Mildred Deloach v. Fara Insurance Services

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-408

MILDRED DELOACH

VERSUS

FARA INSURANCE SERVICES, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, DOCKET NO. 13-08230
HONORABLE JAMES L. BRADDOCK, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy and John E. Conery, Judges.

AFFIRMED.

Amy, J., concurs and assigns reasons.

Conery, J., concurs in the result.

W. Jay Luneau
Graham M. Brian
Luneau Law Office
1239 Jackson Street
Alexandria, LA 71301
(318) 767-1161
ATTORNEY FOR PLAINTIFF/APPELLANT
Mildred Deloach

James D. “Buddy” Caldwell, Attorney General
Leanne L. Bridges, Assistant Attorney General
429 Murray Street, 4th Floor
P.O. Box 1710
Alexandria, LA 71309-1710
(318) 487-5944
ATTORNEY FOR DEFENDANT/APPELLEE
State of Louisiana through FARA Insurance Services

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Claimant, Mildred Deloach, sustained a work-related head injury on October

6, 2009, while employed at the LSU Agricultural Center. FARA Insurance

Services, the third party administrator of Claimant’s workers’ compensation claim,

accepted her claim as compensable and she was approved for her choice of

physician, Dr. Arsham Naalbandian, a neurologist.

Claimant treated with Dr. Naalbandian from November, 2009 through

November 22, 2010, complaining of primarily of headaches and problems with her

vision. In his report issued on November 22, 2010, Dr. Naalbandian opined that

Claimant “neurologically has done well” and there “has been no recurrence of

headaches.” There was still a complaint of blurred vision and “some visual loss”

to the left side. Dr. Naalbandian concluded that Claimant’s “[p]ossible history of

post-traumatic headaches. . . seem to have resolved.” As to her complaints of

visual loss, Dr. Naalbandian noted she was being treated by “Dr. Lyons who is her

primary ophthalmologist in Shreveport regarding her history of ocular

histoplasmosis and hopefully will have his updated reports.” Dr. Naalbandian

scheduled Claimant “for re-evaluation and followup within the next two or three

months.”

Following the November 22, 2010 visit, Claimant did not return to see Dr.

Naalbandian again until March of 2013. Dr. Naalbandian requested an

Electroencephalogram (EEG), a Brain Stem Auditory Evoked Response test and

Visual Evoked Response test be performed on Claimant, which came back normal.

Claimant notes, despite the two and one-half year gap between visits with Dr.

Naalbandian, FARA approved the continued visits and tests recommended by Dr.

Naalbandian.

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On October 14, 2013, Claimant requested an evaluation with Dr. Gerald

Leglue, a physiatrist. On November 19, 2013, Claimant filed a Form 1008

disputed claim, requesting to see Dr. Leglue and asserting entitlement to penalties

and attorney fees. On December 3, 2013, Claimant filed a Motion for Expedited

Hearing pursuant to La.R.S. 23:1121, which was set for December 16, 2013.

On December 8, 2013, FARA issued to Dr. Naalbandian a questionnaire

concerning Claimant’s current medical status in relation to her work accident of

October 6, 2009. FARA noted in the correspondence to Dr. Naalbandian that his

November 22, 2010 report opined that Claimant’s post-traumatic headaches

appeared to have resolved and that the March 27, 2013 diagnostic studies all

appeared to be normal. The following day, December 9, 2013, FARA issued a

1002 Notice of Controversion stating Claimant’s rights to medical benefits are

disputed and have been denied because causation of the current medical complaints

as related to the compensable injury was being disputed. It also stated that further

medical treatment was being controverted pending a response from Dr.

Naalbandian regarding causation.

On December 16, 2013, the workers’ compensation judge (WCJ) heard the

motion for expedited hearing seeking care from Dr. Leglue. In his oral reasons for

judgment, the WCJ ruled as follows:

At this time, the Court will deny the expedited motion to see
Dr. Leglue. The basis the Court denies it is because I have no
evidence of anything that Mr. Brian has argued to the Court with
respect to Ms. Deloach. She’s presented no documentary evidence to
support these arguments. She hasn’t testified today in support of the
argument. Simply put, there’s no evidence to support her claim to see
a physiatrist for a head injury and headaches associated with that
injury.

This appeal followed, wherein Claimant asserts the WCJ committed legal error by

placing the burden of proof on Claimant, when the burden should have rested with

FARA to show the treatment requested by Claimant was not medically necessary.
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ANALYSIS

Louisiana Revised Statutes 23:1121(B)(1), which concerns an employee's

right to select a physician, states:

B. (1) The employee shall have the right to select one treating
physician in any field or specialty. The employee shall have a right to
an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8),
when denied his right to an initial physician of choice. . . . The
workers’ compensation judge shall order the employer or payor to
authorize the claimant’s choice of physician unless the employer or
payor can show good cause for his refusal. After his initial choice the
employee shall obtain prior consent from the employer or his workers’
compensation carrier for a change of treating physician within that
same field or specialty. The employee, however, is not required to
obtain approval for change to a treating physician in another field
or specialty.

(Emphasis added.)

