Jackie White v. Fuel Plus, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 17-125

JACKIE WHITE

VERSUS

FUEL PLUS, LLC, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 16-04242
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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CANDYCE G. PERRET
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AMENDED, AND AS AMENDED, AFFIRMED.

Karen Reiners Winfrey
6031 Dawnridge Court
Baton Rouge, LA 70817
(225) 892-5653
COUNSEL FOR DEFENDANT/APPELLANT:
Fuel Plus Too, LLC
The Louisiana Restaurant Association

Maria A. Losavio
Losavio Law Firm, LLC
1821 MacArthur Drive
Alexandria, LA 71315-2420
(318) 767-9033
COUNSEL FOR PLAINTIFF/APPELLEE:
Jackie White

PERRET, Judge.

In this workers’ compensation case, plaintiff/appellee, Jackie White, was

injured when boiling water and toxic cleaning chemicals spilled on her feet. She

was working for defendant employer, Fuel Plus Too, LLC (“Fuel Plus”).

Thereafter, Ms. White’s treating physician requested authorization for a surgery

involving a bilateral trans metatarsal amputation of her feet, with flaps, inpatient

hospitalization, and treatment. The defendant insurer, the Louisiana Restaurant

Association, hired Novare Utilization Review (“UR”), which recommended

approval of the surgery and treatment, and the defendants initially approved the

request; however, the adjuster rescinded the approval and denied the surgery two

days before the scheduled date. The Workers’ Compensation Administration’s

Medical Director also denied the recommended medical treatment stating that the

“procedure is not covered by the guidelines.” Ms. White appealed this decision to

the Workers’ Compensation Judge (“WCJ”), who, after a hearing, reversed the

decision of the Medical Director and granted authorization for the surgery and

post-operative care. The defendants brought this appeal. For the following

reasons, we affirm the WCJ’s decision and amend the judgment to include an

award of attorney’s fees in the amount of $5,000.00, and a penalty award in the

amount of $2,000.00. We also award additional attorney’s fees of $3,000.00 to Ms.

White for work on this appeal.

FACTS

On January 11, 2016, Ms. White was working for Fuel Plus when she spilled

hot water and chemicals on her feet while cleaning out a cooking fryer that

contained grease. Ms. White alleged injuries to her feet, and her claim was

accepted as compensable by Fuel Plus and its workers’ compensation carrier,

Louisiana Restaurant Association. Thereafter, Ms. White began receiving

indemnity benefits and necessary medical treatment.

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On March 16, 2016, Dr. Darrell Henderson began treating Ms. White for the

chemical and thermal burns on her feet. In April 2016, Dr. Henderson filed a form

1010 with the defendants requesting authorization for Ms. White to undergo a

bilateral metatarsal amputation of her feet, with flaps, and inpatient hospital stay

and treatment thereafter. On April 22, 2016, the defendants’ UR doctor (a licensed

orthopedist) opined that the surgery and post-operative care being recommended

by Dr. Henderson was medically necessary and reasonable and approved the

request. Specifically, the UR approval stated as follows:

In this case, the patient still had hyperextension of the toes at
approximately 45 degrees to 50 degrees. The patient had extreme
pain when trying to flex or extend the toes. Putting pressure on the
metatarsals did not cause much pain, but putting pressure on the top
part of the feet caused pain. The provider has extensively explained
the medical necessity and appropriateness of the requests. The
provider has discussed the seriousness and the possible outcomes of
the surgical plan with rehabilitation. The provider has documented
extensively the plan, possible outcome, and course associated with
this request. The request is supported by the guidelines. Thus, the
request is medically necessary.

However, in May of 2016, the adjuster rescinded the approval and denied the

surgery.

Ms. White timely filed a form 1009 to request a medical review of the claim

with the Office of Workers’ Compensation Administration (“OWCA”). On June

24, 2016, Dr. Jason Picard, the Associate Medical Director,1 denied the medical

treatment due to the procedure’s not being covered by the guidelines. Ms. White

timely filed a form 1008 Disputed Claim for Compensation, seeking to have the

denial reviewed by the WCJ. Thereafter, on October 6, 2016, the WCJ overturned

Dr. Picard’s ruling and ordered the defendants to authorize the surgery.

The defendants now appeal the WCJ’s judgment, arguing the following two

assignments of error: (1) whether the trial judge erred in reviewing the appeal as a

1
Under La.R.S. 23:1203.1, the medical director is a physician who is licensed to practice
medicine in the State of Louisiana and has been chosen by the director of the Office of Workers’
Compensation Administration for settling disputes.

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“variance” from the Louisiana medical reimbursement guidelines; and (2) whether

the trial judge erred in failing to review the appeal as a request for medical benefits

pursuant to the medical guidelines.

