In the consolidated workers’ compensation cases of Musson Patout Auto. Grp v. Maynard, 2021 WL 265779, 2020-218 (La. App. 3 Cir. 1/27/21), the Third Circuit Court of Appeal rejected Employee’s argument that he was wrongfully compelled by the workers’ compensation judge to undergo an independent medical examination before he had reached maximum medical improvement or undergone the surgery recommended by his treating physician.

Musson Patout Auto. Grp v. Maynard  – Background

The underlying facts of the claim were undisputed. An employee sustained injuries to his cervical and lumbar spine following a motor vehicle accident while in the course and scope of his employment. Upon Employee’s failure to respond to conservative treatment, his treating physician submitted a request for a transforaminal lumbar interbody fusion, consisting of a two-level lumbar decompression and fusion at L3-4 and L4-5. This was denied by Employer’s Utilization Review as not being medically necessary under the Medical Treatment Guidelines on the grounds that no pre-surgical psychological evaluation had been performed. Surgery was approved once Employee underwent said evaluation.

However, following Employee’s second medical opinion evaluation – wherein it was opined that surgical intervention was not warranted – Employer rescinded its approval of the procedure and submitted a Motion for Independent Medical Examination. Employee underwent the examination, whereby it was recommended that Employee first undergo additional conservative treatment to pinpoint the source of the pain. It was additionally opined that Employee should refrain from returning to work for the time being.

Employee moved for summary judgement, requesting that judgement find him entitled to the surgery, in addition to other disputes concerning his indemnity benefits. Following the hearing, the workers’ compensation court granted Employee’s Motion, in part, and held that Employee was entitled to the requested surgery due to the fact that the independent medical examination report did not refer to the Medical Treatment Guidelines; thus, there was not a showing by clear and convincing evidence that the Medical Director’s Decision granting the procedure – which was not presented as evidence – was inappropriate.

In the trial thereafter, the workers’ compensation judge held that Employer failed to reasonably controvert and timely authorize the procedure. As such, penalties and attorney’s fees were imposed upon Employer. For reasons not provided in the court’s opinion, the Employee instituted an appeal regarding his submission to the independent medical examination.

Louisiana Third Circuit Court of Appeal Ruling

In his first assignment of error, Employee argued that the workers’ compensation court erred by ordering an independent medical examination despite the Employee not yet reaching maximum medical improvement nor undergoing the procedure. The court disagreed with this contention, looking to the statutory language of La. R.S. 23:11241., which allows for the court on its own motion to order that an employee be examined by an independent medical provider. The court further noted that it in Dietz v. Lowe’s Home Centers, it previously rejected an employee’s argument regarding the necessity of a conflicting opinion in order for the court to compel such an examination. 14-401 (La. App. 3 Cir. 11/5/14), 151 So.3d 990, writ denied 15-130 (La. 4/10/15), 163 So.3d 812.

It was therefore found by the court that the workers’ compensation judge did not legally err by ordering the employee to submit to an examination before he had reached maximum medical improvement or undergone the surgery recommended by his treating physician. The court further noted that La. R.S. 1317(F) lays out the procedure by which an employee may object to the court’s order that they submit to the examination, which was not done in this case. In light of the foregoing, the court’s finding that Employee was required to submit to an independent medical examination was upheld.