David Paul Cross v. Slayter Trucking Companies, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-98

DAVID PAUL CROSS

VERSUS

SLAYTER TRUCKING COMPANIES, LLC

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 2
PARISH OF RAPIDES, NO. 14-02511
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.

AFFIRMED.

Cooks, J., concurs in the result.

Lawrence N. Curtis
A Professional Law Corporation
P. O. Box 80247
Lafayette, LA 70598-0247
(337) 235-1825
COUNSEL FOR PLAINTIFF/APPELLEE:
David Paul Cross

Bradley John Gadel
A Professional Law Corporation
728 Jackson St.
Alexandria, LA 71301
(318) 448-4406
COUNSEL FOR DEFENDANT/APPELLANT:
Slayter Trucking Companies, LLC

SAUNDERS, Judge.

This is a workers’ compensation case wherein an employee was injured in

the course and scope of his employment. The issue in the case is that the employee

underwent medical treatment without some of his medical treatment providers

submitting 1010 forms requesting authorization for continuing medical treatment.

The employee had previously been treated in Arkansas, where his work-related

accident transpired. The Arkansas physicians recommended that the employee

find physicians closer to his home and referred him to one such physician.

Thereafter, the treating physicians were selected by the employee due to proximity

to the employee’s home. Four of these physicians failed to submit 1010 forms

prior to treating the employee.

The WCJ found that the employer was responsible for up to the $750.00 cap

as provided by La.R.S. 23:1142(B)(1)(a). Further, the WCJ awarded the employee

penalties and attorney’s fees, but denied the employee’s request that all of his

medical expenditures made to the relevant physicians be reimbursed. Both

employer and employee appeal.

FACTS AND PROCEDURAL HISTORY:

Employee, David Cross, was employed by Slayter Trucking Companies,

L.L.C. as a truck driver. On January 4, 2013, Cross was delivering a flat-bed truck

loaded with pipe in Arkadelphia, Arkansas. While performing duties within the

course and scope of his employment at the location where the pipe was to be

delivered, Cross’ load of pipe fell from his trailer and on to him. Cross’ injuries

were severe and required multiple surgeries.

Cross had significant care performed at Mercy Medical Center in Hot

Springs, Arkansas. Amongst many treating physicians in Arkansas, he treated with

an orthopedic surgeon, Dr. Chris Young.

After driving back and forth to Arkansas for treatment for some time, Dr.

Young recommended that Cross find physicians closer to his home and referred

Cross to Dr. Michael Dole, a pain management physician in Alexandria, Louisiana.

Dr. Dole referred Cross to Dr. James Quillin, a psychologist, and Dr. Sean Stehr,

for interventional care. Dr. Stehr then referred Cross to Dr. Niels Linschoten, an

orthopedic specialist in Baton Rouge.

Cross requested that letters of financial responsibility be written by Slayter

in order for him to treat with the four physicians. Slayter refused to write the

letters and requested that the treating physicians follow the Louisiana medical

treatment guidelines by submitting a 1010 form. Rather than having the physicians

fill out a 1010 form, Cross simply treated with the Drs. Dole, Quillin, Stehr, and

Linschoten prior to receiving any authorization from Slayter.

Thereafter, Cross sent Slayter a multitude of demand letters that included

copies of medical records from the four physicians. Again, Slayter informed Cross

and the doctors of the necessity of a 1010 form in order for the treatment to get

approved. Despite this information, Cross filed a 1008 form for disputed

compensation on April 17, 2014.

After receiving briefs on the matter and copies of Cross’ medical records

from the four physicians, the WCJ issued a judgment for Cross against Slayter for

$750.00 for treatment with Dr. Dole, $750.00 for treatment with Dr. Quillin,

$750.00 for treatment with Dr. Linschoten, and $325.00 (the total cost for the

treatment) for treatment with Dr. Stehr. The judgment also penalized Slayter

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$2,000.00 for failing to pay up to the $750.00 cap to each of the four physicians,

for a total of $8,000.00. The judgment also awarded Cross attorney’s fees of

$8,500.00. The judgment then denied Cross’ request for payment to EMPI for a

TENS unit, and Cross’ request for payment to Walgreens or any expenses to any

health care provider paid by other insurance. Finally, the WCJ’s judgment stated

that Slayter must pay for Cross’ ongoing medical treatment pursuant to the

Medical Treatment Guidelines, utilization rules and procedures, and medical fee

schedule.

