Terry McCain v. Lewis Companies, Inc. and LUBA Casualty Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0727

TERRY McCAIN

VS.

LEWIS COMPANIES, INC. and LUBA CASUALTY INSURANCE COMPANY

ClW

2022 CA 0728

TERRY McCAIN

VS.

LEWIS COMPANIES, INC.

Judgment Rendered: JUN 0 5 2013

On Appeal from the
Office of Workers' Compensation, District 5
In and for the Parish of East Baton Rouge
State of Louisiana
Nos. 17- 03030 c/ w 21- 02728

The Honorable Pamela Moses Laramore, Judge Presiding

J. David Smith Attorney for Appellee
Baton Rouge, Louisiana Terry McCain

Richard J. Voelker Attorneys for Appellants
Stephen W. Brooks, Jr. LUBA Casualty Insurance Company and
Mandeville, Louisiana Lewis Companies, Inc.

BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.

r
HOLDRIDGE, J.

The defendants, Lewis Companies, Inc. (" Lewis") and its workers'

compensation insurer, LUBA Casualty Insurance Company (" LUBA"), appeal a

final judgment of the Office of Workers' Compensation (" OWC") that awarded the

claimant, Terry McCain, non -skilled personal care attendant services for up to ten

hours a day, five days a week. For the following reasons, we affirm in part, reverse

in part, and amend the judgment.

FACTS AND PROCEDURAL HISTORY

This matter has been previously before this court and the following relevant

facts and procedural history are taken from this court' s earlier opinion in McCain v.

Lewis Companies, Inc., 2019- 0416 (La. App. 1 Cir. 2/ 6/ 20), 302 So. 3d 1145, 1147-

56 ( McCain I). On February 22, 2011, while in the course and scope of his

employment with Lewis, Mr. McCain, who was then 58, was cutting a tree limb,

when he fell from a ladder, approximately ten feet, headfirst onto a concrete

sidewalk. He suffered a traumatic brain injury ( subdural hematoma with

subarachnoid hemorrhage in the right frontal lobe), a blowout fracture of his thoracic

spine, a complete rupture of his rotator cuff, and other orthopedic injuries. The

defendants paid medical and indemnity benefits ( at the rate of $579. 00 per week) to

and on behalf of Mr. McCain. McCain I, 302 So. 3d at 1147.

Mr. McCain filed a disputed claim for compensation using Form LWC-WC-

1008 ( Form 1008) on May 18, 2017, against the defendants, requesting non -skilled

personal care attendant services, such as a sitter, as recommended by his treating

neuropsychologist, Dr. Paul Dammers, along with other relief. McCain I, 302 So.3d

at 1147. The defendants filed an answer and a dilatory exception raising the

objection of prematurity, or in the alternative, a peremptory exception raising the

2
objections of no right and no cause of action. They contended that Mr. McCain' s

request for non -skilled personal care attendant services was subject to the OWC

Medical Treatment Guidelines, and thus was required to be submitted to the Medical

Director before the claim for compensation was filed. McCain I, 302 So. 3d at 1148.

Following a hearing, the workers' compensation judge (" WCJ") denied the

defendants' exceptions in a judgment signed on February 8, 2018. McCain I, 302

So. 3d at 1149.

The matter proceeded to trial on August 9, 2018, and on September 18, 2018,

the WCJ signed a judgment which decreed that Mr. McCain was awarded permanent

total disability benefits as proven by clear and convincing evidence to be the direct

result of a traumatic brain injury combined with other physical injuries sustained in

the work accident. The judgment further awarded Mr. McCain non -skilled personal

care attendant services, for up to ten hours per day, five days per week, finding this

prescribed care to be reasonable and necessary medical treatment under the

Workers' Compensation Act as a result of his traumatic brain injury. The WCJ

denied Mr. McCain' s claim for penalties or attorney' s fees, finding that the

defendants' denial of non -skilled personal care attendant services was not arbitrary

or capricious, and ordered each party to bear their own costs. McCain I, 302 So. 3d

at 1149.

