In a recent proceeding before the Court of Appeals for the Second Circuit of Louisiana, Appellants, Employer, Wayne Acree, PLC, Inc. (“Acree”) and Insurer, Louisiana Workers’ Compensation Corporation (“LWCC”), appealed an award of attorney’s fees and penalties assessed for the failure to approve a lumbar spine MRI as recommended by Claimant, Calvin Arrant’s physician.  Claimant in this matter answered the appeal and lodged his own appeal seeking additional attorney’s fees for the work necessitated by the appeal.

The facts of the matter show that Appellee, Calvin Arrant was working for Acree as a surveyor, and was injured on June 30, 2012 when his work vehicle was struck by an 18-wheeler.  Arrant testified that he informed Acree when he returned to work that his back had been hurting and asked if he could see a doctor to have his back examined. Acree denied Arrant’s request and later testified that Arrant had not started complaining about his back until August 1, 2012. Acree also denied that Arrant had ever asked to see a doctor.

Arrant alleges that he continued to work with his back pain and eventually sought out an attorney, on August 2, 2012, when his symptoms worsened. Based upon his consultation with the Claimant, counsel believed Arrant was likely a surgical candidate due to his complaints and counsel’s own professional experience with personal injury cases.  Counsel scheduled an appointment for Arrant with Dr. Douglas Brown on August 16, 2012.

In conjunction with his evaluation of Arrant, Dr. Brown sought authorization from LWCC for Arrant to undergo a lumbar MRI.  LWCC denied the request, but Dr. Brown continued to treat Arrant.  Additional requests were made and denied, and Claimant’s attorney paid for the MRI out-of-pocket.  Arrant later filed Form 1008 asserting entitlement to penalties, as well as reimbursement of the $800.00 expended by his attorney for a neurosurgical evaluation with Dr. McHugh.  On January 9, 2014, Acree and the LWC filed Exceptions of Preemption and Prescription, contending that the disputed claim for compensation which was filed on May 1, 2013 was untimely because under the utilization review procedures, Arrant had 15 days from the date the Medical Director’s determination to file his claim for compensation.  On April 30, 2014, the WCJ rendered a judgment stating that LWCC had timely paid for the initial examination by Dr. Brown and granted the exception for prescription because Arrant had failed to timely file his appeal of Medical Director’s decision to affirm LWCC’s denial of authorization for the lumbar MRI.  Arrant appealed the WCJ’s decision, but the Second Circuit affirmed the WCJ’s judgment that Arrant’s 1008 filings were defective.

Arrant appealed that decision to the Supreme Court, which reversed and vacated part of the Second Circuit’s decision to grant the exception of prescription and found that the director lacked the authority to promulgate a right that shortened the prescriptive period for appealing the OWC Medical Director’s decision.  Thereafter, the matter was remanded to WCJ for reconsideration on the merits of Arrant’s claim that the Medical Director failed to properly apply medical treatment guidelines when denying the lumbar MRI.  On remand, WCJ concluded that there was sufficient evidence and medical records to support the granting of the second MRI request.  Arrant was awarded an $800.00 reimbursement for the MRI as well as a penalty of $2,000.00 and an attorney fee of $5,000.00.  Acree and LWCC have appealed the assessment of penalty and award of attorney’s fees, while Arrant answered the appeal and sought an increase in the attorney fee award as well as additionally fees for the appeal period.

The Court cited La. R.S. 23:1201(F), which governs the assessment of penalties and award of attorney fees for an employer’s or insurer’s failure to authorize medical treatment. Noting that La. R.S. 23:1201(F) (2) states that the statute shall not apply if the claim is reasonably controverted, or if such nonpayment results from conditions over which the employer or insurer had no control.  Based upon the facts presented, the Court determined that Acree and LWCC were justified in their controversion of the first MRI request because the denial was based upon reasonable medical evidence and the OWC Medical Director’s opinion that there was insufficient documentation to justify approval of the MRI.

With regard to the denial of the second MRI request, the Court found that Acree and LWCC did not have competent medical evidence to support denial of the procedure, and instead had relied solely upon the denial of the procedure by the OWC’s Medical Director.  The director’s decision to deny the second MRI was later overturned by the WCJ and on that basis, it was also determined that Acree and LWCC had failed to reasonably controvert the second MRI request.  Acree and LWCC failed to appeal the WCJ’s ruling and thus the Court left the finding undisturbed.

Turning to Arrant’s appeal of attorney’s fees, the Court cited Frith v. Riverwood, Inc., 2004-1086 (La. 1/19/05), 892 So.2d 7 and Key v. Monroe City Sch. Bd., 45,096 (La.App. 2 Cir. 3/10/10), 32 So.3d 1144, 256 Ed. Law Rep. 504, in concluding that it was within their discretion to award or increase attorney fees to a workers’ comp claimant for defending an unsuccessful appeal.  In doing so, the Court ordered that an additional award of $2,500 was appropriate to compensate Arrant’s counsel for work performed in connection with the instant appeal.

Arrant v. Wayne Acree PLS, Inc.