Creole Steel, Inc. v. Stewart, 030812 LACA3, WCA 11-1285

Docket Nº:WCA 11-1285
Case Date:March 08, 2012
No. WCA 11-1285
Court of Appeals of Louisiana, Third Circuit
March 8, 2012
         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - NUMBER THREE PARISH OF CALCASIEU, NO. 09-04688 CHARLOTTE A. L. BUSHNELL, WORKERS' COMPENSATION JUDGE           Scott James Pias, Ricky Stewart, COUNSEL FOR DEFENDANT/APPELLANT:           Joseph Richard Pousson, Jr. Plauché, Smith & Nieset, LLC, Creole Steel, Inc., COUNSEL FOR PLAINTIFF/APPELLEE:           Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Billy Howard Ezell, Judges.           BILLY HOWARD EZELL JUDGE          Ricky Stewart appeals a judgment of the Office of Workers' Compensation (OWC) refusing to award penalties and attorney fees for his employer's failure to authorize the purchase of Marinol, a prescription form of marijuana. Mr. Stewart also complains that the workers' compensation judge (WCJ) did not order that his employer reimburse him the money he advanced to purchase the medication.          FACTS          Mr. Stewart injured his cervical spine in 2000 while employed by Creole Steele, Inc. In October 2001, Mr. Stewart began treatment with Dr. Frank Lopez who specializes in physical medicine and rehabilitation. In May 2009, Dr. Lopez prescribed Marinol. In June 2009, Creole Steel filed a disputed claim form disputing the reasonable medical necessity of Marinol.          In January 2011, a trial on the issue was held. After hearing testimony and reviewing the evidence, the WCJ ordered an independent medical examination of Mr. Stewart in the area of pain management by Dr. James H. Eddy. Later, a judgment was signed by the WCJ who concluded that Dr. Lopez should proceed with his current recommendation for the use of Marinol while investigating other treatment alternatives. Mr. Stewart appealed the judgment due to its failure to award penalties and attorney fees and order reimbursement of the amounts he has already paid for the Marinol.          PENALTIES AND ATTORNEY FEES          Mr. Stewart argues the WCJ erred in not awarding penalties and attorney fees for Creole Steele's failure to authorize the prescribed Marinol and for failure to reimburse him for his purchase of the prescribed medication.          Louisiana Revised Statutes 23:1201(E) provides: "[m]edical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof." Failure to pay...

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