### 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:

On Appeal from the Office ofWorkers' Compensation, District 5 In and for the Parish of East Baton Rouge

State of Louisiana Nos. 17- 03030 c/w 21- 02728 

### JUN 0 5 2013

The Honorable Pamela Moses Laramore, Judge Presiding

J. David Smith Baton Rouge, Louisiana Richard J. Voelker Stephen W. Brooks, Jr. Mandeville, Louisiana 

### Attorney forAppellee Terry McCain Attorneys for Appellants 

### LUBA Casualty Insurance Company and Lewis Companies, Inc.

BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.

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

### compensation insurer, LUBA Casualty Insurance Company (" LUBA"), appeal a final judgment ofthe Office ofWorkers' 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. 

### Forthe following reasons, we affirm in part, reverse in part, and amend thejudgment. FACTS AND PROCEDURAL HISTORY 

### This matter has been previously before this court and the following relevant facts and procedural history aretaken from this court's earlieropinion 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 ofhis thoracic spine, a complete rupture of his rotator cuff, and other orthopedic injuries. The 

### defendants paid medical and indemnity benefits (atthe rate of $ 579.00 perweek)to and on behalfof 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, alongwith otherrelief. 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 2objections 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 ajudgment 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 ajudgment which decreed that Mr.McCain was awarded permanent 

### total disability benefits as proven by clear and convincing evidence to be the direct result ofatraumatic brain injury combined with otherphysical injuries sustained in the work accident. Thejudgment further awarded Mr. McCain non - skilled personal 

### care attendant services, for up to ten hours per day, five days perweek, 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 ofnon - skilled personal care attendant services was not arbitrary 

### or capricious, and ordered each partyto beartheir own costs. McCain I,302 So.3d at 1149. The defendants appealed thejudgment, and in their appeal raised the issue of 

### the denial oftheir dilatory exception raising the objection ofprematurity and oftheir 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 ofa non - skilled sitter was not subject to the Medical Treatment 

### Guidelines and determined that such a request must comply with the Medical 3Treatment 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 1010) 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 

### ofthejudgment denying the dilatory exception raising the objection ofprematurity 

### filed by the defendants, and also vacated that portion ofthejudgment 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 ofthe 

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

### permanent total disability benefits retroactive tothe date oftrial 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 thereafterfiled a Form 1010, seeking authorization forthe non - skilled sitterfrom LUBA. LUBA 

### denied the request on July 14, 2018, pending completion ofan independent medical examination ofMr.McCain. No furtheraction was taken by Mr.McCain or Dr. Dammers regarding the request for attendant care/personal care services. McCain 1, 302 So.3d at 1155. flOn 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 ofthe 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 amotion forsummaryjudgment,contendingthatMr.McCain failed to state a cause or right ofaction 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 nonskilled personal care attendant and the denial ofthat request. The WCJ ordered that the amended petition be filed. 

### Mr. McCain then moved for summary judgment, 

### seeking ajudgment 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 consolidatethe two suits, which was granted bythe WCJ on November 8, 2021. 5

### The matter was tried on the motions for summaryjudgment.' On December



### 17, 2021, the WCJ ruled in the matterand issued reasons forjudgment. On February 7, 2022, the WCJ signed ajudgment denying the defendants' motion for summary judgment and granting Mr. McCain' s 

### summary judgment motion, 

### thereby 

### overturningthe Medical Director's denial ofhis requestfornon - skilled personal care attendant services and awarding Mr.McCainthose services foruptoten hours daily, five days per week. From thisjudgment, the defendants appeal. LAW AND DISCUSSION Summary Judgment 

### Appellate courts review the granting ofa summary judgment de novo using the same criteria governing the trial court' s consideration of whether summary judgment is appropriate, i.e., 

### whetherthere is any genuine issue ofmaterial 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 thejust, speedy, and inexpensive determination ofnon-domestic

civil actions. See La. C. C.P. art. 966(A)(2). 

### The purpose ofa 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). 

### Afteran opportunity foradequate discovery, summary 

### judgment shall be granted ifthe 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 Wenotethatpursuanttothe WCJ'sscheduling order,all partiesfiled pretrial statements, although the matterwas before the WCJ on cross-motions for summaryjudgment. 6

### On a motion for summaryjudgment,the burden ofproofis 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 ofthe adverse party' s claim,action,ordefense be negated. Instead, after meeting its initial burden ofshowing thatthere 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 ofa genuine issue ofmaterial fact orthatthe mover is not entitled tojudgment 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 awork-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 ofa 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" 

## accordingto 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 ofthis 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 oflawto 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. 7services 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 thatsuch a request be presentedtothe 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 thatthe record and documentation submitted did not support the approval ofthe 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 setforth 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 priorwritten authorization ofthe 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 ofthis Section. 2) Notwithstanding any other provision ofthis Chapter, all treatment not specified in the medical treatment schedule and not found in Subsection D ofthis 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 ofthe 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 applythe manifest error standard 

