PITMAN, J.
On June 30, 2012, Mr. Arrant injured his back when the company vehicle he was driving was hit by an 18-wheeler that ran a red light. On May 1, 2013, Mr. Arrant filed a disputed claim for compensation ("Form 1008") seeking medical treatment, i.e., a lumbar MRI and a Left SI nerve block. He alleged that Defendants refused to provide tests and procedures recommended by his treating physician and requested that Defendants pay penalties, court costs, attorney fees and the cost for tests and procedures.
On May 14, 2013, Defendants filed an answer and general denial. They asserted an exception of prematurity concerning the dispute over the medical necessity of a Left SI nerve block, stating that the medical director of the Office of Workers' Compensation ("OWC") must first issue a decision concerning the medical necessity of the procedure. They asserted an exception of no cause of action concerning the dispute over the medical necessity of an MRI, arguing that judicial review of the denial should be sought within 15 days of the determination.
On May 14, 2013, Mr. Arrant filed a first supplemental and amending 1008. He stated that Defendants refused to allow him to be seen and treated by an orthopedic surgeon of his choice, i.e., Dr. Douglas Brown; and, therefore, his counsel had to pay $600 for this examination. Mr. Arrant contended that he is entitled to reimbursement for the $600 and for $800 paid for an MRI recommended by Dr. Brown that was denied by Defendants. He argued that Defendants should pay penalties and attorney fees for the wrongful refusal to provide treatment.
On May 15, 2013, Mr. Arrant filed a second supplemental and amending 1008, stating that Defendants refused to allow him to see the neurosurgeon of his choice, i.e., Dr. Bernie McHugh. Mr. Arrant also filed a motion for treating physician and requested that Defendants show cause why they should not pay for treatment by the physician of his choice.
On July 2, 2013, Defendants filed an answer to the first and second amended 1008, stating that the Louisiana Workers' Compensation Act ("LWCA") gives a claimant the right to choose a treating physician without prior approval. They asserted an exception of no cause of action as to Mr. Arrant's claim that he is entitled to reimbursement of $600 for the deposit made to Dr. Brown. They further contended that the LWCC is only required to pay for authorized treatment given in accordance with the medical treatment guidelines and is not required to pay deposits. They also reasserted their exception of no cause of action as to the $800 for an MRI and stated that the parties resolved the issue of choice of neurosurgeon.
On July 22, 2013, a hearing was held on the pretrial motions. The defense withdrew the exception of no cause of action because, as set forth in the Louisiana Code of Civil Procedure, evidence could not be
On the morning of trial, January 9, 2014, Defendants filed a peremptory exception of preemption, or alternatively, prescription,
The WCJ noted that the parties stipulated to Mr. Arrant's employment, that "he was involved in an accident within the course and scope of his employment" and that he was "receiving temporary, total disability benefits."
Phillip Deal, a personal injury attorney, testified that he consulted with Mr. Arrant about the automobile accident.
Mr. Arrant testified that he worked for Wayne Acree PLS, Inc., as a surveyor and that he was involved in a work-related accident on June 30, 2012, while operating a company vehicle. He stated that, after the accident, he returned to work and spoke with Mr. Acree about the pain he was experiencing. He testified that he told Mr. Acree on multiple occasions that he would like to see a doctor, and Mr. Acree responded that he did not have any insurance information. Mr. Arrant noted that the pain in his back worsened and he had trouble working, so he contacted an attorney, Mr. Deal, to help him receive medical treatment for his back. He further noted that he and the staff at Dr. Brown's office unsuccessfully attempted to obtain information on workers' compensation, so Mr. Deal paid the $600 deposit for him to see Dr. Brown. He stated that he met several times with Dr. Brown, who recommended an MRI, but several MRI
Mr. Acree testified that he was Mr. Arrant's employer and that Mr. Arrant was an instrument man whose duties included carrying a 20-pound survey instrument in the woods and over rough terrain. He stated that he discussed the accident with Mr. Arrant, but could not recall him indicating that he was injured or requesting to see a doctor. Mr. Acree noted that he received a letter from Mr. Deal and then contacted the LWCC. He also stated that he did not recall having conversations with Mr. Deal or Dr. Brown's office about workers' compensation.
Margaret Dearman, a senior claims representative with the LWCC, testified that the LWCC received a letter from Mr. Street requesting that he be allowed to exercise his choice of neurosurgeons. She stated that she faxed approval directly to Dr. McHugh. She also testified about a HIPPA form from Dr. Brown with the date of service as August 16, 2012, in the amount of $600 that was sent to the LWCC, noting that this bill was paid in October 2013 according to the Louisiana Fee Schedule.
