                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #005


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 27th day of January, 2016, are as follows:



BY KNOLL, J.:


2015-C -0905      CALVIN ARRANT v. WAYNE ACREE PLS, INC. & LOUISIANA WORKERS'
                  COMPENSATION CORPORATION (Office  of  Workers' Compensation,
                  District 1E)

                  Accordingly, we reverse and vacate in part that portion of the
                  judgment sustaining the defendants’ peremptory exception of
                  prescription, and we remand for the OWC to consider the merits of
                  Arrant's claim that the medical director failed to appropriately
                  apply the medical treatment guidelines in denying the lumbar
                  spine magnetic resonance imaging requested by his orthopedic
                  surgeon. In all other respects, we affirm the judgment.
                  AFFIRMED IN PART. REVERSED AND VACATED IN PART. REMANDED.

                  GUIDRY, J., dissents for reasons assigned by Justice Crichton.
                  CRICHTON, J., dissents and assigns reasons.
01/27/2016



                        SUPREME COURT OF LOUISIANA

                                    NO. 2015-C-0905

                                   CALVIN ARRANT

                                         VERSUS

           WAYNE ACREE PLS, INC. & LOUISIANA WORKERS’
                  COMPENSATION CORPORATION

    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND
    CIRCUIT, OFFICE OF WORKERS’ COMPENSATION, DISTRICT 1E



KNOLL, J.

       This writ concerns whether a statutory prescriptive period can be shortened

by an administrative rule. This issue arises in a workers’ compensation case where

the hearing officer refused to consider the worker’s request to have medically

recommended magnetic resonance imaging (“MRI”) of his lumbar spine because

the worker failed to appeal the Office of Workers’ Compensation Administration

medical director’s decision denying his request for medical treatment within the

15-day time period required by an administrative rule.1 In so doing, the hearing

officer sustained defendants’ peremptory exception of prescription. We find the

hearing officer erred as a matter of law. We reverse and vacate in part that portion

of the judgment sustaining the defendants’ peremptory exception of prescription,

and we remand for the Office of Workers’ Compensation (“OWC”) to consider the

merits of the worker’s claim that the medical director failed to appropriately apply

the medical treatment guidelines in denying the lumbar spine MRI requested by the




1
  Because the medical director denied the worker’s request for medical treatment, the worker’s
lawyer advanced the funds for the MRI, and the worker’s claim evolved from a request for
medical treatment to a request for reimbursement.
worker’s orthopedic surgeon. In all other respects, we affirm the judgment. 2

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       On June 30, 2012, Calvin Arrant 3 suffered injuries from an accident when an

eighteen-wheeler ran a red light and struck the work vehicle he was driving in the

course and scope of his employment with Wayne Acree PLS, Inc. (“Acree, Inc.”).4

After meeting with an attorney, Arrant consulted with Dr. Douglas Brown, an

orthopedic surgeon, concerning pain in his back that had begun radiating into his

legs. To help diagnose the problem, Dr. Brown recommended a lumbar MRI.

Arrant’s attorney contacted Louisiana Workers’ Compensation Corporation

(“LWCC”), the workers’ compensation carrier for Acree, Inc., to ascertain whether

LWCC would agree to provide the recommended MRI. According to the trial

testimony of Arrant’s former attorney, LWCC responded that “it would have to be

approved by the workers’ comp people.”

       On two occasions, Arrant submitted requests to the medical director seeking

approval for the recommended MRI, as required by La. Rev. Stat. 23:1203.1(J).

The medical director denied both of these requests, issuing these decisions via

facsimile on September 18, 2012, and on October 19, 2012, respectively. On May

1, 2013, Arrant filed a “Disputed Claim for Compensation”—LWC Form 1008—

with the OWC seeking judicial review of the medical director’s decision to deny

the recommended MRI. 5 Thereafter, LWCC and Acree, Inc. (“defendants,”




2
  We granted writ in this case only to review that portion of the judgment granting defendants’
exception of prescription. We decline to exercise our supervisory jurisdiction to address the
applicants’ remaining assignments of error.
3
  Following trial, Arrant passed away from natural causes unrelated to the injuries alleged in his
petition. Thereafter, the OWC granted a motion to substitute his surviving spouse, Michele
Arrant, and his children, Allison Michele Arrant and Staci Ranae Arrant Greene, as parties
plaintiff in this matter.
4
  At trial, the parties stipulated to Arrant’s employment with Acree, Inc., that he was involved in
an accident within the course and scope of his employment, and that, at the time of trial, he was
receiving temporary, total disability benefits.
5
  Arrant amended and supplemented his Form 1008 on two occasions prior to trial to add various
other claims which we decline to address in this opinion.
                                                2
collectively) filed, among other things, an exception of prescription,6 grounded in

Arrant’s failure to appeal the medical director’s decision within “15 calendar days

of the date said determination is mailed to the parties,” as required by La. Admin.

