Callie Ann Cook v. Family Care Services, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCW 13-108

CALLIE ANN COOK

VERSUS

FAMILY CARE SERVICES, INC.

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ON APPLICATION FOR WRITS FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 12-07096
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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PHYLLIS M. KEATY
JUDGE

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

WRIT DENIED.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell
Post Office Drawer 1329
Opelousas, Louisiana 70571-1329
(337) 948-8201
Counsel for Defendant-Respondent:
Family Care Services, Inc.

Dorwan G. Vizzier
Broussard, Halcomb & Vizzier
Post Office Box 1311
Alexandria, Louisiana 71309-1311
(318) 487-4589
Counsel for Plaintiff-Applicant:
Callie Ann Cook

Stephen Winston Glusman
Glusman, Broyles & Glusman
Post Office Box 2711
Baton Rouge, Louisiana 70821-2711
(225) 387-5551
Counsel for:
LUBA Casualty Insurance Company, Inc.

Denis Paul Juge
Juge, Napolitano, Guilbeau, Ruli & Frieman
3320 West Esplanade Avenue, North
Metairie, Louisiana 70002
(504) 831-7270
Counsel for:
LUBA Casualty Insurance Company, Inc.

KEATY, Judge.

Plaintiff-relator, Callie Ann Cook (Cook), seeks supervisory writs from a

judgment rendered by the workers’ compensation judge (WCJ) finding that La.R.S.

23:1203.1 applied retroactively to her appeal of a decision from the medical

director of the Office of Workers’ Compensation (OWC), denying her request for

approval of medical treatment.

FACTS AND PROCEDURAL HISTORY

Cook sustained an on-the-job injury on May 13, 2006, while employed at

Family Care Services, Inc. (FCS), defendant-respondent herein. As a result of her

injury, Cook underwent low back surgery in 2007 and continues under the care of

her orthopedist, Dr. Austin W. Gleason. According to Dr. Gleason’s records, Cook

underwent a lumbar CT scan on November 2, 2011. In April of 2012, Dr. Gleason

recommended a repeat CT scan of the lumbar spine, which was refused by FCS. In

August of 2012, Dr. Gleason again recommended a repeat lumbar CT scan to

check for spinal stenosis.1 On September 4, 2012, Dr. Gleason submitted a 1010

Form, requesting authorization for a lumbar CT scan. The request was denied by

utilization review on September 10, 2012, upon a finding that the procedure was

not medically necessary under the medical treatment guidelines.

On September 18, 2012, Cook filed a Form 1009, seeking an order from the

medical director of the OWC approving the requested CT scan. On October 1,

2012, the medical director denied Cook’s request. Cook then filed a 1008

Disputed Claim for Compensation on October 15, 2012, seeking reversal of the

medical director’s decision and an award of penalties and attorney fees, alleging

1
In his August 21, 2012 Progress Report, Dr. Gleason noted that because Cook had a
pacemaker, she could not undergo an MRI.

that the refusal to approve the requested treatment was arbitrary and capricious.

Cook argued that because her accident predated passage of La.R.S. 23:1203.1

which requires requests for medical treatment to be submitted to the OWC for

approval by a medical director, that law was not applicable to her claim.

The WCJ issued a rule to show cause with respect to the review of the

applicability of La.R.S. 23:1203.1 to Cook’s claim. In response to the rule, Cook

filed a memorandum, objecting to the application of La.R.S. 23:1203.1 to her claim

for medical treatment arising from her 2006 accident. On December 21, 2012, the

WCJ ruled that La.R.S. 23:1203.1 applied retroactively to Cook’s 2006 accident.

Cook timely sought supervisory review of that decision.

By letter dated July 11, 2013, this court received a letter from Cook’s

counsel of record advising that FCS had approved Cook’s request for a CT scan of

the lumbar spine, thus making the issue of an order for approval for the testing

moot. Nevertheless, Cook still wished to pursue this writ as her 1008 also

presented the question of whether she is entitled to penalties and attorney fees for

FCS’s initial refusal to authorize the requested testing which required her to file

formal claims with the OWC. According to the letter, whether she is entitled to

penalties and attorney fees is dependent upon the correctness of the WCJ’s ruling.

SUPERVISORY RELIEF

The exercise of supervisory jurisdiction by appellate courts is
within their plenary power. La. Const. art. 5, ' 10. Appellate courts
generally will not exercise such jurisdiction unless an error in the trial
court’s ruling will cause the petitioner irreparable injury or an
ordinary appeal does not afford an adequate remedy. Stevens v.
Patterson Menhaden Corp., 191 So.2d 692 (La.App. 1 Cir.1966), writ
denied, 250 La. 5, 193 So.2d 524 (1967).

