Terry McCain v. Lewis Companies, Inc. & LUBA Casualty Insurance Company ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0416
TERRY MCCAIN
VERSUS
LEWIS COMPANIES, INC. AND LUBA CASUALTY INSURANCE
COMPANY
JUDGMENT RENDERED: FEB 0 6 2020
Appealed from the State of Louisiana
Louisiana Workforce Commission
Office of Workers' Compensation • District 05
Docket Number 17- 03 03 0
Pamela Moses- Laramore, Workers' Compensation Judge Presiding
Stephen W. Brooks, Jr. ATTORNEYS FOR APPELLANTS,
Richard J. Voelker DEFENDANTS/ PLAINTIFFS- IN-
Covington, Louisiana RECONVENTION— Lewis
Companies, Inc. and Luba
Casualty Insurance Company
J. David Smith ATTORNEY FOR APPELLEE,
Baton Rouge, Louisiana CLAIMANT/ DEFENDANT- IN-
RECONVENTION— Terry McCain
BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.
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WELCH, J.
The defendants, Lewis Companies, Inc. and LUBA Casualty Insurance
Company (" LUBA"), appeal a final judgment of the Office of Workers'
Compensation (" OWC") that awarded the claimant, Terry McCain, permanent total
disability (" PTD") benefits and non -skilled personal care attendant services for up
to ten hours a day, five days a week. The defendants also appeal the OWC' s
interlocutory judgment denying their dilatory exception raising the objection of
prematurity and peremptory exception raising the objections of no right of action
and no cause of action, regarding whether the claimant' s request for home health
care was subject to the OWC' s Medical Treatment Guidelines. For the following
reasons, we vacate the OWC' s judgments, in part, otherwise affirm, and remand.
FACTS AND PROCEDURAL HISTORY
On February 22, 2011, while in the course and scope of his employment
with Lewis Companies, Inc., Mr. McCain was cutting a tree limb, when he fell
from a ladder, approximately ten feet, headfirst onto a concrete sidewalk. He
suffered a traumatic brain injury ( subdural hematoma with subarachnoid
hemorrhage in the right frontal lobe), blowout fracture of his thoracic spine,
complete rupture of his rotator cuff, and other orthopedic injuries. The defendants
paid medical and indemnity benefits ( at the rate of $579. 00 per week) to and on
behalf of Mr. McCain.
Mr. McCain filed a disputed claim for compensation Form LWC- WC- 1008
on May 18, 2017, requesting attendant care/ personal care services ( i.e., a non-
skilled sitter) as recommended by his treating neuropsychologist, Dr. Paul
Dammers; PTD benefits, temporary total disability (" TTD") benefits, or in the
alternative, supplemental earnings benefits (" SEB"); and objecting to the
appointment of a state independent medical examination (" IME") to address
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disputed issues between Mr. McCain' s treating neurologist, Dr. Joseph Acosta, and
LUBA' s second medical opinion (" SMO") neurologist, Dr. Steven Zuckerman.'
The defendants filed an answer, reconventional demand,' and raised a
dilatory exception of prematurity, or in the alternative, a peremptory exception of
no right and no cause of action. The defendants argued that Mr. McCain' s request
for attendant care/ personal care services was subject to the OWC Medical
Treatment Guidelines. Accordingly, the defendants contended that Mr. McCain' s
medical provider was required to obtain authorization for the attendant
care/ personal care services by submitting a Form LWC- WC- 10103 to Lewis
Companies' workers' compensation insurance carrier, LUBA. Then, if LUBA
denied the request, the defendants averred that Mr. McCain' s medical provider
could have sought relief with the OWC Medical Director through the filing of a
Form LWC- WC- 1009.4 Once the Medical Director made a decision regarding the
Form LWC- WC- 1009, any party aggrieved by the OWC Medical Director' s
decision could have filed suit with the OWC by filing a Form LWC- WC- 1008. 5
1 Mr. McCain also moved to quash the appointment of a state IME. The defendants objected.
The workers' compensation judge (" WCJ") granted the motion and converted it to an IME
pursuant to La. R. S. 23: 1124. 1, which provides:
Neither the claimant nor the respondent in hearing before the workers'
compensation judge shall be permitted to introduce the testimony of more than two
physicians where the evidence of any additional physician would be cumulative
testimony. However, the workers' compensation judge, on his own motion, may
order that any claimant appearing before it be examined by other physicians.
