Opinion
2013 CW 1067 2013 CW 1075
02-12-2014
ADAM DAVIS v. KENTWOOD BRICK & TILE MANUFACTURING COMPANY, INC.
Stephen W, Brooks, Jr. Richard J. Voelker Covington, Louisiana Counsel for Defendant/Relator Kentwood Brick & Tile Manufacturing Company, Inc. Prescott L. Barfield Covington, Louisiana Counsel for Plaintiff/Respondent Adam Davis Stephen W. Glusman Baton Rouge, Louisiana Counsel for Amici Curiae LUBA Casualty Insurance Company; Louisiana Workers' Compensation Corporation; Louisiana Home Builders Association SIF; LAC Self Insured Fund; Louisiana Restaurant Association Self Insurers Fund; Louisiana Auto Dealers Self Insurers' Fund; Louisiana Healthcare Self Insurance Fund; and Louisiana Commerce and Trade Association, SIF
On Appeal from the Office of Workers' Compensation, District 6
Parish of Tangipahoa, State of Louisiana
Docket Number 13-02539
Honorable Gwendolyn F. Thompson, Workers' Compensation Judge
Stephen W, Brooks, Jr.
Richard J. Voelker
Covington, Louisiana
Counsel for Defendant/Relator
Kentwood Brick & Tile
Manufacturing Company, Inc.
Prescott L. Barfield
Covington, Louisiana
Counsel for Plaintiff/Respondent
Adam Davis
Stephen W. Glusman
Baton Rouge, Louisiana
Counsel for Amici Curiae
LUBA Casualty Insurance
Company; Louisiana Workers'
Compensation Corporation;
Louisiana Home Builders
Association SIF; LAC Self Insured
Fund; Louisiana Restaurant
Association Self Insurers Fund;
Louisiana Auto Dealers Self
Insurers' Fund; Louisiana
Healthcare Self Insurance Fund;
and Louisiana Commerce and
Trade Association, SIF
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
Disposition: APPEAL CONVERTED TO WRIT APPLICATION, AND WRITS DENIED.
KUHN, J.
Defendant, Kentwood Brick & Tile Manufacturing Company, Inc. (Kentwood Brick), appeals an Office of Workers' Compensation Court (OWC) order holding that the Medical Treatment Guidelines (medical guidelines) promulgated in accordance with La. R.S. 23:1203.1 could not be applied retroactively to the request for medical treatment made by plaintiff, Adam Davis, because his work injury occurred prior to the effective date of those medical guidelines. (2013-CA-1067.) Kentwood Brick also filed an application for supervisory writs seeking review of the same order. (2013-CW-1075.) Finding that the OWC order lacks the decretal language necessary for a final judgment, we convert the appeal into an application for a supervisory writ, and deny writs.
FACTUAL AND PROCEDURAL BACKGROUND
Adam Davis was injured on the job while working for Kentwood Brick on March 18, 2010, when he allegedly was run over by a fork lift. He received some medical treatment, but in September 2012, Davis filed a Disputed Claim for Compensation Form (Form 1008) with the OWC on which he reported a bona fide dispute over his need for lumbar surgery and for prescription medications. This matter was assigned docket number 12-06130.
Kentwood Brick responded with peremptory exceptions of no cause of action and no right of action. It also filed the dilatory exception of prematurity. Primarily at issue in these exceptions was the retroactive applicability of the medical guidelines authorized by La. R.S. 23:1203.1, which were promulgated and became effective in June 2011. Davis argued that since his accident occurred before this effective date, the medical guidelines could not apply to him. Conversely, Kentwood Brick contended that the medical guidelines applied to all claims made after their effective date.
The OWC initially ruled in October 2012 that Davis' claims were premature because he had failed to comply with the medical guidelines procedures. The OWC dismissed Davis' claims for medical treatment (surgery) without prejudice.
In January 2013, Davis submitted a "Motion to Dismiss with Prejudice," in which he sought to dismiss "all claims and causes of action currently pending" and "reserving all other causes of action not specifically dismissed herein." The dismissal order states that "the above referenced matter is dismissed, with prejudice." (Emphasis added.) Nothing in the order clearly shows what matter was dismissed and what was reserved.
Shortly thereafter, Davis filed another request for medical treatment with Kentwood Brick's workers' compensation carrier. After that request was denied, Davis filed a request for medical treatment with the OWC Medical Director under the new medical guidelines procedure. The Medical Director issued an opinion in April 2013 denying Davis' request for treatment. Davis then filed a Disputed Claim for Compensation Form (Form 1008) with the OWC to appeal the decision of the Medical Director. The claim was assigned docket number 13-02539.