Both parties filed post-trial briefs.
On April 21, 2014, the WCJ provided oral reasons for judgment. Regarding the timely payment of the $600, the WCJ stated that Defendants received the bill on October 17, 2013, and that it was paid November 30, 2013, which was within the 60-day requirement of La. R.S. 23:1201(E)(1). Regarding the exception of prescription, the WCJ stated that, pursuant to Section 2715(K) of the Utilization Review Procedures, a party feeling aggrieved by a determination of the medical director shall seek judicial review within 15 days of the determination. She stated that the medical director faxed his determinations on September 18, 2012, and October 19, 2012, but that a 1008 form appealing the decision was not filed until May 1, 2013. Accordingly, the WCJ stated that she was precluded from reviewing the issue of whether the medical director failed to appropriately apply the medical treatment guidelines in denying the MRI. Regarding the timeliness of authorization for examination by Dr. McHugh, the WCJ stated that approval was requested on April 17, 2013, and that authorization was faxed to his office on May 16, 2013, which was timely pursuant to La. R.S. 23:1122 and 1201.
On April 29, 2014, the WCJ filed a judgment stating that (1) the $600 bill was timely paid; (2) Defendants' peremptory exception of prescription is granted; (3) the LWCC provided timely authorization for Mr. Arrant to be examined by his choice of neurosurgeon; and (4) all costs are assessed to Mr. Arrant and the matter is dismissed with prejudice.
Mr. Arrant appeals the judgment of the WCJ.
In his first assignment of error, Mr. Arrant argues that the WCJ erred in granting the exception of prescription, thereby refusing to review the medical director's denial of the MRI requests and upholding the 15-day time limit illegally fixed by the medical director. He contends
Defendants argue that the WCJ correctly granted the exception of prescription because the 15-day appeal period is set forth in the Utilization Review Procedures. They agree that this time limit is not set forth in La. R.S. 23:1203.1, but explain that the legislature delegated authority to the Director of the OWC to establish such a rule. Defendants contend that the 15-day period comports with the legislative purpose to speed up the resolution of medicalnecessity disputes.
In Church Mut. Ins. Co. v. Dardar, 13-2351 (La.5/7/14), 145 So.3d 271, the Louisiana Supreme Court discussed La. R.S. 23:1203.1 and stated:
La. R.S. 23:1203.1(J) and (K) set forth the procedures for disputing the medical treatment schedule and decisions of the medical director. When the accident occurred on June 30, 2012,
Title 40, Part 1, Chapter 27, Section 2715B(3)(f), i.e., the Utilization Review Procedures for Labor and Employment, adds additional procedures and time limitations for challenging the determination of the medical director and states:
As stated in La. R.S. 23:1291(B) and La. R.S. 23:1203.1(B), the legislature provided the director of the OWC with the power to promulgate rules and regulations to expedite the process of workers' compensation claims in order to further its intent of providing services to injured employees in an "efficient and timely manner." La. R.S. 23:1203.1(L). The director of the OWC acted within its authority when promulgating the 15-day appeal period set forth in Title 40, Part 1, Chapter 27, Section 2715B(3)(f). The 15-day period comports with the legislature's intent. Further, this time period is not unreasonable, notably in light of the fact that a claimant may file subsequent requests for review of the medical director's decision. Therefore, the trial court did not err in applying the 15-day period for review of the medical director's denial. The medical director faxed his determinations on September 18, 2012, and October 19, 2012, but Mr. Arrant did not file a 1008 form appealing those decisions until May 1, 2013. Because Mr. Arrant failed to file a 1008 form challenging the medical director's determination within 15 days of the decision, the trial court did not err in granting Defendants' peremptory exception of prescription.
Accordingly, this assignment of error is without merit.
In his second assignment of error, Mr. Arrant argues that the WCJ erred in failing to overturn the decision of the medical director denying the MRIs, thereby denying recovery of the $800 spent for that test, and in failing to award penalties and attorney fees for the denial. He details the findings of Dr. Brown and of the medical director and states that, according to documents attached to the medical director's decision, an MRI may provide useful information for spinal disorders.
Defendants argue that it is premature for this court to address the merits of the appeal of the decision of the medical director concerning the MRI. They contend that, if this court finds the appeal was in fact timely, the proper procedural remedy would be to remand to the WCJ for the purpose of addressing the merits of the appeal.
