Walter McKay v. State of Louisiana, Dept. of Health and Human Services

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-471

WALTER MCKAY

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF
HEALTH AND HUMAN SERVICES

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 19-07980
JAMES L. BRADDOCK, WORKERS COMPENSATION JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of John E. Conery, D. Kent Savoie, and Sharon Darville Wilson,
Judges.

AFFIRMED.

Dorwan Gene Vizzier
Broussard, Halcomb & Vizzier
1254 Dorchester Drive
Alexandria, Louisiana 71301
(318) 487-4589
COUNSEL FOR PLAINTIFF/APPELLEE:
Walter McKay

David E. Boraks
Assistant Attorney General
900 Murray Street, Suite B-100
Alexandria, Louisiana 71301
(318) 487-5944
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, through the Office of Behavioral Health Central
Louisiana State Hospital

Jabrina C. Edwards
Assistant Attorney General
330 Marshall Street, Suite 777
Shreveport, Louisiana 71101
(318) 676-5700
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, through the Office of Behavioral Health Central
Louisiana State Hospital

SAVOIE, Judge.

Defendant State of Louisiana, through the Office of Behavioral Health

Central Louisiana State Hospital (the State) appeals the judgment of the Workers’

Compensation Court (WCC), reversing the decision of the Medical Director of the

Office of Workers’ Compensation (Medical Director). The WCC granted

Claimant Walter McKay’s requested surgery and awarded him penalties and

attorney’s fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 26, 2018, Walter Mckay was working as a master plumber/pipe

fitter for the State. He was attempting to clear a blockage using a power sewer

machine when a burr on the cable caught his leather glove, twisting and severely

injuring his left hand. Mr. McKay underwent amputation surgery of his left little

finger and a partial amputation of his left ring finger on October 27, 2018. The

surgery was performed by Dr. John McCabe, a cosmetic, plastic and reconstructive

surgery specialist based in Alexandria, Louisiana. Following surgery, Dr. McCabe

ordered physical therapy for Mr. McKay’s hand.

Brooke Duplechain was selected as Mr. McKay’s field case manager for his

workers’ compensation claim. She is employed by Genex, a company who

performs services for the State with respect to the State’s workers’ compensation

claims. Her initial appointment with Mr. McKay occurred at a post-operative

appointment with Dr. McCabe. Mr. McKay indicated that he was still having pain

in his left hand and requested to see a hand specialist. Ms. Duplechain made Mr.

McKay an appointment with Dr. Gary Porubsky, an orthopedic hand surgery

specialist in Opelousas, Louisiana.

Mr. McKay began treating with Dr. Porubsky on December 11, 2018, which

was the date of his initial appointment. On August 22, 2019, Dr. Porubsky

recommended surgery, arthrodesis of the left thumb carpometacarpal joint, and

filed a “Request for Authorization” (Form 1010) requesting approval for the

surgery, which was denied by the workers’ compensation administrator Sedgwick.

The Peer Review Report, authored by Dr. Andrew Farber and attached to the

denial, notes that the surgery is not medically necessary. Specifically, the report

stated:

Per ODG guidelines, Arthrodesis is recommended for painful
conditions including severe post-traumatic arthritis of the wrist, thumb,
or digit following 6 months of conservative therapy. There was no
documentation of attempted and failed conservative treatment. Thus,
medical necessity has not been established. Therefore, the request for
arthrodesis of the Left Thumb Carpometacarpal Joint is not medically
necessary.

Dr. Porubsky then filed a Disputed Claim for Medical Treatment (Form

1009) with the Office of Workers’ Compensation Medical Director, Dr. Jason

Picard, who denied the surgery on November 20, 2019, noting “[t]he 1009 cannot

be approved as the procedure is not anywhere in the guidelines.” Mr. McKay then

filed a Disputed Claim for Compensation (Form 1008) with the WCC on

December 4, 2019.

After a trial on the merits held January 26, 2021, oral reasons were issued on

March 17, 2021, and judgment rendered March 31, 2021, stating it is:

ORDERED, ADJUDGED AND DECREED that there be
judgment in favor of plaintiff, WALTER MCKAY and against
defendants STATE OF LOUISIANA THROUGH OBH/CENTRAL
LA STATE HOSPITAL, ordering that the medical director[’]s ruling,
on November 20, 2019, denying the requested surgery, arthrodesis of
the left thumb carpometacarpal joint, be and is hereby reversed and
the requested authority of Dr. Gary Porubsky to perform the
arthrodesis of the left thumb carpometacarpal joint is hereby granted;

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IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that plaintiff, WALTER MCCKAY [sic], is awarded penalties in the
amount of $2,000.00 and attorney’s fees in the amount of $5,000.00,
together with legal interest thereon from the date of judgment until
paid in full.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the defendant, STATE OF LOUISIANA THORUGH
OBH/CENTRAL LA STATE HOSPITAL, is ordered to pay all costs
of these proceedings.