The WCJ ordered that Mr. McCain would undergo an IME with neurologist Dr. Arthur
Neil Smith, limited to Mr. McCain' s capacity to work.
2 The defendants sought judgment in their favor, against Mr. McCain, in the amount of $1, 000. 00
plus interest, costs, and attorney' s fees, for a fee incurred due to the alleged late cancellation of
the IME. Mr. McCain excepted to the defendants' reconventional demand, arguing they had no
cause of action and that there was no subject matter jurisdiction under the Workers'
Compensation Act. The WCJ sustained Mr. McCain' s exceptions and dismissed the defendants'
reconventional demand, with prejudice, in a judgment signed on February 8, 2018.
3 Form LWC- WC- 1010 is the " Request of Authorization/ Carrier or Self -Insured Employer
Response."
4 Form LWC- WC- 1009 is the " Disputed Claim for Medical Treatment."
5 Form LWC- WC- 1008 is the " Disputed Claim for Compensation."
3
The defendants averred that because Mr. McCain failed to comply with the OWC
Medical Treatment Guidelines in obtaining authorization for the requested
attendant care/ personal care services: 1) his Form LWC- WC- 1008 was therefore
premature; 2) he failed to state a cause of action against the defendants; 3) had no
right of action against the defendants to address any dispute regarding treatment;
and 4) had no right of action because there was no decision of the OWC Medical
Director to appeal.
Mr. McCain opposed the defendants' exceptions, arguing that requests for
attendant care/ personal care services are exempted from the OWC Medical
Treatment Guidelines; that there are no Medical Treatment Guidelines for brain
injuries; and that a sitter is " nonmedical treatment" to which the OWC Medical
Treatment Guidelines do not apply. Therefore, Mr. McCain argued that he had no
requirement to comply with the OWC Medical Treatment Guidelines prior to filing
a Form LWC- WC- 1008. Mr. McCain also contended that his treating
neuropsychologist, Dr. Dammers, did request that LUBA approve a sitter for Mr.
McCain at least three times, including by filing a Form LWC-WC- 1010, which he
claimed LUBA denied. Mr. McCain further alleged that LUBA' s own SMO
doctor determined that a sitter was necessary and appropriate, and that LUBA
cannot request utilization review or the OWC Medical Treatment Guidelines to
dispute its own doctor' s recommendations.
Following a hearing, the workers' compensation judge (" WCY) denied the
defendants' exceptions of prematurity, no right of action, and no cause of action, in
a judgment signed on February 8, 2018.
The matter proceeded to trial on August 9, 2018, for a determination of the
nature, extent, and duration of Mr. McCain' s injuries and disabilities; his
entitlement to PTD benefits; and his entitlement to penalties and attorney' s fees for
the defendants' alleged arbitrary, capricious, and/ or unreasonable failure to
11
approve treatment and services under the Workers' Compensation Act. At the
conclusion of trial, the WCJ took the matter under advisement.
On August 24, 2018, the WCJ made a ruling and gave oral reasons, finding
that Mr. McCain was permanently and totally disabled and unemployable, and
thus, entitled to PTD benefits. The WCJ further ruled that Mr. McCain was
entitled to attendant care/ personal care services in the form of a non -skilled sitter,
ordering that LUBA provide a personal care assistant to Mr. McCain for up to ten
hours a day, five days a week. The WCJ declined to award Mr. McCain penalties
or attorney' s fees, finding that the defendants were not unreasonable or arbitrary or
capricious for seeking a determination from the WCJ as to whether a request for
non -skilled personal care attendant services was subject to the OWC Medical
Treatment Guidelines.
