Lonnie Harper v. Boise Paper Holdings, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 17-602

LONNIE HARPER

VERSUS

BOISE PAPER HOLDINGS, LLC, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 16-03317
ANTHONY PAUL PALERMO, WORKERS COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

REVERSED AND RENDERED.

Thomas E. Townsley
711 Pujo Street
Lake Charles, LA 70601
(337) 430-0994
COUNSEL FOR PLAINTIFF/APPELLANT:
Lonnie Harper

Charles William Farr
1966 N. Highway 190, Suite B
Covington, LA 70433
(985) 626-3812
COUNSEL FOR DEFENDANTS/APPELLEES:
Boise Paper Holdings, LLC
Sedgwick Claims Management Services, Inc.

EZELL, Judge.

Lonnie Harper appeals the decision of the workers‟ compensation judge

below holding that he failed to prove that a radio-frequency ablation procedure

ordered by his doctor was in accordance with Louisiana‟s workers‟ compensation

medical treatment guidelines (MTG). For the following reasons, we hereby

reverse the decision of the workers‟ compensation judge and render judgment.

Mr. Harper was working at Boise Paper Holdings on August 6, 2012, when

he was struck in the face with a large pry bar. He was rendered unconscious and

airlifted to Lake Charles for treatment for his injuries. Mr. Harper began having

severe headaches radiating from the back of his neck to the side of his head. He

was eventually diagnosed as having occipital neuralgia and had several nerve

blocks to alleviate his pain. Mr. Harper filed a workers‟ compensation dispute

against Boise, seeking to have an occipital nerve stimulator implanted as a longer

term solution to his pain than frequent nerve block injections. A prior workers‟

compensation judge found that he had suffered a workplace injury, that the injury

caused him to suffer occipital neuralgia, and found that he was entitled to receive

the nerve stimulator, as well as penalties and attorney fees for Boise‟s refusal to

allow the procedure.

After the stimulator was implanted, Mr. Harper developed a severe infection

which necessitated its removal. Leery of again undergoing surgery for a stimulator

implant, Mr. Harper sought alternative treatment. He was referred to Dr. Sanjiv

Jindia. Dr. Jindia gave Mr. Harper another nerve block but recommended a radio-

frequency (hereinafter “RF”) ablation procedure for longer-term pain relief. Dr.

Jindia requested approval for the procedure but was denied by Boise. This

decision was appealed to the medical director, who likewise denied the claim,

finding it not to be in line with the MTG. Mr. Harper appealed that decision to the

workers‟ compensation judge below, who found that he had not proved by clear

and convincing evidence that the medical director‟s decision was incorrect. The

workers‟ compensation judge denied his request for the RF procedure, as well as

his claims for penalties and attorney fees, and dismissed his claims with prejudice.

From that decision, Mr. Harper appeals.

On appeal, Mr. Harper asserts two assignments of error. He claims that the

workers‟ compensation judge erred in not granting his treating physician‟s

recommendation for the RF ablation, and that the workers‟ compensation judge

erred in denying his claims for penalties and attorney fees. We agree.

An employer‟s obligation to furnish medical treatment to its
injured employee is governed by La. R.S. 23:1201, et seq. In Church
Mut. Ins. Co. v. Dardar, 13-2351 (La.5/7/14), 145 So.3d 271, the
Louisiana Supreme Court discussed the creation of the MTG and
stated:

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. 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. 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. 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.”

(Internal citations omitted).

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La. R.S. 23:1203(A) states in part:

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.

Black v. CenturyLink, 50, 572, pp. 5-6 (La.App. 2 Cir. 4/13/16), 195 So.3d 28, 31,

writ denied, 16-905 (La. 9/6/16), 204 So.3d 1000.

A workers‟ compensation judge may overturn the decision of the medical

director if it is shown by clear and convincing evidence that the decision was not in

accordance with the provisions of La.R.S. 23:1201, La.R.S. 23:1201.1, and La.R.S.