The defendants appealed the judgment, and in their appeal raised the issue of

the denial of their dilatory exception raising the objection of prematurity and of their

alternative peremptory exception raising the objections of no right and no cause of

action. McCain I, 302 So. 3d at 1149- 50. In its prior opinion, this court rejected

Mr. McCain' s contention that his request for non -skilled personal care attendant

services in the form of a non -skilled sitter was not subject to the Medical Treatment

Guidelines and determined that such a request must comply with the Medical

3
Treatment Guidelines. McCain I, 302 So. 3d at 1155. This court then concluded

that in order to comply with the procedures set forth in the Medical Treatment

Guidelines and La. R.S. 23: 1203. 1, the following had to occur: Mr. McCain' s

treating physician was required to submit a Form LWC- WC- 1010 ( Form 10 10) to

LUBA seeking written authorization for non -skilled personal care attendant

services; if LUBA denied the request, the treating physician was required to seek

relief with the OWC Medical Director by filing a Form LWC- WC- 1009 ( Form

1009), the " Disputed Claim for Medical Treatment," within fifteen calendar days;

and after the Medical Director' s determination, any party disagreeing with the

decision could institute a suit in the OWC by filing a Form 1008. McCain I, 302

So. 3d at 1155. Because Mr. McCain did not comply with these procedures in trying

to obtain attendant care services, this court determined that his claim for

compensation was prematurely filed.' Accordingly, this court vacated that portion

of the judgment denying the dilatory exception raising the objection of prematurity

filed by the defendants, and also vacated that portion of the judgment awarding Mr.

McCain non -skilled personal care attendant services for up to ten hours a day, five

days a week. McCain I, 302 So. 3d at 1155. This court affirmed that portion of the

judgment finding Mr. McCain permanently and totally disabled and awarded him

permanent total disability benefits retroactive to the date of trial and continuing until

further order of the court. This court remanded the matter to the OWC for further

proceedings consistent with the opinion. McCain I, 302 So. 3d at 1152, 1156.

Mr. McCain had previously filed his Form 1008 on May 18, 2017, and then Dr. Dammers
thereafter filed a Form 1010, seeking authorization for the non -skilled sitter from LUBA. LUBA
denied the request on July 14, 2018, pending completion of an independent medical examination
of Mr. McCain. No further action was taken by Mr. McCain or Dr. Dammers regarding the request
for attendant care/ personal care services. McCain 1, 302 So. 3d at 1155.

fl
 On remand, Dr. Dammers submitted another request for authorization for a

non -skilled personal care attendant for Mr. McCain to LUBA on Form 1010 on

March 2, 2021. LUBA did not respond to the request, which is deemed a tacit denial

of the request. On March 18, 2021, Mr. McCain and Dr. Dammers filed an appeal

with the Medical Director on Form 1009. On April 6, 2021, the Medical Director

denied the appeal. On May 14, 2021, Mr. McCain filed a disputed claim for

compensation on Form 1008, stating that LUBA refused to authorize a non -skilled

personal care attendant, to which he was entitled, and also requesting penalties and

attorney' s fees for its unreasonable refusal.2

The defendants answered the claim and attached the Medical Director' s denial

of Mr. McCain' s request as an exhibit to their answer. On October 4, 2021, the

defendants filed a motion for summary judgment, contending that Mr. McCain failed

to state a cause or right of action because his claim form was improperly filed, and

also that he could not prove by clear and convincing evidence that the Medical

Director' s decision was not in accordance with the Medical Treatment Guidelines.

Mr. McCain requested that he be allowed to file an amended petition seeking

to amend his claim to attach Form 1009 showing Dr. Dammers' request for a non-

skilled personal care attendant and the denial of that request. The WCJ ordered that

the amended petition be filed. Mr. McCain then moved for summary judgment,

seeking a judgment that he was entitled to a non -skilled personal care attendant,

thereby overturning the Medical Director' s denial.

Mr. McCain' s earlier disputed claim for workers' compensation was docketed as OWC Number
17- 03030. Mr. McCain' s later disputed claim for compensation was docketed as OWC Number
21- 02728. Mr. McCain filed a motion to consolidate the two suits, which was granted by the WCJ
on November 8, 2021.

5
 The matter was tried on the motions for summary judgment.' On December

17, 2021, the WCJ ruled in the matter and issued reasons for judgment. On February

7, 2022, the WCJ signed a judgment denying the defendants' motion for summary

judgment and
granting Mr. McCain' s summary judgment motion, thereby

overturning the Medical Director' s denial of his request for non -skilled personal care

attendant services and awarding Mr. McCain those services for up to ten hours daily,

five days per week. From this judgment, the defendants appeal.

