Cheryl A. McCain v. Motel 6

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-653

CHERYL A. MCCAIN

VERSUS

MOTEL 6

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 19-01839
DIANNE M. MAYO, WORKERS’ COMPENSATION JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and John E. Conery,
Judges.

AFFIRMED.

Andres Gomez
Allen & Gooch
Post Office Box 81129
Lafayette, Louisiana 70598-1129
(337) 291-1000
COUNSEL FOR DEFENDANTS/APPELLANTS:
G6 Hospitality, LLC d/b/a Motel 6
Liberty Mutual Insurance Company

Thomas E. Townsley
Attorney at Law
711 Pujo Street
Lake Charles, Louisiana 70601
(337) 430-0994
COUNSEL FOR CLAIMANT/APPELLEE:
Cheryl A. McCain

CONERY, Judge.

G6 Hospitality d/b/a Motel 6 (Motel 6), and Liberty Mutual Insurance

Company (Liberty Mutual) appeal the ruling of the Workers’ Compensation Judge

(WCJ), which overturned the decision of the Medical Director, and approved a walk-

in tub for the claimant, Cheryl McCain. The WCJ awarded $2,000.00 in penalties

to Mrs. McCain, and $5,000.00 in attorney fees for the arbitrary and capricious

handling of the claim against Motel 6 and Liberty Mutual. For the following reasons,

we affirm.

FACTS AND PROCEDURAL HISTORY

Mrs. McCain was an employee of Motel 6 on January 29, 2013, when she was

injured after being bitten on the knee by a large dog. The bite developed into a

complex regional pain syndrome for which she is being treated by Dr. Fayez

Shamieh, a neurologist.

During Dr. Shamieh’s discussions with Mrs. McCain and her husband, it came

to light that she was having difficulty with her hygiene. Due to her injury, she

cannot stand in the shower, and Mrs. McCain has a difficult time getting in and out

of the bathtub. Mrs. McCain’s husband has assisted her in the past, but he has

undergone shoulder surgery, and can no longer safely assist her. Mrs. McCain and

her husband testified that she has had to be taken to the Lake Charles Emergency

Room on three or four occasions to be treated for injuries received in falls in her

bathtub.

Mrs. McCain contends she is entitled to maintain personal hygiene and the

walk-in tub will allow her to safely do so. She claims she is entitled to be self-

sufficient in her ability to bathe herself. Her treating physician, Dr. Shamieh,

recommended a combination walk-in tub/shower chair and deemed both to be

medically necessary due to Mrs. McCain’s weight and the lack of help her husband

can provide. On January 29, 2019, Dr. Shamieh submitted by facsimile an LWC-

WC-1010 Form to Liberty Mutual, Motel 6’s workers’ compensation insurer,

requesting the walk-in tub. In his evaluation, which was attached to the LWC-WC-

1010 Form, Dr. Shamieh stated:

I recommend for her a walk in tub because she is heavy[,] and her
husband cannot help her. It would be of more help if she would have a
combination of the walk in tub as well as shower chair so she can be
able to shower and both of them are medically necessary.”1

(Emphasis added.)

Liberty Mutual’s internal medical physician, Dr. Pavan Malur, conducted a

Utilization Review (UR) on February 1, 2019. Dr. Malur reviewed all the medical

records for Mrs. McCain and approved the walk-in tub, also on February 1,

2019. The recommendation of a shower chair by Dr. Shamieh was not part of Dr.

Malur’s UR review. Dr. Malur concluded, “[T]herefore, the request for a walk-

in tub due to bilateral leg pain and swelling is medically necessary and given

approval.” (Emphasis added.)

Despite Dr. Malur’s approval of the walk-in tub as medically necessary given

Mrs. McCain’s condition, the approval by Liberty Mutual for the walk-in tub was

only for a rental of three months. On February 5, 2019, Liberty Mutual issued a

conditional approval of Dr. Shamieh’s recommendation for the walk-in tub as

follows, “Approval with Modification...TREATMENT/SERVICE REQUEST:

Walk in tub purchase due to bilateral leg pain and swelling approval with

modification to 3 month rental.”

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The record is not clear as to whether Mrs. McCain had a shower separate from her bathtub
in her home. If not, it is likewise unclear how a “shower chair” would be of any assistance as a
walk-in tub already has a built in seat.

2

Ms. Darlene Keen, who is employed by Mrs. McCain’s counsel, testified that

she made an intensive investigation of the availability of the rental of a walk-in tub,

as required by Liberty Mutual. Ms. Keen testified at the hearing:

I called numerous vendors. I called everyone that’s listed in Calcasieu
Parish. I thought maybe because Calcasieu is so small, the towns, I
tried Houston; I tried Dallas. I ended up with a gentleman from
Chicago that was a specialist in these; and they all told me that, due to
the plumbing issues, they could not rent these machines out.