### when examining aWCJ's review ofthe Director's decision because the WCFs reviewofwhether there is clearand convincing evidence thatthe Director's determination is in contravention ofthe medical treatment guidelines is necessarily fact - intensive. However,wenotethatthe matterbefore 

### 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 ofmedical 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 ofhis 

### motion for summaryjudgment 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 

### intheir reply memorandum objected to Dr. Dammers' deposition because itwas not submitted to the Medical Director. 

### In her reasons forjudgment 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 tothe 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 oferror on appeal, but did state in a footnote in their briefthat 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 ofPublic 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 disallowingthe claimant's relevant evidence because ithad notbeen before the medical directorto render his decision,stating, "We find additional evidence may be necessaryfor the claimant to meet the higher burden of proofstatutorily required at the appeal ofthe medical director' s decisions, and as such, it is admissible notwithstanding that it constitutes ` new' evidence.") 9The WCJ noted that the Medical Treatment Guidelines did not address Mr.



### McCain's situation, stating that she considered the provisions in LAC 40:1.3509- 11 - J 09 -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 poorjudgment, 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 forten hours daily in orderthatthe 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 referto Dr.Dammers' medical records covering seven years ofhis 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 ofmedical care as a basis for needing a sitter and thatthe 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 memberproviding careto herhusband who had sustained brain injuries. 

### The Third Circuit found thatthe 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 ofthe 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 othernon-professional nursing personnel, LAC 40:I.3509(A)(6) provides 

### thatthese persons may receive payment in the amount ofthe 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 ofnormal household duties and must be in the nature of 

### services ordinarily rendered bytrained professional personnel in hospitals ornursing homes; and the medical evidence ofrecord must be sufficient to identify the nature and approximate value ofthe services provided. LAC 40: I.3509(A)( 11) states: 

### The following are specific activities which are not considered to be skilled" nursing services and aperson oflessertraining can be utilized. This listing is not all-inclusive.

a. administration of routine oral medications; eye drops; ointments; b. 

### general maintenance care ofcolostomy or ileostomy; c. 

### routine services in connection with indwelling bladder catheters emptying and cleaning containers; clamping tubing; and refilling irrigation containers with solution; 11d. 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 setforth the services provided tothe 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 supportthe WCJ' s findings. Furthermore, Dr. Dammers' Mental Residual 

### Functional Capacity Assessment ofJanuary 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 duringwaking hours ashe gets lostand is afire 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 atime, some ofwhich 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 oftraumatic injuryto brain. Dr. Dammerstestified in his depositionthat Mr.McCain had "very limited insightand 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 

### preventany kind ofcatastrophethatcan happen." While Dr. Dammers admitted that 

### during histreatment ofMr.McCain,there were no reports ofcatastrophic 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 summaryjudgment and the defendants' opposition, we agree with the WCJ' s conclusion thatthere was clear and 

### convincing evidencethatwarranted overturning the Medical Director's decision and 

### ordering anon -

skilledpersonal careassistant forMr.McCain. Whileassistance with 13

### Mr.McCain's issues dueto 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 himselfwhen unsupervised at his home due in part to his risk offalling, his failure to remember to eat, and the risk that he would cause a fire. Therefore, this part ofthe 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 forupto 10 hoursperday, 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 ° LouisianaAdministrative Code 40:1.3507 states, in pertinent part: A. 1. All nursing services and personal care services described herein,exceptthose 

### specifically noted, must have prior written authorization ofthe carrier/self-insured employer before reimbursement will be made. Claimants should be notified ofthis requirement in writing upon the initiation ofthe claim. 2. Each authorization request must include a prescription or statement ofneed 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 ofneeded nursing orother attendant services, as well as specifying the level ofnursing 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). 14Code 40: I.3509, as discussed above, 

### sets forth the training requirements and

reimbursementguidelines 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 ofthe criteria ofLAC 

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

### contend that the WCJ' sjudgment 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 often 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 ofthe judgment awarding the non - skilled personal care attendant services for 

### up to ten hours per day, without specifying whetherthose services are rendered bya 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 

### perweek, ifrendered by afamily member, and for up toten hours perday,five days per week, if rendered by a non - family member. Costs of this appeal are assessed

15

### one-halfto the appellants, Lewis Companies, Inc. and LUBA Casualty Insurance



### Company, and one-halfto the appellee, Terry McCain. AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART.

16STATE 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'sfinding 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, overtwo years earlier. Allowing the WCJ to considerevidence 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 CitySchools, 18-0312 ( La. App. 1 Cir. 9/21/ 18), 262 So.3d 393, 397; Thompson 

### v DHH-Office ofPublic 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 thisjurisprudence 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 &

### AirConditioning,49, 161 ( La. App. 2 Cir. 7/ 16/ 14), 146 So.3d 734, 744- 

### 45 (finding no error in the WC3's consideration ofa 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 ofthem involving the pattern ofthe 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 treatmentguidelines, isaccomplishing 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 Lawand Practice 287 ( 5th ed.) ( 2022 update).

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