James Burnett, Sr. v. Village of Esterwood

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-846

JAMES BURNETT, SR.

VERSUS

VILLAGE OF ESTHERWOOD

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF ACADIA, NO. 07-03423
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry,
Judges.

AFFIRMED.

Michael Benny Miller
Attorney at Law
P. O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF-APPELLANT:
James Burnett, Sr.

Christopher Richard Philipp
Attorney at Law
P. O. Box 2369
Lafayette, LA 70502
(337) 235-9478
COUNSEL FOR DEFENDANT-APPELLEE:
Village of Estherwood

PICKETT, Judge.

James Burnett, Sr. appeals the judgment of the workers’ compensation judge

(WCJ) denying his request for treatment by his choice of pain management

physician, denying penalties and attorney fees, and denying prescription

medication to the claimant.

FACTS

Mr. Burnett was injured in the course and scope of his employment with the

Village of Estherwood in May 2006. Mr. Burnett and Estherwood settled his claim

for indemnity benefits, and Estherwood continued paying for certain medical

treatment.

On April 18, 2018, Mr. Burnett filed a Motion and Order to Compel Choice

of Physician and Motion for Penalties and Attorney’s Fees. Mr. Burnett alleged

that his only treating physician was Dr. Daniel Hodges, a pain management

specialist, but that Dr. Hodges released Mr. Burnett on April 30, 2015. Mr.

Burnett then sought treatment with Dr. Michael Haydel, another pain management

physician, but Estherwood would not authorize payment for the treatment. Mr.

Burnett argued that because he was receiving no other medical treatment, the court

should order Estherwood to pay for medical treatment by Dr. Haydel and penalties

and attorney fees for failure to timely pay for the treatment. Mr. Burnett attached

documents showing that Dr. Hodges requested that Mr. Burnett see a different

doctor and a letter from Dr. Haydel dated July 14, 2015 advising that his

appointment had been cancelled because of the failure of Estherwood to authorize

treatment.

Estherwood responded to Mr. Burnett’s motion by denying that Mr. Burnett

was entitled to treatment with Dr. Haydel. Estherwood argued that it was not

reasonable to allow treatment with a third pain management specialist and because

he had a history of misusing prescription medications.

At a hearing on May 31, 2018, Tara Shelton, the claims adjuster for Mr.

Burnett’s case, testified, as did Mr. Burnett. The medical records of Dr. Fraser

Landreneau (who had previously treated Mr. Burnett), Dr. Jyoti Pham, and Dr.

Hodges were introduced. Pharmacy records were also introduced, as well as

correspondence relating to Mr. Burnett’s treatment. The WCJ denied Mr.

Burnett’s motion to compel treatment and for penalties and attorney fees. The

WCJ did note that Mr. Burnett could seek medical treatment with a physician at

Estherwood’s expense, but that Estherwood is not required to pay for any

prescription medication. Mr. Burnett now appeals the judgment of the trial court.

ASSIGNMENTS OF ERROR

On appeal, Mr. Burnett asserts three assignments of error:

1. The workers’ compensation judge erred in terminating Mr. Burnett’s
prescription medication, as the issue was not before the workers’
compensation judge or authorized by law.

2. It was error for the workers’ compensation judge to fail to order the
Village of Estherwood to provide medical treatment by Dr. Haydel.

3. The workers’ compensation judge erred in failing to award penalties
and attorney fees.

DISCUSSION

Louisiana Revised Statutes 23:1121(B)(1) allows a claimant an initial choice

of treating physician in a specialty. It also states, “After his initial choice the

employee shall obtain prior consent from the employer or his workers’

compensation carrier for a change of treating physician within that same field or

specialty.” Id. “[F]ailure to consent to the employee’s request to select a treating

physician or change physicians when such consent is required by R.S. 23:1121

shall result in the assessment of a penalty . . . together with reasonable attorney
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fees for each disputed claim[.]” La.R.S. 23:1201(F). However, the employer is

not liable for penalties if the claim is reasonably controverted. La.R.S.

23:1201(F)(2). An employer is also subject to a penalty if it is found that

discontinuance of payment of claims is arbitrary, capricious, and without probable

cause. La.R.S. 23:1201(I). This court reviews the WCJ’s factual findings on

appeal pursuant to the manifest error -- clearly wrong standard. Poissenot v. St.

Bernard Par. Sheriff’s Office, 09-2793 (La. 1/9/11), 56 So.3d 170.

Mr. Burnett testified that as a result of his workplace accident, he suffered

nerve damage to his left foot, left knee, left shoulder, right shoulder, and his neck

and back. He was confined to a wheelchair because he could not use his legs as a

result of nerve damage and broken bones. Estherwood stopped paying for his

prescription medications in July 2015. Mr. Burnett testified that he had last been

treated by a physician about a month before the hearing and that physician

prescribed Percocet and Soma. He paid for the services rendered by that physician

and the prescriptions with Medicare and his supplemental insurance. He stopped

seeing that doctor when the clinic at Lafayette General Hospital closed his office.