Both Slayter and Cross appeal from this judgment. The assignments of error

follow:

SLAYTER ASSIGNMENTS OF ERROR:

1. The Court erred in awarding medical benefits without holding
claimant to his burden of proof under LSA-R.S. 23:1203(A),
and without requiring a showing or making a finding that any of
the medical benefits awarded were reasonable and necessary as
required under the Louisiana Workers’ Compensation Act.

2. The Court erred in awarding up to $750.00 for medical benefits
previously incurred by the claimant without a showing or
finding under LSA-R.S. 23:1142 and 1203 that the medical
benefits were reasonable and necessary, and without following
the Louisiana Medical Treatment Guidelines.

3. The Court erred in failing to follow the Louisiana Workers’
Compensation Act or properly apply the Medical Treatment
Guidelines, by allowing claimant to recover $750.00 for
medical benefits for each provider when there was no factual or
medical testimony taken, and no benefit of legal presumption
showing that same were reasonable and necessary.

4. The Court compounded the error by awarding penalties and
attorney’s fees totaling $16,500.00 for failure to pay up to
$750.00 per healthcare provider without addressing whether
claimant met his burden of proving that said medical treatment
was reasonable and necessary, whether the treatment met the
Medical Treatment Guidelines of the Louisiana Workers’
Compensation Act, and unfairly penalizing the employer who
never consciously denied any workers’ compensation benefits

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since the inception of this claim and continues to pay same in
accordance with law.

CROSS ASSIGNMENT OF ERROR:

1. The Trial Court committed legal error in failing to order the
defendant liable and financially responsible for all of the
necessary medical expenses, associated penalties and expenses,
and attorney’s fees incurred by Cross despite the record and
evidence proving that the employer/defendant was provided the
requisite information contemplated by the statute.

SLAYER ASSIGNMENT OF ERROR NUMBER ONE:

Slayter contends, in its first assignment of error, that the WCJ erred in

awarding Cross medical benefits without holding him to his burden of proof under

La.R.S. 23:1203(A), and without requiring a showing or making a finding that any

of the medical benefits awarded were reasonable and necessary. We find no merit

to this contention.

“A workers compensation judge’s determination as to the medical necessity

of claimed treatment is a question of fact subject to the manifest error standard of

review.” Easton Pharmacy, Inc. v. Buller, 11-585, p. 6 (La.App. 3 Cir. 11/2/11), 76

So.3d 637, 642-43 (citing Cajun Welding & Machine Co. v. Deville, 03-548

(La.App. 3 Cir. 11/5/03), 858 So.2d 875). Louisiana Revised Statutes

23:1203(A) states:

In every case coming under this Chapter, the employer shall
furnish all necessary drugs, supplies, hospital care and services,
medical and surgical treatment, and any nonmedical treatment
recognized by the laws of this state as legal, and shall utilize such
state, federal, public, or private facilities as will provide the injured
employee with such necessary services. Medical care, services, and
treatment may be provided by out-of-state providers or at out-of-state
facilities when such care, services, and treatment are not reasonably
available within the state or when it can be provided for comparable
costs.

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Under La.R.S. 23:1203(A), the claimant has a burden to prove that the treatment

was reasonable and necessary of a medical condition caused by a work-related

injury. Church Mut. Ins. Co. v. Dardar, 13-2351 (La. 5/7/14), 145 So.3d 271.

In the case before us, Slayter contends that the WCJ erroneously found that

Cross carried his burden to prove that the treatment of Drs. Dole, Quillin, Stehr,

and Lischoten were reasonable and necessary. Slayter argues that there is no

evidence in the record that shows that any of the care and treatment given by these

physicians is actually reasonable and necessary, and causally related to Cross’

January 4, 2013 accident.