Code Title 40, Part I, Chapter 27, Section 2715.

       Following a trial on the merits, the OWC issued a judgment which, among

other things, granted defendants’ exception of prescription because “[c]laimaint

failed to timely file his appeal of the Office of Workers’ Compensation Medical

Director’s decision affirming LWCC’s denial to provide authorization for the

lumbar MRI requested by Dr. Brown.” The Court of Appeal for the Second Circuit

affirmed, finding:

       As stated in La. R.S. 23:1291(B) and La. R.S. 23:1203.1(B), the
       legislature provided the director of the OWC with the power to
       promulgate rules and regulations to expedite the process of workers’
       compensation claims in order to further its intent of providing services
       to injured employees in an “efficient and timely manner.” La. R.S.
       23:1203.1(L). The director of the OWC acted within its authority
       when promulgating the 15–day appeal period set forth in Title 40, Part
       1, Chapter 27, Section 2715B(3)(f). The 15–day period comports with
       the legislature's intent. Further, this time period is not unreasonable,
       notably in light of the fact that a claimant may file subsequent
       requests for review of the medical director’s decision. . . . Because
       Mr. Arrant failed to file a 1008 form challenging the medical
       director's determination within 15 days of the decision, the trial court
       did not err in granting Defendants' peremptory exception of
       prescription.[7]

       We granted certiorari to determine whether the Court of Appeal erred in

affirming this judgment granting defendants’ exception of prescription premised on

Arrant’s failure to abide by the time period the director of the Office of Workers’

Compensation Administration set out in Title 40, Part I, Chapter 27, Section

2715(B)(3)(f) of the Louisiana Administrative Code. 8

                                       DISCUSSION

       La. Rev. Stat. 23:1203.1 empowers the director of the Office of Workers’

6
  Specifically, defendants’ styled this pleading as a “Peremptory Exception of Preemption [sic]
or, Alternatively, Prescription.”
7
  Arrant v. Wayne Acree PLS, Inc., 49, 698, p. 10 (La. App. 2 Cir. 4/15/15), 164 So.3d 321, 328.
8
  Arrant v. Wayne Acree PLS, Inc., 15-0905, p. 1 (La. 6/30/15), 172 So.3d 1095.
                                               3
Compensation Administration to “promulgate rules…to establish a medical

treatment schedule”9 and provides that this medical treatment schedule will set the

standard for all medical treatment due by the employer to injured workers.10 An

injured worker can obtain from his employer medical treatment that varies from

the schedule

       when it is demonstrated to the medical director of the office by a
       preponderance of the scientific medical evidence, that a variance from
       the medical treatment schedule is reasonably required to cure or
       relieve the injured worker from the effects of the injury or
       occupational disease given the circumstances.[11]

When the employer or its insurer refuses to pay for requested medical care, the

injured worker may file an appeal with the medical director. Under La. Rev. Stat.

23:1203.1(J), as relevant here,

       If any dispute arises after January 1, 2011, as to whether the
       recommended care, services, or treatment is in accordance with the
       medical treatment schedule, or whether a variance from the medical
       treatment schedule is reasonably required as contemplated in
       Subsection I of this Section, any aggrieved party shall file, within
       fifteen calendar days, an appeal with the office of workers’
       compensation administration medical director on a form promulgated
       by the director. The medical director shall render a decision as soon as
       is practicable, but in no event, not more than thirty calendar days from
       the date of filing.[12]

La. Rev. Stat. 23:1203.1(K) provides a process by which any party who disagrees

with the medical director’s decision may seek review of that decision, first by a

hearing officer with the OWC, then by the Court of Appeal, and finally by writ

application to this Court. Notably, although the Legislature explicitly provided a

15-day period during which an injured worker may appeal an employer’s refusal to

9
  La. Rev. Stat. 23:1203.1(B).
10
   La. Rev. Stat. 23:1203.1(I). Note this part of the statute was amended and reenacted in 2014 to
correct an error in punctuation. 2014 La. Acts No. 791. This change did not affect the substance
of the statute.
11
   Id.
12
   La. Rev. Stat. 23:1203.1(J) (emphasis added). As the Court of Appeal acknowledged, La. Rev.
Stat. 23:1203.1 was amended in 2012, 2013, and 2014. The 2013 amendments added provisions
for an assistant medical director in Sections (J) and (K). 2013 La. Acts No. 317. These
amendments did not change the substance of the statute. Note also that Act 317 reenumerated
part (J), placing the substance of the quoted text in La. Rev. Stat. 23:1203.1(J)(1) and adding part
(J)(2) which provides the procedure to be followed in the event a potential conflict of interest
arises.
                                                 4
provide medical care to the medical director, La. Rev. Stat. 23:1203.1(K) is silent

concerning a corresponding period during which a party must file his claim with

the OWC:

