Gay Lowery v. Jena Nursing & Rehab Center

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1106

GAY LOWERY

VERSUS

JENA NURSING AND REHABILITATION, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION – DISTRICT-1E
PARISH OF OUACHITA, NO. 14-3212
THE HONORABLE BRENZA IRVING-JONES,
WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

C. Daniel Street
Street & Street
508 N. 31st Street
Monroe, LA 71201
(318) 325-4418
COUNSEL FOR PLAINTIFF/APPELLEE:
Gay Lowery

Stephanie L. Cheralla
Degan, Blanchard & Nash
400 Poydras Street, Suite 2600
New Orleans, LA 70130
(504) 529-3333
COUNSEL FOR DEFENDANTS/APPELLANTS:
Jena Nursing and Rehabilitation
Technology Insurance Company

AMY, Judge.

The claimant was injured while assisting a coworker to reposition a patient

and has been receiving workers’ compensation benefits. The claimant sought

approval for a cervical fusion from the medical director pursuant to La.R.S.

23:1203.1, but was denied. The claimant appealed the medical director’s decision

to the workers’ compensation judge. After a hearing, the workers’ compensation

judge reversed the medical director’s decision and ordered that the insurer

authorize the surgery. The employer and insurer appeal. For the following

reasons, we affirm.

Factual and Procedural Background

In 2012, the claimant, Gay Lowery, was working for Jena Nursing &

Rehabilitation when she was injured while helping reposition a patient. Ms.

Lowery began receiving workers’ compensation benefits thereafter. In this

particular dispute, Ms. Lowery sought approval from the workers’ compensation

insurer, Technology Insurance Company, for a cervical fusion. After the insurer

denied the request, Ms. Lowery sought a determination from the medical director,

pursuant to La.R.S. 23:1203.1. The medical director issued a decision finding that

the indications for cervical fusion had not been met and denying Ms. Lowery’s

request for the surgery.

Ms. Lowery appealed the medical director’s decision to the workers’

compensation court. After a hearing at which Ms. Lowery testified, the workers’

compensation judge overturned the medical director’s decision and ordered the

defendants to provide the surgery.

The defendants appeal, asserting as error that:

1. The compensation judge erred in reversing the decision of the medical

director.

2. There is no clear and convincing evidence that the medical director’s

decision is not in accordance with the medical treatment guidelines.

Discussion

La.R.S. 23:1203.1

Louisiana Revised Statutes 23:1203.1 was enacted in order to ensure that

medical treatment and other health care services are delivered in an efficient and

timely manner to injured employees. La.R.S. 23:1203.1(L); see also Church Mut.

Ins. Co. v. Dardar, 13-2351 (La. 5/7/14), 145 So.3d 271. To that end, La.R.S.

23:1203.1 provides a process for approval of medical care and the establishment of

a medical treatment schedule, stating:

I. After the promulgation of the medical treatment schedule,[1]
throughout this Chapter, and notwithstanding any provision of law to
the contrary, medical care, services, and treatment due, pursuant to
R.S. 23:1203, et seq., by the employer to the employee shall mean
care, services, and treatment in accordance with the medical treatment
schedule. Medical care, services, and treatment that varies from the
promulgated medical treatment schedule shall also be due by the
employer when it is demonstrated to the medical director of the office
by a preponderance of the scientific medical evidence, that a variance
from the medical treatment schedule is reasonably required to cure or
relieve the injured worker from the effects of the injury or
occupational disease given the circumstances.

J. (1) After a medical provider has submitted to the payor the
request for authorization and the information required by the
Louisiana Administrative Code, Title 40, Chapter 27, the payor shall
notify the medical provider of their action on the request within five
business days of receipt of the request. If any dispute arises after
January 1, 2011, as to whether the recommended care, services, or
treatment is in accordance with the medical treatment schedule, or
whether a variance from the medical treatment schedule is reasonably
required as contemplated in Subsection I of this Section, any

1
The medical treatment schedule was promulgated and became effective in June 2011.
See Dardar, 145 So.3d 271; 40 La.Admin Code Pt. I, § 2001, et seq.