After informing defense counsel that it was impossible to rent the walk-in tub

as required by the Liberty Mutual decision modifying the request for the walk-in tub

to a rental, Ms. Keen testified that defense counsel responded, he would “see what

we can do.” However, he later called her back and said, “Darlene, you are going to

have to file an appeal.”

On February 20, 2019, Mrs. McCain’s LWC-WC FORM 1009 Disputed

Claim for Medical Treatment was submitted to the Medical Director for review. On

March 19, 2019, the Medical Director issued a “Medical Guidelines Dispute

Decision,” which stated, “Reviewed Services: Walk In Tub…Decision:

DENIED.”

The Medical Director’s Decision further stated, “All records submitted were

reviewed. The documentation submitted does not support the approval of the

requested services in review for compliance with the Medical Treatment Schedule.”

Additionally, the Decision stated, “The MTG notes the following specific to this

request: This is not allowable anywhere in the guidelines.” (Emphasis added.)

The Medical Director’s Decision failed to discuss the central issue that despite

the fact that both Mrs. McCain’s treating physician and Liberty Mutual’s UR

physician had deemed the walk-in tub medically necessary, approval had only been

given for a three month rental, but not the purchase of the walk-in tub.

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In response to the Medical Director’s Denial of Mrs. McCain’s request for a

walk-in tub, on March 22, 2019, her counsel filed a Form LWC-WC-1008 Disputed

Claim for Compensation, pursuant to La.R.S. 23:1203.1(J), naming Motel 6 and

Liberty Mutual as defendants and seeking judicial review by the WCJ of the Medical

Director’s denial of the walk-in tub for Mrs. McCain.

A hearing was held before the WCJ on April 24, 2019. The only issue before

the WCJ was the denial by the Medical Director of the walk-in tub to Mrs. McCain.

Testimony was taken from Mr. and Mrs. McCain, who explained the problems Mrs.

McCain was experiencing with her inability to be self-sufficient in her daily hygiene

routine, and the injuries she suffered as a result of her inability to enter and exit the

bathtub in their home safely. As previously discussed, Ms. Keen testified to the

circumstances which led to the determination that a walk-in tub could not be rented

due to the issues with plumbing fixtures, which required that the walk-in tub be

purchased.

After a discussion with counsel on the differences between a “whirlpool or

spas” which are “not necessary to maintain function” under the Medical Treatment

Guidelines (MTG), and a walk-in tub, which is not listed in the MTG, the WCJ heard

the final arguments of counsel and issued oral reasons on the record at the close of

the April 24, 2019 hearing, finding in favor of Mrs. McCain.

The WCJ issued its judgment on May 1, 2019, approving the walk-in tub for

Mrs. McCain, awarding her $2,000.00 in penalties, and assessing “$5,000.00 in

attorney fees for the arbitrary and capricious handling of the claim.” It is from the

May 1, 2019 judgment that this timely suspensive appeal was filed by Motel 6 and

Liberty Mutual. Claimant, Mrs. McCain, has answered the appeal seeking additional

attorney fees for defense of the appeal.

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ASSIGNMENTS OF ERROR

1. The Trial Court erred in overturning the Medical Director’s
decision by approving the Walk-In Tub without support of
medical evidence or expert testimony.

2. The Trial Court erred in granting penalties and attorney fees for
the arbitrary and capricious handling of the claim.

LAW AND DISCUSSION

Standard of Review

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

error or clearly wrong standard of appellate review. Smith v. La. Dep’t of Corr., 93-

1305 (La. 2/28/94), 633 So.2d 129. In applying the manifest error standard, the

appellate court must determine not whether the trier of fact was right or wrong, but

whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617

So.2d 880 (La.1993). Where there are two permissible views of the evidence, a

factfinder’s choice between them can never be manifestly erroneous or clearly

wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Assignment of Error One--Lack of Medical Evidence and Expert Testimony

In their first assignment of error, appellants claim that the trial court erred in

overturning the Medical Director’s Decision to deny the walk-in tub, which is not

included in the MTG, without medical evidence and expert testimony. Counsel

argues that the WCJ erred in finding the recommendation for a walk-in tub was

medically necessary on the basis of a lay person’s testimony.

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In support of her ruling, the WCJ cited the case of Ardoin v. Calcasieu Parish

School Board, 15-814 (La.App. 3 Cir. 2/3/16), 184 So.3d 896, writ denied, 16-641

(La. 5/27/16), 192 So.3d 738. As in this case, the issue was whether a modality for

treatment not listed in the MTG could be approved based on a finding of medical

necessity. In Ardoin, the WCJ awarded an adjustable bed to the claimant, finding

that the School Board failed to reasonably controvert the medical necessity for an

adjustable bed. Penalties and attorney fees were also awarded in that case. This

court affirmed the necessity of the adjustable bed as well as the WCJ’s award of

penalties and attorney fees. Id.

