165 So. 3d 1052
La. Ct. App.2015Background
- In 2001 claimant was shot at work and remains in a permanent vegetative state; his mother is his curatrix and caretaker.
- Since 2002 defendant’s contracted supplier (PMSI) delivered a nutrient (Isosource 1.5 cal with Benefiber) to claimant; deliveries stopped in March 2013 and were allegedly replaced with a different product claimant could not tolerate.
- Claimant’s physician wrote a prescription for the original product on April 26, 2013; claimant filed a Disputed Claim for Compensation (Form 1008) that same day seeking reimbursement for the product, penalties, and attorney’s fees.
- Defendant filed a dilatory exception of prematurity under La. R.S. 23:1203.1, arguing claimant failed to follow the post-2011 administrative procedures for requests for medical treatment.
- The OWC granted the exception and dismissed the claim with prejudice; the appellate court reversed and remanded, holding the claim was for reimbursement of a prior discontinuance (March 2013) and thus outside the §1203.1 procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claim was premature under La. R.S. 23:1203.1 (medical treatment schedule procedures) | Claim is not subject to §1203.1 because the underlying supply began in 2002 (pre-guidelines), the discontinuance occurred before any new request, and §1203.1 is not retroactive | Claimant failed to use the §1203.1 administrative procedures (Form 1010/medical director appeal) and filed a claim for penalties/fees the same day a physician wrote a prescription | Reversed OWC: claim is a reimbursement claim for a March 2013 discontinuance (occurred before the April 26 prescription) and thus not a new request subject to §1203.1 procedures; exception of prematurity improperly granted |
| Whether §23:1203.1 applies retroactively to injuries predating the schedule | (alternate) §1203.1 is substantive and should not apply to pre-2011 injuries | §1203.1 applies to treatment requests after the schedule’s effective date regardless of injury date | Louisiana Supreme Court holdings (Cook and Dardar) establish §1203.1 is procedural and applies to requests made after the schedule’s effective date; appellate court nonetheless concluded this particular claim fell outside §1203.1 because it sought reimbursement for a prior discontinuance |
Key Cases Cited
- Cook v. Family Care Servs., Inc., 144 So.3d 969 (La. 2014) (held §23:1203.1 is procedural and applies to requests made after the medical schedule’s effective date)
- Church Mut. Ins. Co. v. Dardar, 145 So.3d 271 (La. 2014) (same: §23:1203.1 procedural and applicable to post-schedule treatment requests)
- Jefferson Door Co., Inc. v. Cragmar Constr., L.L.C., 81 So.3d 1001 (La. App. 4 Cir. 2012) (standard of review for exception of prematurity and evidence may be introduced when grounds do not appear from petition)