Douglas v. Isle of Capri, 40651, 923 So.2d 950 (La. App. 2d Cir. 3/8/06).
When an employee has made a formal claim for compensation for an occupational disease, the office of workers’ compensation may order an employer or insurer to pay the cost of the initial visit by an employee with a physician of the claimant’s choosing prior to the presentation of proof by the employee that he suffers from an occupational disease. This authority includes the power to order the responsible party to pay for related, appropriate, and reasonable diagnostic testing.
Michael Douglas worked as a bartender at the Isle of Capri Casino for over ten years. In March 2005, Douglas filed a 1008 alleging that he had developed a foot ulcer caused by long hours of standing at his job. On June 10, 2005, Douglas filed an amended claim asserting that he had also developed carpal tunnel syndrome (“CTS”) as a result of his job.
Douglas filed an expedited motion for medical treatment. He alleged that his Carpal Tunnel Syndrome was work-related and that he was entitled to see an orthopedist of his choice and have related diagnostic tests at the Isle of Capri’s expense. Isle of Capri argued that the OWC could not award Douglas medical treatment in an expedited hearing because a dispute existed as to whether Douglas had an occupational disease. Isle of Capri contended that the OWC cannot award medical treatment until it determines, after a trial on the merits, that Douglas has Carpal Tunnel Syndrome related to his employment.
The Trial Court Decision
Without explanation, the trial court (Judge Sheral Kellar) ordered Isle of Capri to pay for Douglas to be evaluated by an orthopedist of his choice.
The Appellate Court Decision
The appellate court affirmed the trial court’s ruling. The court found that, although a disputed claim for benefits is not evidence that a claimant actually suffers from a work-related injury, the bare claim is sufficient to commence the fact-finding process. The most important facts in an occupational disease claim are the nature and origin of the claimant’s disease, if any. Therefore, in an occupational disease claim, the OWC may order an employer or insurer to pay the cost of the initial visit by an employee with a physician of the claimant’s choosing prior to the presentation of proof that the employee suffers from an occupational disease. This authority includes the power to order the responsible party to pay for related, appropriate, and reasonable diagnostic testing.
The appellate court was careful to note that it based its decision in this case on the unique nature of occupational disease claims. The court noted that occupational diseases present less obvious symptoms than traumatic injuries and that expert testimony is required for an employee to prove the existence of an occupational disease. For that reason, requiring an employee to prove an occupational disease before being entitled to a medical evaluation would place too great of a burden on the employee.