Borrel’s, Inc. v. City of Marksville, 05-48, p. 1 (La.App. 3 Cir. 6/1/05), 904 So.2d

938, 939.

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STANDARD OF REVIEW

Statutory interpretation is a question of law. We review
questions of law de novo without deference to the lower court’s
decision. Louisiana Municipal Assoc. v. State, 04-227 (La.1/19/05),
893 So.2d 809. “When a law is clear and unambiguous and its
application does not lead to absurd consequences, the law shall be
applied as written,” without further interpretation into the legislative
intent. Id. at 837. Further, each word in a statute is presumed to be
effective and serve a useful purpose; therefore, we will give effect to
all parts of a statute, understood as a whole.

Mouton v. Lafayette Physical Rehab. Hosp., 13-103, pp. 2-3 (La.App. 3 Cir.

6/5/13), 114 So.3d 626, 628.

DISCUSSION

At the hearing to determine whether La.R.S. 23:1203.1 applied retroactively

to this case, the WCJ stated:2

This is [sic] the first time I’ve heard discussion about
retroactive prospective application, but this is the first time I’ve ever
had the matter brought before this Court. And it’s sort of like arguing
that, “Well, an injured worker is entitled to reasonable and necessary
medical care,’ which is what the Statute stated prior to the adoption of
the medical treatment guidelines, and it’s kind of like arguing, “Well,
the medical treatment guidelines are not reasonable and necessary
medical care.” That’s sort of oxymoronic. And 23:1203.1, Section I
says that, “After promulgation of the medical treatment schedule
throughout this chapter and not withstanding any provision of law to
the contrary, medical care, services and treatment due pursuant to
Revised Statute 23:1203 et sec reaping the same medical care by the
employer to the employee shall mean care, services and treatment in
accordance with the medical treatment schedule.” But it’s my current
impression that the phraseology “Notwithstanding any provision of
the law to the contrary” indicates that the intent of the legislature in
the adoption of this statute to have this law apply to all claims, no
matter the date of injury, after the adoption of the medical treatment
guidelines, and that’s how I’d rule today.

2
We note that the WCJ made several errors when quoting La.R.S. 23:1203.1(I) at the
hearing. The correct wording of the statute follows:

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.

3

Cook argues that the WCJ committed an error of law in interpreting La.R.S.

23:1203.1 to apply retroactively to claims arising out of on-the-job injuries

occurring prior to the enactment of La.R.S. 23:1203.1 by 2009 La. Acts No. 254.

At the time of her accident in 2006, La.R.S. 23:1203(A) provided, in pertinent part,

“[i]n every case coming under this Chapter, the employer shall furnish all

necessary drugs, supplies, hospital care and services, medical and surgical

treatment and any non-medical treatment recognized by the laws of this state as

legal . . . .” Cook maintains that the definition of the medical care and treatment

required by the employer was changed with the enactment of La.R.S. 23:1203.1,

specifically Section I, which now requires a medical treatment schedule. 3 She

further contends that application of La.R.S. 23:1203.1 reduces the medical benefits

for her on-the-job accident that predated the enactment.

Cook argues that there is no legislative expression of intent to apply La.R.S.

23:1203.1 retroactively. In the absence of such intent, Cook maintains that the

court must classify La.R.S. 23:1203.1 as substantive, procedural, or interpretive,

citing Bourgeois v. A.P. Green Industries, Inc., 00-1528 (La. 4/3/01), 783 So.2d

1251. Cook adds that pursuant to La.R.S. 1:2, the retroactivity of a statute must be

“expressly so stated.” Because La.R.S. 23:1203.1 does not indicate that it should

be applied to accidents that occurred prior to its 2009 enactment, it should be

applied prospectively, only to accidents that occurred after its enactment. In

support of her argument, Cook refers this court to Stelly v. Overhead Door Co. of

Baton Rouge, 94-569, pp. 7-8 (La. 12/8/94), 646 So.2d 905, 911-12, wherein the

supreme court stated:

3
The statute was later amended by 2010 La. Acts 619 and 2012 La. Acts 573, neither of
which affected Section I.

4

A substantive law creates, confers or destroys rights, causes of
action or legal duties. A procedural law prescribes methods for
enforcing substantive laws, and relates to the form of the proceeding
or the operation of the laws. An interpretive law merely establishes
the meaning that the existing law had from the time of its enactment.

