Patricia Matthews v. Big Easy Janitorial, L.L.C., and Louisiana Construction and Industry Self Insurers Fund

PATRICIA MATTHEWS * NO. 2022-CA-0164

VERSUS *
COURT OF APPEAL
BIG EASY JANITORIAL, *
L.L.C., AND LOUISIANA FOURTH CIRCUIT
CONSTRUCTION AND *
INDUSTRY SELF INSURERS STATE OF LOUISIANA
FUND *******

APPEAL FROM
THE OFFICE OF WORKERS' COMPENSATION
NO. 19-08479, DISTRICT “08”
HONORABLE Catrice Johnson-Reid, The Office of Workers’ Compensation
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins,
Judge Tiffany Gautier Chase)

Jean-Marc V. Bonin
BONIN LAW FIRM
4224 Canal Street
New Orleans, LA 70119

Alexandre E. Bonin
BONIN LAW FIRM
4224 Canal Street
New Orleans, LA 70119

R. Christian Bonin
BONIN LAW FIRM
4224 Canal Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLEE

Nathan L. Schrantz
Nathan Schrantz LLC
830 Union St
Suite 302
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
AUGUST 10, 2022

TFL
In this Workers’ Compensation case, the claimant, Patricia Matthews,
SCJ
alleges that she suffered a work-related accident. Ms. Matthews’ employer, Big
TGC
Easy Janitorial, LLC (“Big Easy”), and its insurance carrier, Louisiana

Construction and Industry Self Insurers Fund (“LCI”), refused to initiate benefits

for the alleged accident. Ms. Matthews then filed a disputed claim for

compensation. Following a trial on the matter, the Workers’ Compensation Judge

rendered a judgment in Ms. Matthews’ favor.

Big Easy and LCI filed this timely appeal, arguing that the trial court erred

in finding that a compensable work accident occurred and in awarding Ms.

Matthews indemnity benefits. They also argue that the trial court erred in

awarding Ms. Matthews medical expenses incurred before February 26, 2019, and

in awarding Ms. Matthews penalties and attorney fees.

Upon review, we find that the medical records and testimony provided by

Ms. Matthews were sufficient to establish, by a preponderance of the evidence, that

she suffered a compensable work accident. We hold that the weight of the medical

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reports, Ms. Matthews’ unsuccessful attempts to work, and her testimony provided

a reasonable factual basis for the trial court’s finding of temporary total disability.

We further hold that the trial court did not err in finding that the severity and

unexpectedness of Ms. Matthews’ injury constituted an emergency and in holding

Big Easy and LCI liable for related emergency medical expenses. We conclude

that Big Easy and LCI did not investigate factual and/or medical information to

properly controvert Ms. Matthews’ claim, and, thus, the trial court did not err in

awarding penalties and attorney fees to Ms. Matthews. Consequently, we affirm

the judgment of the trial court and award additional attorney fees to Ms. Matthews

for the effort undertaken in opposing this appeal.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Ms. Matthews was employed by Big Easy as a housekeeper in a Homewood

Suites hotel in New Orleans. On December 28, 2018, the hotel experienced a

flood, causing the elevators to malfunction. Ms. Matthews was working the

evening shift and responded to service calls in the twelve-story building for over

eight hours. The volume of calls was high due to the impact of the flood and

elevator malfunctions upon hotel guests. Without the use of elevators, Ms.

Matthews was required to walk up and down the steps carrying heavy loads of

laundry and toiletries for guests. At one point, she alleges that her shoulder struck

the handrail of the staircase. Ms. Matthews states that she informed the only other

staff member present at the time, Karly, that she was experiencing pain in her

shoulder and arm due to the collision. Karly was employed by Homewood Suites

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itself, not Big Easy. The next day, Ms. Matthews reported to work for her morning

shift. Ms. Matthews alleges that, during her morning shift, she advised the head of

housekeeping, Danielle, of her injury. Danielle was also an employee of

Homewood Suites. Ms. Matthews alleges that she also alerted her supervisor,

Patricia Wells, of the injury and that Ms. Wells offered her a shoulder ointment.