The State filed a Motion and Order for Suspensive Appeal on April 7, 2021,

appealing the judgment of the WCC. Mr. McKay answered the appeal, requesting

additional attorney’s fees and costs for work done on appeal.

ASSIGNMENTS OF ERROR

1. [The Workers’ Compensation Judge (WCJ)] erred in reversing the
Medical Director’s decision, as the Claimant completely failed to
produce clear and convincing evidence that the Medical Director’s
determination was in contravention of La. R.S. 23:1203.1.

2. [The WCJ] erred in [] assessing penalties and attorney’s fees when
it should have upheld that Medical Director’s decision.

LAW AND DISCUSSION

I. Assignment of Error Number One – Reversal of the Medical Director

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

error or clearly wrong standard of appellate review.” Foster v. Rabalais Masonry,

Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-

1164 (La. 6/14/02), 818 So.2d 784. In Matthews v. Louisiana Home Builder’s

Ass’n Self-Insurer’s Fund, 13-1260, pp. 4-5 (La.App. 3 Cir. 3/12/14), 133 So.3d

1280, 1283-84, a panel of this court explained:

Louisiana Revised Statutes 23:1203.1 was enacted by the
legislature in 2009 to provide for the establishment of a
medical treatment schedule, and such a schedule was promulgated by
the Louisiana Workforce Commission, Office of Workers’
Compensation Administration in June 2011. As a result, “medical care,
services, and treatment due, pursuant to R.S. 23:1203, et seq., by the

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employer to the employee shall mean care, services, and treatment in
accordance with the medical treatment schedule.” La.R.S.
23:1203.1(I). Section 1203.1 establishes a procedure whereby an
injured employee’s medical provider can request authorization for
medical services from a payor, usually the employer or its insurer,
who must act on that request within five days. La.R.S. 23:1203.1(J)(1).
Thereafter, any aggrieved party has fifteen days within which to file
an appeal with the Medical Director who must render a decision
within thirty days. Id. “After the issuance of the decision by the
medical director..., any party who disagrees with the decision, may
then appeal by filing a ‘Disputed Claim for Compensation.’ ” La.R.S.
23:1203.1(K). A decision of the Medical Director “may be overturned
when it is shown, by clear and convincing evidence, the decision ...
was not in accordance with the provisions of this Section.” Id.; See
also Usie v. Lafayette Parish Sch. Sys., 13–294 (La.App. 3 Cir.
10/9/13), 123 So.3d 885.

The State argues that Mr. McKay failed to carry his burden, by clear and

convincing evidence, that the Medical Director’s ruling was not in compliance

with the medical treatment guidelines. The Medical Director ruled that “[t]he 1009

cannot be approved as the procedure is not anywhere in the guidelines.” While it

is true that this type of surgery is not included in the Louisiana medical treatment

guidelines, the Official Disability Guidelines (ODG) do contain this surgery.

Louisiana Revised Statutes 23:1203.1 states, in pertinent part:

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.

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(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.

….

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 White v. Fuel Plus, LLC, 17-125, p. 10 (La.App. 3 Cir. 10/4/17), 229

So.3d 539, 546, this court concluded that “the ODG satisfies the criteria of La. R.S.

23:1203.1(D) and (M)(1).” As stated in Dr. Farber’s Peer Review

Report, arthrodesis of the left thumb carpometacarpal joint is contained in the

ODG. Specifically, “[a]rthrodesis is recommended for painful conditions

including severe post-traumatic arthritis of the wrist, thumb, or digit following 6

months of conservative therapy.” Because there was no documentation of six

months of conservative treatment attached to the request, Dr. Farber determined

the surgery was not medically necessary.

The State’s primary argument is the lack of medical evidence of

conservative treatment for Mr. McKay’s left thumb. The State maintains that

while the record reflects treatment and therapy for the left hand, Mr. McKay did

not explicitly complain about his left thumb during this time. The State asserts that

Dr. Porubsky first learned of Mr. McKay’s thumb complaints in August 2019.

The State directs the court’s attention to Dr. Porubsky’s August 22, 2019

medical note, wherein Dr. Porubsky determines that, after a review of his medical

records, he cannot relate Mr. McKay’s thumb discomfort to his work injury. In his

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deposition, Dr. Porubsky clarified this position. In reviewing his medical notes, he

misread the January 3, 2019 note, and did not see where Mr. McKay mentioned

discomfort in the left thumb. Dr. Porubsky’s deposition testimony was that this

was “inaccurate” and that Mr. McKay did, in fact, complain of left thumb pain on

January 3, 2019. When asked if he believes Mr. McKay’s left thumb discomfort

was caused by the accident, Dr. Porubsky responded that he has no reason to

believe it was not caused by the workplace accident as Mr. McKay did not have

left thumb pain prior.