LAW AND DISCUSSION

Summary Judgment

Appellate courts review the granting of a summary judgment de novo using

the same criteria governing the trial court' s consideration of whether summary

judgment is appropriate, i.e., whether there is any genuine issue of material fact and

whether the mover is entitled to judgment as a matter of law. See La. C. C. P. art.

966( A)(3); Duran v. Roul' s Deli Juicy Juicy, L.L.C., 2021- 1600 ( La. App. 1 Cir.

8/ 8/ 22), 348 So -3d 735, 737.

The summary judgment procedure is expressly favored in the law and is

designed to secure the just, speedy, and inexpensive determination of non-domestic

civil actions. See La. C. C. P. art. 966( A)(2). The purpose of a motion for summary

judgment is to pierce the pleadings and to assess the proof in order to see whether

there is a genuine need for trial. Hines v. Garrett, 2004- 0806 ( La. 6/ 25104), 876

So. 2d 764, 769 (per curiam). After an opportunity for adequate discovery, summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law. La. C. C. P. art. 966( A)(3).

3 We note that pursuant to the WCJ' s scheduling order, all parties filed pretrial statements, although
the matter was before the WCJ on cross- motions for summary judgment.
6
 On a motion for summary judgment, the burden of proof is on the mover. If,

however, the mover will not bear the burden of proof at trial on the matter that is

before the court on the motion, the mover' s burden on the motion does not require

that all essential elements of the adverse party' s claim, action, or defense be negated.

Instead, after meeting its initial burden of showing that there are no genuine issues

of material fact, the mover may point out to the court that there is an absence of

factual support for one or more elements essential to the adverse party' s claim,

action, or defense. Thereafter, summary judgment shall be granted unless the

adverse party can produce factual evidence sufficient to establish the existence of a

genuine issue of material fact or that the mover is not entitled to judgment as a matter

of law. See La. C. C. P. art. 966( D)( 1).

Workers' Compensation

In McCain I, this court noted that under the Louisiana Workers'

Compensation Act, an employer has a statutory duty to furnish all necessary

treatment caused by a work-related injury. See McCain I, 302 So. 3d at 1153, citing

La. R.S. 23: 1203; Dangerfield v. Hunt Forest Prod., Inc., 2010- 1324 ( La. App. 1

Cir. 3/ 25/ 11), 63 So. 3d 214, 215, writ denied, 2011- 0814 ( La. 613111), 63 So. 3d

1019. This court determined:

While attendant care/ personal care services in the form of a non-
skilled sitter may be classified as " nonmedical treatment" as listed in
La. R.S. 23: 1203( A),4 such " nonmedical treatment" due " shall mean ...

treatment in accordance with the medical treatment schedule"

according to La. R.S. 23: 1203. 1( 1). 5 Thus, attendant care/personal care

4 Louisiana Revised Statutes 23: 1203( A) provides, in pertinent part, that an employer " shall furnish
all necessary ... medical and surgical treatment, and any nonmedical treatment recognized by the
laws of this state as legal."

Louisiana Revised Statutes 23: 1203. 1( 1) provides, in pertinent part:

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.

7
 services is " treatment in accordance with the medical treatment
schedule," even though it may be classified as " nonmedical treatment"

under La. R.S. 23: 1203( A). Therefore, attendant care/ personal care
services is a " medical care benefit" under the Workers' Compensation
Act. See La. R. S. 23: 1203. 1 ( 1), and LAC 40: I.2717( A).

Furthermore, attendant care/personal care services is specifically
provided for in the Medical Treatment Guidelines at LAC 40: 1. 3507--
351 L' Even if attendant care/ personal care services were not covered
by the Medical Treatment Guidelines, La. R.S. 23: 1203. l (M)(2)
requires that such a request be presented to the OWC Medical Director.7

McCain I, 302 So. 3d at 1155. ( Footnotes added.) The decision by the Medical

Director/Associate Medical Director may be overturned only when it is shown, by

clear and convincing evidence, that the decision was not in accordance with the

provisions of La. R.S. 23: 1203. 1. See La. R.S. 23: 1203. 1( 7)( 1) and ( K).'