The panel in Ardoin further quoted from the supreme court’s seminal ruling

in Church Mutual Insurance Co. v. Dardar, 13-2351, pp. 18-20 (La. 5/7/14), 145

So.3d 271, 284, which explained that:

“Louisiana R.S. 23:1203 and 23:1203.1 are .... are laws on the same
subject matter which must and can be interpreted in reference to each
other....”

....

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 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

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to avoid case-by-case disputes and variations and to streamline the
process.
Ardoin, 184 So.3d at 900 (emphasis added).
The Ardoin panel further noted, “In short, La.R.S. 23:1203.1 and the medical

treatment guidelines ‘[do] not alter’ a claimant’s rights to necessary medical

treatment under La.R.S. 23:1203(A), but rather they ‘create rebuttable presumptions

as to the necessary treatment required by La.R.S. 23:1203(A).’” Ardoin, 184 So.3d

at 900 (quoting Dardar, 145 So.3d at 284-85).

Approximately a year after Ardoin, a different panel of this court heard a case

involving a denial of the Medical Director’s Decision. In Harper v. Boise Paper

Holdings, LLC, 17-602 (La.App. 3 Cir. 2/16/17), 258 So.3d 651, writ denied, 18-24,

(La. 2/23/18), 237 So.3d 1188, the WCJ affirmed the Medical Director’s Decision

denying Mr. Harper a radio frequency (RF) ablation procedure for long term pain

relief from his diagnosed occipital neuralgia. The Medical Director found the

procedure “not to be in line with the MTG.” Harper, 258 So.3d at 653. Mr. Harper

appealed the denial of the RF procedure on the basis that it was contained within the

MTG. He also claimed penalties and attorney fees. A panel of this court agreed the

RF procedure was in accordance with the MTG and reversed the WCJ, rendering

judgment in favor of Mr. Harper and awarding penalties and attorney fees.

In its oral reasons for ruling in this case, the WCJ cited Mrs. McCain’s

repeated complaints of the difficulties she was having “taking a bath, also she had

complaints about sleeping, and that her husband can no longer do what he usually

does for her without her falling at least three or four times within the last six months,”

when attempting to enter and exit the bathtub. The WCJ found the testimony of Mrs.

McCain and her husband credible and compelling.

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The WCJ then referred to Ardoin, 184 So.3d at 900, and the panel’s

determination “that the medical guideline is basically what it says. It’s a guideline,

but it does not deviate from the fact that the employer must provide the employee

with all medical and necessary medical treatment they need.”

In support of the medical necessity of the walk-in tub, the LWC-WC-1010

Form from Dr. Shamieh, submitted into evidence at the hearing, specifically stated

in his expert medical opinion that the walk-in tub was “medically necessary.” Dr.

Malur, the UR physician employed by Liberty Mutual, also approved the walk-in

tub after conducting an evaluation of the medical records in connection with Mrs.

McCain’s LWD-WC-1010 Form request for the walk-in tub. Dr. Malur’s UR report

was also submitted into evidence at the hearing, and contained his expert medical

opinion that, “Therefore, the request for a walk-in tub due to bilateral leg pain

and swelling is medically necessary and given approval.” (Emphasis added.)

Clearly, there was uncontradicted expert medical evidence that the walk-in

tub was medically necessary in this case. In fact, Liberty Mutual approved the rental

of the walk-in tub for a three month period. However, uncontradicted testimony at

the hearing clearly negated the possibility of renting a walk-in tub, not only in

Calcasieu Parish and the State of Louisiana, but from any supplier.

The WCJ issued sound reasons for ruling in favor of Mrs. McCain, stating:

And they have proven here today by clear and convincing evidence that
it cannot be rented. It must be purchased, therefore – and the employer
has not shown me today any medical information which shows that the
tub is not medically necessary, nor has it shown me any information
here today that the tub can be rented as opposed to being purchased, nor
has it shown me that a walk-in tub is on the guidelines. It says spa. It
says whirlpool. A walk-in tub is something that you have where you
can open a door and walk in and have a seat, okay. So[,] I am going to
approve the purchase of a medical tub.

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We further note that, 40 LA. ADMIN. CODE tit. 40, Pt. I § 2115(B)(10)

of the Maintenance Management Section of the Medical Treatment

Guidelines does not specifically exclude a walk-in tub:

10. Purchase or Rental of Durable Medical Equipment. It is
recognized that some patients may require ongoing use of self-directed
modalities for the purpose of maintaining function and/or analgesic
effect. Purchase or rental of modality based equipment should be done
only if the assessment by the physician and/or therapist has determined
the effectiveness, compliance, and improved or maintained function by
its application. It is generally felt that large expense purchases such as
spas, whirlpools, and special mattresses are not necessary to maintain
function beyond the areas listed above.

a. Maintenance duration: Not to exceed 3 months for rental
equipment. Purchase if effective.