Ms. White answered the appeal, asserting as error the trial court’s failure to

award penalties and fees. She argues that she is entitled to penalties and attorney’s

fees for the defendants’ failure to authorize the surgery recommended by Dr.

Henderson and also authorized by their UR doctor. Ms. White further argues that

she is entitled to attorney’s fees as a result of the work necessitated by the

defendants’ appeal.

STANDARD OF REVIEW

“Factual findings in workers’ compensation cases are subject to the manifest

error/clearly wrong standard of review.” Turner v. Lexington House, 14-1264, p.4

(La.App. 3 Cir. 4/15/15), 176 So.3d 1071, 1076 writ denied, 15-952 (La. 8/28/15),

176 So.3d 405. Under this rule, the reviewing court does not decide whether the

WCJ was right or wrong, but only whether its findings are reasonable. Buxton v.

Iowa Police Dep’t., 09-0520 (La. 10/20/09), 23 So.3d 275. “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 Social 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 1002 and 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).

DISCUSSION

The issue before this court is whether the WCJ correctly reversed the

decision of the OWCA Medical Director and ordered defendants to authorize Ms.

White’s request for surgery involving a bilateral trans metatarsal amputation of

feet with flaps, and a ten day stay in the hospital for post-operative care with

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hyperbaric oxygen therapy. The Louisiana Supreme Court, in Church Mutual

Insurance Co. v. Dardar, 13-2351, p. 5 (La. 5/7/14), 145 So.3d 271, 275-76,

addressed the applicability of La.R.S. 23:1203.1, which provides for the adoption

of a medical treatment schedule for use in making medical treatment decisions in

workers’ compensation matters, and stated as follows:

Enacted by the legislature in 2009, La. R.S.
23:1203.1 is the product of a combined endeavor by
employers, insurers, labor, and medical providers to
establish meaningful guidelines for the treatment of
injured workers. 1 DENIS PAUL JUGE, LOUISIANA
WORKERS’ COMPENSATION, § 13:6 (2d ed.2013).
Dissatisfied with a process for obtaining needed medical
treatment that was cumbersome, uncertain and often
fraught with expense, employers and their insurers
perceived a need for guidelines that would assure them
that the treatment recommended by a medical provider
was generally recognized by the medical community as
proper and necessary. Id. In a similar vein, labor and
their medical providers were concerned about the
unreasonable delays regularly encountered in obtaining
approval for treatment when disputes arose as to the
necessity for the treatment and with having a procedure
for obtaining approval for treatment that might vary from
established guidelines. Id. Thus, La. R.S. 23:1203.1 was
enacted with the express intent “that, with the
establishment and enforcement of the medical treatment
schedule, medical and surgical treatment, hospital care,
and other health care provider services shall be delivered
in an efficient and timely manner to injured employees.”
La. R.S. 23:1203.1(L).

The court in Dardar further articulated:

With the express intent of delivering health care
services to injured employees “in an efficient and timely
manner,” La.R.S. 23:1203.1 adopts evidence-based
medicine as the guidepost for assessing whether the
medical care required to be provided under La.R.S.
23:1203 is necessary. To that end, La.R.S. 23:1203.1
requires the promulgation of a medical treatment
schedule, which consists of a list of preauthorized
procedures, administratively developed and approved
according to criteria set forth by the statute. These
preauthorized procedures provide a benefit and
advantage to injured workers and their treatment
providers who are relieved of the burden of
establishing the medical necessity of the

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preauthorized procedures and, at the same time,
impose a clear-cut obligation on employers. By their
terms, La. R.S. 23:1203.1 and the medical treatment
schedule do not exclude any particular care. Instead,
these provisions represent and reflect a rational policy
choice by the legislature to confer authority on the
Director of the OWC, with the assistance of the medical
advisory council and the medical director, to determine in
advance the medical necessity for certain medical care, in
particular circumstances, in order to avoid case-by-case
disputes and variations and to streamline the process.

Id. at 284 (emphasis added) (footnotes omitted).

At the hearing, the WCJ reviewed the UR report and pertinent statutes in

open court and found that Ms. White provided clear and convincing evidence that

she is entitled to the trans metatarsal amputations and that the defendants, and the

OWCA Medical Director erred in denying the request.

On appeal, the defendants merely argue that the WCJ erred in reviewing the

requested medical treatment as one not covered by the guidelines and that the WCJ

“assumed the request was for a variance and ignored the fact that the Form 1010

did not seek a variance from the guidelines.” The defendants further argue that the

WCJ ignored the fact that the ruling by the OWCA Medical Director made no

reference to a request for a variance. Thus, the defendants allege that, because the

appeal of the request was reviewed improperly by the WCJ, his decision to

overturn the OWCA Medical Director is also improper and that the case should be

remanded to the WCJ for a proper review.