23:1203.1(K). The decision of the workers‟ compensation judge is subject to

review under the manifestly erroneous/clearly wrong standard. Vital v. Landmark

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

However, as discussed by this court in Simmons v. LUBA Workers’ Comp.,

16-523, p. 3 (La.App. 3 Cir. 11/2/16), 206 So.3d 397, 401-02:

When an error of law is alleged on appeal, the appellate court
must determine whether the WCJ‟s ruling was legally correct.
Edwards v. Ford Motor Co., 06-101 (La.App. 3 Cir. 6/21/06), 934
So.2d 221, writ denied, 06-1847 (La. 10/27/06), 939 So.2d 1282. If
the appellate court‟s review reveals a reversible error of law, it must
conduct a de novo review of the record and render judgment on the
merits if possible. Bridges v. Nelson Indus. Steam Co., 15-1439 (La.
5/3/16), 190 So.3d 276. “A legal error occurs when a trial court
applies incorrect principles of law and such errors are prejudicial.”
Evans v. Lungrin, 97-541, 97-577, p. 7 (La. 2/6/98), 708 So.2d 731,
735. Such “errors are prejudicial when they materially affect the
outcome and deprive a party of substantial rights.” Id.

Both the medical director and the workers‟ compensation judge found that

RF ablation was not covered by the guidelines and that Mr. Harper would need a

variance under La.R.S. 23:1203.1(M). We disagree, as we find the procedure is

covered by the MTG as written. The relevant medical treatment guidelines

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concerning cervical injuries are found at Louisiana Administrative Code Title 40 Pt.

I, § 2003 through § 2011. Section 2009(G)(3)(f), dealing with non-operative

therapeutic procedures, states, in relevant part:

f. Occipital Nerve Block

i. Description. Occipital nerve blocks are generally accepted
injections used both diagnostically and therapeutically in the treatment
of occipital neuralgia. The greater occipital nerve is the target.

ii. Indications. Diagnosis and treatment of occipital
neuralgia/cephalgia. Peripheral block of the greater occipital nerve
may be appropriate as initial treatment. It may be indicated in patients
unresponsive to peripheral nerve block or those patients in need of
additional diagnostic information.

A plain reading of this section dealing with occipital neuralgia indicates that the

injury is and should be treated under the guidelines dealing with cervical injuries.

The immediately preceding section, 40 La.Admin.Code Pt. I, § 2009(G)(3)(e),

deals specifically with RF ablation and states, in pertinent part (emphasis ours):

e. Radio Frequency (RF) Medial Branch Neurotomy/ Facet
Rhizotomy

i. Description. A procedure designed to denervate the facet joint
by ablating the corresponding sensory medial branches. Continuous
percutaneous radio-frequency is the method generally used.

ii. There is good evidence to support this procedure in the
cervical spine but benefits beyond one year are not yet established.
Radio-frequency medial branch neurotomy is the procedure of choice
over alcohol, phenol, or cryoablation. Precise positioning of the probe
under fluoroscopic guidance is required since the maximum effective
diameter of the device is a 5 x 8 millimeter oval. Permanent images
should be recorded to verify placement of the device.

iii. Indications. Those patients with proven, significant,
facetogenic pain. This procedure is not recommended for patients with
multiple pain generators or involvement of more than three medial
branch nerves.

Additionally, 40 La.Admin.Code Pt. I, § 2021(H)(3)(f), dealing with lumbar

injuries notes (emphasis ours): “There is good evidence to support Radio

Frequency Medial Branch Neurotomy in the cervical spine but benefits beyond
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one year are not yet established. Evidence in the lumbar spine is conflicting;

however, the procedure is generally accepted.” Radio-Frequency rhizotomy is

further discussed in 40 La.Admin.Code Pt. I, § 2113(A)(5), which again states that

“[t]here is good evidence to support this procedure for the cervical spine.”

