Louisiana Supreme Court Holds Claimant Not Entitled to Defense-Paid FCE

Claimant sustained an injury to her neck, shoulder, and back in 2006.  After several rounds of litigation, Claimant was awarded temporary total disability benefits and on-going medical care as to these injuries.  In July 2013, Employer received an updated work status report from Claimant’s treating pain management physician, who continued to disable Claimant from returning to work in any capacity.  In response, Employer sent Claimant for a Second Medical Opinion (“SMO”) with its choice of orthopedic surgeon.  The SMO report indicated that Claimant exhibited “significant signs of symptom magnification” and that she had reached maximum medical improvement.  The Employer’s SMO physician recommended that Claimant undergo a Functional Capacity Examination (“FCE”) to determine work status.

Claimant refused to attend an FCE, and Employer filed a Motion to Compel Functional Capacity Evaluation or Alternatively to Reduce Benefits or in the Further Alternative Appointment of an IME.  Following a December 2013 hearing, the Office of Workers’ Compensation appointed an IME orthopedic surgeon to examine Claimant.  The IME physician opined that Claimant was at MMI and also recommended an FCE to determine Claimant’s work status.

After several more rounds of Employer scheduling a FCE, Claimant filing a motion to quash FCE, and Employer filing a motion to compel the FCE, Claimant attended the FCE in April 2015.  Subsequently, Employer filed a motion to have the FCE issued to the IME physician for interpretation.  Claimant responded by filing a motion to compel Employer to authorize an FCE of Claimant’s choosing.  The OWC ordered the FCE to the IME physician and denied Claimant’s motion to compel a second FCE.  Claimant filed for supervisory writ.

The Louisiana Supreme Court, in reviewing the record, first opined that the true issue was not whether or not the employee had the right to choose and FCE provider under La. R.S. 23:1121; instead, the truer, more narrow issue was whether the Employer was required to pay for a second FCE because Claimant disagreed with the result of the court-ordered FCE.  Further, the Louisiana Supreme Court determined that the second FCE was designed to put Claimant in a better legal posture and not a part of any active recommendation from a treating physician.  Therefore, Claimant was not entitled to a second FCE at Employer’s cost. 21

Clavier v. Coburn Supply Company, Inc.