                              Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE                                           NEWS RELEASE #017


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 15th day of March, 2017, are as follows:



BY GUIDRY, J.:


2016-C-1112       BYRON GULLEY v. HOPE YOUTH RANCH, ET AL. (Parish of Rapides)

                  Retired Judge Gay Caldwell Gaskins assigned as Justice ad hoc, sitting
                  for Genovese, J., recused.

                  Because we find the Medical Director and the Office of Workers'
                  Compensation misinterpreted the language of Louisiana Administrative
                  Code, and thus misapplied the Medical Treatment Guidelines on
                  neurostimulation to Mr. Gulley's case, we reverse the lower court's
                  ruling and find the Office of Workers' Compensation erred in affirming
                  the decision of the Medical Director.
                  REVERSED

                  CRICHTON, J., additionally concurs with reasons.
03/15/17



                        SUPREME COURT OF LOUISIANA

                                      No. 2016-C-1112

                                    BYRON GULLEY

                                           VERSUS

                           HOPE YOUTH RANCH, ET AL.

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                THRID CIRCUIT, PARISH OF RAPIDES


GUIDRY, Justice∗

       In this matter, a workers’ compensation claimant sought review of a

judgment from the Office of Workers’ Compensation affirming the decision of the

Medical Director denying his physician’s request for trial of a spinal cord

stimulator. The court of appeal affirmed the ruling of the Office of Workers’

Compensation that the claimant had failed to show the Medical Director’s decision

was not in accordance with the Medical Treatment Guidelines. Because we find the

Medical Director and the Office of Workers’ Compensation misinterpreted the

language of Louisiana Administrative Code, and thus misapplied the Medical

Treatment Guidelines on neurostimulation to Mr. Gulley’s case, we reverse the

lower court’s ruling and find the Office of Workers’ Compensation erred in

affirming the decision of the Medical Director.

FACTS AND PROCEDURAL HISTORY

       The issue presented is whether the Office of Workers’ Compensation erred

in affirming the decision of the Medical Director. The legislature in 2009 enacted

La. Rev. Stat. 23:1203.1 to provide for the establishment of a medical treatment



∗ Retired Judge Gay Caldwell Gaskins assigned as Justice ad hoc, sitting for Genovese, J.,
recused.
                                              1
schedule, ultimately promulgated by the Louisiana Workforce Commission, Office

of Workers’ Compensation Administration in June 2011. See Church Mutual Ins.

Co., 2013-2351 (La. 5/7/14), 145 So.3d 271 (summarizing the purpose and history

of the Medical Treatment Guidelines). “[M]edical care, services, and treatment

due, pursuant to R.S. 23:1203, et seq., by the employer to the employee shall mean

care, services, and treatment in accordance with the medical treatment schedule.”

La. Rev. Stat. 23:1203.1(I). This legislation establishes the procedure whereby an

injured employee’s medical provider can request authorization for medical services

from a payor, usually the employer or its insurer, who must then timely act on that

request. La. Rev. Stat. 23:1203.1(J)(1). Any aggrieved party may file an appeal

with the Medical Director, who must render a decision within thirty days. Id.

“After the issuance of the decision by the medical director ..., any party who

disagrees with the decision, may then appeal by filing a ‘Disputed Claim for

Compensation.’” La. Rev. Stat. 23:1203.1(K). The decision of the Medical

Director “may be overturned when it is shown, by clear and convincing evidence,

the decision ... was not in accordance with the provisions of this Section.” Id. 1

       Here, the claimant, Byron Gulley, was struck by a golf cart while working

for the Hope Youth Ranch in Winnfield, Louisiana, in June 2009. Mr. Gulley

claims he suffered injuries to his head, shoulder, wrist, back, knee, hip, foot, and

ankle as a result of the accident. The claimant’s pain management specialist, Dr.

Chad Domangue, recommended a trial of a spinal cord stimulator, on the basis that

medications, conservative therapy, and injections had failed to adequately address




1
 The court of appeal identified its appellate standard of review as one of manifest error-clearly
wrong, explaining that the Office of Workers’ Compensation hearing officer’s judgment
affirming or overturning the Medical Director’s decision is necessarily fact-intensive. Gulley v.
Hope Youth Ranch, 2015-1076 (La. App. 3 Cir. 4/6/16) p. 3, 188 So.3d 1134, 1135-36 (citations
omitted).

                                                2
Mr. Gulley’s significant low back, left hip, and leg pain emanating from chronic L-

5 radiculopathy, which is the primary contributor to his pain issues.

