Jacqunette Guidry v. American Legion Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1285

JACQUENETTE GUIDRY

VERSUS

AMERICAN LEGION HOSPITAL

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF ACADIA, NO. 14-03815
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

H. Douglas Hunter
Misti Landry Bryant
Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
Post Office Drawer 1329
Opelousas, Louisiana 70571-1329
(337) 948-8201
Counsel for Defendant/Appellant:
American Legion Hospital

Thomas A. Budetti
Attorney at Law
556 Jefferson Street, Suite 200A
Lafayette, Louisiana 70501
(337) 269-9499
Counsel for Plaintiff/Appellee:
Jacquenette Guidry

KEATY, Judge.

Employer suspensively appeals from a judgment rendered by the workers’

compensation judge (WCJ) reversing a decision of the Louisiana Medical Director

to deny the claimant’s request for a lumbar surgical procedure and, thereby,

approving the procedure. We affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Jacquenette Guidry, a registered nurse, injured her back on June

12, 2012, in the course and scope of her employment with American Legion

Hospital while transferring a patient into a bed. According to the medical records

attached to her Form 1008 Disputed Claim for Compensation, she developed low

back pain within fifteen to twenty minutes of the transfer and was sent to the

emergency room by her employer, where she was treated, released, and advised to

seek follow-up care with her primary care physician. After seeing several

physicians and obtaining no relief from physical therapy and a lumbar epidural

steroid injection, claimant eventually sought treatment from Dr. Mark McDonnell,

an orthopedic surgeon. On May 14, 2014, Dr. McDonnell submitted a Form 1009

Disputed Claim for Medical Treatment, together with thirty-eight pages of

supporting medical documentation, seeking approval from the Medical Director of

the Office of Workers’ Compensation (the Medical Director) of a posterior lumbar

decompression and fusion at L4-S1 with post-operative bracing that had been

denied by Novare, the workers’ compensation carrier of Guidry’s employer. The

Medical Director denied the requested procedure in a Medical Guidelines Dispute

Decision (MGD) dated May 27, 2014. The MGD explained the denial as follows:

• For decompression indications as required in the MTG have not
been met: records do not document radiculitis on exam; the
imaging does not correlate for neural compression.

• For spinal fusion a specific indication for spinal fusion is not
demonstrated at L4/5[.]

• All preoperative surgical indications as required in the MTG for
fusion have not been met; a specific diagnosis or pain generator is
not identified by exam, imaging, or diagnostic injection; imaging
does not demonstrate spinal instability.

• Records specifically state that the examination is neurologically
intact; xray report dated 10.31.2013 notes disc space preservation
except L5/S1, no instability on flexion / extension. Lumbar MRI
report notes at L4/5 right foraminal disc protrusion with annular
fissure and foramina) stenosis; at L5/S1 disc narrowing, moderate
bilateral foraminal stenosis. Psychosocial evaluation and clearance
is noted.

The stated rationale for the denial was that “[t]he documentation submitted does

not support the approval of the requested services in review for compliance with

the Medical Treatment Schedule.” The MGD further specified that the reason for

the denial was that “[t]he clinical findings, the natural history of the disease, the

clinical course, and diagnostic tests do not correlate to support the requested

service[.]” According to the MGD, the Medical Director made its decision based

upon the criteria found in Section 2015 (General Guidelines Principles) and

Section 2023 (Therapeutic Procedures-Operative) of Chapter 20 of the Guidelines,

which pertain to the spine.

Guidry appealed the Medical Director’s denial in a Form 1008 filed on

June 3, 2014, with an attached Addendum in which her attorney outlined the

reasons why the denial was contrary to the Guidelines and should be reversed per

La.R.S. 23:1203.1. A copy of the Medical Director’s file was also attached to the

1008. Following an August 1, 2014 contradictory hearing, the WCJ ruled in open

court that she found clear and convincing evidence that the Medical Director erred

in that he “did not consider the guideline under which the request was made.” The

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WCJ stated that it agreed with the reasons set forth in the addendum to Guidry’s

1008, which it adopted as its reasons for ruling. Written judgment was signed on

September 8, 2014, overturning the May 27, 2014 decision of the Medical Director

and approving the requested lumbar surgical procedure “in accordance with

Louisiana law, the Louisiana Workers’ Compensation Act (the Act), and the

Louisiana Workers’ Compensation Medical Treatment Guidelines (the

Guidelines).[1]” The employer suspensively appealed and is now before this court

arguing in its sole assignment of error that the WCJ erred in finding that Guidry

“demonstrated by clear and convincing evidence that the May 27, 2014 decision of

the Medical Director denying a lumbar surgical procedure should be overturned.”