       After the issuance of the decision by the medical director of the office,
       any party who disagrees with the medical director’s decision, may
       then appeal by filing a “Disputed Claim for Compensation”, which is
       LWC Form 1008. The decision of the medical director may be
       overturned when it is shown, by clear and convincing evidence, the
       decision of the medical director was not in accordance with the
       provisions of this Section.[13]

By promulgating Title 40, Part I, Chapter 27, Section 2715(B)(3)(f) of the

Louisiana Administrative Code, the director of the Office of Workers’

Compensation Administration sought to fill this gap:

       In accordance with LAC 40:I.5507.C, any party feeling aggrieved by
       the R.S. 23:1203.1(J) determination of the medical director shall seek
       a judicial review by filing a Form LWC-WC-1008 in a workers'
       compensation district office within 15 calendar days of the date said
       determination is mailed to the parties. A party filing such appeal
       must simultaneously notify the other party that an appeal of the
       medical director's decision has been filed. Upon receipt of the appeal,
       the workers' compensation judge shall immediately set the matter for
       an expedited hearing to be held not less than 15 days nor more than 30
       calendar days after the receipt of the appeal by the office. The
       workers' compensation judge shall provide notice of the hearing date
       to the parties at the same time and in the same manner.[14]

On the basis of Arrant’s failure to file his appeal with the OWC within this 15-day

period, the OWC granted defendant’s exception of prescription, and the Court of

Appeal affirmed this judgment.

       Indeed, we cannot stress enough that this case requires us to review a

judgment affirming an exception of prescription. Liberative prescription is a mode

of barring actions as a result of inaction for a period of time. 15 As our Civil Code

explicitly recognizes, the Legislature has the authority to set time limitations on

legal actions.16 Because prescription triggers the extinction of a claim,17


13
   La. Rev. Stat. 23:1203.1(K).
14
   La. Admin. Code tit. 40, pt. I, ch. 27, § 2715(B)(3)(f) (emphasis added).
15
   La. Civ. Code art. 3447.
16
   La. Civ. Code art. 3457 (“There is no prescription other than that established by legislation.”);
                                                 5
prescription statutes are strictly construed against prescription and in favor of the

claim sought to be extinguished by it. 18 As, in accordance with La. Civ. Code art.

3457, “[t]here is no prescription other than that established by legislation,” we

must determine whether or not the Legislature has provided for prescription in this

instance.

       It is well established that the Legislature, after fixing a primary standard,

may confer upon administrative officers in the executive branch the power to “fill

up the details” by prescribing administrative rules and regulations. 19 As we have

recognized, “even when the Legislature has properly delegated to an agency

certain administrative or ministerial authority, the regulations promulgated by the

agency may not exceed the authorization delegated by the Legislature.”20 Leaving

aside whether or not it would be proper for the Legislature to delegate to an

administrative agency the power to designate a prescriptive period, we first look to

the statute to determine whether the Legislature delegated this power at all or

whether the director promulgated the regulations at issue in this case absent

legislative empowerment. 21 Thus, the straightforward question before us is whether

the director exceeded the authority delegated by the Legislature by promulgating

Title 40, Part I, Chapter 27, Section 2715(B)(3)(f) of the Louisiana Administrative

Code. In order to answer this question, we must determine the scope of the


see also SS v. State ex rel. Dept. of Soc. Serv., 02-0831, p. 6 (La. 12/4/02), 831 So.2d 926, 931
(“It is also well accepted that the Legislature has the authority to set time limitations on legal
actions.”).
17
   Note, however, that a natural obligation remains after the accrual of prescription. Comment (b)
to La. Civ. Code art. 3447.
18
   Bailey v. Khoury, 04-0620, p. 9 (La. 1/20/05), 891 So.2d 1268, 1275; Bouterie v. Crane, 616
So.2d 657, 660 (La. 1993).
19
   State v. Alfonso, 99-1546, p. 7 (La. 11/23/99), 753 So.2d 156, 161; Adams v. State Dept. of
Health & Human Res., 458 So.2d 1295, 1298 (La. 1984) (“Louisiana courts have upheld the
constitutionality of statutes delegating broad powers to administrative officers to determine the
details of legislative scheme where those statutes express a clear legislative policy and contain
sufficient standards for the guidance of the administrative official empowered to execute the
law.”).
20
   Alfonso, 99-1546 at 8, 753 So.2d at 162.
21
   Because we find the Legislature did not delegate to the director of the Office of Workers’
Compensation Administration the power to designate a prescriptive period, we do not need to
address whether or not the Legislature could expressly delegate this power to an agency.
                                                6
Legislature’s delegation to the director.

