
    Jane WALLACE v. COVENANT NURSING HOME.
    No. 2001-CA-1254.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 10, 2002.
    
      William G. Legrand, Norman Mopsik, New Orleans, LA, for Jane Wallace.
    Albert J. Nicaud, Nicaud, Sunseri & Fradella, L.L.C., Metairie, LA, for Covenant Nursing Home.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.).
   |,CHARLES R. JONES, Judge.

The Appellant, Covenant Nursing Home, appeals the judgment of the Office of Workers’ Compensation awarding the Appellee, Ms. Jane Wallace, temporary total disability benefits from March 18, 1999 through July 18, 1999, and ordering repayment of any and all past due medical bills. We vacate the judgment of the Office of Workers’ Compensation and remand.

Ms. Jane Wallace was injured as a result of an altercation with a nursing home patient on March 18, 1999, while in the course and scope of her employment with Covenant Nursing Home (hereinafter “CNH”). Ms. Wallace filed a Worker’s Compensation Dispute Claim and a mediation conference was held on November 1, 1999.

The next day, CNH requested production of medical records from any physician from whom Ms. Wallace received treatment as a result of the accident. CNH maintains that Ms. Wallace did not timely honor the discovery requests, and that once she did answer the responses were insufficient. CNH filed a Motion to Compel, and subsequently a Motion to Dismiss. On June 21, 2000, the Office of Workers’ Compensation excluded from evidence the medical reports pertaining to the treatment of injuries sustained by Ms. Wallace, and denied CNH’s Motion to Dismiss. \9 Subsequently, Ms. Wallace provided a medical bill. Additionally, Ms. Wallace filed a Motion to Set Aside the ruling of June 21, 2000, which the workers’ compensation judge dismissed.

At trial, Ms. Wallace proffered the medical report and the medical bill previously excluded by the workers’ compensation judge. Judgment was rendered awarding temporary total disability benefits from March 18, 1999 through July 18, 1999, and repayment of any and all past due medical bills connected with the treatment of Ms. Wallace’s injuries. This timely appeal follows.

The first issue raised by CNH on appeal is whether the Office of Worker’s Compensation erred in awarding temporary total disability benefits to Ms. Wallace, and whether it was error to rely on medical bills excluded from evidence by virtue of a previous ruling of the court to reach said judgment.

CNH argues that both the medical report and the medical bill should have been excluded pursuant to the order excluding medical evidence and that the medical bill should have been considered a part of the medical report. CNH further argues that the ruling rendered by the workers’ compensation court had become the law of the case. Ms. Wallace argued that she viewed the medical bill as separate from the medical report. After trial on the merits, the workers’ compensation court took this matter under advisement, and then rendered its judgment.

The workers’ compensation court considered the medical report and/or the medical bill in rendering its judgment in favor of Ms. Wallace. The record does not expressly state the reasons- the workers’ compensation court chose to consider evidence that it previously chose to exclude on two ^occasions; however, the workers’ compensation court has vast discretion in pretrial rulings.

CNH references the law of the case doctrine. CNH cites Ducote v. City of Alexandria, 97-947 (La.App. 3 Cir. 2/4/98), 706 So.2d 673, 674 to support its position that the law of the case doctrine “recognizes the binding force of trial court rulings during later stages of the trial” and that “[t]he reasons for this doctrine are: (1) avoidance of indefinite litigations; (2) consistency of results in the same litigation; (3) essential fairness between the parties; and (4) judicial efficiency.” However, CNH fails to mention that the doctrine also states that it is “discretionary and should not be applied where it would effectuate an obvious injustice or where the former appellate decision was clearly erroneous.” Ducote, 97-947 at p. 3, 706 So.2d at 675. The workers’ compensation court subsequently determined that the exclusion of the medical evidence was an obvious injustice.

Further, CNH argues that the medical documentation constitutes hearsay as it was not properly admitted into evidence by introduction through the testimony of a witness to certify the validity of the document, as well as failing to grant them the opportunity to cross-examine the witness. Ms. Wallace argues that the document can be admitted as an exception to the hearsay rule under La. C.E. art. 803.

Certified medical records can be entered into evidence without a witness. La. R.S. 13:3714 states that:

Whenever a certified copy or the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A)(1), certified or attested to by the state health care Rprovider or the health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.

In the instant case, the attestation by an appropriate administrator was absent; therefore, the medical records were not properly certified. The medical evidence must be properly certified in order to be admitted without a witness. State v. Day, 00-64 (La.App. 5 Cir. 5/30/00), 762 So.2d 264. Consequently, the medical records were not properly admitted.

Additionally, in attempting to avoid an injustice to Ms. Wallace by allowing the medical evidence to be admitted, the workers’ compensation court prohibited CNH from fully exercising its right to have the opportunity to cross-examine the witness or receive notice that the medical record would be admitted. Therefore, CNH must be afforded the opportunity to receive a certified medical record, or the medical evidence must be admitted through a witness allowing CNH the opportunity to cross-examine said witness.

The second issue raised by CNH is whether CNH is required by law to pay medical bills not properly submitted by the healthcare provider. CNH argues that it is not required to pay medical bills that are not in compliance with either the HCFA 1500 form and the UB-92 form under section 5153C of the Louisiana Administrative Code. Ms. Wallace’s brief did not address this issue. CNH did not make this objection during trial and therefore cannot raise this issue on appeal. La. C.E. art. 103.

1 aDecree

For the reasons stated herein, we vacate the judgment of the district court and remand for a hearing consistent with this opinion.

VACATED AND REMANDED.

TOBIAS, J., CONCURS IN PART AND DISSENTS IN PART.

| TOBIAS, J.,

concurs in part and dissents in part.

I respectfully concur in the reversal of the workers’ compensation judge’s decision to award Ms. Wallace temporary total disability benefits for the period of 18 March 1999 through 18 July 1999 and the medical expenses incurred by her during that period. The record reflects that Ms. Wallace worked for a period of time during April 1999 for another employer and quit the job because she could not do the work. The record is silent as to why Ms. Wallace could not do the work. That is, no evidence establishes one way or another that she could not do the work because of her asserted injury sustained while working for CNH or because she was simply unable to perform the duties of her new job. The burden was upon Ms. Wallace to establish the fact. Further, that Ms. Wallace actually worked following her asserted injury establishes more likely than not that she was not temporarily totally disabled for at least part of the time in April 1999. The burden of proof was upon Ms. Wallace to establish by clear and convincing evidence that she was totally disabled from any employment during the applicable period. This she failed to do.

I respectfully dissent from the majority’s decision to remand the matter for a new trial. Although the trial court’s interlocutory order prevented Ms. Wallace from introducing her medical records, the interlocutory order did not prevent her | 2from calling her treating physician to testify about her injury. I find no error in the trial court’s entry of the interlocutory order. The proffered medical report, which is not certified as required by law, must be excluded as evidence, and the medical bill does not prove that the treatment was related to the asserted injury while working for CNH. I therefore find that as a matter of law Ms. Wallace is not permitted a second opportunity to prove her case at trial. I therefore would merely reverse and render.  