In Stelly, 4 the court considered these precepts to 1989 La. Acts 454 and

determined that the legislation was not interpretive or procedural, as it did not

establish the meaning of La.R.S. 23:1032, nor did it prescribe methods for

enforcing the substantive rights and obligations already dictated in the statute.

Instead, the court found the enactment to be substantive as it destroyed rights or

causes of actions by barring any tort action raised under a theory of dual capacity.

Furthermore, the court held that “no law can be applied retroactively so as to divest

a party of a vested right.” Id. at 912 (citing Cole v. Celotex Corp., 599 So.2d 1058

(La.1992)).

Likewise, Cook contends herein that La.R.S. 23:1203.1 is a substantive

change because it changes the definition of medical care and services to which she

is entitled and destroys her rights by redefining and limiting such medical care.

Cook also maintains that La.R.S. 23:1203.1 destroys the legal duties of FCS to

provide medical care. Lastly, Cook maintains that the law in effect at the time of

her injury is the applicable law. In support of her claim, Cook cites a number of

cases, none of which involve the statute herein.

In opposition, FCS asserts that the legislature expressed its intent in Section

L that once the guidelines were established, injured employees would receive

prompt medical care. Section L reads, “It is the intent of the legislature that, with

the establishment and enforcement of the medical treatment schedule, medical and

4
The statute at issue in Stelly was La.R.S. 23:1032, entitled “Exclusiveness of rights and
remedies; employer’s liability to prosecution under other laws.”

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surgical treatment, hospital care, and other health care provider services shall be

delivered in an efficient and timely manner to injured employees.” FCS stresses

that the purpose of enacting the guidelines was to create a streamlined system for

injured workers to navigate and to increase efficiency in the system. As such, FCS

maintains that the wording of Section L is an expression of a retroactive and

prospective application of the new law.

Additionally, FCS refers to the language of Section I and urges that the

legislature expressed its intent that the definition of “medical care, services, and

treatment due” was to change from being determined by the former system, which

it describes as “cumbersome,” to that defined by the medical treatment schedule,

and that such change was to occur “[a]fter the promulgation of the medical

treatment schedule.”

Lastly, FCS maintains that the language in Section J regarding disputes after

January 1, 2011, demonstrates the legislature’s intent for any dispute after

January 1, 2011, to be subject to the medical guidelines. Section J reads:

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 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 on a form
promulgated by the director. The medical director shall render a
decision as soon as is practicable, but in no event, not more than thirty
calendar days from the date of filing.

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FCS urges that the legislature did not base this date upon the date of the accident

but rather the date of the dispute. Because Cook’s dispute arose after January 1,

2011, FCS concludes that La.R.S. 23:1203.1 applies to the dispute.

If this court finds that the legislature did not express its intent, FCS argues in

the alternative that La.R.S. 23:1203.1 is procedural, not substantive, because

Cook’s right to reasonable medical treatment has not changed, only the procedure.

As such, FCS maintains that La.R.S. 23:1203.1 should be applied retroactively and

prospectively. Further, FCS urges that the new procedure in no way changes the

rights of the employee to reasonable medical care.

An amicus curiae brief was filed in this matter on behalf of LUBA Casualty

Insurance Company, Louisiana Workers’ Compensation Corporation, Louisiana

Home Builders Association SIF, LAC Self Insured Fund, Louisiana Restaurant

Association Self Insurers Fund, Stonetrust Commercial Insurance Company,

Louisiana Healthcare Self Insurance Fund, and Louisiana Auto Dealers Self

Insurers’ Fund on the issue herein, i.e., whether the medical treatment schedule is

to be applied to all treatment of injured workers requested by medical providers

after July 13, 2011. The amici curiae maintain that no substantive rights of an

injured worker are impaired by the medical treatment guidelines nor is the right to

reasonable and necessary medical treatment diminished.

To date, no courts have interpreted the retroactive or prospective application

of La.R.S. 23:1203.1. Considering the language of La.R.S. 23:1203.1 and the

arguments of the parties, we conclude that the retroactive application of La.R.S.

23:1203.1 to work-place accidents that arose prior to its effective date does not

remove any substantive right to medical care, and thus, is procedural in nature.

Further, Cook has not shown how she has lost any right to medical care as a result

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of the retroactive application of La.R.S. 23:1203.1. Lastly, we find that the

language of the statute evidences the legislature’s intent for La.R.S. 23:1203.1 to

apply retroactively. Accordingly, the WCJ correctly found La.R.S. 23:1203.1

applicable to Cook’s claim for medical treatment for her on-the-job injury

sustained prior to the effective date of La.R.S. 23:1203.1. The writ is denied.

WRIT DENIED.

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