      La. Rev. Stat. 23:1291 creates the Office of Workers’ Compensation

Administration and delegates to its director various enumerated powers. As

relevant to the rule the director promulgated here, La. Rev. Stat. 23:1291(B)

delegates the following to the director of the Office of Workers’ Compensation

Administration:

      The director shall have the following powers, duties, and functions:

      ....

      (5) To establish and promulgate in accordance with the
      Administrative Procedure Act such rules and regulations governing
      the administration of this Chapter and the operation of the office as
      may be deemed necessary and which are not inconsistent with the
      laws of this state.

      ....

      (10) To require the use of appropriate procedures, including a
      utilization review process that establishes standards of review, for
      determining the necessity, advisability, and cost of proposed or
      already performed hospital care or services, medical or surgical
      treatment, or any nonmedical treatment recognized by the laws of this
      state as legal, and to resolve disputes over the necessity, advisability,
      and cost of same.

      (11) To engage the services of qualified experts in the appropriate
      health-care fields to assist him in the discharge of his responsibilities
      in Paragraph (10) of this Subsection, and to establish fees and
      promulgate rules and procedures in furtherance of his performance of
      these duties.

Moreover, La. Rev. Stat. 23:1203.1(B) requires the director, “through the office of

workers’ compensation administration, [to] promulgate rules in accordance with

the Administrative Procedure Act, La. Rev. Stat. 49:950 et seq., to establish a

medical treatment schedule.” The Court of Appeal found that both La. Rev. Stat.

23:1291(B) and La. Rev. Stat. 23:1203.1(B) provided a legislative basis for

promulgating the rule setting out the 15-day period for appealing the medical

director’s determination, and Arrant’s failure to appeal during this time period

provided appropriate grounds for sustaining an exception of prescription. We

                                            7
disagree. While these statutes delegate to the director broad general authority to

promulgate rules and regulations concerning the medical treatment schedule, they

do not provide the director power to designate a prescriptive period. This is clear.

The Legislature exercised this power without qualification in La. Rev. Stat.

23:1209. Indeed, La. Rev. Stat. 23:1209(C) specifically establishes a prescriptive

period for claims for medical benefits like those brought by Arrant:

       All claims for medical benefits payable pursuant to R.S. 23:1203 shall
       be forever barred unless within one year after the accident or death the
       parties have agreed upon the payments to be made under this Chapter,
       or unless within one year after the accident a formal claim has been
       filed with the office as provided in this Chapter. Where such payments
       have been made in any case, this limitation shall not take effect until
       the expiration of three years from the time of making the last payment
       of medical benefits.

It is a fundamental rule of administrative law that if the Legislature has directly

spoken on a specific question at issue, the court as well as the agency must give

effect to the Legislature’s unambiguously expressed intent.22 Here, the Legislature

explicitly provided a prescriptive period for “all claims for medical benefits.”

Therefore, any attempt to alter the prescriptive period laid out in this statute is ultra

vires. Because all of the director’s power comes from the enabling statute and no

statute explicitly or implicitly delegates to the director the power to alter the

prescriptive period plainly provided in La. Rev. Stat. 23:1209(C) for “[a]ll claims

for medical benefits payable pursuant to R.S. 23:1203,” the 15-day period set out

in Title 40, Part I, Chapter 27, Section 2715(B)(3)(f) of the Louisiana

Administrative Code cannot provide a legitimate basis for sustaining an exception

of prescription under the facts of this case.

       The suggestion by the Court of Appeal that the worker could simply re-file

22
   Midtown Medical, LLC v. Dept. of Health & Hosp., 14-0005, p. 2 (La. 3/14/14), 135 So.3d
594, 595; Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct.
2778, 2781, 81 L.Ed.2d 694 (1984) (“When a court reviews an agency's construction of the
statute which it administers, it is confronted with two questions. First, always, is the question
whether Congress has directly spoken to the precise question at issue. If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”).
                                                8
the same request for reimbursement after the OWC has issued a judgment granting

an exception of prescription is legally wrong and practically absurd. Where an

action is barred by prescription, the civil obligation is extinguished. It is a final,

appealable judgment, 23 and any attempt to reurge the same claim would be

vulnerable to a peremptory exception of res judicata.24 Moreover, this course runs

contrary to the purpose of the Louisiana Workers’ Compensation Act that these

claims be resolved quickly and efficiently. 25 Further, this interpretation is

economically inefficient—bad for employers/insurers who must pay additional

attorney fees to their defense lawyers, bad for workers who must repeat an

administrative process in order to receive review of their request for the medical

treatment they may very well need, and bad for the State which must expend

valuable administrative resources re-examining an initial request for treatment that

was already denied at the initial stage. Finally, this interpretation would absolutely

and seriously undermine the quid pro quo that the Act has established because it

affects the worker’s access to medical benefits, the most central element of the

workers’ compensation scheme. All of these considerations further support our

decision.