The WCJ signed a judgment in accordance with her ruling on September 18,
2018, which decreed as follows:
IT IS ORDERED, ADJUDGED, AND
DECREED there be judgment in favor of the claimant,
Terry McCain, and against the defendants, Lewis
Companies, Inc. and Luba Casualty Insurance Company,
awarding Permanent Total Disability Benefits from date
of trial and continuing under the Act as proven by clear
and convincing evidence to be the direct result of
Traumatic Brain Injury combined with other physical
injuries sustained in the work accident on February 22,
2011.
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED there be judgment in favor of the
claimant, Terry McCain, and against the defendants,
Lewis Companies, Inc. and Luba Casualty Insurance
Company, awarding non -skilled Personal Care Attendant
services, for up to 10 hours per day, five days per week;
finding this prescribed care to be reasonable and
necessary medical treatment under the Act as a result of
the claimant' s Traumatic Brain Injury.
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED the claimant is not awarded penalties
or attorney' s fees, as the defendants' denial of non-
skilled Personal Care Attendant services was not
R
arbitrary or capricious and each party is to bear their own
costs.
The defendants now appeal the WCJ' s September 18, 2018 final judgment
awarding Mr. McCain PTD benefits and non -skilled attendant care/ personal care
services for up to ten hours a day, five days a week.
The defendants also appeal the WCJ' s February 8, 2018 interlocutory
judgment denying their dilatory exception raising the objection of prematurity, and
alternative peremptory exception raising the objections of no right and no cause of
action, regarding whether Mr. McCain' s request for attendant care/ personal care
services was subject to the OWC Medical Treatment Guidelines.'
LAW AND DISCUSSION
Assignment ofError No. 1: PTD Benefits
In their first assignment of error, the defendants allege the WCJ erred in
finding that Mr. McCain was permanently and totally disabled, and therefore
entitled to PTD benefits under La. R. S. 23: 1221.
Factual findings in a workers' compensation case are subject to the manifest
error -clearly wrong standard of review. McCray v. Delta Indus., Inc., 2000- 1694
La. App. Pt Cir. 9/ 28/ 01), 809 So. 2d 265, 269. In applying the manifest error -
clearly wrong standard, the appellate court must determine not whether the trier of
Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the
parties do not raise the issue as we are obligated to recognize any lack of jurisdiction if it exists.
This court' s appellate jurisdiction extends to final judgments. La. C. C. P. arts. 1841 and 2083;
Quality Envtl. Processes, Inc. v. Energy Dev. Corp., 2016- 0171 ( La. App. 1St Cir. 4/ 12/ 17),
218 So. 3d 1045, 1052- 53. The overruling of a peremptory exception or a dilatory exception is
an interlocutory ruling that is not appealable. See La. C. C. P. arts. 1841 and 2083( C); see also
Bennett v. Arkansas Blue Cross Blue Shield, 2005- 1714 ( La. App. 1St Cir. 9/ 15/ 06), 943 So.
2d 1124, 1126, and Joseph v. Hosp. Serv. Dist. No. 2 of Par. of St. Mary, 2001- 1952 ( La. App.
1St Cir. 12/ 28/ 01), 805 So. 2d 413, 416 n. 3. However, when an unrestricted appeal is taken from
a final judgment, the appellant is entitled to seek review of all adverse and prejudicial
interlocutory judgments, in addition to the review of the final judgment. Robertson v. Doug
Ashy Bldg. Materials, Inc., 2010- 1552 ( La. App. 1st Cir. 10/ 4/ 11), 77 So. 3d 339, 345 n. 11,
writs denied, 2011- 2468, 2011- 2430 ( La. 1/ 13/ 12), 77 So. 3d 972, 973. The defendants appeal
the September 18, 2018 judgment rendered in favor of the claimant, which is a final, appealable
judgment. See La. C. C. P. arts. 1841 and 2083( A). Therefore, it is appropriate for us to review
the OWC' s February 8, 2018 judgment overruling the defendants' objections of prematurity, no
right of action, and no cause of action in conjunction with the appeal of the final judgment. See
Robertson, 77 So. 3d at 345 n. 11.