Conversely, Ms. White argues that the OWCA Medical Director’s basis of

the denial of the surgery was in error because the Louisiana Medical Treatment

Guidelines specifically contain authorization for amputation of portions of the

lower extremity in Chapter 23, Section 2313, which specifically authorizes

amputation of “non-useful or non-viable portions of the extremity.” Thus, Ms.

White argues that the amputation of the toes is a pre-authorized medical treatment

and that the defendants’ variance argument is a red herring because there is no

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variance required for the surgery. Further, Ms. White argues that even if the post-

operative care, including the ten days of inpatient hospitalization and the

hyperbaric oxygen therapy to increase healing, is not covered under the Louisiana

Medical Treatment Guidelines, the 1009 form promulgated by OWCA does not

require her to check off whether it’s a variance or not.

After a review of the record and the pertinent law, we find no merit in the

defendants’ assignment of error that the WCJ improperly reviewed this appeal as a

“variance” from the procedures allowed by the medical guidelines. Rather, we

find that the WCJ correctly stated his findings that the amputation of the toes is a

recognized evidence-based, pre-authorized medical treatment under the Louisiana

Medical Treatment Guidelines and that although the ten days of inpatient hospital

stay and hyperbaric therapy is not covered under the guidelines, it is covered under

other recognized evidence-based treatment guidelines, such as the Official

Disability Guidelines-Treatment in Workers’ Compensation (referred to as “ODG-

TWC” or “ODG”), which were the basis of the UR doctor’s determination that the

inpatient stay and hyperbaric treatment was medically necessary.

More specifically, La.R.S. 23:1203.1 allows the use of guidelines accepted

by other states as long as they meet the same specific criteria used in promulgating

the Louisiana Medical Treatment Schedule (often referred to as Guidelines).

Louisiana Revised Statutes 23:1203.1 (emphasis added), entitled “Definitions;

medical treatment schedule; medical advisory council,” provides in pertinent part:

C. The schedule shall be developed by the
conscientious, explicit, and judicious use of current best
evidence in making decisions about the care of individual
patients, integrating clinical expertise, which is the
proficiency and judgment that clinicians acquire through
clinical experience and clinical practice, with the best
available external clinical evidence from systematic
research.

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D. The medical treatment schedule shall be based
on guidelines which shall meet all of the following
criteria:

(1) Rely on specified, comprehensive, and ongoing
systematic medical literature review.

(2) Contain published criteria for rating studies and
for determining the overall strength of the medical
evidence, including the size of the sample, whether the
authors and researchers had any financial interest in the
product or service being studied, the design of the study
and identification of any bias, and the statistical
significance of the study.

(3) Are current and the most recent version
produced, which shall mean that documented evidence
can be produced or verified that the guideline was
developed, reviewed, or revised within the previous five
years.

(4) Are interdisciplinary and address the frequency,
duration, intensity, and appropriateness of treatment
procedures and modalities for all disciplines commonly
performing treatment of employment-related injuries and
diseases.

(5) Are, by statute or rule, adopted by any other
state regarding medical treatment for workers’
compensation injuries, diseases, or conditions.

....

I. After the promulgation of the medical treatment
schedule, 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

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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
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 [any]
event, not more than thirty calendar days from the date of
filing.

....

M. (1) With regard to all treatment not covered by
the medical treatment schedule promulgated in
accordance with this Section, all medical care, services,
and treatment shall be in accordance with Subsection D
of this Section.

In this case, the UR report from the professional reviewing company,

Novare Utilization Review, found all of the requested procedures medically

necessary. The medical schedule that it used to review the amputation surgery was

the Louisiana Medical Treatment Schedule discussed above in La.R.S. 23:1203.1.

That schedule is found at Louisiana Administrative Code, Title 40, Part I, Section

2313 (LAC 40.I.2313). The UR quoted the specific language from the Code to

support its approval for the amputations. Thus, no variance was needed for the

surgery.

The UR report stated that the ten-day post-operative hospitalization was not

addressed in Louisiana’s Medical Guidelines. Therefore, the reviewing company

used length-of-stay guidelines for amputations, burns, and skin grafts from the

Official Disability Guidelines, or ODG, quoting specific language and section

numbers approving the requested hospitalization. As for the hyperbaric oxygen

therapy, the UR again relied on the ODG, which stated that this therapy could

improve the healing of wounds. The UR noted that Louisiana’s guidelines, at

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Section 2311, did not recommend the therapy for non-operative lower extremity

fractures. However, there is no evidence that the therapy is not recommended for

serious wounds such as acid-burned feet that require partial amputations.