       Accordingly, we reverse and vacate in part that portion of the judgment

sustaining the defendants’ peremptory exception of prescription, and we remand

for the OWC to consider the merits of Arrant’s claim that the medical director


23
   Rousseau v. Emp’rs Mut. of Wausau, 493 So.2d 121, 124 (La. App. 5 Cir. 1986) (“[A]
judgment sustaining the exception of prescription is a final appealable judgment, even in cases
where only a portion of the case is dismissed by the exception.”); Sewerage & Water Bd. of New
Orleans v. Sanders, 246 So.2d 734, 735 (La. App. 4 Cir. 1971) (“It is difficult for this court to
conceive of a judgment more final than the maintaining of a plea of prescription.”).
24
   La. C.C.P. art. 1673 (“A judgment of dismissal with prejudice shall have the effect of a final
judgment of absolute dismissal after trial.”); Sims v. American Ins. Co., 12-0204, p. 9 (La.
10/16/12), 101 So.3d 1, 7 (“[A] dismissal with prejudice has ‘the effect of a final judgment of
absolute dismissal after trial,’ and therefore, has res judicata effect on the parties to the suit
dismissed with prejudice.”).
25
   La. Rev. Stat. 23:1203.1(L) (“It is the intent of the legislature that, with the establishment and
enforcement of the medical treatment schedule, medical and surgical treatment, hospital care,
and other health care provider services shall be delivered in an efficient and timely manner to
injured employees.”).
                                                 9
failed to appropriately apply the medical treatment guidelines in denying the

lumbar spine magnetic resonance imaging requested by his orthopedic surgeon. In

all other respects, we affirm the judgment.



AFFIRMED        IN   PART.     REVERSED       AND   VACATED       IN   PART.

REMANDED.




                                         10
01/27/2016

                   SUPREME COURT OF LOUISIANA

                              NO. 2015-C-0905

                             CALVIN ARRANT

                                  VERSUS

         WAYNE ACREE PLS, INC. & LOUISIANA WORKERS'
               COMPENSATION CORPORATION

  ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND
  CIRCUIT, OFFICE OF WORKERS’ COMPENSATION, DISTRICT 1E



GUIDRY, J., dissents for the reasons assigned by Crichton, J.




                                      1
01/27/2016

                       SUPREME COURT OF LOUISIANA

                                  NO. 2015-C-0905

                                CALVIN ARRANT

                                      VERSUS

             WAYNE ACREE PLS, INC. & LOUISIANA WORKERS'
                   COMPENSATION CORPORATION

     ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND
     CIRCUIT, OFFICE OF WORKERS’ COMPENSATION, DISTRICT 1E



CRICHTON, J., dissents and assigns reasons:

      I respectfully dissent from the majority opinion, and would affirm the

hearing officer’s ruling sustaining defendants’ peremptory exception of

prescription. In my view, for the reasons set forth below, I find the lower courts

correctly found that plaintiff’s appeal of the denial of his requested medical

treatment (an MRI) was untimely filed, as it was filed outside of the appeal delays

found in La. R.S. 23:1203.1 and the corresponding Administrative Code

provisions: 40 LAC I.2715(B)(3)(e) and 40 LAC I.2715(B)(3)(f)). Specifically, I

do not find the time periods set forth in the aforementioned statutes are prescriptive

periods, but are appeal delays appropriately created to comply with the statute’s

intent to accomplish efficient and swift resolution of medical treatment disputes.

      The general prescriptive periods in the Louisiana Workers Compensation

Act are set forth in La. R.S. 23:1209(A), which provides that the claim of an

injured employee for weekly benefits is not prescribed if filed within the following

time periods: (1) within one year from the date of the accident; or (2) one year

from the last payment of compensation, except that in cases of benefits payable

pursuant to La. R.S. 23:1221(3), the limitation shall not take effect until three years


                                          1
after the last weekly of compensation; or (3) one year from the time the injury

develops. But in all such cases the claim for payment shall be forever barred

unless the proceedings have begun within three years of the date of the accident.