In its denial of the request for a non -skilled personal care attendant, the

Medical Director stated that the record and documentation submitted did not support

the approval of the requested services under the Medical Treatment Schedule. The

Medical Director stated, " This is not allowable as per the guidelines."

6 The Medical Treatment Guidelines at. LAC 40: I. 3507- 3511 set forth the policies, procedures, and
reimbursement schedule for requests for nursing, attendant care, or home health services. Under
LAC 40: I. 3507( A)(1), "[alll nursing services and personal care services described herein, except
those specifically noted, must have prior written authorization of the carrier/self-insured employer
before reimbursement will be made."

Louisiana Revised Statutes 23: 1203. 1( M) provides:

1) With regard to all treatment not covered by the medical treatment schedule promulgated
in accordance with this Section, all medical care, services, and treatment shall be in
accordance with Subsection D of this Section.

2) Notwithstanding any other provision of this Chapter, all treatment not specified in the
medical treatment schedule and not found in Subsection D of this Section shall be due by
the employer when it is demonstrated to the medical director, in accordance with the
principles of Subsection C of this Section, that a preponderance of the scientific medical
evidence supports approval of the treatment that is not covered.

s We note that the Fourth Circuit in Burnett v. Full Farce Staffing, LLC, 2018- 0354 ( La. App.
4 Cir. 10/ 10/ 18), 257 So. 3d 835, 839, stated that appellate courts apply the manifest error standard
when examining a WCJ' s review of the Director' s decision because the WCFs review of whether
there is clear and convincing evidence that the Director' s determination is in contravention of the
medical treatment guidelines is necessarily fact -intensive. However, we note that the matter before
us was decided on motions for summary judgment, which this court reviews de novo. See
Savannah v. Smithy' s Supply/Big 4 Trucking, 2018- 1033 ( La. App. 1 Cir. 5/ 31/ 19), 280 So. 3d
615, 619, writ denied, 2019- 01286 ( La. 10/ 21119), 280 So. 3d 1168.
 In support of their motion for summary judgment seeking to uphold the

Medical Director' s decision, the defendants submitted the following evidence: Dr.

Dammers' Form 1010 requesting authorization of medical treatment; Dr. Dammers'

Form 1009 requesting relief from the Medical Director; LUBA' s opposition to the

claim; the Medical Director' s decision; Mr. McCain' s Form 1008 claim for

compensation; and the defendants' answer to Mr. McCain' s claim. In support of his

motion for summary judgment seeking to overturn the Medical Director' s decision,

Mr. McCain attached the same exhibits as the defendants attached to their summary

judgment motion, and he also attached Dr. Dammers' deposition. The defendants

in their reply memorandum objected to Dr. Dammers' deposition because it was not

submitted to the Medical Director.

In her reasons for judgment overturning the Medical Director' s decision, the

WCJ stated that Mr. McCain' s traumatic brain injury required that he have " routine

maintenance and safeguarding as found in the deposition that Dr. Dammers

supplied." According to the WCJ, Dr. Dammers' deposition provided more specific

information than his medical records as to Mr. McCain' s need for a personal

assistant and the expectations of that assistant. The WCJ noted that the Medical

Director had not had the benefit of Dr. Dammers' deposition, which would have

supplied him with " much more information about Mr. McCain' s situation.119

9 The WCJ did not specifically rule upon the defendants' objection to Dr. Dammers' deposition,
but in considering it in her reasons for judgment, she impliedly overruled the objection. The

defendants did not specifically raise this as an assignment of error on appeal, but did state in a
footnote in their brief that the WCJ should have remanded the matter to the Medical Director so
that he could consider the deposition. We consider the deposition of Dr. Dammers in our review.
See Thompson v. DHH-Office of Public Health, 2015- 1032 ( La. App. 1 Cir. 2/ 26/ 16), 191 So. 3d
593, 598, writ denied, 2016- 00716 ( La. 613116), 192 So. 3d 751 ( This court concluded that the WCJ
manifestly erred in disallowing the claimant' s relevant evidence because it had not been before the
medical director to render his decision, stating, " We find additional evidence may be necessary for
the claimant to meet the higher burden of proof statutorily required at the appeal of the medical
director' s decisions, and as such, it is admissible notwithstanding that it constitutes ` new'
evidence.")