Therefore, the post-operative hospitalization and the oxygen treatments are

supported by the ODG, and, have not been shown to be disallowed by Louisiana’s

Guidelines, indicating that no variance is required for that care either. Research

reveals that Texas, Hawaii, Illinois, Ohio, California, Arizona, New Mexico,

Indiana, District of Columbia, Oklahoma, and Tennessee 2 have adopted or rely

upon the ODG in determining whether to approve medical treatment, though this

list is not meant to be exhaustive. The most concise excerpt explaining the ODG

states:

A. The Industrial Commission of Arizona (Commission)
has adopted the Work Loss Data Institute’s Official
Disability Guidelines - Treatment in Workers
Compensation (ODG) as the standard reference for
evidence-based medicine used in treating injured workers
within the context of Arizona’s workers’ compensation
system. By adopting and referencing the most recent
edition (at the time of treatment), and continuously
updated Official Disability Guidelines, the Commission
can ensure the latest available medical evidence is used
in making medical treatment decisions for injured
workers.

Ariz. Admin. Code R20-5-1301.

Our research indicates that the ODG satisfies the criteria of La.R.S.

23:1203.1(D) and (M)(1). There is nothing in those paragraphs indicating that a

variance is required if Louisiana guidelines do not address the treatment, and the

guidelines used meet the criteria of the statute. We find that the WCJ correctly

2
For example, see, 28 Tex. Admin. Code § 137.100; 85A Okl.St.Ann. § 16; Tenn. Code Ann. §
56-6-705; Haw. Admin. Code § 12-15-32; Cal. Code Regs. tit. 8, § 9792.20; Ariz.Admin. Code R20-5-
1301; N.M. Admin. Code 11.4.7; and 631 Ind. Admin. Code 1-1-32. See also, Rufina Delgado,
Petitioner v. Sure Staff, Inc., Respondent, 11 IL.W.C. 38020 (Ill. Indus. Com’n 5-3-13), 2013 WL
3381143; State ex rel. Wilson v. Indus. Comm., 11AP-48, (Ohio Ct. App. 1/31/12), 2012 WL 266369; In
the Matter of Latanya M. Walker, Claimant v. Hadley Mem'l Hosp. c/o Specialty Hosps. of Am., &
Chartis Co., Employer/carrier, AHD 11-072, (D.C. Dept. Emp. Srvs. 3/2/12), 2012 WL 1320204.

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reversed the Medical Director’s decision and ordered the defendants to authorize

the medical treatment.

Ms. White argues in her answer to the appeal that an award for penalties and

attorney’s fees is warranted because the defendants did not have sufficient medical

information to reasonably controvert her request for the medical treatment and

failed in their continuing duty to investigate the claim before denying it. We agree.

Louisiana Revised Statutes 23:1201 governs the award of penalties and

attorney’s fees in workers’ compensation cases. The failure to authorize necessary

medical treatment is considered a failure to furnish medical benefits, as required by

La.R.S. 23:1203, and will subject the employer to penalties and attorney’s fees

pursuant to La.R.S. 23:1201(F). However, penalties and attorney’s fees “shall not

apply if the claim is reasonably controverted or if such nonpayment results from

conditions over which the employer or insurer had no control.” La.R.S.

23:1201(F)(2).

Dr. Henderson’s medical records reflect consistent symptoms and reports of

pain and toe disfigurement throughout his treatment of Ms. White. Further,

defendants had in their possession, at the time they denied the surgery, their own

UR doctor’s report that recommended surgery and post-operative care as being

medically necessary and reasonable. There is nothing in the record that reasonably

controverted Ms. White’s request, yet the adjuster denied it nonetheless.

Considering the evidence in the record, the medical opinion of Dr. Henderson, and

defendants own UR doctor’s opinion dated April 22, 2016, finding that the

amputation and inpatient hospital stay with hyperbaric therapy was medically

necessary, we find that Ms. White is entitled to an award for penalties and

attorney’s fees for the defendants’ failure to authorize said surgery and post-

surgery care. Accordingly, we amend the judgment, to include an award for a

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penalty in the amount of $2,000.00, and an award of attorney’s fees in the amount

of $5,000.00.

Ms. White also seeks additional attorney’s fees for this appeal. It is within

the appellate court’s discretion to award or increase attorney’s fees to a workers’

compensation claimant for defending an unsuccessful appeal. Frith v. Riverwood,

Inc., 04-1086 (La. 1/19/05), 892 So.2d 7. Accordingly, we find that an additional

award of $3,000.00 is appropriate to compensate Ms. White’s counsel for work

performed in connection with this appeal.

DECREE

We amend the judgment to include a penalty award of $2,000.00, and an

award for attorney’s fees in the amount of $5,000.00. Further, the judgment is

amended to award Ms. White additional attorney’s fees of $3,000.00 for work

done in the appellate court. The judgment, as amended, is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

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