In his Disputed Claim, Davis asserted that the medical guidelines could not be retroactively applied to him. Kentwood Brick answered and filed new exceptions of no cause of action, no right of action and prematurity. While Kentwood Brick did not file a written exception raising res judicata or issue preclusion, it did raise the issue in oral argument at the hearing held before the OWC.
At the conclusion of the hearing on May 17, 2013, the OWC verbally ruled in Davis' favor. It signed an order accordingly on May 22, 2013, denying Kentwood Brick's exceptions of issue preclusion (res judicata) and no right of action. It also denied Kentwood Brick's exception of prematurity and overturned the Medical Director's decision on the basis that the medical guidelines could not be retroactively applied to Davis, since his March 18, 2010 accident occurred before the effective date of the medical guidelines. The order did not authorize or deny any treatment for Davis.
The OWC apparently did not rule on Kentwood Brick's exception of no cause of action.
Kentwood Brick timely filed a motion for suspensive appeal. On the same date, it also filed a timely writ application seeking review of the same order at issue in the appeal. In the appeal, Kentwood Brick argues in two assignments of error that: (1) the OWC erred in overruling its exception of prematurity on the basis that the medical guidelines were inapplicable to Davis' request for medical treatment because his accident occurred prior to their effective date; and (2) the OWC legally erred in not sustaining the exception of issue preclusion or res judicata with regard to its prior October 2012 ruling that the medical guidelines were applicable to Davis' claim. In the writ application, Kentwood Brick assigns as error the OWC ruling that the medical guidelines could not be retroactively applied to Davis' claims.
By order of this Court issued in 2013-CW-1075, dated August 16, 2013, the writ application was referred to the appeal pane).
On August 8, 2013, this Court issued a show cause order, requiring the parties to show cause whether or not the judgment at issue is final and appealable. Both parties responded with briefs. Additionally, on August 30, 2013, several interested parties were permitted to file an amicus brief for consideration by this Court in Kentwood Brick's appeal. The amici curiae argue that the medical guidelines should be retroactively applicable to claims that arose prior to the promulgation of the medical guidelines, including Davis' current claim.
The amicus brief was filed by LUBA Casualty Insurance Company, Louisiana Workers' Compensation Corporation, Louisiana Home Builders Association SIF, LAC Self Insured Fund, Louisiana Restaurant Association Self Insurers Fund, Louisiana Auto Dealers Self Insurers' Fund, Louisiana Healthcare Self Insurance Fund and Louisiana Commerce and Trade Association, SIF.
RULE TO SHOW CAUSE
In response to this Court's rule to show cause, Kentwood Brick argues that the OWC order of May 22, 2013, is final and appealable "because it determined the merits of the case, and reversed the decision of the OWC Medical Director[.]" Davis also argues that the order is final and appealable because it "effectively resolved all issues between the parties, requiring that the employer authorize and pay for the surgical treatment recommended by claimant's treating physician ... . Thus, the ruling by the [OWC is] akin to a determination that the employer is responsible for the authorization and treatment of claimant contrary to the Medical Director's opinion."
Despite the arguments of the parties, the order does not appear to determine the merits of any issue between Kentwood Brick and Adams. The order does not require Kentwood Brick to authorize and pay for surgical treatment. While it overturns the decision of the Medical Director, it does not grant or deny any relief. Rather, the pertinent language of the order appears merely to rule on Kentwood Brick's exceptions and to declare a purely procedural matter - that the medical guidelines are not retroactive. The order does not address the merits, does not determine that Davis has established his entitlement to benefits, and does not address whether Kentwood Brick has reasonably controverted Davis' claim for benefits.
In Gaten v. Tangipahoa Parish School System , 11-1133 (La. App. 1st Cir. 3/23/12), 91 So.3d 1073, 1074, this Court reiterated that a final, appealable judgment must contain decretal language, the names of the parties in favor of whom and against whom the ruling is ordered, and the relief that is being granted or denied. In Gaten , the judgment at issue merely stated, "Motion for Summary Judgment is GRANTED." Noting that the judgment did not specify what relief it afforded, the Gaten court held that in the absence of proper decretal language, the judgment was not a valid final judgment, and this Court lacked appellate jurisdiction to review the matter. Gaten , 91 So.3d at 1074.