Our review of the record indicates that Cross submitted medical records

from each of the four physicians. Within those medical records are the opinions of

the four physicians recommending courses of treatment for Cross’ work-related

injuries. Each of the four physicians specifically reference Cross’ work-related

injury as the cause of Cross’ need for medical treatment. These records were

uncontroverted and provide a reasonable basis for the WCJ to find that Cross

carried his burden to prove that the recommended courses of treatment by Drs.

Dole, Quillin, Stehr, and Lischoten were reasonable, necessary, and causally

related to his January 4, 2013 accident. As such, we find this assignment of error

to be without merit.

SLAYTER ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND

FOUR:

Slayter’s second, third, and fourth assignments of error hinge upon the same

issue as Assignment of Error Number One. In each, the basis of Slayter’s

contention is that the WCJ erred in awarding Cross benefits or penalties and

attorney’s fees without a showing or finding under the Louisiana Workers’

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Compensation Act and under the Louisiana medical treatment guidelines that the

medical benefits were reasonable and necessary.

As cited above, “[a] workers compensation judge’s determination as to the

medical necessity of claimed treatment is a question of fact subject to the manifest

error standard of review.” Easton Pharmacy, Inc., 76 So.3d at 642-43. Louisiana

Revised Statutes 23:1142(B)(1)(a) states, in pertinent part, the following:

“[e]xcept as provided herein, each health care provider may not incur more than a

total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment

without the mutual consent of the payor and the employee as provided by

regulation.”

To reiterate from the above discussion of Slayter’s Assignment of Error

Number One, a reasonable basis exists in the record for the WCJ to find that Cross

carried his burden to prove that the treatments from Drs. Dole, Quillin, Stehr, and

Lischoten were reasonable, necessary, and causally related to Cross’ January 4,

2013 accident. Thus, we will not address Slayter’s repetitive argument that the

WCJ erred in making this finding.

Slayter also argues that the WCJ’s award to Cross of up to $750.00 for each

of the four physicians and the resulting penalties and attorney’s fees were

premature because Cross failed to follow the Louisiana medical treatment

guidelines. While Slayter is correct that it is clear that Cross failed to follow the

Louisiana medical treatment guidelines, it is incorrect that adjudication of the first

$750.00 of claimed benefits by the WCJ was premature.

Louisiana Revised Statutes 23:1142(B)(1)(a) states, in pertinent part,

“[e]xcept as provided herein, each health care provider may not incur more than a

total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment

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without the mutual consent of the payor and the employee as provided by

regulation.” Our reading of La.R.S. 23:1142(B)(1)(a) indicates that the statute is

related to an employer’s financial responsibility, notwithstanding a claimant’s

adherence or lack of adherence to the guidelines. Here, the WCJ correctly found

that Cross was entitled to reimbursement up to that $750.00 cap despite Cross’

failure to follow the medical treatment guidelines. As such, it was not premature

for the WCJ to award Cross up to $750.00 for each of the four physicians.

Finally, we address the propriety of the WCJ assessing Slayter with penalties

and awarding Cross attorney’s fees. Appellate review of whether a payor should

be cast with attorney’s fees and penalties in a workers’ compensation setting is

governed by the manifest error standard. Cannon v. Glass, 00-668 (La.App. 3 Cir.

11/2/00), 776 So.2d 1181. Louisiana Revised Statutes 23:1201(F) states, in

pertinent part, the following:

Except as otherwise provided in this Chapter, failure to provide
payment in accordance with this Section. . . . shall result in the
assessment of a penalty [that] shall not exceed a maximum of two
thousand dollars in the aggregate for any claim. The maximum
amount of penalties which may be imposed at a hearing on the merits
regardless of the number of penalties which might be imposed under
this Section is eight thousand dollars.

The uncontroverted evidence in the record indicates that the reimbursement

requested by Cross, up to the $750.00 cap, for medical treatment was reasonable,

necessary, and causally related to his January 4, 2013 accident. As such, the

WCJ’s decision to penalize Slayter and award Cross attorney’s fees is supported by

the record and not manifestly erroneous.