Over the next few days, Ms. Matthews states that she sought bed rest to

ameliorate her pain. However, she claims that her pain worsened and on January

2, 2019, she reported to the Emergency Department of Ochsner-Baptist Medical

Center complaining of shortness of breath, back pain, chest pain, and arm pain.

She states that she informed the medical staff that her symptoms began when she

collided with the guardrail on December 28, 2018. Ms. Matthews was treated with

an anti-inflammatory injection and told she could return to work in three days. She

was also advised that if her symptoms did not resolve within three weeks, to seek

further emergency care.

A week later, Ms. Matthews returned to the Emergency Department with

complaints of chest pain and pain radiating into her back with any movement. She

was diagnosed with non-cardiac chest pain and given a note instructing that she

could return to work in two days, on January 10, 2019. However, she was

informed that if her pain continued, she should seek emergency care again.

A Big Easy supervisor, Leticia Arzou, was provided with the hospital note

dated January 8, 2019. Ms. Arzou testified that Ms. Matthews gave the hospital

note to Big Easy, but that Ms. Matthews never directly told Ms. Arzou of her

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injury. Ms. Arzou was aware of the flood conditions requiring Ms. Matthews to

undertake manual deliveries via the stairs. On January 10, 2019, Big Easy

terminated Ms. Matthews’ employment. On January 15, 2019, she appeared at Big

Easy’s offices in pursuit of a letter confirming her termination. Ms. Matthews

states that she verbally informed Big Easy personnel of the accident at that time.

Big Easy alleges that on that same day, Ms. Matthews filled out an application to

reapply for work with the company. Ms. Matthews denies this allegation.

After her termination, Ms. Matthews states that, despite her pain, she sought

employment in order to retain public benefits she relied upon for her family. On

January 30, 2019, approximately one month after the accident, Ms. Matthews

returned to Ochsner-Baptist reporting symptoms of shortness of breath, chest pain,

neck pain, back pain, and tingling sensations. She had difficulty walking and had

been experiencing numbness in her lower body for one week. An MRI was

ordered and exposed a disc herniation and severe spinal cord compression. She

was transferred to another Ochsner campus at once for a consultation. Two days

later, an emergency surgery was performed on Ms. Matthews to prevent further

loss of mobility. She was referred to physical therapy, but reported that despite

undergoing multiple physical therapy treatments and continuing physical therapy

exercises at home, she was unable to care for herself, for her children, or return to

work.

Approximately three weeks after her surgery, on February 26, 2019, Ms.

Matthews’ counsel sent a Letter of Amicable Demand and Notice of

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Representation to Big Easy to formally advise them of her injury at work and

inform them of the medical care she had received. Big Easy and LCI denied that

Ms. Matthews had suffered a work-related accident and declined to initiate

benefits. A trial was held on the demand with a Workers’ Compensation Judge.

The court concluded that Ms. Matthews had suffered a work-related accident and

held Big Easy and LCI liable for her medical treatments, as well as penalties and

attorney fees. Big Easy and LCI now appeal this judgment.

DISCUSSION

Standard of Review

In workers’ compensation cases, appellate courts apply the manifest error, or

clearly wrong, standard of review to factual findings by the Office of Workers’

Compensation. Dean v. Southmark Construction, 03-1051, p. 7 (La. 7/6/04), 879

So. 2d 112, 117. To reverse a trial court’s factual findings under the manifest error

standard, an appellate court must find that “a reasonable factual basis does not

exist for the finding of the trial court” and that the record establishes that the

finding is clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617

So. 2d 880, 882 (La. 1993) (citing Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987)).

An appellate court must evaluate “whether the factfinder’s conclusion was a

reasonable one.” Stobart, 617 So. 2d at 882 (internal citations omitted). “Even

though an appellate court may feel its own evaluations and inferences are more

reasonable than the factfinder’s, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review where conflict

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exists in the testimony.” Id. (citing Rosell v. ESCO, 549 So. 2d 840, 844 (La.

1989); Arceneaux v. Domingue, 365 So. 2d 1330, 1333 (La. 1978)). This standard

of review acknowledges that the trial courts are more appropriately equipped to

weigh the credibility of live witnesses and upholds the unique functions of the trial

and appellate courts. Stobart, 617 So. 2d at 883 (citing Canter v. Koehring Co.,

283 So. 2d 716, 724 (La. 1973)).

Legal errors in a workers’ compensation proceeding are reviewed de novo.