2
fact was right or wrong, but whether the factfinder' s conclusion was a reasonable
one.
Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96- 2840 ( La. 7/ 1/ 97),
696 So. 2d 551, 556.
A workers'
compensation claimant who seeks PTD benefits must prove by
clear and convincing evidence, unaided by any presumption of disability, that he is
physically unable to engage in any employment or self-employment, regardless of
the nature or character of the work. La. R.S. 23: 1221( 2)( c). In the absence of such
evidence, the claimant' s demand for PTD benefits fails. See Delatte v.
Washington Par. Sch. Bd., 2018- 0575 ( La. App. 1St Cir. 12/ 21/ 18), 268 So. 3d
340, 344.
The finding of disability within the framework of the workers' compensation
law is a legal rather than a purely medical determination. Therefore, the question
of disability must be determined by reference to the totality of the evidence,
including both lay and medical testimony. Ultimately, the question of disability is
a question of fact, which cannot be reversed in the absence of manifest error.
Severio v. J.E. Merit Constructors, Inc., 2002- 0359 ( La. App. 1St Cir. 2/ 14/ 03),
845 So. 2d 465, 469.
After hearing from the witnesses and considering the documentary evidence,
the WCJ made the following findings concerning Mr. McCain' s disability status:
The Court finds that Mr. McCain is permanently
and totally disabled....
P] hysically, Mr. McCain could do sedentary -duty
work, but because of his traumatic brain injury, his
change in his character, and his inappropriate behavior
and cognitive malfunction makes him unemployable.
I found all of the witnesses credible. Mr. McCain
is 65 years old, and he is a very nice, affable man, and
he' s a [ knowledgeable] carpenter. And he is known by
his family and friends to be a jokester type, somebody
who would cut up and -- but what has happened now,
since he had this traumatic brain injury, which is --
nobody, nobody, no doctor has disputed that he has a
7
traumatic brain injury, that he has damage [ to] his frontal
lobe; it' s reported in all the testing. All of the physicians
agree that that is there....
Dr. Thomas G. Mungall, a vocational
rehabilitation expert,] stated that [ Mr. McCain has] an
11th grade education; he' s too mentally and cognitively
impaired to be able to earn a living, that he is
unemployable on a psychological level; that he has zero
earning capacity, especially, in light ...of the fact that
even on a physical level, his physicians think he could do
sedentary work. Dr. [ Megan Ciotta, the SMO
neuropsychologist] found that... [ Mr. McCain' s] even
fine and gross manual motor skills are impaired. So even
on a physical level, sedentary duty with impairment of
your manual motor skills severely restricts your abilities
to find employment, as well.
Dr. [Neal] Smith, the Court' s IME, stated -- and he
saw him this year -- that he is not mentally able to be
retrained, that he cannot return to work, not even in a
sedentary capacity, due to his mental impairment.
Dr. [ Megan Ciotta who] saw him in 2015 agreed
he had the traumatic brain injury. She is the... SMO
neuropsychologist and] ... found no exaggeration
indicators. She found structural damage with permanent
function and a decline of his cognitive function. Her
statement was that return -to -work may not be possible,
but he could increase his daily function if his symptoms
were addressed a little differently. So in my mind, that is
her way of saying that he can' t return to work.
Dr. [ J. George] Jiha is more pronounced. He is
the... SMO in pain management.... On all issues, he
would defer to the treating physicians. He agrees [ with]
their treatment. He agrees that [ Mr. McCain] has chronic
upper back pain, organic brain syndrome, seizures, and
his right rotator cuff tear. And he agreed with the
management that his physicians were doing ... and said
that [ Mr. McCain] should continue with them.