Similarly, La. R.S. 23:1209(C) provides that all claims for medical benefits under

La. R.S. 23:1203 “shall be filed within one year after the accident or death the

parties have agreed upon the payments to be made under that Chapter, or unless

within one year after the accident a formal claim has been filed with the workers’

compensation office.” In that instance, the limitation shall not take effect until

three years from the time of making the last payment of medical benefits. La. R.S.

23:1209(C).


       It is well settled that historically, in line with the general intent of the

Workers’ Compensation Act and related jurisprudence, courts have utilized a

generally lenient view of prescriptive periods. 1                Thus, prescription statutes,

including La. R.S. 23:1209(A), are construed in favor of maintaining rather than

barring actions. See, e.g., Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 446 (La.

1991); Howard v. Trelles, 95-0227, p. 4 (La.App. 1 Cir. 02/23/96), 669 So.2d 605,

607. Furthermore, for those time periods that are listed specifically in La. R.S.

12:1209, the purposes are well established: (1) to enable an employer to determine

when his potential liability for an accident would cease; (2) to prevent suits based

on stale claims where evidence might be destroyed or difficult to produce; and (3)

to fix a statute of repose giving rise to a conclusive presumption of waiver of his

claim on the part of an employee where he fails to bring his suit within the fixed

period. Harris v. Traders and General Ins. Co., 200 La. 445, 458, 8 So. 2d 289,

293 (La. 1942); Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So. 2d 209 (1945).
1
 Scott v. Walmart Stores, Inc., 03-0104, p. 6 (La. App. 4 Cir. 7/2/03), citing Millican v. General
Motors Corp., 34,207, p. 1 (La. App. 2 Cir. 11/1/00), 771 So.2d 234, 235, writ denied, 2001-
0001 (La.3/23/01), 788 So.2d 426; See, e.g., Glascock v. Georgia-Pacific Corp., 25,677 (La.
App. 2 Cir. 03/30/94), 635 So.2d 474, 479; Wesley v. Claiborne Elec. Co-op., Inc., 446 So.2d
857 (La. App. 2 Cir.1984); See generally, 14 La. Civ. L. Treatise, H. Alston Johnson III,
Workers' Compensation Law and Practice § 384 (4th ed.2002)
                                                 2
See also, 14 La. Civ. L. Treatise, H. Alston Johnson III, Workers' Compensation

Law and Practice § 384 (4th ed. 2002).


       In my view, however, the time periods set forth in the subject statute, La.

R.S. 23:1203.1, are not prescriptive statutes at all, and are in fact not intended to

satisfy the objectives listed above. Rather, as this court has discussed previously,

and as noted by the appellate court in this matter, La. R.S. 23:1203.1 was enacted

with the express intent “that, with the establishment and enforcement of the

medical treatment schedule, medical and surgical treatment, hospital care, and

other health care provider services shall be delivered in an efficient and timely

manner to injured employees.” La. R.S. 23:1203.1(L). This court thoroughly

examined the history and purpose behind La. R.S. 23:1203.1 in Church Mut. Ins.

Co. v. Dardar, 13-2351 (La. 5/7/14), 145 So. 3d 271, 275-6:


       Enacted by the legislature in 2009, La. R.S. 23:1203.1 is the product
       of a combined endeavor by employers, insurers, labor, and medical
       providers to establish meaningful guidelines for the treatment of
       injured workers. 1 DENIS PAUL JUGE, LOUISIANA WORKERS'
       COMPENSATION, § 13:6 (2d ed.2013). Dissatisfied with a process
       for obtaining needed medical treatment that was cumbersome,
       uncertain and often fraught with expense, employers and their insurers
       perceived a need for guidelines that would assure them that the
       treatment recommended by a medical provider was generally
       recognized by the medical community as proper and necessary. Id. In
       a similar vein, labor and their medical providers were concerned about
       the unreasonable delays regularly encountered in obtaining approval
       for treatment when disputes arose as to the necessity for the treatment
       and with having a procedure for obtaining approval for treatment that
       might vary from established guidelines. Id. 2
       La. R.S. 23:2301.1 provides that the director of the Office of Workers’

Compensation Administration “shall . . . .promulgate rules in accordance with the

2
  The Church Mut. Ins. Co. court also stated in a footnote that “[p]rior to the enactment of La.
R.S. 23:1203.1. the determination of what medical treatment was appropriate was entrusted in
the first instance to an insurer, which was tasked with evaluating any request for medical
treatment in excess of $750. La. R.S. 23:1142. If a dispute arose as to whether a particular
treatment was reasonable and necessary, the task of resolving that dispute was left to an OWC
judge, who would resolve that dispute on an ad hoc basis, generally after a second medical
opinion examination, perhaps an OWC-ordered independent medical examination, and on
competing testimony of medical providers as to what was, in their respective opinions,
“medically necessary” under the circumstances.” Church Mut. Ins. Co., supra, at n. 3.