CROSS ASSIGNMENT OF ERROR NUMBER ONE:

Cross asserts in his sole assignment of error that the WCJ committed legal

error in failing to order Slayter liable and financially responsible for all of the

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necessary medical expenses, associated penalties and expenses, and attorney’s fees

incurred by him because the record and evidence proves that Slayter was provided

the requisite information contemplated by the Louisiana medical treatment

guidelines. This assertion lacks merit.

Generally, in workers’ compensation cases, this court reviews
factual determinations under the manifest error/clearly wrong standard
of review. Turner v. Lexington House, 14-1264 (La.App. 3 Cir.
4/15/15), 176 So.3d 1071, writ denied, 15-952 (La.8/28/15), 176
So.3d 405. Thus, factual findings are reviewed to “determine not
whether the trier of fact was right or wrong, but whether its
conclusion was reasonable.” Id. at 1076. “However, where legal error
interdicts the fact-finding process, the manifest error standard is no
longer appropriate[,] and the appellate court will conduct a de novo
review.” Shailow v. Gulf Coast Soc. Servs., 15-91, p. 4 (La.App. 3 Cir.
6/10/15), 166 So.3d 1239, 1244, writs denied, 15-1336, 15-1355
(La.10/9/15), 178 So.3d 1003 (citing Guillory v. Wal–Mart Stores,
Inc., 01-127 (La.App. 3 Cir. 10/3/01), 796 So.2d 772, writ denied, 01-
2988 (La.1/25/02), 807 So.2d 844).

Prince v. Superior Energy Servs., L.L.C., 15-728, p. 6 (La.App. 3 Cir. 12/16/15),

181 So.3d 961, 966, writ denied, 16-111 (La. 3/4/16), 188 So.3d 1063.

In the case before us, Cross alleges legal error by the WCJ. As such, we will

review the record de novo, despite the scant status of that record.

There is no dispute that the care at issue is nonemergency care. Louisiana

Revised Statutes 23:1142(B)(1)(a) (emphasis added) states, in pertinent part,

“[e]xcept as provided herein, each health care provider may not incur more than a

total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment

without the mutual consent of the payor and the employee as provided by

regulation.”

It is clear from the record that Cross and his treating physicians failed to

follow the current workers’ compensation regulations. They failed to submit a

1010 form. Thus, they also bypassed the process of having to file a 1009 form to

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request medical review of the dispute. Rather, Cross chose to file a 1008 form,

bringing the matter before a WCJ. All of this failure transpired despite indication

in the record and from the WCJ that at least some of Cross’ physicians were aware

that a 1010 form was necessary to begin adjustment of a medical claim for

workers’ compensation. Accordingly, we find no merit to this assignment of error.

DISPOSITION:

Appellant/Employer, Slayter Trucking Companies, L. L. C., raises four

assignments of error, while Appellee/Employee, David Cross, raises a single

assignment of error. We find no merit to any assigned error. As such, we affirm

the workers’ compensation judge’s findings and judgment and assess all costs of

these proceedings to Slayter Trucking Companies, L. L. C.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-98

DAVID PAUL CROSS

VERSUS

SLAYTER TRUCKING COMPANIES, LLC

COOKS, J., concurs in the result.
I am troubled significantly by the increasingly onerous burden placed on

injured workers by Louisiana’s recently enacted Medical Treatment Guidelines. In

this case, the injured worker, despite providing significant and thorough evidence

of his need for medical treatment, has been denied reimbursement for medical

expenses because of his failure to file 1010 forms required by the Medical

Treatment Guidelines. However, the record reflects, as the majority notes, several

of the doctors were aware of the need to file a 1010 form to receive payment for

non-emergency treatment in excess of the $750.00 threshhold. This is an

unfortunate circumstance that signals “the grand bargain” once existing between

the employer and employee for their mutual benefit, is one that should have

displayed a red tag at the time it was struck boldly exclaiming: EMPLOYEES

BEWARE! I am forced to concur.