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aggrieved party shall file, within fifteen calendar days, an appeal with
the office of workers’ compensation administration medical director
or associate medical director on a form promulgated by the director.
The medical director or associate medical director shall render a
decision as soon as is practicable, but in no event, not more than thirty
calendar days from the date of filing.

....

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

With regard to the standard of review for a workers’ compensation judge’s

judgment affirming or overturning the medical director’s decision, in Vital v.

Landmark of Lake Charles, 13-842 (La.App. 3 Cir. 2/12/14), 153 So.3d 1017, a

panel of this court concluded that, as the workers’ compensation judge’s analysis

was necessarily fact-intensive, the manifest error—clearly wrong standard of

review should apply. However, on the same date, in Moran v. Cajun Well

Services, Inc., 13-821 (La.App. 3 Cir. 2/12/14), 153 So.3d 1086, the panel noted

that there were no findings of fact involved and concluded that the workers’

compensation judge’s determination was a question of law subject to de novo

review. Since then, in Mouton v. Lafayette Parish Sheriff’s Office, 13-1411

(La.App. 3 Cir. 10/15/14), __ So.3d__ (on rehearing), another panel of this court

has applied the manifest error standard. We follow that developing jurisprudence,

as the workers’ compensation judge’s determination was necessarily fact-intensive

and, accordingly, the manifest error—clearly wrong standard of review is

appropriate here. See also Gillam v. Brooks Heating & Air Conditioning, 49,161

(La.App. 2 Cir. 7/16/14), 146 So.3d 734. We further note that additional testimony

and evidence was adduced at the hearing of this matter.

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The relevant medical treatment guidelines concerning cervical injuries are

found at 40 La.Admin. Code Pt. I, § 2003(A) and § 2011(F)(2)(c) (2015). Section

2003(A), states, in relevant part:

The principles summarized in this section are key to the intended
implementation of all Office of Workers’ Compensation guidelines
and critical to the reader’s application of the guidelines in this
document.

7. Re-Evaluation of Treatment Every Three to Four Weeks. If a
given treatment or modality is not producing positive results within
three to four weeks, the treatment should be either modified or
discontinued. Reconsideration of diagnosis should also occur in the
event of poor response to a seemingly rational intervention.

8. Surgical Interventions. Surgery should be contemplated within
the context of expected improvement of functional outcome and not
purely for the purpose of pain relief. The concept of ―cure‖ with
respect to surgical treatment by itself is generally a misnomer. All
operative interventions must be based upon positive correlation of
clinical findings, clinical course, and diagnostic tests. A
comprehensive assimilation of these factors must lead to a specific
diagnosis with positive identification of pathologic conditions. The
decision and recommendation for operative treatment, and the
appropriate informed consent should be made by the operating
surgeon. Prior to surgical intervention, the patient and treating
physician should identify functional operative goals and the likelihood
of achieving improved ability to perform activities of daily living or
work activities and the patient should agree to comply with the pre-
and post-operative treatment plan and home exercise requirements.
The patient should understand the length of partial and full disability
expected post-operatively.

Further, Section 2011(F)(2)(c), which addresses operative therapeutic procedures,

states, in relevant part:

General indications for surgery. [O]perative intervention should be
considered and a consultation obtained when improvement of
symptoms has plateaued and the residual symptoms of pain and
functional disability are unacceptable at the end of six weeks of
treatment, or at the end of longer duration of non-operative
intervention for debilitated patients with complex problems. Choice of
hardware instrumentation is based on anatomy, the patient’s
pathology, and surgeon’s experience and preference.

i. Specific indications include:
....

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(b). for patients with cervical radiculopathy:
(i). early intervention may be required for acute
incapacitating pain or in the presence of progressive neurological
deficits;

(ii). persistent or recurrent arm pain with functional
limitations, unresponsive to conservative treatment after six weeks; or

(iii). progressive functional neurological deficit; or
(iv). static neurological deficit associated with
significant radicular pain; and

(v). confirmatory imaging studies consistent with
clinical findings;

(c). for patients with persistent non-radicular cervical pain: in
the absence of a radiculopathy, it is recommended that a decisive
commitment to surgical or nonsurgical interventions be made within
four to five months following injury. The effectiveness of three-level
cervical fusion for non-radicular pain has not been established. In
patients with non-radicular cervical pain for whom fusion is being
considered, required pre-operative indications include all of the
following.