                                               3
Administrative Procedure Act, R.S. 49:950, et seq., to establish a medical

treatment schedule.” La. R.S. 23:1203.1(B). See also, La. R.S. 23:1291(B)(5)

(giving authority to the director of the OWC to promulgate rules in accordance

with the Louisiana Administrative Code “which are not inconsistent with the laws

of this state.”) Most pertinent to the issue presently before the court, La. R.S.

23:1203.1(J) and (K) state as follows:


      J. (1) After a medical provider has submitted to the payor the request
      for authorization and the information required by the Louisiana
      Administrative Code, Title 40, Chapter 27, the payor shall notify the
      medical provider of their action on the request within five business
      days of receipt of the request. If any dispute arises after January 1,
      2011, as to whether the recommended care, services, or treatment is in
      accordance with the medical treatment schedule, or whether a
      variance from the medical treatment schedule is reasonably required
      as contemplated in Subsection I of this Section, any aggrieved party
      shall file, within fifteen calendar days, an appeal with the office of
      workers’ compensation administration medical director or associate
      medical director on a form promulgated by the director. The medical
      director or associate medical director shall render a decision as soon
      as is practicable, but in no event, not more than thirty calendar days
      from the date of filing.
             (2) If either party, the medical director, or associate medical
             director believes that a potential conflict of interest exists, he
             shall communicate in writing such information to the director,
             who shall make a determination as to whether a conflict exists
             within two business days. The director shall notify in writing
             the patient, the physician, and, if applicable, the attorney of his
             decision within two business days.
      K. After the issuance of the decision by the medical director or
      associate medical director of the office, any party who disagrees with
      the decision, may then appeal by filing a “Disputed Claim for
      Compensation”, which is LWC Form 1008. The decision may be
      overturned when it is shown, by clear and convincing evidence, the
      decision of the medical director or associate medical director was not
      in accordance with the provisions of this Section. (Emphasis added)

                                         ***

      Under the plain terms of the aforementioned provisions, an appeal from a

dispute concerning requested medical treatment requires a multi-step process.

After an initial request for authorization for treatment is submitted, the “payor”

must notify the medical provider of their decision within five (5) business days. If

a dispute thereafter arises as to whether the treatment is in accordance with the
                                          4
medical treatment schedule or a variance from the schedule is required, any

aggrieved party must then file, within fifteen (15) calendar days, an appeal to the

medical director or associate medical director. The director then has thirty days to

render a decision. After the issuance of that decision, any party who disagrees

with the decision may then file an appeal through the filing of a Form 1008 (a

Disputed Claim for Compensation). As the revised statute is written, there is no

time period listed for the filing of Form 1008.                See La. R.S. 23:1203.1(K).

However, the related Administrative Code provisions (40 LAC I.2715(B)(3)(e) and

40 LAC I.2715(B)(3)(f)) do set forth a time period for the filing of the Form 1008:

       (B)(3)(e) Disputes shall be filed by any aggrieved party on a LWC-
       WC-1009 within 15 calendar days of receipt of the denial or
       approval with modification of a request for authorization. The medical
       director shall render a decision as soon as practicable, but in no event
       later than 30 calendar days from the date of filing. The decision shall
       determine whether:
              i. the recommended care, services, or treatment is in
              accordance with the medical treatment schedule; or
              ii. a variance from the medical treatment schedule is
              reasonably required; or
              iii. the recommended care, services, or treatment that is
              not covered by the medical treatment schedule is in
              accordance with another state's adopted guideline
              pursuant to Subsection D of R.S. 23:1203.1.

       (B)(3)(f) In accordance with LAC 40:I.5507.C, any party feeling
       aggrieved by the R.S. 23:1203.1(J) determination of the medical
       director shall seek a judicial review by filing a Form LWC-WC-1008
       in a workers' compensation district office within 15 calendar days of
       the date said determination is mailed to the parties. A party filing such
       appeal must simultaneously notify the other party that an appeal of the
       medical director's decision has been filed. Upon receipt of the appeal,
       the workers' compensation judge shall immediately set the matter for
       an expedited hearing to be held not less than 15 days nor more than 30
       calendar days after the receipt of the appeal by the office. The
       workers' compensation judge shall provide notice of the hearing date
       to the parties at the same time and in the same manner. 3
3
 Although it does not bear any weight on my viewpoint contained herein, it is interesting to note
that the documents provided to the plaintiff in this instance informing him that his requested
medical treatment had been denied provide the following instructions for appealing the denial:

