Rison v. LifeCare Hospitals of Shreveport
196 So. 3d 657
| La. Ct. App. | 2016Background
- On October 8, 2013 Mary Rison, a nurse assistant, injured her back lifting a patient and thereafter treated conservatively; MRI showed disk problems and later spondylolisthesis was diagnosed.
- An IME recommended against surgery but advised an FCE to determine her functional limitations and employability.
- Employer/insurer scheduled an FCE with their chosen physical therapist; Rison declined and sought an FCE with her chosen provider and filed disputed claims and a protective order.
- Rison’s chosen provider submitted OWC Form 1010; the OWC medical director reviewed and approved the requested FCE under the Louisiana Medical Treatment Guidelines (MTG), but noted authorization/payment still required from the carrier.
- The WCJ affirmed the medical director’s MTG finding (entitling Rison to her selected FCE) but also ordered Rison to undergo the employer’s FCE and required the employer to pay for both exams; the WCJ rejected Rison’s Daubert/Foret challenge to the therapist’s methodology.
- Both sides appealed; the court affirmed the WCJ, holding an FCE may be "medical treatment" under the MTG depending on purpose, but may also be an employer-directed examination under La. R.S. 23:1121(A) when used to assess return-to-work capacity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an FCE ordered by claimant is "medical treatment" under the MTG | Rison: FCE is listed in MTG so it is medical treatment requiring patient consent and authorization procedures; she is entitled to her choice of provider via Form 1010/1009 | Employer: MTG cannot override La. R.S. 23:1121(A); employer may require an FCE by its chosen provider as an employer-directed exam | Court: FCE can be "medical treatment" when used diagnostically to set baseline/monitor progress/endpoint; here claimant’s requested FCE was properly approved as medical treatment by the medical director (affirmed) |
| Whether employer can compel claimant to undergo an employer-selected FCE | Rison: OWC cannot force her to attend employer’s FCE by a provider with whom she has no doctor-patient relationship; choice-of-provider rights apply | LifeCare: Under La. R.S. 23:1121(A) employer may require examinations by a medical practitioner it provides; FCE often fits that statute | Court: When FCE is primarily to assess return-to-work (not treatment endpoint), it is an examination under §1121(A); physical therapists qualify as medical practitioners to perform FCEs; WCJ correctly ordered attendance for employer’s FCE and payment for both |
| Standard for overturning medical director approval of MTG request | Rison: medical director properly approved her Form 1010 request; decision should stand | Employer: medical director erred; MTG approval permitting multiple FCEs conflicts with §1121 and should be overturned | Court: Reversal requires clear and convincing evidence of noncompliance with §1203.1; employer failed to meet that burden and WCJ correctly upheld the medical director’s approval |
| Admissibility/competence of employer’s FCE methodology (Daubert/Foret challenge) | Rison: therapist’s methodology does not meet gatekeeping standards and should be excluded | Employer: therapist’s methodology is admissible and appropriate for FCE purposes | Court: WCJ’s rejection of Daubert/Foret challenge was not manifestly erroneous on record; therapist may perform the FCE |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. 1993) (federal gatekeeping standard for expert scientific testimony)
- State v. Foret, 628 So.2d 1116 (La. 1993) (Louisiana adoption of Daubert gatekeeping principles)
- Collins v. Patterson Drilling, 902 So.2d 1264 (La. App. 2d Cir. 2005) (FCE used to determine limitations tied to medical evaluation and treatment decisions)
- Gautreaux v. K.A.S. Const., LLC, 923 So.2d 850 (La. App. 3d Cir. 2006) (treats FCE as an examination an employer may direct)
- Clavier v. Coburn Supply Co., 161 So.3d 15 (La. 2015) (writ denial referenced by parties regarding employer-directed examinations)
- Gilliam v. Brooks Heating & Air Conditioning, 146 So.3d 734 (La. App. 2d Cir. 2014) (discussing MTG purpose and medical necessity standards)