MacFarlane v. Schneider Nat’l Bulk Carriers, Inc., 07-1386, p. 3 (La. App. 4 Cir.

4/30/08), 984 So. 2d 185,188 (citing Brantley v. Delta Ridge Implement, Inc.,

41,190, p. 8 (La. App. 2 Cir. 6/28/06), 935 So. 2d 308, 314). Questions of

statutory interpretation are also subject to de novo review by appellate courts. Id.

(internal citations omitted).

“The determination of whether injury occurred in the course and scope of

employment is a mixed question of law and fact.” Dean, 03-1051, p. 7, 879 So. 2d

at 117 (citing Winkler v. Wadleigh Offshore, Inc., 01-1833, p. 3 (La. App. 4 Cir.

4/24/02), 817 So. 2d 313, 316 (internal citation omitted)). A mixed question of

law and fact is subject to the manifestly erroneous standard of review. Wootan &

Saunders v. Diaz, 17-0820, p. 5 (La. App. 4 Cir. 3/28/18), 317 So. 3d 390, 395

(citing Chimneywood Homeowners Ass’n, Inc. v. Eagan Ins. Agency, Inc., 10-

0368, p. 5 (La. App. 4 Cir. 2/2/11), 57 So. 3d 1142, 1146).

Assignment of Error #1

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In their first assignment of error, the appellants allege that the trial court

erred as a matter of law by finding the appellee suffered a work “accident” as the

term is defined in La. R.S. 23:1021.

Louisiana defines an accident, for the purposes of workers’ compensation, as

“an unexpected or unforeseen actual, identifiable, precipitous event happening

suddenly or violently, with or without human fault, and directly producing at the

time objective findings of an injury which is more than simply a gradual

deterioration or progressive degeneration.” La. R.S. 23:1021(1). The initial

burden of proof is upon the claimant to establish, by a preponderance of the

evidence, that an accident occurred on the job and that the claimant sustained an

injury. Holiday v. Borden Chem., 508 So. 2d 1381, 1383 (La. 1987) (citing Lucas

v. Ins. Co. of North America, 342 So. 2d 591, 595 (La.1977)). The claimant must

then establish, by a preponderance of the evidence, a causal connection between

the accident and their resulting disability. West v. Bayou Vista Manor, Inc., 371

So. 2d 1146, 1147 (La. 1979).

The appellants state that La. R.S. 23:1021(1) specifically “excludes from the

definition of ‘accident’ conditions that are caused by a progressive deterioration.”

The appellants point to medical records identifying the appellee’s pre-existing neck

and back problems, as a result of a degenerative cervical osteophyte complex, and

assert that her injury is not a covered accident under Louisiana law. The appellants

also identify a medical record from January 2, 2019, in which the appellee is noted

to “den[y] any recent trauma/injury.”

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However, Louisiana law accepts that an accident has occurred even “when

‘heavy lifting or other strenuous efforts, although usual and customary, cause or

contribute to a physical breakdown or accelerate its occurrence because of a pre-

existing condition.’” Bruno v. Harbert Int’l Inc., 593 So. 2d 357 (La. 1992)

(quoting Cutno v. Neeb Kearney & Co., 237 La. 828, 838, 112 So. 2d 628, 631

(1959); citing Nelson v. Roadway Express, Inc., 588 So. 2d 350, 353-54 (La.

1991)). If a claimant is able to prove that the accident “aggravated, accelerated, or

combined with the disease or infirmity to produce death or disability for which

compensation is claimed,” the claimant may still prevail. Walton v. Normandy

Village Homes Ass’n, Inc., 475 So. 2d 320, 324 (La. 1985) (internal citations

omitted). “Moreover, Louisiana courts view the question of whether there was an

accident from the worker’s perspective.” Bruno, 593 So. 2d at 360 (citing

Williams v. Reg’l Transit Auth., 546 So. 2d 150, 156 (La. 1989).