                                  Dispute Resolution Process

       Any party feeling aggrieved by the R.S. 23:1203.1(J) determination of the
       medical director shall seek a judicial review by filing Form LWC-WC-1008
       Disputed Claim for Compensation with the appropriate hearing office within 15
                                               5
                                               ***

      In this case, the Office of Workers’ Compensation judge found that the

plaintiff’s Form 1008, filed May 1, 2013, disputing the Medical Director’s denial

of his requested MRI on September 18, 2012, and October 19, 2012, was untimely

and granted the defendants’ exception of prescription. Although I specifically

question the use of an exception of prescription as the proper vehicle to enforce

this particular appeal period (the statute as written does not presently provide a

mechanism), nevertheless, I conclude that the rulings that plaintiff’s appeal was

untimely were correct. Further, while the appeal of the denial of this particular

request in this instance may be untimely in that it was filed outside of the appeal

period listed in the statute, as the court of appeal noted as well, the plaintiff is not

prevented from filing a new request for this medical treatment. La. Civ. Code art.

3463 provides that “[a]n interruption of prescription resulting from the filing of a

suit in a competent court and in the proper venue or from service of process within

the prescriptive period continues as long as the suit is pending. . . .” Because the

original Form 1008 was filed in the workers’ compensation office on May 1, 2013,

it served as a continuing interruption of prescription. Merely because the workers’

compensation judge found that this particular filing by plaintiff was untimely

pursuant La. R.S. 23:2301.1—that is, the delay period to appeal the decision

regarding treatment lapsed—this does not bar the plaintiff from submitting a

renewed or different request for medical treatment.

      As the statute specifically states, and the Church Mut. Ins. Co. court

explained, the purpose of this statute was an attempt to avoid battles over the

“choice of physician” and to provide medical treatment in a “timely and efficient”

manner. In order to satisfy the legislative intent, the short timeframe of fifteen (15)

days was established. Moreover, it is likely the legislature viewed this particular


      days of the date said determination is made to the parties. . . . .”
                                                 6
procedure in terms of an independent request and decisional process for medical

treatment, which would be available even if there were not a current pending suit

for disputed compensation.4 I specifically do not find the failure to abide by the

efficient time periods set forth in the statute precludes a claimant from filing a new

request or new claim for medical treatment, and disagree with the majority that

such a process is “practically absurd.” 5 As La. R.S. 23:1310.8(A) provides, “[t]he

power and jurisdiction of the workers’ compensation judge over each case shall be

continuing and he may, upon application by a party and after a contradictory

hearing, make such modifications or changes with respect to former findings or

orders relating thereto if, in his opinion, it may be justified. . . .” Consequently,

even if a particular request may be untimely if filed outside of the delay period set

forth in La. R.S. 23:1203.1, again, I find nothing that would preclude a workers’

compensation hearing officer from entertaining a renewed or different request for

treatment under that same provision. In fact, as mentioned above, as the statute is

presently written, it is devoid of a particular procedural remedy to “enforce” the

appeal periods, and as such, finding the plaintiff’s appeal untimely in this instance

was not inappropriate. To find otherwise would render the efficient administrative

procedure set forth in La. R.S. 23:1203.1 meaningless.                  In my view, contrary to


4
 As the Dardar court stated, the legislative history of this statute, while providing no legal
authority, revealed nothing profound in terms of the statute’s origins:

       While unnecessary to a proper resolution of the issues presented, for the sake of
       thoroughness, we have examined the legislative history of Act 254 of 2009 and
       find nothing remarkable in its genesis or progression through the legislative
       process. The bill originated in the Senate as SB 303 and was passed by unanimous
       vote. The final vote in the House was 69 to 35 in favor of passage, with the floor
       debate centered almost entirely on a controversial amendment unrelated to the
       contents of the bill that was ultimately removed from the final Act. The Bill
       passed through the Senate and House Committees on Labor and Industrial
       Relations with favorable reports, and testimony substantiating the notion that the
       bill was a collaborative endeavor on the part of employers, insurers, labor and the
       medical community.

       Dardar, supra, at n. 4.
5
 In fact, the plaintiff testified at the trial of this matter that he underwent a second MRI in
October, 2013, which was approved by the medical director.
                                                  7
the majority’s reasoning that this process is “economically inefficient,” I believe

the statute was enacted with the intent to avoid unnecessary delays for the

employee seeking treatment, while assuring the employer that the medical

treatment sought is reasonable and necessary. As such, I would find that the lower

courts correctly ruled that the plaintiff’s appeal from the medical director’s denial

of his requested MRI was untimely filed, as the time period under La. R.S.

23:1203.1 had lapsed. For these reasons, I respectfully dissent from the majority’s

finding otherwise.




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