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Gros v. Gaudin10/31/2000
REVERSED AND REMANDED.
The Claimant, Linda Gros, appeals from the judgment rendered by the Office of Workers' Compensation (OWC) in favor of Defendant, Maryland Casualty Company (Maryland), dismissing her claim for reimbursement of medical expenses. For the reasons which follow, we reverse and remand.
The facts giving rise to this controversy are not in dispute. The Claimant was employed at a law firm in 1992 when she sustained a severe back injury by slipping down in the office. Over the years, she has had two separate surgeries for this injury and remains disabled. Her treating physician from the outset of her injury was Dr. Robert A. Fleming.
On January 9, 1997, Dr. Fleming performed the second operation on claimant's spine, a laminectomy at L5-S1, which included a bone graft. In his September 3, 1997 follow-up report, he expressed concern that the fusion was not solid and that a grafting procedure might be necessary. The Claimant was complaining of severe pain and numbness in her right leg, going down to her foot and a declining ability to walk without assistance. Dr. Fleming had Magnetic Resonance Imaging (MRI) performed and, based upon it and his examination of claimant, he recommended surgery and scheduled it for February 5, 1998. Maryland, objected to the surgery and refused to authorize payment for it. Maryland scheduled a January 20, 1998 second opinion exam by its physician, Dr. Robert A. Steiner. Dr. Steiner agreed that claimant had severe problems and was at this time disabled. However, he did not think that another operation would benefit her.
On March 10, 1998, Maryland filed a request with the OWC for an independent medical examination (IME) of Claimant by a physician chosen by OWC. On April 8, 1998, OWC forwarded a request to Maryland for additional information. It was noted therein that failure to timely supply the information could result in the denial of the IME. There is nothing in the record to indicate whether Maryland responded timely. But, on April 27, 1998, OWC responded, denying Maryland's request for an IME. OWC found that "the evidence presented does not reflect that there is presently a medical or factual dispute regarding the present physical status of this individual, as required by La R.S. 23:1123." The Claimant returned to Dr. Fleming on May 20, 1998. Following his examination and confirmation of his earlier findings, he again recommended surgery. On June 4, 1998, the Claimant forwarded the surgery request to Maryland, noting the denial of the IME by OWC. On June 8, 1998, Maryland responded negatively, stating that " t this point, Maryland will not consent to payment for this surgery. . . ." After receipt of the Maryland letter, the hospital again cancelled the Claimant's surgery. Thereafter, upon obtaining Medicare coverage through social security , Dr. Fleming again rescheduled the surgery for July 21, 1998. Maryland was again notified and again informed Dr. Fleming and the hospital that it would not pay for the surgery. In a follow up letter by Maryland to Dr. Fleming, Maryland notes: "I denied payment for any surgery..."
The Claimant was operated on by Dr. Fleming on July 21, 1998. It is alleged, although support cannot be found in the record before us, that on the eve of the surgery a letter was received by someone on behalf of the Claimant informing her that an IME had been set for August 7, 1998.
Following the surgery, the Claimant testified that her range of motion improved and her pain has significantly decreased. She can now walk without a walker. She again requested reimbursement for her remaining medical bills from this surgery and was again denied by Maryland. The Claimant filed with OWC a dis
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