9
 The WCJ noted that the Medical Treatment Guidelines did not address Mr.

09 -11-
McCain' s situation, stating that she considered the provisions in LAC 40:1. 3 509- 11 -

J under the Guidelines for Payment. She stated that LAC 40: I.3509 provides

reimbursement guidelines for assisting the patient in routine activities such as

dressing, eating, and hygiene, which would constitute non -skilled support. The WCJ

stated that there were times Mr. McCain would not eat or did not take his

medications as required when his wife was not there. in her reasons, the WCJ

commented that Mr. McCain exercised poor judgment, that he had started fires and

had burned up microwaves, and that he had had suicidal ideations. The WCJ stated

that Mrs. McCain was gone for an eight-hour workday, so she concluded that Mr.

McCain needed a sitter for ten hours daily in order that the sitter and Mr. McCain' s

wife could exchange information before and afterwards.

On appeal, the defendants contend that the WCJ erred in concluding that the

Medical Director' s decision did not comply with the Medical Treatment Guidelines

and that there was clear and convincing evidence to overturn it, and in ordering a

non -skilled personal care assistant for up to ten hours per day, five days per week,

in violation of those Guidelines. They point out that the evidence shows that Mr.

McCain can shower and dress himself; that he takes the medication his wife lays out

for him; and that he drives a lawnmower to the mailbox every day. The defendants

also refer to Dr. Dammers' medical records covering seven years of his treatment of

Mr. McCain, during which time there was no self -injury or occurrence of any

catastrophe involving Mr. McCain. The defendants contend that Mr. McCain has

no medical needs requiring any level of medical care as a basis for needing a sitter

and that the Medical Treatment Guidelines do not authorize a sitter simply because

Mr. McCain' s wife needs a " break and [ to] allow her to go to work."

10
 The defendants rely on Landry v. Petroleum Helicopters, Inc., 2015- 108

La. App. 3 Cir. 6/ 3/ 15), 165 So. 3d 1269, 1273- 74, writ denied, 2015- 1335 ( La.

10/ 2/ 15), 178 So. 3d 990, wherein the Third Circuit upheld the WCFs denial of

reimbursement for services rendered by the injured employee' s wife, a non-

professional family member providing care to her husband who had sustained brain

injuries. The Third Circuit found that the wife was not providing the services listed

in LAC 40: I.3509, which lists specific activities that are not considered to be skilled

nursing services that a person of lesser training could provide. Landry, 165 So.3d

at 1273. The defendants argue that, similarly, Mr. McCain does not require any of

the services of the types listed in LAC 40: 1. 3509( A)( 11).

Louisiana Administrative Code 40: I.3509, entitled " Training Requirements

and Reimbursement Guidelines" provides that payment may be made for authorized

services subject to the guidelines therein. LAC 40: I.3509( A). As to services by

family and other non-professional nursing personnel, LAC 40: I.3509( A)(6) provides

that these persons may receive payment in the amount of the current minimum wage

if the attendant has received adequate instruction from the authorized treating

provider regarding the services to be provided in the home; the services provided

must be beyond the scope of normal household duties and must be in the nature of

services ordinarily rendered by trained professional personnel in hospitals or nursing

homes; and the medical evidence of record must be sufficient to identify the nature

and approximate value of the services provided. LAC 40:I.3509( A)( 11) states:

The following are specific activities which are not considered to be
skilled" nursing services and a person of lesser training can be utilized.
This listing is not all-inclusive.

a. administration of routine oral medications; eye drops; ointments;
b. general maintenance care of colostomy or ileostomy;
c. routine services in connection with indwelling bladder catheters
emptying and cleaning containers; clamping tubing; and refilling
irrigation containers with solution;

11
 d. changes of dressings in noninfected postoperative or chronic
conditions;

e. prophylactic and palliative skin care; including bathing, and

application of skin creams, or treatment of minor skin problems;
f. general maintenance care in connection with a plaster cast;
g. routine care in connection with braces and similar devices;
h. administration of medical gases after the initial training of the
patient in self -administration;
i. general supervision of exercise which have been taught to the
patient;

1, assisting the patient in routine activities; dressing, eating,
hygiene, etc.