(Emphasis added.)

Again, the lay testimony and expert medical evidence was uncontradicted that

the walk-in tub was medically necessary for the claimant in this case. We therefore

find that the WCJ was presented with sufficient expert medical testimony and

credible lay testimony to support the medical necessity for Mrs. McCain to receive

a walk-in tub. We hereby affirm the WCJ’s decision to approve the walk-in tub as

medically necessary, which necessitates that Motel 6 and Liberty Mutual purchase

and install the walk-in tub for Mrs. McCain.

Assignment of Error Two-Penalties and Attorney Fees-Reliance on the Medical
Director’s Decision

In assignment of error two, Defendants seek reversal of the WCJ’s decision

to award penalties and attorney fees. Counsel argues that if the employer relies on

the Medical Director’s Decision, then, as a matter law, their denial of benefits cannot

be considered arbitrary and capricious and lead to penalties and attorney fees. As a

consequence, Defendants argue the claim in this case was “reasonably controverted.”

We disagree.

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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.” This court explained in Romero v. Garan’s, Inc., 13-482,

p. 3 (La.App. 3 Cir. 8/6/14), 145 So.3d 1120, 1122, that, “It is well settled that 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.”

Louisiana Revised Statutes 23:1201(F) further provides for the award of

penalties and attorney fees for failing to authorize medical treatment by an employer

or insurer. However, La.R.S. 23:1201(F)(2) does not authorize penalties and

attorney fees if the claim is reasonably controverted by the employer or insurer.

In oral reasons for ruling in this case, the WCJ stated:

So I am going to approve the purchase of a medical tub and since you
all have not shown sufficient information to reasonably controvert this
case that a medical tub is not necessary and can be rented, I am going
to [award] attorney fees in the amount of [$]5,000 and penalties in the
amount of [$] 2,000.

In Harper, 258 So.3d at 656, a panel of our court set forth the legal standard

for reviewing a decision to award penalties and attorney fees for failure to furnish

medical care and supplies deemed necessary:

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.

The panel further cited the case of Watson v. Amite Milling Co., Inc., 560

So.2d 902, 906 (La.App. 1 Cir.) (quoting Hall v. McDonald, 537 So.2d 328, 332

(La.App. 1 Cir. 1988)), writ denied, 567 So.2d 614 (La.1990), which observed:

10

[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).

Harper, 258 So.3d at 656.

Further, the panel in Ardoin, 184 So.3d 896, held that La.R.S. 23:1203.1

adopts an evidence-based standard as the guidepost for assessing whether the

medical care required to be provided under La.R.S. 23:1203 is medically necessary

with the promulgation of the medical treatment schedule. However, the panel noted,

“By their terms, La.R.S. 23:1203.1 and the medical treatment schedule do not

exclude any particular care.” Id. at 900 (quoting Dardar, 145 So.3d at 284).

In this case, the WCJ specifically found that neither Motel 6 nor Liberty

Mutual had “shown sufficient information to reasonably controvert this case that a

medical tub is not necessary and can be rented[.]” The WCJ further found by clear

and convincing evidence that the walk-in tub was medically necessary and must be

purchased. We therefore affirm the WCJ’s award of penalties and attorney fees.

Claimant’s Answer to Appeal

It is well-established that a workers’ compensation claimant who is successful

in defending an appeal may be entitled to an award of additional attorney fees. See,

e.g., Green v. Nat’l Oilwell Varco, 10-1041 (La.App. 3 Cir. 4/27/11), 63 So.3d 354.

Claimant answered the appeal filed by her employer, Motel 6, and Liberty Mutual

in response to the WCJ’s May 1, 2019 judgment, requesting an award of additional

attorney fees, and was successful in defending the appeal. We therefore award an

11

additional $2,500.00 in attorney fees to Claimant for work done defending this

appeal.

DECREE

For the foregoing reasons, the May 1, 2019 judgment of the WCJ is affirmed.

IT IS ORDERED, ADJUDGED, AND DECREED, that Cheryl McCain is entitled

to the purchase and installation of a walk-in tub to be paid for by her employer G6

Hospitality d/b/a Motel 6 and its insurer Liberty Mutual Insurance Company. IT IS

FURTHER ORDERED, ADJUDGED, AND DECREED that Cheryl McCain is

awarded penalties in the amount of $2,000.00, and attorney fees in the amount of

$ 5,000.00, $2,500.00 for additional attorney fees on appeal, plus all costs as against

and payable by G6 Hospitality d/b/a Motel 6 and Liberty Mutual Insurance Company,

jointly severly and in solido.

AFFIRMED.

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