         There have been at least two requests for the trial of the spinal cord

simulator. After Mr. Gulley received the necessary clearance from a psychologist,

Dr. Domangue first requested the spinal cord stimulator by filing a Form 1010

under the procedures of the Medical Treatment Guidelines. This first request was

denied by the employer’s insurer; an appeal was taken to the Medical Director of

the Office of Workers’ Compensation, who also denied the request; and the Office

of Workers’ Compensation District 2 affirmed that denial. No further appeals were

taken.

         Thereafter, in response to the Medical Director’s decision, Dr. Domangue

saw Mr. Gulley in May of 2015, and this time clarified that, while the spinal cord

stimulator could not possibly address all of the areas of Mr. Gulley’s pain, it was

expected that the spinal cord stimulator would address his significant lower back

pain, left hip pain, and leg pain, which were the primary contributors to his pain

issues.2 With this information, Dr. Domangue filed a second request for the trial of

the spinal cord stimulator with the employer’s insurer, who denied the request.

The claimant sought approval for the procedure from the Medical Director.


2
    According to the Record, Dr. Domangue stated:

“Patient presents for follow-up. WC continues to deny his SCS based on lack of documentation
of topography of pain. Patient has completed pain drawing today. To address the issue indicated
by WC regarding lack of evidence that SCS will not address all areas of his pain, this is correct.
NO ONE PROCEDURE WILL ADDRESS ALL AREAS OF THIS PATIENT'S PAIN. SCS
will address his significant low back, left hip, and leg pain which is a primary contributor to his
pain issues. To summarize this patient's history, he has undergone multiple injections,
procedures, and physical therapy with no sustained effect from any of these. Patient has previous
EMG that documents a chronic left L-5 radiculopathy on 9/27/12. His exam findings continue to
support this. Previous evaluation and work-up by another pain physician, Dr. Conn, came to the
same conclusion and also recommended SCS on 4/11/13. He has previously received psych
clearance for this procedure on 3/28/13. It is unclear, based on this information, why this
procedure continues to be denied. The patient has attempted to return back to some type of
gainful employment and is attending culinary classes. He reports increasing difficulty being able
to attend his classes due to his increased pain levels. We will resubmit for his SCS implant [sic]
with WC.”
                                                  3
However, the Medical Director again denied approval for the procedure on the

basis that the topography of the claimant’s pain was not amenable to stimulation

coverage. The claimant appealed that decision to the workers' compensation court.

After a hearing, District 2 of the Office of Workers’ Compensation found the

claimant had failed to meet his burden of proof. The hearing officer specifically

noted that “[t]his gentleman has multiple painful areas.... So, I don’t think there’s

clear and convincing evidence that the medical director has failed to follow” the

guidelines.

      The claimant appealed, asserting the Office of Workers’ Compensation

hearing officer and the Medical Director erroneously interpreted the Medical

Treatment Guidelines to require that the spinal cord stimulator address every

painful area in the claimant’s body. The court of appeal affirmed in a split

decision. Gulley v. Hope Youth Ranch, 2015-1076 (La.App. 3 Cir. 4/6/16), 188

So.3d 1134. The majority reasoned the Medical Director’s decision did not

necessarily indicate the Medical Director would actually require the requested

procedure to address all of the painful areas of the claimant’s body, but instead

reasoned the Medical Director’s finding could be “alternatively viewed as a finding

that the claimant’s medical records do not adequately document that the areas of

the body identified by Dr. Domangue and the associated underlying

pathophysiology are amenable to stimulation coverage.” 15-1076, p. 6, 188 So.3d

at 1138. The majority declined to disturb the hearing officer’s conclusion the

claimant had failed to show by clear and convincing evidence that the Medical

Director’s decision was not in accordance with La. Rev. Stat. 23:1203.1. Id., p. 7,

188 So.3d at 1138.

      We granted the writ application to determine whether the court of appeal

correctly applied the law. Gulley v. Hope Youth Ranch, 2016-1112 (La. 11/18/16),

                                         4
___ So.3d ___. For the reasons set forth below, we reverse the court of appeal’s

decision.

