Kathlene Walker v. the Summit

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-676

KATHLEEN WALKER

VERSUS

THE SUMMIT

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WRIT APPLICATION FROM THE
OFFICE OF WORKERS COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, DOCKET NO. 14-1644
HONORABLE JAMES J. BRADDOCK, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Jimmie C. Peters, Judges.

WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT ON
MOTION TO COMPEL REVERSED.

W. Jay Luneau
1239 Jackson Street
Alexandria, LA 71301
(318) 767-1161
ATTORNEY FOR PLAINTIFF/APPLICANT
Kathleen Walker

Lawrence B. Frieman
Bradley P. Naccari
Juge, Napolitano, Guilbeau, Ruli & Frieman
330 North New Hampshire Street
Covington, LA 70433
(504) 831-7270
ATTORNEY FOR DEFENDANT/RESPONDENT
The Summit

COOKS, Judge.

This case involves a workers’ compensation claim which, Claimant,

Kathleen Walker, filed against Defendant, The Summit, as a result of a work-

related accident that occurred on July 31, 2009. Employment Risk Management

Services (ERMS) was contracted by Defendant to administer the claim. Pertinent

to this writ application, Defendant scheduled an appointment for Claimant to be

examined by Dr. Donald Smith, a neurosurgeon, for the purpose of obtaining a

second medical opinion (SMO).

Claimant’s counsel requested a copy of any and all paperwork that Claimant

would be asked to fill out for the SMO. After receipt of the paperwork, Claimant’s

counsel sent a letter detailing his objections to certain forms, in particular, a form

titled “Medical Evaluation Consent Form.” Specifically, Claimant’s counsel

explained in his letter that his client would not sign the “Medical Evaluation

Consent Form” because she was not consenting to the examination, but was going

to the appointment because she was legally obligated to do so. Claimant’ counsel

also stated in his letter, “If you know of some precedent that requires her to sign

the form, please let me know and I will consider same.” Defendant simply

responded that Claimant would have to sign the form prior to the SMO.

After additional letters were sent by Claimant’s counsel reiterating his

refusal to have his client sign the form, Defendant sent a letter demanding

Claimant attend the SMO appointment. That letter from Defendant stated, “You

can instruct your client to sign or not sign any document you want. However, she

still must appear for the examination on Monday as scheduled.”

Claimant drove to Dr. Smith’s office on the appointed date. She was told by

Dr. Smith’s staff she had to sign the “Medical Evaluation Consent Form.” After

speaking with her attorney by telephone, Claimant refused to sign the form.

Thereafter, Dr. Smith refused to examine Claimant.

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Defendant subsequently filed a Motion to Compel in the Office of Workers’

Compensation, seeking to have Claimant ordered to sign the “Medical Evaluation

Consent Form.” Following a hearing, the workers’ compensation judge (WCJ)

granted Defendant’s Motion to Compel. Claimant immediately sought review of

the ruling, filing a writ application with this court. This court ordered all

proceedings in the matter stayed and the writ was set for oral argument.

ANALYSIS

Louisiana Revised Statutes 23:1121(A) mandates that an injured employee

“shall submit himself to an examination by a duly qualified medical practitioner”

at the request and expense of the employer. There is no dispute that Defendant

was within its rights to have Claimant examined by Dr. Smith. The sole issue

before us is whether the WCJ was correct in finding Defendant could require

Claimant to sign the “Medical Evaluation Consent Form.” We find no support for

the WCJ’s finding and reverse the grant of the Motion to Compel.

The “Medical Evaluation Consent Form” in question provided in its entirety

as follows:

This is to certify that I have been scheduled to undergo a medical
evaluation related to my claim of injury/illness by Dr. Donald Smith,
M.D.

I understand Dr. Smith is an independent medical examiner who will
perform a comprehensive review of my medical records, interview,
and a physical examination.

I understand this evaluation is to include my giving information about
myself and my personal circumstances as well as my health.

I understand it is very important that I am honest with Dr. Smith about
my symptoms and how I perceive my medical condition(s) limits me
with activities on a day to day basis.

I understand Dr. Smith will perform a physical examination on the
relevant parts of my body.

I understand it is very important that I give my best effort during the
physical examination, and any attempt to give less than my best effort

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will be detectable by Dr. Smith and will be documented as part of my
permanent medical record.

I will inform Dr. Smith if I experience an increase in pain or other
symptoms during the physical examination.

I understand that Dr. Smith may recommend additional diagnostic
testing prior to rendering a final medical opinion.

I understand the recommendations given by Dr. Smith are totally
independent of the requesting agents.

I understand if more information becomes available at a later date,
then an additional report may be required.

Claimant objected to several problems with this form. Our review of the form

also identified several problems with the language contained therein. We are

particularly troubled by the paragraph which requires the signee to acknowledge

that Dr. Smith “is an independent medical examiner.” This simply is not so. Dr.

Smith was specifically chosen by the Defendant, not the WCJ, to examine

Claimant.1

Of even greater concern is the paragraph that requires the examinee “to give

my best effort during the physical examination,” and that any failure to do so “will

be detectable by Dr. Smith.” (Emphasis added.) It is one thing to request an

examinee give their best effort during an exam, but it is quite another thing to

require the examinee to grant a degree of infallibility and omnipotence to Dr.

Smith in his ability to detect any substandard effort or cooperation. The absurdity

of this provision is obvious. We cannot fault Claimant for her concern that putting

her signature on such a form could be argued as abandoning her right in the future

to contradict Dr. Smith’s opinions.

1
Louisiana Revised Statutes 23:1123 provides for the appointment of an IME by the WCJ when
there is a dispute in the medical evidence. The law provides an IME’s medical conclusions
should be given significant weight because the IME is an objective party. See Scott v. Wal-Mart
Stores, Inc., 03-858 (La.App. 1 Cir. 2/23/04), 873 So.2d 664. Clearly, Dr. Smith was the
Defendant’s choice of physician and not in any way “independent” as contemplated by the
statute.
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Defendant argues this form is merely acknowledging that Claimant

“understands” the provisions listed; however the form is titled “Medical Evaluation

Consent Form.” (Emphasis added.) Were Defendant only concerned with

Claimant “understanding” these provisions, it certainly could hand Claimant the

form and not require her to sign it.

There is no statutory or jurisprudential authority that requires a Claimant to

sign any type of consent form to undergo a SMO. The only thing La.R.S.

23:1121(A) requires is that the injured employee “shall submit himself to an

examination.” Accordingly, the WCJ erred in granting the Motion to Compel

requiring Claimant to sign the “Medical Evaluation Consent Form.”

DECREE

Pursuant to granting the writ of certiorari to consider this matter, we render

judgment herein, reversing the ruling of the Office of Workers’ Compensation

granting Defendant’s Motion to Compel. All costs are assessed to Defendant.

WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT ON
MOTION TO COMPEL REVERSED.

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