(i). In general, if the program of non-operative
treatment fails, operative treatment is indicated when:
[a]. improvement of the symptoms has plateaued, and the
residual symptoms of pain and functional disability are unacceptable
at the end of 6 to 12 weeks of active treatment, or at the end of longer
duration of non-operative programs for debilitated patients with
complex problems; and/or
[b]. frequent recurrences of symptoms cause serious
functional limitations even if a non-operative active treatment
program provides satisfactory relief of symptoms, and restoration of
function on each recurrence;
[c]. mere passage of time with poorly guided treatment is not
considered an active treatment program;

(ii). all pain generators are adequately defined and
treated; and

(iii). all physical medicine and manual therapy
interventions are completed; and

(iv). x-ray, MRI, or CT/discography demonstrating disc
pathology or spinal instability; and

(v). spine pathology limited to two levels; and

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(vi). psychosocial evaluation for confounding issues
addressed;

(vii). for any potential surgery, it is recommended that
the injured worker refrain from smoking for at least six weeks prior to
surgery and during the period of healing. Because smokers have a
higher risk of non-union and higher post-operative costs, it is
recommended that insurers cover a smoking cessation program peri-
operatively.

Citing these guidelines, the medical director determined that the indications

for cervical fusion had not been met. Noting specific portions of Ms. Lowery’s

medical records, the medical director stated:

 FOR PATIENTS WITH CERVICAL RADICULOPATHY

o No documentation of recurrent arm pain with functional
limitations, unresponsive to conservative treatment after six
weeks

o No documentation of recent active therapy intervention
submitted by provider

....

o No documentation of progressive functional neurological
deficit

....

o No documentation of static neurological deficit associated
with significant radicular pain; and

o Confirmatory imaging studies consistent with clinical
findings

....

 FOR PATIENTS WITH NON-RADICULAR CERVICAL PAIN
FOR WHOM FUSION IS BEING CONSIDERED

o Psychosocial Evaluation has not been submitted

The medical director essentially concluded that Ms. Lowery had failed to

meet any of the indicators contained in 40 La.Admin. Code Part I, § 2011(F)(2)(c).

However, the workers’ compensation judge found that Ms. Lowery had shown that

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all of the indicators for surgery had been met through either Ms. Lowery’s

testimony or the medical evidence and that she had met her burden of proof with

regard to overturning the medical director’s decision.

Our review of the record indicates that Ms. Lowery’s medical records were

submitted into evidence. The records show that Ms. Lowery was initially treated

for problems with her mid and lower back, but after a CT scan showed stenosis at

C7-T1, her records show increased focus on her cervical and upper thoracic spine.

Records from Ms. Lowery’s treating neurosurgeon, Dr. Michael Drerup,

indicate that in December of 2013, several months after the CT scan showed

stenosis at C7-T1, he diagnosed her with ―chronic mechanical thoracolumbar pain

secondary to moderately severe spinal stenosis C7-T1, recalcitrant to all medical