He did not submit the charges to his workers’ compensation carrier for

reimbursement. While Mr. Burnett did consult with Dr. Haydel, he never was

treated by Dr. Haydel because he could not afford the drug test Dr. Haydel

required.

Ms. Shelton testified that Mr. Burnett had presented no requests to her to pay

for medical treatment or prescriptions. Dr. Haydel wrote a letter on July 14, 2015,

indicating that he cancelled Mr. Burnett’s initial visit because Ms. Shelton failed to

authorize payment by workers’ compensation. Ms. Shelton did not recall the dates

of that letter, but indicated she denied the request because Dr. Haydel was Mr.

Burnett’s third choice of pain management physician. She also testified that she
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refused to approve treatment with Dr. Haydel because he failed drug screens with

both Dr. Pham and Dr. Hodges.

Mr. Burnett, through his attorney, sent a notification that he intended to

choose Dr. Haydel to be his pain management doctor by letter dated October 9,

2017. In response, Ms. Shelton sent a fax to Dr. Haydel which stated:

It is my understanding that Mr. James Burnett is choosing to see Dr.
Haydel for pain management. I was notified thru Mr. Burnett’s
attorney, Michael Miller, of this choice. Mr. Burnett has previously
treated with Dr. Pham at Neuromedical Center in Baton Rouge and
Dr. Daniel Hodges in Lafayette for pain management. Mr. Burnett
last treated with Dr. Hodges in July 2015 and was discharged for
failing a UDS [urine drug screen], negative for prescribed
medications. Mr. Burnett was discharged from Dr. Pham due to a
found substance in his urine test. It was reported by Mr. Miller via a
letter to the attorney representing the Village of Estherwood and RMI,
Christopher Philipps. If Dr. Haydel elects to accept Mr. Burnett as a
patient, I can have the records copied and sent to him. Also, if Mr.
Burnett is going to start treating with Dr. Haydel, I am requesting that
a UDS be completed on each visit.

Estherwood introduced into the record the medical records of Dr. Jyoti

Pham, the first pain management specialist who treated Mr. Burnett. Those

records indicate Dr. Pham released Mr. Burnett from care on October 10, 2014

after routine drug screenings indicated that Mr. Burnett, on three separate

occasions, either took medication not prescribed by Dr. Pham or failed to take the

medication prescribed. Estherwood also introduced the records of Dr. Hodges,

which indicated that Dr. Hodges discharged Mr. Burnett from his care on July 23,

2015, because a drug test revealed he was not taking the medication prescribed by

Dr. Hodges. The records also reflect that Dr. Hodges released Mr. Burnett from

his care on April 30, 2015, because he believed he was “a long-term drug seeker.”

Estherwood also introduced the records of Dr. John Williams, which indicate that

in July 2017, Mr. Burnett was prescribed Percocet and Soma, despite not having an

employer-provided pain management specialist. Finally, Estherwood attached

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pharmacy records indicating Mr. Burnett filled prescriptions for Oxycodone on

March 25 and April 25, 2015, but tested negative for opiates in Dr. Hodges’ office

on April 30, 2015.

The record presented by Estherwood supports the WCJ’s finding that Mr.

Burnett was found by his first two choices of pain management specialists to have

misused prescription medications. Having determined that there is no manifest

error in that determination, we turn to the assignments of error raised by Mr.

Burnett, which concern the legal ramifications of that finding.

In his first assignment of error, Mr. Burnett argues that the WCJ erred by not

requiring Estherwood to pay for any prescription medication because that relief

was not sought by any party. To support that argument, Mr. Burnett cites several

cases for the proposition that issues not raised in the pleadings in the trial court

cannot be the subject of a judgment in the court. First, he cites Graham v. Jones

Brothers Co., 412 So.2d 675 (La.App. 2 Cir.1982), where the court of appeal held

that a workers’ compensation claimant could not be awarded penalties and attorney

fees because he had not asked for that relief in his pleadings. The supreme court,

though, reversed the second circuit, finding that the pleadings were sufficiently

broad to encompass a demand for penalties and attorney fees. Graham v. Jones

Bros. Co., 415 So.2d 938 (La.1982).

In Leland v. Lafayette Insurance Co., 13-476 (La.App. 3 Cir. 11/6/13), 124

So.3d 1225, writ denied, 13-2814 (La. 2/14/14), 132 So.3d 967, the trial court

ordered the defendant to pay three outstanding checks within fifteen days or suffer

an interest penalty. These three checks had never been negotiated and were

introduced as evidence in the suit record. The court of appeal found that the

plaintiff did not ask for that specific relief in his pleadings, so it was error for the

trial court to award it. In Succession of Winters, 02-961 (La.App. 3 Cir. 2/5/03),
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837 So.2d 1287, the trial court found that in a claim for filiation, a reimbursement

claim not raised in the trial court could not be properly raised on appeal. In

Concordia Bank & Trust Co. v. Webber, 548 So.2d 61 (La.App. 3 Cir. 1989), a

bank sought a writ of mandamus directed to the clerk of court requiring him to

modify a mortgage certificate. The mortgage certificate included an encumbrance

against a party that had a name similar to, but not necessarily the same as, the

parties in whose names the certificate was run. The court of appeal found the trial

court erred in issuing the writ of mandamus because the clerk exercised his lawful

discretion in choosing what to include on the mortgage certificate, and a writ of

mandamus can only be issued to force a public officer to perform a ministerial act.