DISCUSSION

      The Louisiana Administrative Code addresses the operative procedures for

chronic pain management, including the implantation of a spinal cord stimulator, in

40 La. Admin. Code. Pt. I, § 2113. That section states, in relevant part:

             2. Neurostimulation

             a. Description--Neurostimulation is the delivery of low-voltage
      electrical stimulation to the spinal cord or peripheral nerves to inhibit
      or block the sensation of pain. This is a generally accepted procedure
      that has limited use. May be most effective in patients with chronic,
      intractable limb pain who have not achieved relief with oral
      medications, rehabilitation therapy, or therapeutic nerve blocks, and in
      whom the pain has persisted for longer than six months. …

             ...

            c. Surgical Indications--Failure of conservative therapy
      including active and/or passive therapy, medication management, or
      therapeutic injections. Preauthorization is required. Habituation to
      narcotic analgesics in the absence of a history of addictive behavior
      does not preclude the use of neurostimulation. Only patients who meet
      the following criteria should be considered candidates for
      neurostimulation:

            i. A diagnosis of a specific physical condition known to be
      chronically painful has been made on the basis of objective findings;
      and

           ii. All reasonable surgical and non-surgical treatment has been
      exhausted; and

            iii. Pre-surgical psychiatric or psychological evaluation has
      been performed and has demonstrated motivation and long-term
      commitment without issues of secondary gain; and

            iv. There is no evidence of addictive behavior. (Tolerance and
      dependence to narcotic analgesics are not addictive behaviors and do
      not preclude implantation.); and

            v. The topography of pain and its underlying
      pathophysiology are amenable to stimulation coverage (the entire
      painful area has been covered); and


                                          5
            vi. A successful neurostimulation screening test of two-three
      days. A screening test is considered successful if the patient (a)
      experiences a 50 percent decrease in pain, which may be confirmed by
      visual analogue scale (VAS), and (b) demonstrates objective
      functional gains or decreased utilization of pain medications.
      Functional gains may be evaluated by an occupational therapist and/or
      physical therapist prior to and before discontinuation of the trial.

            vii. For spinal cord stimulation, a temporary lead is implanted
      at the level of pain and attached to an external source to validate
      therapy effectiveness. (For peripheral nerve screening, a nerve block
      is performed to define the specific nerve branch but if multiple
      branches are involved, a screening test for spinal cord stimulation may
      be indicated.) Long-term functional improvement is anticipated when
      objective functional improvement has been observed during time of
      neurostimulation screen exam.

             d. Contraindications--Unsuccessful neurostimulation test--
      either inability to obtain functional improvement or reduction of pain,
      those with cardiac pacemakers, patient unable to properly operate the
      system. It should not be used if future MRI is planned.

40 La. Admin. Code. Pt. I, § 2113 (emphasis supplied).

      The Medical Director denied the claimant’s request for a spinal cord

stimulator trial with the following comments:

            · Clinical indications have not been met. The MTG specifically
      note that the topography of pain and its underlying pathophysiology
      are amenable to stimulation coverage (the entire painful area has been
      covered).

            · The sole indication for this diagnostic screening trial is one of
      several criteria for implantable neuro-stimulator for which the
      requested diagnostic test is solely clinically intended.

            · Regardless of the results of a diagnostic Spinal Cord
      Stimulator Trial, the patient’s multi-focal topography of pain would
      not be compliant with another required clinical indication for an
      implantable spinal cord stimulator.


      The claimant contends the Medical Director’s comments indicate the main

obstacle to approval was that the entire area in which the claimant is experiencing

pain, that is, the multi-focal topography of the pain, would not be covered. As the

court of appeal noted, the claimant’s medical records, including records from his


                                         6
pain management physician, indicate the claimant reported pain in his left

shoulder, low back, left hip, left ankle and foot pain. The claimant argues that

requiring the procedure to address all painful areas of the body, including his

shoulder and ankle, is an unreasonable interpretation of the Medical Treatment

Guidelines.

       Although the court of appeal majority demurred as to the Medical Director’s

precise reasons for denying the requested procedure, the Medical Director’s

comments do indicate the Medical Director believed the claimant’s “multi-focal

topography of pain” was not compliant with the Medical Treatment Guidelines’

requirement that “[t]he topography of pain and its underlying pathophysiology are

amenable to stimulation coverage (the entire painful area has been covered)[.]” See

40 La. Admin. Code Pt. I, § 2113(A)(2)(c)(v). Furthermore, the Office of Workers’

Compensation hearing officer, as evidenced by the transcript of the hearing, clearly

interpreted the Medical Treatment Guidelines to require that “every bit” of a

worker’s painful areas “have to be amenable to neurostimulation.” 3 Thus, the

hearing officer denied the application for review on the basis that all of a worker’s

injured body parts had to be amenable to neurostimulation.

