence of
an anterior cervical fusion and there is a great deal of artifact within
this region. At C6-7 there is evidence of attempted fusion. Some
parts appear to be solid. However, there appears to be lysis of the
bone surrounding the compression plates, screws, and stabilization
device. There is concern of hardware subsidence in addition to

evidence of spinal canal stenosis due to the loss of curvature of
lordotic posture of her cervical spine. I do believe she will require
both anterior and posterior surgery for her neck to stabilize this
circumstance.

On February 26, 2013, Dr. Cormier requested approval from LWCC to

perform a C3-T2 posterior fixation and fusion on Ms. Edwards. Via utilization

review, LWCC denied Dr. Cormier’s request for the following reasons:

1. There is no evidence of any neuropathy that needs to be
addressed by repeat spinal surgery. What physical examination
information is provided is normal.

2. The imaging studies indicate that the previous 3 level fusion is
solid at all 3 levels, so repeat surgery is not necessary or
appropriate.

3. The proposed surgery would freeze the patient’s entire cervical
spine. This would decrease not increase function.

4. Review of our records indicate that the patient has had various
treatment with multiple physicians. There is no indication that
the patient has had active functional rehabilitation, or any
conservative treatment in the last 6 months. The Guidelines
state that “Mere passage of time with poorly guided treatment is
not considered an active treatment program.” (Citations
omitted.)

5. The patient also complains of back pain. This is likely to be
made worse by freezing the entire cervical spine. All rotation
of the head, neck or body would have to be done at the lumbar
spine.

6. The guidelines state that “The effectiveness of three-level
cervical fusion for non-radicular pain has not been established.”
(Citation omitted.)

7. The Guidelines state that surgery for non-radicular pain is only
indicated if the pathology is limited to 2 levels. (Citation
omitted).

8. There is no evidence that the patient has had a complete
psychological evaluation including testing as required by the
Guidelines before this surgery is considered.

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In response to this denial, Dr. Cormier resubmitted his request with

additional documentation on February 26, 2013. On March 19, 2013, LWCC

again denied approval for the surgery, stating, “There is no evidence that shows

any substantive change in the treatment or the patient’s condition that warrants

reconsideration of the previous denial.” Dr. Cormier appealed this denial on

March 22, 2013, by filing a Form 1009 Disputed Claim for Medical Treatment

with the Office of Workers’ Compensation, Medical Services Director. On March

25, 2013, counsel for Ms. Edwards supplemented Dr. Cormier’s disputed claim

with a copy of a psychological evaluation by Dr. Michael Berard, a Lafayette,

Louisiana Clinical/Medical Psychologist, based on his October 5 and December 17,

2012 evaluations of Ms. Edwards. The Medical Director denied Dr. Cormier’s

disputed claim on April 2, 2013, for the following reasons:

All records submitted were reviewed. (56 pages). The
documentation does not support the approval of the requested
services per the Louisiana Medical Treatment Guidelines (MTG)
noted below.

The clinical records note no findings for myelopathy,
progressive neurologic deficit, normal motor strength, no
radiculopathy on examination. Psychological evaluation from 2008
were submitted, which did not note patient’s response to surgery.
Imaging findings were reviewed in the provider’s notes, but no
imaging reports were submitted. An electro-diagnostic report was for
the lower extremities, and was normal.

The clinical records submitted do not meet the indications for
surgery. Fusion level is for 6 segments; specific pain generators are
not identified; imaging reports were not submitted; psychosocial
evaluation is over 5 years old and does not address potential response
to surgery.

(Emphasis in original.)

On April 12, 2013, Ms. Edwards filed a disputed claim for compensation

appealing the Medical Director’s denial of Dr. Cormier’s request for surgery. In

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her disputed claim, she pointed to the Medical Director’s statement that

“psychosocial evaluation is over 5 years old and does not address potential

response to surgery” as evidence that the Medical Director failed to even consider

Dr. Berard’s report, which is certainly less than five years old and specifically

addresses responses to surgery at page fourteen of the evaluation. Ms. Edwards

asserted to the WCJ that based on his failure to consider this evidence, the Medical

Director applied the wrong standard and failed to comment on the underlying issue

or treatment.

During the May 16, 2013 hearing on the motion, Ms. Edwards’ counsel

stated, and Plant Works’ counsel agreed, that Dr. Cormier has resubmitted his

request twice subsequent to him filing the disputed claim for medical treatment,

and that LWCC has rejected both requests. Both parties further agreed that Ms.

Edwards has submitted all medical records, including records for a recent

hospitalization, to LWCC’s medical director for consideration. Based on the

argument presented, the WCJ orally denied Ms. Edwards’ appeal of the Medical

Director’s denial of Dr. Cormier’s disputed claim for medical treatment. However,

the WCJ further ordered, based on the new medical records, that Ms. Edwards

submit to an independent medical examination (IME) by a neurosurgeon for

evaluation purposes regarding the requested surgery. The WCJ executed a final

judgment to this effect on June 28, 2013, and, thereafter, Plant Works and LWCC

perfected the appeal now before us.

OPINION

On appeal, Plant Works and LWCC (referred to collectively as Plant Works)

argue that the WCJ legally erred in ordering the IME because “LSA-R.S.

23:1203.1 places authority for medical necessity determinations with the Office of

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Workers’ Compensation Medical Director rather than with an Independent Medical

Examiner.” This assignment of error raises a question of law. Therefore, we will

review this issue in order to determine whether the WCJ was legally correct in her

ruling. Orr v. Acad. La. Co., L.L.C., 12-1411 (La.App. 3 Cir. 5/1/13), __ So.3d __.

Based on this court’s recent en banc opinion in Romero v. Garan’s, Inc., 13-

482 (La.App. 3 Cir. 12/26/13), __ So.3d __, which held that the provisions of

La.R.S. 23:1203.1 were substantive in nature and, thus, applied prospectively only,

we find that the WCJ was bound to follow the law in effect on November 8, 2005,

the date of Ms. Edwards’ accident, in determining workers’ compensation matters

pertaining to her. In Romero, we specifically overruled our previous opinion in

Cook v. Family Care Services, Inc., 13-108 (La.App. 3 Cir. 8/28/13), 121 So.3d

1274, which opinion Plant Works relies on in support of its argument.

Furthermore, as pointed out by Ms. Edwards, the WCJ has two avenues for

appointing an IME: La.R.S. 23:1123 and La.R.S. 23:1124.1. Louisiana Revised

Statutes 23:1123, as it read in 2005, provided:

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

Louisiana Revised Statutes 23:1124.1 further provides:

Neither the claimant nor the respondent in hearing before the
workers’ compensation judge shall be permitted to introduce the
testimony of more than two physicians where the evidence of any
additional physician would be cumulative testimony. However, the
workers’ compensation judge, on his own motion, may order that any
claimant appearing before it be examined by other physicians.

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Based on these two provisions, we find that the WCJ acted within her

discretion in appointing an IME to examine Ms. Edwards with regard to the

necessity for further surgery.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’

compensation judge in ordering that Peggy Edwards submit to an independent

medical examination. We assess all costs of this appeal to Plant Works and

Louisiana Workers’ Compensation Corporation.

AFFIRMED.

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