The case sub judice presents the very type of dispute that the MTG were

designed to prevent. See Black, 195 So.3d 28. That Mr. Harper has occipital

neuralgia is not only uncontested, but it is the settled law of this case. A simple

reading of the sections above plainly show that RF ablation is an accepted

procedure under the MTG for cervical injuries, of which occipital neuralgia is one.

40 La.Admin.Code Pt. I, § 2009(G)(3)(f). Boise‟s own evidence noted that

“[c]ompression and injury of the occipital nerves within the muscles of the neck

and compression of the second and third cervical nerve roots are generally felt to

be responsible for the symptoms” of occipital neuralgia. Moreover, Dr. Erich Wolf,

Mr. Harper‟s treating neurologist, testified that the most likely site of the injury to

Mr. Harper‟s occipital nerve was at the base of the skull, where “the nerve pierces

through the cervical fascia. . . . at the junction of the head and the neck.” 1

Although the MTG do not specifically include RF ablation as a non-

operative therapeutic procedure for patients with occipital neuralgia directly, the

MTG specifically list “Radio Frequency (RF) Medial Branch Neurotomy/ Facet

Rhizotomy” as an authorized and generally accepted treatment for cervical spine

injuries. 40 La.Admin.Code Pt. I, § 2009(G)(3)(e). As occipital neuralgia is

specifically discussed under those same guidelines as being a cervical spine injury,

it is patently obvious that RF ablation would be an accepted treatment for that

injury. Therefore, the workers‟ compensation judge erred in not finding that the

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Dr. Wolf also testified that RF ablation was one of the “more modern techniques” to
treat occipital neuralgia.

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MTG authorized the prescription of the RF ablation to treat Mr. Harper‟s pain

caused by occipital neuralgia. The decision of the workers‟ compensation judge

denying Mr. Harper the RF ablation procedure prescribed by his doctors is,

accordingly, reversed.

Mr. Harper next claims that the workers‟ compensation judge erred in failing

to award penalties and attorney fees for Boise‟s denial of the RF ablation

procedure.

An award of attorney fees and penalties is reviewed for
manifest error. Baullion v. Old Am. Pottery Co., 01-0562 (La.App. 3
Cir. 11/21/01), 801 So.2d 567. Thus, we review the record to
determine not whether the WCJ was wrong, but rather whether the
record, as a whole, reveals a reasonable basis for the WCJ‟s ruling.
Spikes v. Louisiana Commerce & Trade Ass’n, 13–919 (La.App. 3 Cir.
7/2/14), 161 So.3d 755.

Louisiana Revised Statutes 23:1203(A) requires an employer to
furnish an injured worker with “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.” “It is well
settled that the failure to authorize or pay for medical treatment
equates to the failure to furnish benefits, which can subject an
employer to penalties and attorney fees.” Romero v. Garan’s, Inc., 13-
482, p. 3 (La.App. 3 Cir. 8/6/14), 145 So.3d 1120, 1122.

The court in Watson v. Amite Milling Co., 560
So.2d 902, 906 (La.App. 1 Cir.), writ denied, 567 So.2d
614 (La.1990) (quoting Hall v. McDonald, 537 So.2d
328, 332 (La.App. 1 Cir.1988)), observed:

[G]iven the facts, medical and otherwise,
known to the employer or his insurer, did
the employer or insurer have a reasonable
basis to believe that medical expenses and
compensation benefits were not due the
employee. Stated another way, did the
employer or his insurer have sufficient
factual and medical information to
reasonably counter the factual and medical
information presented by the claimant.

(Emphasis added).

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An award of penalties and attorney fees depends
on the facts known to the employer at the time of its
action. Workers‟ compensation law provides that an
employer may reasonably controvert a disputed claim for
medical benefits. La.R.S. 23:1201(F)(2). An “employer
must rely on competent medical advice when the decision
to deny medical treatment is made.” Harrington v.
Coastal Constr. & Eng’g, 96-681, p. 3 (La.App. 3 Cir.
12/11/96); 685 So.2d 457, 459, writ denied, 97-0109
(La.3/7/97); 689 So.2d 1375. Further, while we agree
with Harrington, we note that lay evidence is equally
compelling in a determination of the need for medical
treatment.