In accordance with our finding that the WCJ did not err in granting the peremptory exception of prescription, we find no error in declining to address the merits of the medical director's determinations.
In his third assignment of error, Mr. Arrant argues that the WCJ erred in declining to award penalties and attorney fees for the failure of Defendants to provide treatment by his choice of orthopedic surgeon and to timely reimburse Mr. Deal for the $600 paid to Dr. Brown, noting that it took 14 months to receive the $600 refund.
Defendants argue that they timely authorized medical care with Dr. Brown. They note that a health care provider may incur, without the consent of the employer or insurer, up to $750 in non-emergency diagnostic testing or treatment; and, therefore, there was no requirement that Dr. Brown obtain the LWCC's authorization to incur the $600 charge because it fell below the $750 threshold. They further argue that the LWCC timely paid the charges associated with the initial visit to Dr. Brown once those charges were properly submitted pursuant to the Louisiana Administrative Code.
La. R.S. 23:1142 sets forth the law on the approval of health care providers and fees. La. R.S. 23:1142(B)(1)(a) states:
La. R.S. 23:1142(D) states:
The Louisiana Administrative Code provides further procedures for billing services. Title 40, Part 1, Chapter 51, Section 5111(A) states:
La. R.S. 23:1201 sets forth provisions for the payment of compensation, and Part E(1) states:
Factual findings in workers' compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dep't, 09-0520 (La. 10/20/09), 23 So.3d 275, citing Winford v. Conerly Corp., 04-1278 (La. 3/11/05), 897 So.2d 560; Morgan v. Glazers Wholesale Drug Co., 46,692 (La. App.2d Cir. 11/2/11), 79 So.3d 417, citing Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. Under the manifest error rule, the reviewing court does not decide whether the fact finder was right or wrong, but only whether its findings are reasonable. Buxton v. Iowa Police Dep't, supra, citing Stobart v. State through Dep't of Transp. & Dev., 617 So.2d 880 (La.1993); Morgan v. Glazers Wholesale Drug Co., supra.
In this case, the trial court's findings that the $600 bill for Dr. Brown's services was timely paid is not manifestly erroneous. A demand by a claimant for reimbursement for out-of-pocket expenses is insufficient to trigger a reimbursement obligation. Once the LWCC received the proper form on October 17, 2013, it timely reimbursed the funds on November 30, 2013, which was within the 60-day requirement of La. R.S. 23:1201(E)(1).
Accordingly, this assignment of error lacks merit.
In his fourth assignment of error, Mr. Arrant argues that the WCJ erred in failing to award penalties and attorney fees for the unreasonable delay in providing treatment by Mr. Arrant's choice of neurosurgeon. He notes that La. R.S. 23:1201(F) provides for penalties and attorney fees for failure to consent to the employee's request to select a treating physician and imposes a $50 per day penalty for every day that consent is withheld. He asserts that, in this case, consent was withheld for 29 days.
Defendants argue that the LWCC timely authorized an evaluation by Mr. Arrant's choice of neurosurgeon, noting that it received the request on April 23, 2013, and faxed authorization to Dr. McHugh on May 16, 2013. They contend that this short delay was reasonable, noting that, at the time of the request, litigation was ongoing and it was reasonable for the LWCC to contact its attorney regarding the request. Defendants further note that, pursuant to La. R.S. 23:1201(E)(1), the employer or insurer has 60 days to act upon a request without exposure to penalties or attorney fees.
La. R.S. 23:1201(F) states, in part:
The trial court's finding that the LWCC provided timely authorization for Mr. Arrant to be examined by his choice of neurosurgeon is not manifestly erroneous. Mr. Arrant contacted the LWCC by letter dated April 17, 2013, which it received on April 23, 2013. The LWCC provided authorization on May 16, 2013, which is within the statutory provisions. Further, the delay was not unreasonable considering the fact that litigation had begun in this case.
Accordingly, this assignment of error lacks merit.
For the foregoing reasons, we affirm the judgment of the Workers' Compensation Judge against Plaintiff Calvin Arrant and in favor of Defendants Wayne Acree PLS, Inc., and the Louisiana Workers' Compensation Corporation. Costs of appeal are assessed to Mr. Arrant's survivors, his wife and two children, Michele Arrant, individually and on behalf of the minor, Allison Michele Arrant, and Stacie Renae Arrant Glenn, respectively, who were substituted as plaintiffs in this case.