       The defendants contend the statutory burden of proof is on the claimant to

show by clear and convincing evidence that the decision of the Medical Director

was not in accordance with the Medical Treatment Guidelines. Though the court of

appeal majority did not directly consider the correctness of the hearing officer’s

reasoning, the defendants point out that the hearing officer specifically, and



3
  In written reasons, the hearing officer reiterated this interpretation of the “topography of pain.”
The hearing officer pointed out that Mr. Gulley’s injuries to the left side of his body included his
foot, ankle (requiring surgical repair), hip, knee, shoulder (requiring two arthroscopic
procedures), and low back. The hearing officer found the Medical Director properly denied the
request for trial of the spinal cord stimulator “because there was no showing in the medical
records that all the ‘underlying pathophysiology’ of the multiple pain producing injuries were
shown to be amenable to ‘stimulation coverage.’”
                                                   7
correctly in their view, concluded the Medical Treatment Guidelines, as written,

require the claimant to establish neurostimulation will address all of his pain. The

defendants contend the appeal of the Medical Director’s decision was properly

denied because there is no argument the claimant’s entire painful area and

pathophysiology will not be addressed by the proposed spinal cord stimulator,

which the defendants point out, was conceded by the claimant’s pain management

specialist.

       Therefore, as the dissent below noted, the issue is the application of the

Medical Treatment Guidelines on neurostimulation to Mr. Gulley’s case. In

applying the guidelines, the court must determine the meaning of 40 La. Admin.

Code Pt. I, § 2113(A)(2)(c)(v) when it states: “The topography of pain and its

underlying pathophysiology are amenable to stimulation coverage (the entire

painful area has been covered)….”

       When a law is clear and unambiguous and its application does not lead to

absurd consequences, the law shall be applied as written and no further

interpretation may be made in search of the intent of the Legislature. La. Civ. Code

art. 9; Pumphrey v. City of New Orleans, 05–979, p. 10 (La.4/4/06), 925 So.2d

1202, 1209. The starting point in the interpretation of any statute is the language of

the statute itself, because what the legislature says in the text of a statute is

considered the best evidence of legislative intent. State v. Williams, 00–1725, p. 13

(La.11/28/01), 800 So.2d 790, 800.

       The fundamental question in all cases of statutory interpretation is legislative

intent. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000–1695, p. 11 (La.6/29/01),

808 So.2d 294, 302; Succession of Boyter, 99–0761, p. 9 (La.1/7/00), 756 So.2d

1122, 1128. The rules of statutory construction are designed to ascertain and

enforce the intent of the legislature. Id.; Stogner v. Stogner, 98–3044, p. 5

                                           8
(La.7/7/99), 739 So.2d 762, 766. Furthermore, the words of a law must be given

their generally prevailing meaning. La. Civ.Code art. 11; Pumphrey, 05–979 at p.

11, 925 So.2d at 1209–10. The meaning and intent of a law is determined by

considering the law in its entirety and all other laws on the same subject matter and

by placing a construction on the law that is consistent with the express terms of the

law and with the obvious intent of the legislature in enacting the law. SWAT 24

Shreveport Bossier, 2000–1695 at p. 11, 808 So.2d at 302; Succession of Boyter,

99–0761 at p. 9, 756 So.2d at 1129. A statute must be applied and interpreted in a

manner that is logical and consistent with the presumed purpose and intent of the

legislature. Id.

       In addition to the above judicial principles, which are guides to determine

legislative intent, the legislature has enacted rules for the construction of statutes in

the provisions of the revised statutes. The following is pertinent to this case. La.

Rev. Stat. 1:3 provides:

       Words and phrases shall be read with their context and shall be
       construed according to the common and approved usage of the
       language. Technical words and phrases, and such others as may have
       acquired a peculiar and appropriate meaning in the law, shall be
       construed and understood according to such peculiar and appropriate
       meaning.


       The hearing officer determined the Medical Treatment Guidelines allowed

approval of neurostimulation only if “every bit” of the claimant’s pain was

relieved. The claimant contends such a reading of the statute creates an impossible

situation in a case like his. He reasons, as did the dissent below, that, because he

sustained multiple injuries as a result of a single work accident, and no treatment,

neurostimulation or otherwise, is available to treat all of his pain related to all of

his injuries, then neurostimulation for a discrete injured area could never be

approved. The claimant points to the definition of “topography” as contained in

                                           9
various medical dictionaries, to refer not to every painful area on the body, but to

specific anatomical areas. For example, “topography” is defined as follows: “the

description of the regions of the body or of a body part, especially the regions of a

definite and limited area of the surface.” See The American Heritage Medical

Dictionary (Houghton Mifflin Co., 2007). The defendants counter the Medical

Treatment Guidelines are clear and unambiguous, and any potential ambiguity as

to the use of the term “topography of pain” was directly and specifically addressed

as the clarification of that term is contained within the guideline itself, and

provides as follows: “(the entire painful area has been covered).”