Baullion, 801 So.2d at 576–77 (emphasis in original). “To avoid
penalties and attorney[‟]s fees for the nonpayment of benefits, the
employer or insurer is under a continuing duty to investigate, to
assemble, and to assess factual information before denying benefits.”
George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d
1200, 1209, overruled on other grounds, Smith v. Quarles Co., 04-179
(La.10/29/04), 885 So.2d 562.

....

Finally, while a panel of this court concluded that “[a]n
employer is entitled to rely upon the decision of the medical director
that any treatment proposed is beyond the scope of the [Medical
Treatment Guidelines].” Vital v. Landmark of Lake Charles, 13-842,
pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1017, 1020, we disagree.
We find such an interpretation to be a departure from the long-
standing jurisprudence requiring that an “employer must rely on
competent medical advice when the decision to deny medical
treatment is made.” Baullion, 801 So.2d at 576-77.; E.g. Vital v.
Landmark of Lake Charles, 13–842 (La.App. 3 Cir. 2/12/14), 153
So.3d 1017 (Cooks, Judge, concurring); Harrington v. Coastal Constr.
& Eng’g, 96-681, p. 3 (La.App. 3 Cir. 12/11/96); 685 So.2d 457, 459,
writ denied, 97-0109 La.3/7/97); 689 So.2d 1375; Benandi v.
Louisiana Pac. Corp., 00-21 (La.App. 3 Cir. 5/3/00), 760 So.2d 544,
547, writ denied, 00-1560 (La.9/15/00), 768 So.2d 1279.
Consequently, we decline to adopt such a drastic departure from well-
established jurisprudence.

Ardoin v. Calcasieu Parish Sch. Bd., 15-814, pp. 3-7 (La.App. 3 Cir. 2/3/16), 184

So.3d 896, 899-901, writ denied, 16-641 (La. 5/27/16), 192 So.3d 738 (alterations

in original).

The utilization review Boise relied on in denying Mr. Harper‟s claim stated

that an RF ablation procedure “is not medically indicated in general” and that the
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„“pulsed‟ RFA . . . is not approved or indicated according to current medical

literature.” This review is in blatant contrast to the MTG, as discussed above,

which notes that the procedure is generally accepted in treating cervical injuries.

We find that this utilization review opinion did not constitute competent medical

evidence to deny the claim. Moreover, this is in contrast with the opinions of Mr.

Harper‟s treating physicians, who both testified that the procedure was an

appropriate treatment for occipital neuralgia. Boise, who has fought treatment of

Mr. Harper‟s neuralgia at every turn, failed in its duty to investigate, assemble, and

assess factual information before denying benefits. Therefore, the workers‟

compensation judge erred in failing to assess Boise penalties and attorney fees.

We hereby render judgment awarding Mr. Harper penalties in the amount of

$2,000.00 and attorney fees in the amount of $7,500.00.

Mr. Harper also seeks further attorney fees for work done on this appeal. We

conclude that an additional award of $2,500 is appropriate to compensate Mr.

Harper‟s counsel for his for the successful prosecution of this appeal.

For the above reasons, the decision of the workers‟ compensation judge is

hereby reversed. We render judgment ordering Boise to approve the RF ablation

procedure prescribed by Mr. Harper‟s doctor. We further render judgment to

award Lonnie Harper $2,000.00 in penalties and $7,500.00 in attorney fees for

work done at trial, plus an additional $2,500.00 for attorney fees for work done on

appeal, for a total attorney fees award of $10,000.00. Costs of this appeal, the

costs of the expert fee of Dr. Jindia, and the transcript charge for the deposition of

Dr. Jindia are hereby assessed against Boise Paper Holdings, LLC and Sedgwick

Claims Management Services, Inc.

REVERSED AND RENDERED.

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