Emphasis added.)
While the defendants rely on Landry, we note that the Third Circuit in that

case did not specifically set forth the services provided to the injured employee. See

Landry, 165 So. 3d at 1273. We also note that the activities set forth for which non-

skilled nursing could be provided in LAC 40. I.3509( A)( 11) are not " all- inclusive."

Additionally, Mr. McCain does need assistance with the administration of routine

oral medications, which his wife provides, and with " routine activities; dressing,

eating, hygiene, etc." LAC 40: I.3509( A)( 11)( j).

While the medical records support the defendants' allegations regarding Mr.

McCain' s abilities to shower, dress, and take the medication that his wife dispenses,

they also support the WCJ' s findings. Furthermore, Dr. Dammers' Mental Residual

Functional Capacity Assessment of January 1, 2018, also showed that Mr. McCain

was " markedly limited" in understanding and memory, social interactions, socially

appropriate behavior, and his ability to adhere to basic standards of neatness and

cleanliness. He also had moderate limitations in his ability to understand even

simple instructions. Moreover, the Assessment showed that he was " markedly

limited" in his ability to be aware of normal hazards and take the appropriate

precautions to avoid harm. Dr. Dammers' October 19, 2017 office visit notes stated

that Mr. McCain "` forgets to eat"' and can do little without guidance. The Second

Medical Opinion of Dr. George Jiha dated May 12, 2015, stated, "[ Mr. McCain]

12
needs monitoring/sitters during waking hours as he gets lost and is a fire risk/hazard.

According to the wife, he was lost and was found several times, and he had burnt 3

microwave ovens so far." Dr. Dammers' notes from Mr. McCain' s visits showed

complaints of vertigo, with Dr. Dammers noting on February 25, 2021, that Mr.

McCain was having issues with his balance, was " prone to falls [with] orthostasis or

vertigo," and had actually fallen out of his bed. Dr. Dammers also stated that a

caregiver presence [ was] necessary to ensure coordination and implementation. of

care/ treatment plan." Dr. Dammers' office visit notes from November 2015 through

February 2021 showed that Mr. McCain was taking from six to eight different

medications at a time, some of which were to be taken during the day, and his office

notes from April 2017 stated that Mr. McCain " had very little insight/awareness re:

taking medications." Dr. Dammers' office visit notes reflected his diagnoses of

mood disorder due to traumatic brain injury, pain disorder associated with

psychological and general medical condition, insomnia related to Axis I disorder,

cognitive disorder, and late effect of traumatic injury to brain. Dr. Dammers testified

in his deposition that Mr. McCain had " very limited insight and awareness as regards

his behavior and his activities," such that he could not correct his behaviors. Dr.

Dammers explained that the personal care assistant would " importantly, even

prevent any kind of catastrophe that can happen." While Dr. Dammers admitted that

during his treatment of Mr. McCain, there were no reports of catastrophic events, he

stated that negative interactions had occurred, and typically Mr. McCain' s wife was

with him and could moderate the situations.

In reviewing de novo Mr. McCain' s motion for summary judgment and the

defendants' opposition, we agree with the WCJ' s conclusion that there was clear and

convincing evidence that warranted overturning the Medical Director' s decision and

ordering a non -skilled personal care assistant for Mr. McCain. While assistance with
13
Mr. McCain' s issues due to his traumatic brain injury is not specifically listed under

LAC 40: 1. 3509( A)( 11), the listing is not exclusive, and the evidence demonstrates

that a non -skilled personal care assistant was needed because Mr. McCain was a

hazard to himself when unsupervised at his home due in part to his risk of falling,

his failure to remember to eat, and the risk that he would cause a fire. Therefore,

this part of the defendants' assignment of error has no merit.