Dr. [ John] Nyboer [ Mr. McCain' s treating
rehabilitation physician] says [ Mr. McCain] cannot work,
and he has seizures that are now under control, but he
cannot drive because... nobody knows if another one will
come back.
Dr. [ Paul] Dammers is his treating neuro -psych,
and, as the Court stated, has treated [ Mr. McCain] from
the very beginning. He is the best evidence the Court
recognizes on [ Mr. McCain' s] condition and abilities,
and he states that [ Mr. McCain] cannot return to work.
His inappropriate behavior with others, especially with
strangers having no filter, will not allow him to work,
along with the fact that he could have a seizure at any
time, and he has a cognitive disability.
Dr. [ Joseph] Acosta[, the neurologist] who has
been treating [ Mr. McCain] for his seizures, described in
his medical records emotional outburst[ s], laughing and
crying, and as I' ve already stated, joking with him about
knives. He states that [ Mr. McCain' s] got a traumatic
brain injury and has been treating him for seizures and
that, is working.... But this man shouldn' t drive, not only
for that reason but because of the pain medication he is
on and his cognitive deficiencies otherwise, his memory
lapses and the need to be on his medication.
Dr. [ Steven] Zuckerman[, the defendants'
neurologist,] clearly found traumatic brain injury but,
with regard to return -to -work, would defer to having an
FCE performed, which the Court agrees with Dr. Smith
the IME] that it would not provide any information; that
it' s only going to provide functional capacity. And the
Court already finds that physically [ Mr. McCain] could
do sedentary -duty wok except for the manual motor
skills.... But the Court is not finding him permanently and
totally disable[ d] on a physical level; on a mental level.
He cannot be trusted in a work environment, even a
coddled work environment.... And how would he get
there? He cannot drive....[ B] efore this happened, he was
able to do everything....[ T] here is no testimony that there
was any disability of any kind, physical or mental, before
the accident happened. He fell off a ladder 10 feet onto
concrete and hit his head, as well as fracturing discs, ribs,
his clavicle, he' s got a right rotator cuff tear, all of that
on top of the traumatic brain injury. And he' s now got
chronic upper back pain that requires that he have
medication on a regular basis.
So for all these reasons, the Court finds that he is
permanently and totally disabled and unemployable.
9
Following an extensive review of the record and exhibits in this matter, we
are unable to say the WCJ erred in determining that based on Mr. McCain' s
physical, psychological, behavioral, and cognitive deficits, he was permanently and
totally disabled and entitled to PTD benefits. The WCJ' s ruling is reasonable and
supported by the record. Thus, we affirm the portion of the judgment that found
Mr. McCain permanently and totally disabled and awarded him PTD benefits
retroactive to the date of trial and continuing until further order of the court.
Assignment ofError No. 2: Defendants' Obiection ofPrematurity
In their second assignment of error, the defendants allege the WCJ erred in
denying the defendants' exception of prematurity, or in the alternative, exceptions
of no right and no cause of action, with regard to Mr. McCain' s request for
attendant care/ personal care services ( i.e., a non -skilled sitter). The defendants
contend that Mr. McCain' s treating physician was required to obtain prior written
authorization for attendant care/personal care services by submitting a Form LWC-
WC- 1010 to Lewis Companies' workers' compensation insurance carrier, LUBA.
If LUBA denied the request, the defendants argue that the next step was for Mr.
McCain' s physician to seek relief with the OWC Medical Director through the
filing of a Form LWC-WC- 1009. Once the Medical Director made a decision
regarding the Form LWC-WC- 1009, if Mr. McCain felt aggrieved by the Medical
Director' s decision, he could file suit with the OWC by filing a Form LWC- WC-
1008. The defendants aver that because Mr. McCain failed to obtain prior written
authorization for attendant care/personal care services and instead filed a Form
LWC- WC- 1008 prior to filing Forms LWC-WC- 1010 and 1009, he failed to
comply with the OWC Medical Treatment Guidelines. Thus, his suit is premature,
and he failed to state a cause of action and had no right of action against the
defendants under the Workers' Compensation Act.