Thus, the statute provides an injured employee has an absolute right to select one

physician in any field without the approval of the employer. Smith v. Southern

Holding Inc., 02-1071 (La. 01/28/03), 839 So.2d 5. The selection of a new

physician in a different specialty does not require approval. Thompson v. The

Animal Hosp., 39,154 (La.App. 2 Cir.12/15/04), 889 So.2d 1193, citing Davis v.

Sheraton Operating Corp., 97-2784 (La.App. 4 Cir. 5/20/98), 713 So.2d 814.

However, La.R.S. 23:1201(F)(2) also provides that “[t]his subsection shall

not apply if the claim is reasonably controverted[.]” Where a claim has been

reasonably controverted, the imposition of penalties and attorney fees under

La.R.S. 23:1201 is precluded. Nelson v. Windmill Nursery of La., L.L.C., 04-1941

(La.App. 1 Cir. 9/23/05), 923 So.2d 709, writ denied, 05-2294 (La. 3/10/06), 925

So.2d 516. The law is clear that to determine if a claim has been reasonably

controverted, “a court must ascertain whether the employer or his insurer engaged

in a nonfrivolous legal dispute or possessed factual and/or medical information to

reasonably counter the factual and medical information presented by the claimant.”

Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.
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We find the WCJ applied the wrong legal standard in this case. Claimant

was given the burden to produce evidence to support her claim to see Dr. Leglue.

The burden of proof should have rested with FARA to reasonably controvert

Claimant’s request to see Dr. Leglue. Ewing v. Hilburn, 11-1243 (La.App. 3 Cir.

3/7/12), 88 So.3d 640.

However, we find FARA put forth evidence and testimony to reasonably

controvert Claimant’s continued need for any medical treatment. The evidence

showed Claimant had been approved and was treated by Dr. Naalbandian, her

choice of physician, since 2009. After Dr. Naalbandian’s report of November 22,

2010, declaring that Claimant’s post-traumatic headaches from the work accident

appeared to have resolved, there was a two and one-half year gap in treatment

before she saw Dr. Naalbandian again in March of 2013. FARA approved her

continuing treatment with Dr. Naalbandian, as well as a recommended

Electroencephalogram (EEG), a Brain Stem Auditory Evoked Response test and

Visual Evoked Response test. All these tests came back normal. It was not until

FARA received a request to see Dr. Leglue that it conducted an investigation

which revealed Dr. Nallbandian believed her post-traumatic headaches were

resolved back in November of 2010 and the March 2013 tests were normal. FARA

then filed the appropriate 1002 Notice controverting the claim for medical benefits.

Claimant submitted no evidence or testimony to rebut FARA’s submissions

supporting its position that the requested medical treatment was not medically

necessary.

The WCJ denied the request to see Dr. Leglue, finding there was nothing in

the record to support additional medical treatment pending the follow-up report

from Dr. Naalbandian, who was the Claimant’s treating physician. The record

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supports this finding, and the judgment appealed from is affirmed. All costs of this

appeal are assessed to Claimant-Appellant, Mildred Deloach.

AFFIRMED.

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NUMBER 14-408

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

MILDRED DELOACH

VERSUS

FARA INSURANCE SERVICES, ET AL.

AMY, J., concurring.

I agree with the majority that an affirmation is warranted in this case and

with the majority’s conclusion that the trial court inappropriately shifted the burden

of proof to the claimant, thus warranting a de novo review. See Tulane Univ.

Hosp. & Clinic v. Lockheed Martin Corp., 11-179 (La.App. 4 Cir. 6/29/11), 70

So.3d 988. However, I write separately in light of my view of the interplay

between La.R.S. 23:1121 and La.R.S. 23:1201(F).

Ms. Deloach’s disputed claim for compensation requested a determination

regarding FARA’s denial of her choice of physician as well as penalties and

attorney fees. La.R.S. 23:1121(B)(1) requires “good cause” on the part of the

employer in refusing the claimant’s choice of physician, and this court has noted

that La.R.S. 23:1121(B) “must be read in conjunction with La.R.S. 23:1203(A),

which requires that treatment be medically necessary in order for the employer to

be responsible for the expenses.” Krogh v. Tri-State Refrigeration, 11-697, p. 2

(La.App. 3 Cir. 11/2/11), 79 So.3d 445, 447. Violations of La.R.S. 23:1121 can

subject the employer or insurer to penalties and attorney fees pursuant to La.R.S.

23:1201. La.R.S. 23:1201(F). However, an employer or insurer will not be liable

for penalties and attorney fees if the claim is reasonably controverted. La.R.S.

23:1201(F)(2).

In my view, FARA provided sufficient evidence to prove that it had “good

cause” for denying Ms. Deloach’s request to see the physiatrist, Dr. Leglue. As

detailed by the majority, Dr. Naalbandian commented in 2010 that Ms. Deloach’s

work-injury-related headaches appeared to have resolved. Thereafter, there was a

significant gap in Ms. Deloach’s treatment and, when Ms. Deloach returned,

several medical tests showed normal results. Ms. Deloach failed to rebut this

evidence. Accordingly, I conclude that FARA showed that the request was not

medically necessary and met its burden of proof to show that it had good cause for

denying Ms. Deloach’s request. Having determined that no violation of La.R.S.

23:1121(B) exists, it is unnecessary to address whether or not the claim was

reasonably controverted.

For these reasons, I concur in the majority opinion.

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