The defendants also contend that the WCJ' s award of non -skilled personal

care attendant services for up to ten hours daily, five days per week, exceeds the

permitted services provided for in the fee schedule of LAC 40:I.3509. The WCJ

awarded Mr. McCain the services that Dr. Dammers requested in Form 1010, which

was a In]on-skilled personal care attendant for up to 10 hours per day, five days per

week." The section of the Louisiana Administrative Code concerning

Nursing/Attendant Care and Home Health Services Reimbursement Schedule,

Billing Instruction and Maintenance Procedures," contains a provision entitled

Prior Authorization." LAC 40: I. 3507. 10 Dr. Dammers' request for a non -skilled

personal care attendant complied with LAC 40:1. 3507. Louisiana Administrative

1 ° Louisiana Administrative Code 40: 1. 3507 states, in pertinent part:

A. 1. All nursing services and personal care services described herein, except those
specifically noted, must have prior written authorization of the carrier/self-insured
employer before reimbursement will be made. Claimants should be notified of this
requirement in writing upon the initiation of the claim.
2. Each authorization request must include a prescription or statement of need from
the treating physician of record. The information provided by the prescribing
physician must include, at a minimum:
a. in addition to the medical report and written justification required above, a
description of needed nursing or other attendant services, as well as specifying the
level of nursing care ( R.N., L.P. N., sitter/nonprofessional); and

b. estimated period of need, including daily/ hourly requirements for each level of
nursing care.

Louisiana Administrative Code 40: 1. 3511 (A) sets forth the maximum allowable reimbursement
for nursing/attendant care/ home healthcare services as: the least of the provider' s usual and
customary fee; a pre -negotiated amount between the provider and carrier; or the maximum
allowable amounts established by the schedule. The rate in the schedule for an attendant and a
nonprofessional family member is minimum wage. LAC 40: 1. 3511( C).

14
Code 40: I. 3509, as discussed above, sets forth the training requirements and

reimbursement guidelines for nursing/ attendant care and home health services. The

defendants argue that Mr. McCain offered no evidence to show that the non-

professional attendant he sought to assist him would meet any of the criteria of LAC

40: I.3509( A)(6) to be compensated at minimum wage. Additionally, the defendants

contend that the WCJ' s judgment ordering services for ten hours daily is excessive

because LAC 40: I. 3509( A)(5) states, in pertinent part, that " Authorized services by

nonprofessional family members are reimbursable up to eight hours in any 24- hour

period." While reimbursement for family members is limited to eight hours, there

is no such limitation for non -family members. See LAC 40: I. 3509( A)(5).

Therefore, the defendants' contention that the WCJ erred in its award of ten hours

of care has merit if the care is rendered by a family member, as to which

reimbursement is limited to eight hours.

CONCLUSION

We affirm that part of the February 7, 2022 judgment of the workers'

compensation judge granting the motion for summary judgment filed by Terry

McCain, ordering Lewis Companies, Inc. and LUBA Casualty Insurance Company

to provide Mr. McCain non -skilled personal care attendant services. We reverse that

part of the judgment awarding the non -skilled personal care attendant services for

up to ten hours per day, without specifying whether those services are rendered by a

family member or non -family member. We amend the judgment to order Lewis

Companies, Inc. and LUBA Casualty Insurance Company to provide Mr. McCain

non -skilled personal care attendant services for up to eight hours per day, five days

per week, if rendered by a family member, and for up to ten hours per day, five days

per week, if rendered by a non -family member. Costs of this appeal are assessed

15
one- half to the appellants, Lewis Companies, Inc. and LUBA Casualty Insurance

Company, and one- half to the appellee, Terry McCain.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART.

16
 STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0727

TERRY MCCAIN

VERSUS

LEWIS COMPANIES, INC. AND LUBA CASUALTY INSURANCE COMPANY

CONSOLIDATED WITH

2022 CA 0728

TERRY MCCAIN

VERSUS

LEWIS COMPANIES, INC.

McClendon J., concurring.

Based on the specific facts presented, I concur in the result reached by the

majority.
 STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2022 CA 0727

TERRY McCAIN
VERSUS
LEWIS COMPANIES, INC. AND
LUBA CASUALTY INSURANCE COMPANY

consolidated with

2022 CA 0728

TERRY McCAIN
VERSUS
LEWIS COMPANIES, INC.

GREENE, J., dissenting.

I disagree with the majority' s affirmance of the OWC judgment ordering Lewis

Companies, Inc. and LUBA Casualty Insurance Company to provide non -skilled personal care

assistant services to Terry McCain.

I do not think the WO had clear and convincing evidence to overturn the OWC

Medical Director's denial of Mr. McCain' s request for such services. See La. R. S.