The court of appeal noted that a remedy exists for failure to include an

encumbrance on a mortgage certificate, but that issue was not pled in the trial

court. In Mix v. Krewe of Petronius, 95-1793 (La.App. 4 Cir. 5/22/96), 675 So.2d

792, the trial court found that the Krewe of Petronius had agreed to indemnify and

hold harmless the city of New Orleans. The court of appeal held that New Orleans

failed to assert its right for indemnification in the proceeding below, and thus the

trial court erred in granting that relief.

We find that Mr. Burnett’s motion seeking medical treatment with Dr.

Haydel is sufficiently broad to allow the WCJ the latitude to grant only partial

relief. The trial court’s judgment allows Mr. Burnett to be treated by a physician,

including a pain management physician. The judgment does limit the treatment by

not requiring Estherwood to pay for prescription medication at this time. In light

of our determination that the trial court did not err in finding that Mr. Burnett has a

history of misusing pain medications, we find the relief granted by the WCJ is

reasonably tailored to address the concerns raised in this case.

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In his second assignment of error, Mr. Burnett argues that the WCJ erred in

not specifically ordering Estherwood to pay for treatment with Dr. Haydel. The

operative language of the judgment signed by the WCJ states (italicized text

appears in the original in the WCJ’s handwriting):

1.
The Motion and Order to Compel Choice of Physician is
denied, except as specified in paragraph 3, below.

2.
The Motion for Penalties and Attorney Fees is denied.

3.
The employee is entitled to medical treatment by a physician,
including a pain management physician, but the employer is not
required to pay for any prescription medication at this time.

We find the judgment does not preclude treatment by Dr. Haydel, and therefore

this assignment of error lacks merit.

In his final assignment of error, Mr. Burnett claims the WCJ erred in failing

to award penalties and attorney fees. Estherwood argues that it reasonably

controverted Mr. Burnett’s claim that medical treatment with Dr. Haydel was

medically necessary, given his history of misuse of medication, particularly the

fact that he filled prescriptions issued by Dr. Hodges but failed to have that

medication in his system when tested.

We note that while the issue of treatment with Dr. Haydel was initially

raised to the trial court in 2015, the case was continued and not pursued by Mr.

Burnett while he was able to get pain medication from Dr. Williams. When Dr.

Williams’s office closed, Mr. Burnett, who did not seek reimbursement from

Estherwood for his treatment with Dr. Williams, again sought approval for

treatment with Dr. Haydel. The fax sent by Ms. Shelton indicates Estherwood

approved treatment by Dr. Haydel but sought to inform Dr. Haydel about Mr.

Burnett’s medical history specifically as it related to misuse of prescription
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medication while under the care of his previous pain management physicians. Ms.

Shelton’s fax also requests regular drug screens. There is nothing in the record to

show why Mr. Burnett failed to see Dr. Haydel after the October 12, 2017 fax and

before the April 18 motion by Mr. Burnett was filed.

To support his claim that penalties and attorney fees are warranted, Mr.

Burnett cites Lamartiniere v. Boise Cascade Corp., 13-1075 (La.App. 3 Cir.

4/9/14), 137 So.3d 119, writ granted in part and rev’d on other grounds, 14-1195

(La. 10/24/14), 149 So.3d 1234, and Dubuisson v. Amclyde Engineered Products

Co., Inc., 12-10 (La.App. 1 Cir. 12/31/12), 112 So.3d 891.

In Dubuisson, the claimant’s treating physician dismissed him because he

took a Xanax that the physician had prescribed but later discontinued, and Valium

given to him by a friend. At about the same time, the physician became ill and

closed his practice. The evidence showed that the claimant still needed the

services of a pain management physician, and the court of appeal upheld the

judgment of the WCJ ordering the employer to pay for the claimant’s second

choice of pain management physician. In Lamartiniere, the claimant tested

positive for cocaine. The claimant denied use of cocaine. The claimant’s choice

of physician testified that he had reached maximum improvement from a pain

management standpoint, but the doctor stated in his note discharging the claimant

that he needed to remain under the care of a physician. This court held that the

WCJ did not commit manifest error in ordering the employer to pay for a new pain

management specialist, given the contradictory evidence about the claimant’s

medical condition.

While the WCJ allowed the change of physician in both cases, in neither of

these cases did the WCJ award penalties and attorney fees because of the

employers’ failure to approve the change of physician. We find that the WCJ did
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not err in this case in finding that Estherwood reasonably controverted the claim

(La.R.S. 23:1201(F)) of Mr. Burnett and was not arbitrary and capricious in

denying the claim (La.R.S. 23:1201(I)).

CONCLUSION

The judgment of the WCJ is affirmed. Costs of this appeal are assessed to

Mr. Burnett.

AFFIRMED.

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