Snearl v. Kelly’s Industrial Services, Inc., 06-0218 (La. 3/17/06), 924 So.2d 138.
When (1) a physician provides treatment to an injured employee at an emergency room following a job accident, and (2) the employee continues to treat with that physician after the initial emergency treatment, the physician in the employee’s choice of physician.
While Alton Snearl was working for Kelly Industrial Services, Inc., a tractor fell on him and crushed his ankle. After the accident, he was taken to the emergency room of Baton Rouge General Medical Center, where he was treated by the orthopedic surgeon on duty, Dr. Ronald Sylvest. The following day, Dr. Sylvest operated on Snearl’s ankle. The first surgery was unsuccessful, so Dr. Sylvest performed a second bone graft surgery. Snearl continued to treat with Dr. Sylvest for eight months after the surgeries. Dr. Sylvest then released Snearl to return to work without restriction.
Despite Dr. Sylvest’s release, Snearl claimed that he was still in pain and could not return to work. Snearl contended that he had not had his choice of orthopedic surgeon and, therefore, he requested approval to see another orthopedic surgeon, Dr. Thad Broussard. His employer denied the request. The employer asserted that Snearl had selected Dr. Sylvest as his treating orthopedic surgeon by continuing to treat with Dr. Sylvest after the initial treatment in the emergency room.
The Trial Court Decision
After a hearing, the trial judge found that Snearl was entitled to treatment with Dr. Broussard as his choice of orthopedic surgeon. The court concluded that, because Dr. Sylvest treated Snearl on an emergency basis, Dr. Sylvest could not be either party’s choice of physician. La. R.S. 23:1121(E).
The Louisiana Supreme Court Decision
The Louisiana Supreme Court reversed the trial court and found that Dr. Sylvest was Snearl’s choice of physician. Under La. R.S. 23:1121(B)(2)(a), “if the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of physician.” The court recognized that La. R.S. 23:1121(E) provides an exception for a physician who “administered emergency treatment only.” A physician that provides emergency treatment is not considered the choice of either the employee or the employer. In Snearl’s case, the exception did not apply because Snearl continued to treat with Dr. Sylvest after the emergency room treatment. The court noted that:
. . . after the claimant’s condition was stabilized, he was free to consult with other physicians if he wished. After that point, any treatment with Dr. Sylvest was ordinary medical treatment and no longer constituted emergency treatment.
Note: Compare this case to Smith v. Southern Holding, Inc., 2002-1071 (La. 1/28/03), in which the Louisiana Supreme Court held that an employee has an absolute right to select one physician in any field, even if the employee had consented to prolonged treatment, including surgery, with a physician selected by another party. The difference in the two cases is that Smith involved treatment by the employer’s choice of physician, whereas the employer was not involved in the selection of Dr. Sylvest in Snearl.