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Howard v. Our Lady Of The Regional Medical Center9/22/2000
Disposition: REVERSED.
This appeal arises from an Office of Workers' Compensation ("OWC") ruling in favor of claimant, Sheila Howard, and against her employer, Our Lady of the Lake Regional Medical Center ("OLOL"). The ruling awards penalties and attorney fees for OLOL's failure to authorize Howard's evaluation by Dr. Louis Martin, a bariatric surgeon and weight loss specialist. We reverse.
I. FACTS AND PROCEDURAL BACKGROUND
Howard sustained an injury to her back during a work-related accident on the premises of OLOL in Baton Rouge, Louisiana, on November 28, 1997. After the accident, Howard received treatment for severe back pain from several different specialists, including Dr. Stephen J. Flood, an orthopedic surgeon. According to a March 23, 1998 evaluation letter, Dr. Flood determined Howard had a massive herniated disc at the L4-5 level that was attributable to her on-the-job injury. Dr. Flood advised that Howard, who was approximately five feet, six inches tall and weighed about 315 pounds, was not a candidate for back surgery due to her weight. He advised she would have to lose approximately one-third of her body weight before considering back surgery. Dr. Flood recommended that Howard be seen by Dr. Martin at the Weight Loss Management Center in New Orleans, Louisiana "for consideration of surgery to help her with weight loss." Howard's counsel requested authorization for this evaluation from The Frank Gates Service Company, OLOL's workers' compensation insurer/administrator, and the request was denied.
Subsequently, Howard filed a disputed claim for compensation asserting that OLOL had been arbitrary and capricious in not authorizing the requested medical treatment. On January 4, 1999, claimant also filed a rule requesting authorization to see Dr. Martin. Following a hearing on the rule, a February 10, 1999 OWC ruling was signed ordering OLOL to pay for Howard's evaluation by Dr. Martin. The ruling further specified that "bariatric surgery and/or any weight loss surgical procedure is not approved at this time."
In oral reasons, the OWC stated that OLOL had no medical evidence to contradict Dr. Flood's recommendation for the evaluation and found OLOL's failure to approve the evaluation was arbitrary. The OWC found that while the opinions of Dr. John E. Clark, a physical medicine and rehabilitation doctor, and Dr. Anthony S. Ioppolo, a neurosurgeon, supported the proposition that bariatric surgery was not an appropriate treatment of claimant's lumbar disc problems, they did not specifically contradict the need for the evaluation by Dr. Martin. The OWC reasoned that the evidence established Howard's medical need for weight loss and that Dr. Martin might have recommendations other than bariatric surgery to assist Howard in losing weight. The OWC found that Dr. Martin was the only weight loss specialist and bariatric surgeon treating Howard and that Howard had the right to select Dr. Martin as her physician in this specialty area.
During February of 1999, Howard filed a rule seeking to recover penalties and attorney fees based on the OWC's conclusion that OLOL had been arbitrary in its denial of the authorization to treat with Dr. Martin. Following another hearing, a May 10, 1999 OWC ruling was signed, which awarded Howard $2,000.00 in penalties and $1,500.00 in attorney fees. OLOL has appealed this ruling urging that the OWC committed legal error "by awarding penalties and attorney's fees on an initial choice of physician issue," citing La. R.S. 23:1121(C). Howard responds that she is entitled to recover statutory penalties and attorney fees under La. R.S. 23:1201(F).
II. STANDARD OF REVIEW
In a worke
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