Claimants may rely on their own testimony that an unwitnessed accident

occurred in the course and scope of employment if the claimant can meet these two

elements: “(1) no other evidence discredits or casts serious doubt upon the

worker’s version of the incident; and (2) the worker’s testimony is corroborated by

the circumstances following the alleged incident.” Bruno, 593 So. 2d at 361

(internal citations omitted). Trial courts “should accept as true a witness’s un-

contradicted testimony, although the witness is a party, absent ‘circumstances

casting suspicion on the reliability of this testimony.’” Bruno, 593 So. 2d at 361

(citing West, 371 So. 2d at 1147; Holiday, 508 So. 2d at 1383).

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In the instant matter, the appellee was alone at the time of the alleged

accident. She testified regarding the circumstances surrounding the alleged injury

and testified that she informed the hotel employee working that evening of the

accident. She also testified that she told the hotel supervisors of the accident. The

appellants argue that this is the only evidence to corroborate her claim. This is

inaccurate. The record also contains medical reports corroborating her version of

events, wherein notations from medical providers indicate that she informed them

of the onset of symptoms around the time of the alleged accident. Although the

appellants urge that the trial court committed legal error in finding that a

compensable accident occurred, this Court can find no indication of a legal error in

the trial court’s analysis. Giving proper deference to the fact-finder, who observed

the testimony of the appellee and the appellants’ witness, we find that the trial

court was reasonable in concluding that the appellee suffered a work “accident,” as

the term is defined by the Louisiana workers’ compensation statute. Therefore, the

trial court did not err in holding that the appellee suffered a work “accident.”

Assignment of Error #2

The appellees’ second assignment of error contends that the trial court erred

as a matter of law by awarding the appellee indemnity benefits, despite a physician

stating she is only restricted to light duty work.

The trial court found that the appellee was rendered temporarily totally

disabled from January 12, 2019 through October 11, 2019, and from January 23,

2020 to the present day. The trial court held that she was owed temporary total

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disability for these time frames. Temporary total disability is paid to workers

injured in the course and scope of their employment “only if the employee proves

by clear and convincing evidence, unaided by any presumption of disability, that

the employee is physically unable to engage in any employment or self-

employment.” La. R.S. 23:1221(1)(c). This standard requires the claimant to

“prove the existence of a contested fact is highly probable, or much more probable

than its non-existence.” Iberia Med. Ctr. v. Ward, 09-2705, p. 16 (La. 11/30/10),

53 So. 3d 421, 432 (citing Talbot v. Talbot, 03-0814, pp. 9-10 (La. 12/12/03), 864

So. 2d 590, 598).

Additionally, to substantiate a claim for total temporary disability benefits,

the claimant “must introduce objective medical evidence.” Marti v. City of New

Orleans, 12-1514, p. 30 (La. App. 4 Cir. 4/10/13), 115 So. 3d 541, 560 (citing

Bilquist v. Custom Craft Homes, Inc., 12-0469, p. 14 (La. App. 4 Cir. 11/7/12), 105

So. 3d 194, 203). The judge reviewing the claim “must weigh both medical and

lay evidence.” Marti, 12-1514, pp. 30-31, 115 So. 3d at 560 (citing Bilquist, 12-

0469, p. 14, 105 So. 3d at 203). “[C]ompensation for temporary disability shall not

be awarded if the employee is engaged in any employment or self-employment

regardless of the nature or character of the employment or self-employment.” La.

R.S. 23:1221(1)(b).

To substantiate her claim for total temporary disability benefits, the appellee

introduced medical records documenting her attempts to seek care for her alleged

injury. These records include three visits to emergency departments, one

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emergency surgery approximately a month after the alleged injury, physical

therapy, a post-operative report, and a final report a year after the injury. The

medical records contain similar descriptions of her injury and document the

progression of her symptoms.

The first medical provider visited by the appellee furnished her a letter

excusing her from work for three days, but advising that if her symptoms did not

resolve within three weeks, to return to the emergency department. A week later,

complaining of acute pain and difficulty walking, the appellee returned to the

emergency department and was excused from work for two days, but advised that

if her pain remained, she should again seek emergency care. During this visit, the

appellee informed medical personnel that her symptoms began roughly two weeks

earlier and that she occasionally was required to walk up and down twelve stories

at work.