Dr. Porubsky testified that he had provided Mr. McKay with conservative

treatment since December 2018. He further determined that Mr. McKay would

continue to have discomfort in his thumb unless he had arthrodesis of the left

thumb carpometacarpal joint. Dr. Porubsky found the surgery to be medically

necessary.

Additionally, Brooke Duplechain, Mr. McKay’s field case manager, testified

that Mr. McKay complained about his left thumb at their initial appointment at Dr.

McCabe’s office. Ms. Duplechain’s attended all of Mr. McKay’s examinations

with Dr. Porubsky. She testified that Mr. McKay continuously and consistently

complained to her about his thumb discomfort. She also testified that, while it may

not have been every visit, Mr. McKay did complain to Dr. Porubsky about his

thumb pain.

The State requested a second medical opinion regarding the necessity of

surgery which was conducted on August 31, 2020, by Dr. Robby LeBlanc, an

orthopedic hand surgeon located in Lafayette, Louisiana, August 31, 2020. Dr.

LeBlanc agreed with Dr. Porubsky that Mr. McKay “could benefit from surgery to

address the left thumb CMC joint pain.” He further noted, “If [Mr. McKay] does

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not wish to undergo surgery to address the pain at the tip of the left small finger, I

would consider him at maximum medical improvement.” While Dr. LeBlanc

concluded the left thumb pain was unrelated to the workplace accident, he did so

because, although Mr. McKay told him the pain began soon after the injury, there

was no mention of thumb pain in the records until August 2019. This is incorrect,

as Mr. McKay complained of left thumb pain to Dr. Porubsky on January 3, 2019,

which is reflected in the medical notes from that visit. Further, according to

Brooke Duplechain, Mr. McKay complained of left thumb pain from her initial

visit with him shortly after the accident. In an August 20, 2019 email, Ms.

Duplechain explained:

Mr. McKay has always complained of thumb pain since I have gotten
on this file, but it was never really addressed because the focus
was on the traumatic amputation and the weakness and the range
of motion with the affected hand.

Dr. LeBlanc was asked to conduct a follow-up examination, which occurred

on September 21, 2020. He states:

In my opinion, Mr. McKay would regain substantial functional
improvement in his left thumb, but more importantly, this procedure
would provide him with a significant reduction of pain at that level. If
the surgery is performed and it is successful, I would expect a full
recovery and return to work with no restrictions.

The decision of the Medical Director “may be overturned when it is shown,

by clear and convincing evidence, the decision . . .was not in accordance with the

provisions of this Section.” La.R.S. 23:1203.1(K). The State contends that this

case is analogous to Matthews, 133 So.3d 1280. In Matthews, the Medical

Director denied the requested services “on the grounds that the documentation

submitted with the request [did] not support the approval of the requested services

per the Louisiana Medical Treatment Guidelines[.]” Id. at 1281. In the present

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case, the Medical Director denied the request because “the procedure is not

anywhere in the guidelines.” As has been shown, the Official Disability

Guidelines (ODG) do contain this surgery, and “the ODG satisfies the criteria

of La. R.S. 23:1203.1(D) and (M)(1).” White, 229 at 546.

We affirm the WCJ’s ruling to reverse the Medical Director’s decision and

grant Mr. McKay’s requested surgery. The Medical Director’s decision was

clearly incorrect as the requested surgery is contained in the ODG, which satisfy

the criteria of La.R.S. 23:1203.1. Further, based on the evidence presented, Mr.

McKay complained about his left thumb pain to his nurse case manager from the

outset and throughout the period in question. The left thumb complaint is noted in

Dr. Porubsky’s January 3, 2019 medical records. Mr. McKay received

conservative treatment during this time, which extends past the six-month

requirement. Dr. LeBlanc, who was requested by the State to perform a second

opinion, agrees with Dr. Porubsky that the surgery would allow Mr. McKay to

regain substantial functional improvement and a significant reduction in pain. Dr.

LeBlanc expects Mr. McKay to fully recover and return to work with no

restrictions, which is Mr. McKay’s ultimate goal. For these reasons, we find that

this assignment of error is without merit.

II. Assignment of Error Number Two – Penalties and Attorney’s Fees

The State also contends that the WCJ erred in awarding penalties and

attorney’s fees to Mr. McKay in this matter. “A WCJ’s decision to cast an

employer with penalties and attorney fees is a question of fact which will not be

reversed on appeal absent manifest error.” Harris v. Twin City Elec., LLC, 12-88,

p. 5 (La.App. 3 Cir. 6/6/12), 92 So.3d 649, 653, writ denied, 12-1582 (La.

10/12/12), 98 So.3d 876).