therapy to date including cervical epidural steroid injections.‖ Dr. Drerup’s

records indicate that Ms. Lowery reported cervical pain radiating into the upper

extremities over the course of several months.2

2
For example, on July 24, 2013, Dr. Drerup noted that ―Mrs[.] Lowery continues to
complain of pain beginning in the intrascapular region radiating into the entirety of the thoracic
spine, into the lumbrosacral region, and into the posterior aspect of the right lower extremity.
Symptoms are mechanically exacerbated.‖ Dr. Drerup also noted on that date that Ms. Lowery’s
thoracic and lumbar myelogram shows moderately severe spinal stenosis C7-T1 and entered a
new impression of ―Stenosis – cervical.‖
On October 24, 2013, Dr. Drerup noted that ―Mrs. Lowery reports one week of relief
with cervical epidural steroid injections. Her symptoms have returned to baseline since that time.
She reports intermittent posterior cervical pain radiating into the trapezius, into the deltoid region,
into the anterior aspect of the arm and forearm, including the index finger, right. She reports
intermittent tingling in the entirety of the right hand.‖
On November 25, 2013, Dr. Drerup noted that ―Mrs. Lowery continues to report
poster[ior] cervical pain radiating into the trapezius muscles, into the deltoid region, into the
anterior aspect of the arm and forearm bilaterally, including the index finger right. She reports
intermittent tingling in the entirety of the right hand. She reports numbness to the medial aspect
of the left forearm.‖
On December 23, 2013, Dr. Drerup noted that ―Mrs. Lowery continues to suffer posterior
cervical pain radiating into the upper extremities as previously documented.‖ Dr. Drerup’s
impression noted on that date was ―chronic mechanical thoracolumbar pain secondary to
moderately severe spinal stenosis C7-T1, recalcitrant to all medical therapy to date including
cervical epidural steroid injections.‖ Ms. Lowery’s neurosurgery notes from February 7, 2014,
and March 11, 2014, contain similar notations.

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Records from physical therapy indicate that Ms. Lowery underwent 24

treatments in 2012 with minimal improvement. Although the primary focus of Ms.

Lowery’s treatment at that time was her thoracic and lumbar spine complaints,

there is some documentation of cervical pain and therapy to the cervical spine.

Additionally, Dr. Drerup’s medical records show that Ms. Lowery had cervical

epidural steroid injections, reporting only one week of relief after the injection and

that her symptoms returned ―to baseline‖ after that. Similarly, a second medical

opinion provided by Dr. Jorge Martinez noted that Ms. Lowery ―has been treated

with epidural steroid injection three times for what the patient describes will afford

relieve [sic] for a week and a half.‖

Ms. Lowery also obtained several imaging studies. One of those, a CT scan

performed on July 17, 2013, concluded that Ms. Lowery had ―central stenosis at

C7-T1‖, noting ―[t]here is a posterior central disc and osteophyte noted at the C7-

T1 level. Anterior-to-posterior central thecal sac is approximately 8.5 to 9 mm

suggesting some central stenosis. The upper thoracic region shows some central

posterior disc and osteophyte but no high-grade central stenosis.‖

Ms. Lowery also testified at the hearing, stating that her injury began

between her shoulder blades, and that she also had complaints about her low back,

her injuries have gotten worse over time. Specifically she testified that:

It’s like a continuance [sic] burn and hurt, and it’s radiating
down both my arms. On this side--on my left side, it’s like numb on
the outer part of my arm, like going into my little finger. And then on
my right arm it’s like--feels like--it’s a pain radiating all the way
down. And it’s like my thumb and index finger would draw and I
couldn’t--you can’t hardly move it or anything for a while, and it got--
it happens off and on all the time. And, I mean, I’m still
continuously--my back burns and it’s going up my neck, and now I
have continuous head aches.

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Ms. Lowery testified that she has pain and numbness in her arms and into

her hands and fingers, and that she ―doesn’t have to be doing anything.‖ Further,

Ms. Lowery testified that she has had several months of physical therapy and

injections in her back. She stated that she has had very little relief from the

injections. According to Ms. Lowery’s testimony, she is unable to pick up her

grandchildren or do housework. Ms. Lowery also confirmed that she had had

imaging studies done, including an MRI and myelogram.

Having reviewed the record, we find that it contains a reasonable basis for

the workers’ compensation judge’s conclusion that Ms. Lowery showed by clear

and convincing evidence that the indicators for surgery, specifically those for

patients with cervical radiculopathy, had been met through either Ms. Lowery’s

testimony or the medical evidence. Accordingly, we find that the workers’

compensation judge was not clearly wrong or manifestly erroneous in overturning

the medical director’s decision.

The appellants’ assignments of error addressing this issue are without merit.

DECREE

For the foregoing reasons, the trial court’s judgment overturning the medical

director’s decision is affirmed. Costs of this matter are assessed to the appellants,

Jena Nursing and Rehabilitation and Technology Insurance Company.

AFFIRMED.

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