Accordingly, because the OWC order at issue lacks proper decretal language specifying the relief being granted or denied, we conclude that this Court lacks appellate jurisdiction to review the order. Nevertheless, we have authority to review the matters raised on appeal under our supervisory jurisdiction. Appellate courts have broad discretion to convert an appeal to an application for supervisory review. Roberson v. Roberson , 12-2052 (La. App. 1st Cir. 8/5/13), 122 So.3d 561, 564. Further, as previously noted, the order is already before us under our supervisory jurisdiction pursuant to a timely filed companion writ application. As such, we convert the appeal, docket number 2013-CA-1067, to an application for supervisory writs.
RES JUDICATA
Kentwood Brick contends that the matter under review should be dismissed due to issue preclusion principles encompassed in the res judicata doctrine. It points to the language of the January 2013 OWC order wherein Davis dismissed his remaining claims as follows: "IT IS ORDERED that the above referenced matter is dismissed, with prejudice, each party to bear its own costs." Kentwood Brick argues that this order, which was entered in connection with a prior Disputed Claim Form 1008, should preclude re-litigation of the applicability of the medical guidelines because that issue was litigated and resolved against Davis on Kentwood Brick's earlier exception of prematurity, albeit without prejudice.
In contrast, Davis asserts that the prior OWC order sustaining the exception of prematurity on the basis that the medical guidelines applied retroactively, which was reversed by the May 2013 order at issue herein, was not final. In particular, he claims that the OWC gave him leave of court at the time of the earlier order to amend his Form 1008 to file his claim for the payment of prescriptions. According to Davis, he instead resubmitted his claim for surgery to his employer and then to the Medical Director for review under the medical guidelines. Davis maintains that the only thing he dismissed with prejudice was his claim for payment of prescription drugs, which he asserts was the only issue still pending under the prior Form 1008.
We observe that the said order of dismissal was attached to the "Motion to Dismiss with Prejudice" that Davis filed in January 2013, wherein he averred:
[U]pon suggesting to this Honorable Court that the above entitled and numbered suit should be dismissed with prejudice dismissing all claims and causes of action currently pending before the Court and reserving all other causes of action not specifically dismissed herein. (Emphasis added.)
From this language, it appears that Davis intended to dismiss only certain matters currently pending at that time, while reserving all other causes of action. It is significant that Davis' claim for medical treatment was not pending at the time that he filed the motion to dismiss, as the OWC had dismissed that claim, without prejudice, as being premature in October 2012.
Therefore, when the motion and order are read together, doubt clearly exists as to whether Davis' possible substantive right to back surgery has been addressed and resolved and which issues remain to be resolved. In this regard, this Court has stated that the doctrine of res judicata "is strictly construed, and any doubt concerning its applicability is to be resolved against the party raising the objection." Five N Company, L.L.C. v. Stewart , 02-0181 (La. App. 1st Cir.7/2/03), 850 So.2d 51, 60-61. See also Middleton v. Livingston Timber, Inc., 11-2215 (La. App. 1st Cir. 6/8/12), 94 So.3d 153, 155. As such, we conclude that Davis' claim for back surgery and other claims arising out of his on-the-job accident, except for his claim for prescription benefits, are not precluded under the doctrine of res judicata or under principles of issue preclusion.
This assignment of error is without merit.
APPLICABILITY OF MEDICAL TREATMENT GUIDELINES
Kentwood Brick argues that the medical guidelines should be applied retroactively to encompass Davis' claims. Davis disagrees. Particularly at issue in connection with the application of the medical guidelines are the provisions of La. R.S. 23:1203.1(I), (J), and (L), effective June 25, 2010. These provisions provide as follows:
I. After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical 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. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer 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.In accordance with La. R.S. 23:1203.1, the medical guidelines were promulgated in June 2011. See LR 37:1631 (June 2011); LAC 40:I, § 2001 etseq.
J. 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 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.
***
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.
Kentwood Brick argues that the OWC erred in concluding the medical guidelines cannot be applied retroactively to Davis' claim for medical benefits. It points out that his current request for treatment was made in January 2013, after the 2011 promulgation of the medical guidelines. It argues that the La. R.S. 23:1203.1(I) definition of "medical care, services, and treatment" to mean care, services, and treatment in accordance with the medical guidelines, which were to become effective when the medical guidelines was promulgated, is equivalent to an express legislative statement regarding retroactivity. It contends that since the statute provides no exceptions to its application, even for accidents that occurred prior to the promulgation of the medical guidelines, the OWC erred in overruling its exception of prematurity and in not requiring Davis to submit to the medical guidelines procedure.