A month after the accident, the appellee reported to the hospital with pain,

shortness of breath, numbness in her lower extremities, and difficulty walking.

Emergency surgery was performed and she was placed on no-duty work status

until her next appointment. She was also prescribed physical therapy, which she

states she attended sporadically due to transportation issues. The appellee

informed her physical therapist that she was unable to care for herself or her

children, or return to work. She also reported numerous falls at home, but despite

her mobility challenges, she claims that she continued to practice her physical

therapy exercises at home. In a post-operative evaluation, six weeks after the

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accident, the examining physician diagnosed her with gait difficulty, muscle

weakness of lower extremity, neck pain, and impairment of balance. The doctor

recommended that she use a rolling walker to improve safety with ambulation, due

to her frequent falls, and did not comment on her work status. The appellee’s final

medical report observes that “[b]ased on the patient’s account, subjective findings,

and my objective findings, the injuries diagnosed and treated herein are directly

and causally attributed to the accident which occurred on 12/28/2018.” This report

noted her work status as “light duty/sedentary.”

The appellee also introduced lay evidence, in the form of her own testimony,

regarding the evolution of her condition and difficulty managing her own care, as

well as the care of her children. She stated that she attempted to find alternate

work after being terminated by the appellants in order to retain public benefits.

She was employed at a thrift store from October 11, 2019 to January 23, 2020. She

was forced to resign when her duties changed and she was unable to physically

perform the new tasks assigned. She was also employed at a hotel as a

housekeeper for a few days, but was unable to continue working there due to the

physical demands of the job. During trial, the appellee testified that she has been

unable to retain employment because of her physical impairments. She described

how she is able to walk, but unable to sustain movement for long and is forced to

rest after brief movements.

The appellants argue that the evidence introduced by the appellee is not

objective evidence of a disability, and therefore is insufficient to support a finding

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of disability. They submit that the appellee failed to satisfy her burden of proving

a disability by clear and convincing evidence and that the trial court committed

legal error in finding a disability. An examination of the evidence introduced by

the appellee belies this argument. The appellee introduced numerous medical

reports that corroborate the timing, nature, and extent of her injury. She sought

emergency medical care on three occasions with escalating symptoms of distress.

She underwent emergency surgery, as well as physical therapy, in order to mitigate

her condition. She attempted to work, not only in her original occupation, but also

in another field, and was incapable of performing the work required. The weight

of this evidence cannot merely be considered self-serving testimony regarding the

appellee’s ability to work. Thus, a reasonable factual basis exists for the trial

court’s finding of temporary total disability and the trial court did not err in

awarding temporary total disability.

Assignment of Error #3

The appellants’ third assignment of error asserts that the trial court erred as

matter of law by awarding the appellee medical expenses incurred prior to the

appellee’s February 26, 2019 demand letter.

La. R.S. 23:1142(B) Nonemergency care provides:

(1)(a) Except as provided herein, each health care provider may not
incur more than a total of seven hundred fifty dollars in
nonemergency diagnostic testing or treatment without the mutual
consent of the payor and the employee as provided by regulation.
Except as provided herein, that portion of the fees for nonemergency
services of each health care provider in excess of seven hundred fifty
dollars shall not be an enforceable obligation against the employee or
the employer or the employer's workers' compensation insurer unless

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the employee and the payor have agreed upon the diagnostic testing or
treatment by the health care provider.

The appellants argue that, should this Court affirm the trial court’s judgment

finding a compensable accident, this statutory language excuses them from paying

over seven hundred and fifty dollars for any medical expenses incurred prior to the

appellee’s first official demand for payment. The appellants also argue that

evidence was introduced that these expenses should have been paid, and were paid,

by Medicaid.

The appellee counters that although treatments were, in fact, paid by

Medicaid, Medicaid has a right to reimbursement pursuant to La. R.S. 23:1212(B).

This statute provides that “[p]ayments by Medicaid or other state medical

assistance programs shall not extinguish these claims and any payments made by

such entities shall be subject to recovery by the state against the employer or

insurer.” La. R.S. 23:1212(B). The claims referred to are claims “against the

employer or insurer.” La. R.S. 23:1212(A). The appellee identified a lien letter

received from an agent of Medicaid seeking reimbursement.