      Although we find no ambiguity per se in the provision, we conclude the

Medical Director and the Office of Workers’ Compensation have unnecessarily

expanded the scope of the provision to encompass every region of the body where

the claimant is injured or experiencing pain, regardless of the source of the pain

being experienced. Such an expansion of the required scope of the treatment leads

to an absurd result, as exemplified in the instant case. Contrary to the defendants’

argument, the subject provision does not expand “topography of pain” to every

painful area on the body, or to the entire body, but instead delimits it to “the entire

painful area….” Here, Dr. Domangue recommended a trial period of

neurostimulation for Mr. Gulley’s “significant” lower back, hip, and leg pain,

diagnosed as “chronic L-5 radiculopathy,” because he met all criteria for the

treatment under the Medical Treatment Guidelines, including addressing the

topography of pain across that discrete region or area of his body related to the

injury to his back. Dr. Domangue determined this area of pain is the “primary

contributor” to the claimant’s pain issues, and that a spinal cord stimulator trial is

the only available option for seeking a solution to the claimant’s pain and to make

him non-dependent on narcotics. No evidence or testimony in the record

                                          10
contradicts Dr. Domangue’s determination. As the dissent below reasoned, the

claimant’s shoulder and ankle injuries are separate injuries, unrelated to the L-5

radiculopathy. Thus, the claimant need not show that those areas would be

addressed by neurostimulation in order for the Medical Director to approve the

treatment trial related to the injuries to his spine or lower back. Accordingly, we

find the Office of Workers’ Compensation hearing officer misapplied the language

of the provision that “[t]he topography of pain and its underlying pathophysiology

are amenable to stimulation coverage (the entire painful area has been covered)….”

See 40 La. Admin. Code Pt. I, § 2113(A)(2)(c)(v).

CONCLUSION

      Because we find the Medical Director and the Office of Workers’

Compensation misinterpreted the language of Louisiana Administrative Code, and

thus misapplied the Medical Treatment Guidelines on neurostimulation to Mr.

Gulley’s case, we reverse the lower court’s ruling and find the Office of Workers’

Compensation erred in affirming the decision of the Medical Director.

REVERSED




                                        11
03/15/17


                        SUPREME COURT OF LOUISIANA

                                     NO. 2016-C-1112

                                    BYRON GULLEY

                                          VERSUS

                           HOPE YOUTH RANCH, ET AL

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                THIRD CIRCUIT, PARISH OF RAPIDES



CRICHTON, J., additionally concurs and assigns reasons

       I concur in the majority’s finding that the Office of Workers’ Compensation

erred in the denial of the claimant’s physician’s request for a spinal cord

stimulator. I write separately to point out that in addition to the absurd result

rendered by the Office of Workers’ Compensation and addressed by the majority

(interpreting 40 La. Admin. Code Pt. I, ' 2113(A)(2)(c)(v) to expand “topography

of pain” to every painful area on the body), disallowing the trial of the spinal cord

stimulator as a pain alleviator for the claimant by default dictates that the claimant

would require opioids (perhaps indefinitely) for pain relief. In my view, a more

conservative non-narcotic pain management plan (such as the subject stimulator)

comports with the spirit and purpose of the Louisiana Workers’ Compensation Act,

which is to balance the interests1 of both the employer and employee by providing

“for the timely payment of . . . benefits to all injured workers who suffer an injury

. . . arising out of an in the course and scope of their employment . . . .to return

such workers . . . .to the work force” and to ensure a claimant is entitled to all that

is necessary, including “supplies, . . . . medical and surgical treatment, and any
1
  “It is well settled that the Louisiana Workers’ Compensation Act is a quid-pro-quo system that
affords the injured worker with certain but limited benefits in exchange for the general immunity
from tort liability granted to the employer.” Champagne v. American Alternative Insurance
Corporation, 12-1697, p. 6 (La. 3/19/13), 112 So.3d 179, 184 (internal citations omitted).
                                               1
nonmedical treatment recognized by the laws of this state. . . .” La. R.S. 23:1010.1

and La. R.S. 23:1203. To deny this claimant the non-narcotic alternative he seeks

not only departs from the appropriate interpretation of the Medical Treatment

Guidelines addressed by the majority, but would also leave this claimant, who has

exhausted all other options, with the unavoidable use of dangerous and addictive

opioids for pain relief.     Surely this is not what the Louisiana Workers’

Compensation Act seeks to accomplish.




                                         2