Kentwood Brick and the amici curiae further maintain that the medical guidelines promulgated in accordance with La. R.S. 23:1203.1 are procedural, without a substantive component. They contend that the creation of this procedural framework does not alter any substantive rights to medical treatment. They maintain that Davis' right to reasonable and necessary medical treatment has not been abrogated. Accordingly, Kentwood Brick and the amici curiae claim that the medical guidelines merely have created a method for Davis to enforce his substantive right to medical treatment.
In opposition, Davis argues that the medical guidelines cannot be applied retroactively because his right to receive necessary medical treatment in a proscribed fashion vested when he was injured in March 2010 and that vested right is protected by due process guarantees. He also disputes Kentwood Brick's assertion that the medical guidelines affected no substantive change in his right to medical treatment, noting that the issue is not as simple as stating that he is still entitled to medical benefits. In particular, he asserts that the pertinent provisions of La.. R.S. 23:1203.1 represent "a sweeping and comprehensive change on the relationship between employers and employees" that "changed almost every aspect of medical treatment for claimants: from requesting medical treatment, who approves the treatment, how the treatment is paid for and any remedies that a claimant has in event that treatment is wrongfully denied." He asserts that these changes "grant new rights and protections to the employer and deprive [him] of established rights he clearly had at the time of the accident and injury."
Davis notes further that La. R.S. 23:1203.1 does not specifically address whether the statute is to be applied prospectively only or retroactively. He suggests that the legislature could have easily and clearly specified retroactive application had it so intended and asserts that the lack of legislative expression when "there is such a radical shift in how medical treatment is delivered," is telling.
As the Louisiana Supreme Court explained in Segura v. Frank , 93-1271 (La. 1/14/94), 630 So.2d 714, 721, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994), the determination of retroactive application of a statute involves a "two-fold" inquiry:
1) First, a court must ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application. If the legislature did so, the court's inquiry is at an end;The Supreme Court further clarified, however, that because of due process implications, even where the legislature has expressed its intent to give a substantive law retroactive effect, the law may not be applied retroactively if doing so would disturb vested rights. M.J. Farms, Ltd. v. Exxon Mobil Corporation, 07-2371 (La. 7/1/08), 998 So.2d 16, 29-30; Segura, 630 So.2d at 721.
2) If the legislature did not express its intent regarding retroactive or prospective application, a court must classify the enactment as substantive, procedural or interpretive.
Regarding the first inquiry, we observe that La. R.S. 23:1203.1 does not specifically state whether it is to be applied prospectively only or also retroactively. Section (I) of the statute provides that after the promulgation of the medical treatment schedule, the term "medical care, services, and treatment due" will have a prescribed meaning. Additionally, Section (J) of the statute, provides a procedure for review of any disputes arising 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[.]"
Pretermitting a conclusion as to whether Sections (I) or (J) expresses an intent that the statute be applied retroactively as well as prospectively, we turn to the second inquiry, i.e., classifying whether the enactment is substantive, procedural, or interpretive. This inquiry must be made in light of whether Davis has a vested right established under the prior law. Substantive laws either establish new rules, rights and duties, or change existing ones. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Segura, 630 So.2d at 723.
In denying Davis' claim for back surgery, the medical director's decision cited the following reasons:
• Clinical indications have not been met.
• The clinical findings, the natural history of the disease, the clinical course, and diagnostic tests do not correlate to support the requested service.
• No recent comprehensive neuromuscular exam is documented; a psychological evaluation is not submitted.
Davis asserts that he has three doctors prepared to testify that he needs the denied surgery. Further, under the prior law, Davis was not required to undergo either a comprehensive neuromuscular exam or a psychological evaluation, whether or not advisable.
When applicable, LAC 40:I.2021(E) now requires psychological evaluation prior to further treatment. Louisiana Administrative Code 40:I.2023B imposes the requirement for a preliminary neuro-musculoskeietal examination. The Medical Treatment Guidelines promulgated after Davis' accident pertaining to treatment of the spine comprise fifty-six pages in the Louisiana Administrative Code, with thirty-one of those pages directed to treatment of the lumbar spine. These medical guidelines impose new requirements that would not have applied under the law in effect at the time of Davis' accident and could now preclude a claimant from treatment to which he may previously have been entitled. As such, while the statute may appear neutral, we conclude that the medical guidelines implemented through La. R.S. 23:1203.1 are substantive and are to be applied prospectively only, since they establish new rules, rights and duties, or change existing ones. See M.J. Farms, 998 So.2d at 33-34; Segura, 630 So.2d at 723.