10
Mr. McCain' s main argument regarding his entitlement to attendant
care/personal care services without first complying with the OWC Medical
Treatment Guidelines is that his request for a non -skilled sitter is a " nonmedical
treatment." Therefore, according to Mr. McCain, the request does not fall within
the scope of the OWC Medical Treatment Guidelines and is not required to be
submitted to the OWC Medical Director if denied by a carrier, prior to filing a
disputed claim for compensation.
Louisiana Code of Civil Procedure article 926( A)( 1) provides for the
dilatory exception raising the objection of prematurity. The dilatory exception is
designed to retard the progress of the action rather than defeat it. See La. C. C. P.
art. 923. The objection of prematurity raises the issue of whether the judicial cause
of action has yet come into existence because some prerequisite condition has not
been fulfilled. The viability of the exception is determined by the facts existing at
the time the lawsuit is filed. Stated differently, the dilatory exception raising the
objection of prematurity questions whether the cause of action has matured to the
point where it is ripe for judicial determination. Willis v. Frozen Water, Inc.,
2015- 0900 ( La. App. 1St Cir. 12/ 23/ 15), 2015 WL 9466625, at * 2 ( unpublished),
writ denied, 2016- 0146 ( La. 3/ 14/ 16), 189 So. 3d 1069.
Workers' Compensation is designed to provide indemnity benefits ( e.g.,
wage and disability benefits) and medical care benefits for workers who sustain
injuries or illnesses arising out of and in the course and scope of employment. See
LAC 40: I.2717( A).' Under the Louisiana Workers' Compensation Act, an
employer has a statutory duty to furnish all necessary treatment caused by work-
related injury. See La. R.S. 23: 1203; Dangerfield v. Hunt Forest Prod., Inc.,
7 Louisiana Administrative Code Title 40, Part I, Subpart 2, Section 2717( A) provides that
Compensation is designed to provide indemnity and medical care benefits for
w] orkers'
workers who sustain injuries or illnesses arising out of and in the course and scope of
employment. The following instructions give some general guidelines for medical review of
workers' compensation claims."
11
2010- 1324 ( La. App. 1st Cir. 3/ 25/ 11), 63 So. 3d 214, 218, writ denied, 2011- 0814
La. 6/ 3/ 11), 63 So. 3d 1019. Louisiana Revised Statutes 23: 1203( A) provides, in
pertinent part:
In every case coming under this Chapter, the employer
shall furnish 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....
Louisiana Revised Statutes 23: 1203. 1 ( 1) provides, in pertinent part:
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.
Furthermore, La. R. S. 23: 1203. 1( M) provides:
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.
2) Notwithstanding any other provision of this Chapter,
all treatment not specified in the medical treatment
schedule and not found in Subsection D of this Section
shall be due by the employer when it is demonstrated to
the medical director, in accordance with the principles of
Subsection C of this Section, that a preponderance of the
scientific medical evidence supports approval of the
treatment that is not covered.
Under the authority of La. R. S. 23: 1203. 1( B), the OWC promulgated the
Medical Treatment Guidelines with the purpose of assisting with the decision-
making process regarding proposed medical treatment for injured workers. See
LAC 40: I.2001- 5399. Additionally, in accordance with La. R.S. 23: 1291( B)( 5),
the OWC adopted the Utilization Review Procedures— which are found within the
Medical Treatment Guidelines at LAC 40: 1. 2701- 2719— to " establish procedures
12
and policies appropriate to the fulfillment of the powers, duties, and functions" of
the OWC. See LAC 40: 1. 2701 (A).
The procedure for obtaining care, services, or treatment under La. R.S.