DISCUSSION

Louisiana Revised Statutes 23:1203.1 was enacted by the
legislature in 2009 to provide for the establishment of a medical
treatment schedule, and such a schedule was promulgated by the
Louisiana Workforce Commission, Office of Workers’ Compensation
Administration in June 2011. As a result, “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.” La.R.S. 23:1203.1(I). Section
1203.1 establishes a procedure whereby an injured employee’s
medical provider can request authorization for medical services from
a payor, usually the employer or its insurer, who must act on that
request within five days. La.R.S. 23:1203.1(J)(1). Thereafter, any
aggrieved party has fifteen days within which to file an appeal with
the Medical Director who must render a decision within thirty days.
Id. “After the issuance of the decision by the medical director . . . ,
any party who disagrees with the decision, may then appeal by filing a
‘Disputed Claim for Compensation.’” La.R.S. 23:1203.1(K). A
decision of the Medical Director “may be overturned when it is shown,
by clear and convincing evidence, the decision . . . was not in
accordance with the provisions of this Section.” Id.; See also Usie v.
Lafayette Parish Sch. Sys., 13-294 (La.App. 3 Cir. 10/9/13), 123
So.3d 885.

1
See La. Admin Code. tit. 40, pt. I, § 2717.

3

Matthews v. La. Home Builder’s Ass’n Self Insurer’s Fund, 13-1260, pp. 4-5

(La.App. 3 Cir. 3/12/14), 133 So.3d 1280, 1283-84.

In Mouton v. Lafayette Parish Sheriff’s Office, 13-1411 (La.App. 3 Cir.

5/7/14), __ So.3d __, on reh’g, (La.App. 3 Cir. 10/15/14), __ So.3d __, this court

clarified that the standard of appellate review to be employed when reviewing a

WCJ’s review of a decision of the Medical Director is manifest error. That holding

was based upon our finding that “the WCJ’s review of whether there is clear and

convincing evidence that the Medical Director’s determination is in contravention

of the medical treatment guidelines is necessarily fact-intensive.” Id. at __.

Accordingly, “we will not overturn the findings of the WCJ unless we find there is

no reasonable basis to support the decision.” Id. at __.

In the instant matter, the employer contends that the WCJ should have

affirmed the decision of the Medical Director because there is no evidence that he

failed to follow the Guidelines. With regard to Guidry’s assertion that the Medical

Director erred because he reviewed the requested surgical procedure under the

wrong section of the Guidelines, the employer submits in its appellate brief that

Guidry “cannot dictate under which section approval or denial will be based.” The

employer further submits that even though Dr. McDonnell has only recommended

a single surgery, all aspects of the proposed surgery had to be appropriate under the

Guidelines. More specifically, the employer argues that both the decompression

and the fusion had to be independently warranted under the Guidelines for the

Medical Director to approve the requested surgical procedure. Because the

documentation submitted by Dr. McDonnell did not show that Guidry had the

surgical indications to make decompression necessary under Section 2023(F)(3)(c),

i.e., “[p]rimary radicular symptoms, radiculopathy and radiculitis on exam,

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correlating imaging study, and failure of non-surgical care,” Guidry did not prove

that requested procedure was medically necessary. Additionally, the employer

contends that because Guidry sought approval for a two-level fusion, it had to be

medically necessary at both levels. Because the documentation submitted by

Dr. McDonnell did not show that Guidry had all of the necessary pre-operative

surgical indications to make a fusion necessary under Section 2023(F)(4)(e),

including spinal instability demonstrated by X-ray, MRI, or CT/Discography,

Guidry did not prove that requested procedure was medically necessary. As a

result, the employer contends that the decision of the WCJ reversing the Medical

Director’s decision should be reversed by this court because Guidry did not meet

her burden of proving by clear and convincing evidence that the Medical

Director’s decision was not in accordance with the Guidelines.