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In Ortega v. Cantu Services, Inc., 19-202, p. 8 (La.App. 3 Cir. 10/23/19),

283 So.3d 1024, 1031, a panel of this court explained:

Louisiana Revised Statutes 23:1201(F) provides for the
assessment of penalties and attorney fees against an employer for
failure to timely pay workers’ compensation benefits. Penalties and
attorney fees will not be assessed against an employer if the claim is
reasonably controverted or nonpayment is due to circumstances
beyond the employer’s control. Id. To reasonably controvert a claim,
an employer must be “engaged in a nonfrivolous legal dispute or
[possess] factual and/or medical information to reasonably counter the
factual and medical information presented by the claimant throughout
the time he refused to pay all or part of the benefits allegedly
owed.” Brown v. Texas–LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98),
721 So.2d 885, 890. Further, any award of attorney fees must be
reasonable. Rapides Parish Waterworks Dist. No. 3 v. Broussard, 95-
361 (La.App. 3 Cir. 10/18/95), 663 So.2d 475, writ denied, 95-2777
(La. 1/26/96), 666 So.2d 679. Factors considered in determining
whether an award is reasonable are the required skill, the complexity
of the matter, and time expended on the case. Id.

The WCJ cites the Louisiana Supreme Court in Brown v. Texas-LA Cartage,

Inc., 98-1063, p. 10 (La. 12/1/98), 721 So.2d 885, 890-91 for the proposition that

“[i]f an employer or insurer reasonably controverts a claim and then becomes

aware of information that makes his controversion of that claim unreasonable, he

must then pay the benefits owed or be subject to penalties and attorney fees from

that point forward.” The supreme court concluded that while the defendants did

not act egregiously, “the purpose of an imposition of penalties is to ‘nudge the

employer into making timely payments when there is no reasonable basis for

refusing or delaying its obligation.’” Id. at 893 (quoting Weber v. State, 93-62, p. 8

(La.4/11/94), 635 So.2d 188, 193.

In the present matter, the WCJ found that while the State may have had a

reasonable basis to deny the surgery when reports indicated that it was not related

to the accident, this would have been cleared up when they received Ms.

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Duplechain’s email and after the deposition of Dr. Porubsky taken in January

2020. The WCJ determined that:

[F]rom the time of that information all the way through January of
2021, they never authorized any surgery. They didn’t authorize
carpometacarpal arthrodesis, they didn’t authorize arthroplasty, and
they didn’t authorize some type of suspension procedure discussed by
Ms. Duplechain with Dr. Porubsky in some other piece of evidence
and correspondence in the record.

Because of this, the WCJ ruled “that given their duty to thoroughly

investigate this claim and the overlapping discrepancies and what was done on

behalf of the State gathering and sorting out and categorizing this type of

information was woefully inadequate. It was unreasonable[.]”

The State asserts that the WCJ erroneously reversed the Medical Director’s

findings, which they contend were justified. As discussed previously, we find that

the WCJ was not manifestly erroneous in reversing the Medical Director’s

decision. Similarly, we cannot find that the WCJ was manifestly erroneous in

awarding attorney’s fees and costs. Dr. Porubsky misread his medical notes and

based his conclusion that the thumb pain was not related to the accident on this

incorrect knowledge. This was corrected by Dr. Porubsky in his January 2020

deposition. Further, the State was in possession of Ms. Duplechain’s email that

Mr. McKay complained about thumb pain since the beginning of his injury. She

explained that it was not addressed because the focus of the medical team was on

the “traumatic amputation and the weakness and the range of motion with the

affected hand.” Even the State’s own selected doctor for the second medical

opinion, Dr. LeBlanc, agrees that Mr. McKay needs the surgery. When the burr

caught Mr. McKay’s glove, his entire left hand was twisted so severely that he

needed one finger fully amputated and another partially amputated. Mr. McKay

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testified that he never had any thumb pain prior to the accident. His left thumb is

part of the left hand that was so severely injured. Based on the evidence, we do not

find that the WCJ was manifestly erroneous in awarding Mr. McKay penalties and

attorney’s fees. This assignment is without merit.

III. Answer to Appeal

Mr. McKay requests attorney’s fees for work done on appeal. We grant this

request.

“Generally, when an award for attorney fees is granted at a lower court level,

additional attorney fees are proper for work done on appeal. This is to keep the

appellate judgment consistent with the underlying judgment.” Wilczewski v.

Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214,

1226, writ denied, 09-456 (La. 4/13/09), 5 So.3d 170.

After a review of the record, we find that an award of four thousand dollars

($4,000.00) is reasonable.

DECREE

The judgment of the workers’ compensation court is affirmed. Walter

McKay is awarded $4,000.00 in attorney’s fees for work done on appeal. Costs in

the amount of $1058.00 are assessed to the State of Louisiana, through the Office

of Behavioral Health Central Louisiana State Hospital.

AFFIRMED.

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