23: 1203. 1( K). I disagree with the WCJ' s finding that Dr. Dammers' July 20, 2018 deposition

testimony would have provided the OWC Medical Director with " much more information

about Mr. McCain"s situation." From my review of Dr. Dammers' deposition testimony, it

contains no new opinion or facts other than those already presented to the OWC Medical

Director with Mr. McCain' s Forms 1009 and 1010 and attached exhibits. Thus, I would

reverse the WCJ' s judgment in favor of Mr. McCain that awarded him non -skilled personal

care assistant services.

Further, even if Dr. Dammers' deposition testimony did present clear and convincing

evidence sufficient to overturn the OWC Medical Director' s decision, I do not see why Mr.

McCain had not already presented this supposed crucial evidence to the OWC Medical

Director. When Mr. McCain filed his Form 1009 appeal with the OWC Medical Director in

March of 2021, he presumably had Dr. Dammers' deposition transcript, because the

deposition was taken on July 20, 2018, over two years earlier. Allowing the WCJ to consider
evidence that the OWC Medical Director could have considered, but which the claimant did

not provide to the OWC Medical Director, appears to usurp the OWC Medical Director's

authority to determine whether certain services are in accordance with the applicable

Medical Treatment Guidelines. See La. R.S. 23: 1203. 1( 3). Such is also contrary to the

express legislative purpose of the Medical Treatment Guidelines, which is to ensure that

medical treatment is delivered to injured employees " in an efficient and timely manner." La.

R. S. 23: 1203. 1( L); see, generally, Church Mutual Insurance Company v. Dardar, 13- 2351

La. 5/ 7/ 14), 145 So. 3d 271. In my opinion, allowing a claimant to present the WO with

evidence that was available and could have been presented to the OWC Medical Director

thwarts, rather than facilitates, the " efficient and timely" delivery of medical treatment to

injured employees.

I acknowledge First Circuit jurisprudence indicating that a WO can consider

additional" evidence that the OWC Medical Director did not consider. E.g., Deubler v.

Bogalusa City Schools, 18- 0312 ( La. App. 1 Cir. 9/ 21/ 18), 262 So. 3d 393, 397; Thompson

v DHH-Office of Public Health, 15- 1032 ( La. App. 1 Cir. 3/ 21/ 16), 191 So. 3d 593, 598, writ

denied, 16- 00716 ( La. 6/ 3/ 16), 192 So. 3d 751. I disagree, however, with any interpretation

of this jurisprudence that would allow a WO to consider evidence the OWC Medical Director

could have considered, but which was not presented by a party, In Deubler, it does not

appear that any additional evidence was presented to the WO. In Thompson, it appears

that only "new" evidence, not previously presented to the OWC, was introduced. Cf., Gilliam

v. Brooks Heating & Air Conditioning, 49, 161 ( La. App. 2 Cir. 7/ 16/ 14), 146 So. 3d 734, 744-

45 ( finding no error in the WC3' s consideration of a second medical opinion that existed prior

to the OWC Medical Director' s decision, but which was not submitted to the OWC Medical

Director).

Notably, as quoted below, at least one commentator has questioned whether the

workers' compensation statutory scheme is accomplishing its purpose when non -expert

workers' compensation judges are " routinely" reversing the decisions of the medical expert

OWC Medical Director:

The " clear and convincing evidence" standard for reviewing the medical
director's decisions on treatment requests has produced a number of
disputes, most of them involving the pattern of the medical director denying
the requested treatment, only to be reversed by the workers' compensation

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 judge even under a clear and convincing standard of review, followed by an
affirmance by the appellate court.... One is entitled to wonder whether
the statutory scheme, which was presumably aimed at getting
expert input on whether requested medical treatment is consistent
with the medical treatment guidelines, is accomplishing its purpose
if those decisions are routinely reversed by " non -expert" judges
even though there is a more stringent standard of review under
which the reversals occur. But perhaps the sample is skewed because
only the cases of denial, reversal and then affirmance are being reported.
Emphasis added; footnotes omitted.)

See3ohnson, III, H. Alston, 13 La. Civ, L. Treatise, Workers' Compensation Law and Practice

287 ( 5th ed.) ( 2022 update).

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