23: 1203. 1 and the Medical Treatment Guidelines is as follows: ( 1) the medical
provider submits to the employer/insurer a request for authorization on Form
LWC- WC- 1010; ( 2) the employer/insurer then must notify the medical provider of
its action on the request within five business days of receipt of the request; ( 3) if
any dispute arises as to whether the recommended care, services, or treatment is in
accordance with the guidelines, or whether a variance from the guidelines is
reasonably required, any aggrieved party must file, within fifteen calendar days, an
appeal with the OWC Medical Director or Associate Director on Form LWC- WC-
1009; ( 4) the Medical Director/Associate Director must render a decision as soon
as practicable, but in no event, not more than thirty calendar days from the date of
filing; ( 5) after the decision by the Medical Director/Associate Medical Director,
any party who disagrees with the decision may appeal by filing a Form LWC-WC-
1008; ( 6) the decision by the Medical Director/Associate Medical Director may be
overturned only when it is shown, by clear and convincing evidence, the decision
was not in accordance with the provisions of La. R.S. 23: 1203. 1. See La. R. S.
23: 1203. 1( J)( 1) and ( K).
The Medical Treatment Guidelines at LAC 40: I.3507- 3511 set forth the
policies, procedures, and reimbursement schedule for requests for nursing,
attendant care, or home health health services. Under LAC 40: I.3507( A)( 1), "[ a] ll
nursing services and personal care services described herein, except those
specifically noted, must have prior written authorization of the carrier/self-insured
employer before reimbursement will be made." As set forth by LAC 40: I.3507( B),
p] rior authorization requests will be approved, denied, or amended and approved
by the carrier...". Under LAC 40: I.3509( A)(6):
13
Family members and other persons who are not trained
professional nursing personnel may receive payment in
the amount of the current minimum wage if the
following requirements have been satisfied:
a. the attendant has received adequate instruction from
the authorized treating provider regarding the services to
be provided in the home;
b. the services provided must be beyond the scope of
normal household duties and must be in the nature of
services
ordinarily by trained professional
rendered
personnel in hospitals or nursing homes; and
c. the medical evidence of record must be sufficient to
identify the nature and approximate value of the services
provided. [ Emphasis added.]
Similarly, LAC 40: I.3511( A) sets forth the maximum allowable
reimbursement for nursing/ attendant care/ home healthcare services as: the least of
the provider' s usual and customary fee; a pre -negotiated amount between the
provider and carrier; or the maximum allowable amounts established by the
schedule. The following rates are established in the schedule: ( 1) registered
nurse—$ 44. 00 per hour; ( 2) licensed practical nurse—$ 31. 00 per hour; ( 3) nurses'
aide—$ 11. 00 per hour; ( 4) attendant— minimum wage; and ( 5) nonprofessional
family member— minimum wage. LAC 40: I. 3 511( C).
While attendant care/ personal care services in the form of a non -skilled sitter
may be classified as " nonmedical treatment" as listed in La. R.S. 23: 1203( A), such
nonmedical treatment" due " shall mean ... treatment in accordance with the
medical treatment schedule" according to La. R. S. 23: 1203. 1( 1). Thus, attendant
care/ personal care services is " treatment in accordance with the medical treatment
schedule," even though it may be classified as " nonmedical treatment" under La.
R.S. 23: 1203( A). Therefore, attendant care/ personal care services is a " medical
care benefit" under the Workers' Compensation Act. See La. R.S. 23: 1203. 1( I),
and LAC 40:I.2717( A).
14
Furthermore, attendant care/personal care services is specifically provided
for in the Medical Treatment Guidelines at LAC 40: I.3507- 3511. Even if attendant
care/personal care services were not covered by the Medical Treatment Guidelines,
La. R.S. 23: 1203. 1( M)(2) requires that such a request be presented to the OWC
Medical Director.