In support of her argument that the judgment of the WCJ should be upheld,

Guidry contends that the medical evidence submitted by Dr. McDonnell met the

Guideline’s requirements for the proposed two-level lumbar fusion. She points out

that Section 2023 allows for thirteen different types of lumbar spinal surgeries,

each of which has a different set of criteria that must be met in addition to the

general criteria found in Subsections A, B, and C of Section 2023. Guidry explains

that her physician sought approval for surgery under Section 2023(F)(4)(d)(iii),

which pertains to “primary mechanical back pain/functional spinal unit failure.”

She submits that the medical records provided by Dr. McDonnell documented that

she suffered from two or more of the pain generators required for the surgery to be

medically necessary under Section 2023(F)(4)(d)(iii). 2 More particularly,

2
Louisiana Administrative Code Title 40, Part I, § 2023(F)(4)(d)(iii) requires that there
be:

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Dr. McDonnell noted in his May 6, 2014 report that Guidry had “painful motion

segment, as in annular tears” and facet syndrome at L4-5 and disc resorption and

facet syndrome at L5-1. Dr. McDonnell further noted in his May 6, 2014 report

that Guidry met all of the pre-operative surgical indications listed in Section

2023(F)(4)(e), 3 including getting psychological clearance for the surgery and

quitting smoking. In sum, Guidry submits that by failing to apply the Guidelines

applicable to the specific surgery that Dr. McDonnell sought approval for, i.e., a

posterior lumbar decompression and fusion at L4-S1 with post-operative bracing,

to treat the specific medical condition that he had diagnosed her with, i.e., failed

back syndrome, the medical director forced a burden upon her which is medically

impossible to meet. In other words, Guidry submits that under the applicable

Guidelines, she need not show radiculitis or spinal instability. Finally, Guidry

submits that she need not show that she meets the requirements for an independent

decompression surgery since a decompression is part and parcel of the requested

. . . multiple pain generators objectively involving two or more of the following:

(a). internal disc disruption (poor success rate if more than one disc involved);
(b). painful motion segment, as in annular tears;
(c). disc resorption;
(d). facet syndrome; and/or
(e). ligamentous tear.
3
Louisiana Administrative Code Title 40, Part I, § 2023(F)(4)(e) requires that the patient
meet all of the following pre-operative surgical indications:

i. all pain generators are adequately defined and treated; and
ii. all physical medicine and manual therapy interventions are completed; and
iii. x-ray, MRI, or CT/Discography demonstrate disc pathology or spinal instability; and
iv. spine pathology is limited to two levels; and
v. psychosocial evaluation with confounding issues addressed;
vi. for any potential fusion surgery, it is recommended that the injured worker refrain
from smoking for at least six weeks prior to surgery and during the period of fusion
healing.

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surgery, i.e., when Dr. McDonnell fuses her spine at L4-5 and L5-S1, he will also

decompress the pathology to resolve the medical issues associated with those discs.

After a thorough review of the record before us, we find no manifest error in

the WCJ’s conclusion that the Medical Director erred in denying Guidry’s request

for a posterior lumbar decompression and fusion at L4-S1 with post-operative

bracing. Simply following any of the Guidelines is not enough. The Medical

Director must follow the particular Guideline applicable to the specific treatment

recommended by an injured worker’s physician. Here, Dr. McDonnell carefully

documented Guidry’s medical condition as well as how that condition met the

Guidelines requirements for surgical intervention to address and remedy that

condition. As such, we find no manifest error in the WCJ’s conclusion that Guidry

met her burden of proving by clear and convincing evidence that the Medical

Director’s decision was not in accordance with the Guidelines.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge

reversing a decision of the Louisiana Medical Director to deny Jacquenette

Guidry’s request for a lumbar surgical procedure and, thereby, approving the

procedure is affirmed. All costs of this appeal are assessed against the employer,

American Legion Hospital.

AFFIRMED.

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