We further note that "[w]hen a party acquires a right to assert a cause of action prior to a change in the law, that right is a vested property right which is protected by the guarantee of due process. Thus, a cause of action, once accrued, cannot be divested by subsequent legislation." M.J. Farms, 998 So.2d at 33. (Citations omitted.) Under Louisiana law, a cause of action accrues when a party has the right to sue. M.J. Farms, 998 So.2d at 34. Davis' cause of action arose when he suffered his on-the-job injury, which was prior to the promulgation of the medical guidelines. The general rule is that the law in effect at the time of a work-related accident applies to workers' compensation claims and that a "triggering mechanism" that occurs after the accident cannot be applied to divest injured employees of their right to benefits under the law in effect at the time of their accident, absent an affirmative act on the employee's part that results in forfeiture of the benefits. See Frith v. Riverwood, Inc., 04-1086 (La. 1/19/05), 892 So.2d 7, 15. Accordingly, based on their substantive effect, we conclude that the application of the medical guidelines pursuant to La. R.S. 23:1203.1, as amended, would disturb Davis' vested rights and, as such, the medical guidelines cannot be applied retroactively to his claim, regardless of the legislature's intent.
We note that in a prior unpublished wit action, this Court granted a supervisory writ, reversed the ruling of a workers' compensation judge that dismissed the claimant's claim for compensation, and remanded the matter with instructions that the proceedings be held "in accordance with the law in effect at the time of [the claimant's] injury, as La, R.S. 23:1203.1 substantively changed the law and thus is applied prospectively only." See Courville v. Turner Industries Group, Inc., 13-0711 (La. App. 1st Cir. 7/15/13) (unpublished).
This holding is in accord with jurisprudence from other courts of this state that have considered this issue. The Fourth Circuit noted that the legislature did not expressly provide its intent regarding prospective or retroactive application of the provisions of La. R.S. 23:1203.1. After examining the statute, the Fourth Circuit determined that it was substantive and should be applied prospectively only. Church Mutual Insurance Company v. Dardar, 12-0659, 13-0037 (La. App. 4th Cir 6/26/13), 119 So.3d 967, 975, writ denied sub nom., Dardar v. Trinity Universal Methodist Preschool, 13-0834 (La. 5/24/13), 117 So.3d 511. The Fourth Circuit explained its rationale as follows:
We find that La. R.S. 23:1203.1, which contains guidelines that did not exist when Ms. Dardar was injured, creates and places rules, rights, and duties upon a claimant seeking reimbursement for recommended medical treatment. Thus, we find that the enactment of La. R.S. 23:1203.1 was substantive in nature.Church Mutual, 119 So.3d at 975.
Subsequently, the Third Circuit considered the same issue in Cook v. Family Care Services, Inc., 13-108 (La. App. 3d Cir. 8/28/13), 121 So.3d 1274, and concluded that La. R.S. 23:1203.1 was procedural and could be applied retroactively. Shortly thereafter, however, an en banc panel of the Third Circuit reconsidered the retroactivity issue and overruled the holding of Cook. See Romero v. Garan's, Inc., 13-482 (La. App. 3 Cir. 12/26/13), _ So.3d _. In reaching its holding, the Third Circuit concluded that: (1) the legislature did not expressly state whether La. R.S. 23:1203.1 was to have both prospective and retroactive application; and (2) while the statue appears to be procedural in nature, it has a substantive effect in that it requires claimants to overcome new hurdles in order to receive the medial care recommended by their physicians. Because a law cannot be applied retroactively if it disturbs vested rights regardless of legislative intent, the Third Circuit, sitting en banc, held that La. R.S. 23:1203.1 should have prospective application only. Romero, 13-482 at pp. 5-6, _ So.3d at _.
Despite this change in the Third Circuit's position, the Supreme Court granted writs in both Cook and Church Mutual, ordering that the district and appellate courts send the record in each respective matter to the Supreme Court. See Cook v. Family Care Service, 2013-2326 (La. 1/17/14), _ So.3d _ and Church Mutual Ins. Co. v. Dardar, 2013-2351 (La. 01/17/14), _So.3d
--------
Kentwood Brick's assignments of error regarding the issue of prematurity and the retroactive applicability of the medical guidelines lack merit.
DECREE
For the foregoing reasons, we find no error in the OWC's May 22, 2013 Order overruling Kentwood Brick's exceptions of prematurity and issue preclusion (res judicata) and ruling that the Medical Treatment Guidelines promulgated in accordance with La. R.S. 23:1203.1 are not retroactively applicable to the claim herein. The appeal assigned docket number 2013-CA-1067 is converted to a supervisory writ and as such, we deny the writ. We also deny the writ in docket number 2013-CW-1075. We remand this matter to the OWC for further proceedings.
APPEAL CONVERTED TO WRIT; WRITS DENIED.