Based on the foregoing, it is clear that Mr. McCain' s request for attendant
care/ personal care services in the form of a non -skilled sitter must comply with the
Medical Treatment Guidelines. Thus, Mr. McCain is required to comply with the
procedures set forth in the Medical Treatment Guidelines and La. R. S. 23: 1203. 1:
obtain prior authorization for attendant care/ personal care services from LUBA via
a Form LWC- WC- 1010; if denied, seek relief with the OWC Medical Director by
filing a Form LWC-WC- 1009; after the Medical Director' s determination, institute
a suit in the OWC by filing a Form LWC-WC- 1008 if aggrieved by the decision.
The record demonstrates that after Mr. McCain filed his Form LWC- WC-
1008 on May 18, 2017, his medical provider thereafter filed a Form LWC- WC-
1010, seeking authorization for the non -skilled sitter from LUBA. LUBA denied
the request on July 14, 2018, pending completion of the state IME. No further
action was taken by Mr. McCain or his medical provider regarding the request for
attendant care/ personal care services in the form of a non -skilled sitter.
Because Mr. McCain did not comply with the procedure set forth in the
Medical Treatment Guidelines and La. R.S. 23: 1203. 1, his disputed claim for
compensation was prematurely filed. Therefore, we must reverse the portion of the
WCJ' s February 8, 2018 judgment denying the defendants' exception of
prematurity, and vacate the portion of the WCJ' s September 18, 2018 judgment
granting Mr. McCain' s request for attendant care/ personal care services in the form
15
of anon -skilled sitter.$ See, , Dow v. Chalmette Rest., Ltd., 2015- 0336 ( La.
App. 4" Cir. 5/ 18/ 16), 193 So. 3d 1222, 1231.
Assignment ofError No. 4: Exclusion ofDeposition Testimony
In their fourth assignment of error, the defendants allege the WCJ abused her
discretion in excluding the deposition testimony of Dr. Steven Zuckerman
defendants' neurologist) and Dr. Megan Ciotta ( defendants' neuropsychologist).
They argue that the WCJ announced that any depositions taken after the discovery
cut- off date of June 4, 2018 would not be admitted into evidence. The defendants
submitted both depositions one week prior to trial, and the defendants proffered
both depositions at trial.
Louisiana Code of Civil Procedure article 1631( A) provides that the " court
has the power to require that the proceedings shall be conducted with dignity and
in an orderly and expeditious manner, and to control the proceedings at the trial, so
that justice is done." Additionally, the trial court has much discretion under La.
C. C. P. art. 1450 in determining whether to allow the use of deposition testimony at
trial, and its decision will not be disturbed on review in the absence of an abuse of
that discretion. ABS Servs., Inc. v. James Constr. Grp., L.L.C., 2016- 0705 ( La.
App. 1St Cir. 12/ 21/ 18), 269 So. 3d 723, 737 ( en banc), writ denied, 2019- 0473 ( La.
6/ 17/ 19), 273 So. 3d 1212. A review of the record does not support a finding that
the WCJ abused her discretion in excluding the depositions. Accordingly, this
assignment of error has no merit.
DECREE
Based on the foregoing, the portion of the September 18, 2018 final
judgment of the Office of Worker' s Compensation awarding the claimant, Terry
8
Accordingly, we pretermit discussion of the defendants' third assignment of error on appeal,
that the WCJ erred in granting Mr. McCain' s request for a non -skilled sitter for up to ten hours
per day, five days per week, to be paid $ 10. 00 per hour.
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McCain, non -skilled personal care attendant services for up to ten hours a day, five
days a week, is vacated; the judgment is otherwise affirmed.
The portion of the February 8, 2018 interlocutory judgment of the Office of
Worker' s Compensation overruling the dilatory exception raising the objection of
prematurity filed by the defendants, Lewis Companies, Inc. and LUBA Casualty
Insurance Company, is hereby vacated; the judgment is otherwise affirmed.
This matter is remanded to the Office of Worker' s Compensation for further
proceedings consistent with this opinion. All costs of this appeal are assessed
equally among the parties.
JUDGMENTS VACATED IN PART, OTHERWISE AFFIRMED;
REMANDED.
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