The appellee also clarifies that although the seven-hundred and fifty dollar

cap applies to non-emergency care without prior consent of the payor, an exception

exists for emergency care. In furtherance of her argument, the appellee cites to:

Emergency care. (1) In no event shall prior consent be required for
any emergency procedure or treatment deemed immediately necessary
by the treating health care provider. Any health care provider who
authorizes or orders emergency diagnostic testing or treatment, when
said diagnostic testing or treatment is held not to have been of an
emergency nature, shall be responsible for all of the charges incurred
in such diagnostic testing or treatment. Said health care provider shall
bear the burden of proving the emergency nature of the diagnostic
testing or treatment.

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La. R.S. 23:1142(C)(1).

The appellee maintains that all care she received prior to the demand letter

was emergency in nature. The statute itself does not define “emergency care,” but

the Louisiana Supreme Court has addressed this issue in Snearl v. Kelly’s Indus.

Services, Inc., 06-0218 (La. 3/17/06), 924 So. 2d 138.

In Snearl, the claimant was injured in the course and scope of his

employment when a tractor fell on him and crushed his ankle. Snearl, 06-0218, p.

1, 924 So. 2d at 139. The claimant was quickly transported to a hospital

emergency room and surgery was performed on him the next day by an orthopedist

on duty. Id. A second surgery was needed after the first surgery was unsuccessful.

Id. The claimant continued to see the orthopedist for eight months after the

surgeries. Id. At the end of the eight months, the orthopedist recommended he

return to work with a full work release, without any restrictions. Id. The claimant

complained of continued pain and demanded to see a doctor of his own choosing.

Id. His employer refused to authorize the new evaluation, arguing that the

claimant had already selected the surgical orthopedist by continuing treatment with

that doctor for eight months following the surgeries. Id. The claimant then filed a

disputed claim for compensation to select a new orthopedist. Id. The hearing

officer ordered that the claimant was authorized to select a new doctor, explaining

that the first orthopedist was treating the claimant on an emergency basis. Id., 06-

0218, pp. 1-2, 924 So. 2d at 139.

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On review, the Supreme Court relied on the Webster’s College Dictionary

definition of “emergency” as “a sudden, urgent, usu. unexpected occurrence

requiring immediate action.” Id., 06-0218, p. 2, 924 So. 2d at 140. The Court

found that the initial treatment and surgeries constituted emergency treatment, the

subsequent eight months did not. Id., 06-0218, pp. 2-3, 924 So. 2d at 140. The

Court reversed the hearing officer’s ruling, remarking that while there is no exact

timeframe for the duration of “emergency treatment,” eight months was too long.

Id.

In the case sub judice, the claimant’s disputed medical care was provided

within two months of the accident. Initially, the appellee continued to work and

stated that she hoped her symptoms would dissipate with rest. However, after four

days, her symptoms had dramatically worsened and she reported to the emergency

room. Her next two medical treatments were also unplanned visits to the

emergency room, based on the appellee’s descriptions of acute pain and numb

sensations. During her first two visits, medical personnel advised her to return to

the emergency department if her symptoms did not resolve. Upon her third time in

the emergency department, she was immediately referred to a surgeon and

underwent surgery two days after reporting to the hospital. The fact that she was

referred to return to the emergency department by medical personnel reinforces the

appellee’s argument that her condition merited urgent and immediate care. The

rapidity with which surgery was administered further bolsters the categorization of

this treatment as emergency care.

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Given the unexpected severity of the appellee’s injury and symptoms, the

threatened loss of mobility, and the swift administration of surgery, a reasonable

factual basis exists for the trial court’s judgment ordering reimbursement, without

limit, to Medicaid for all medical costs incurred, including those prior to the

issuance of the demand letter. Thus, the trial court did not err in ordering the

appellants to reimburse Medicaid for all medical services related to her injury.

Assignment of Error #4

In their fourth assignment of error, the appellants argue that the trial court

erred as a matter of law by awarding the appellee penalties and attorney fees.

The trial court ordered numerous penalties and attorney’s fees to be assessed

against the appellants. First, the court ordered penalties to be assessed against the

appellants in the amount of $2,000.00, pursuant to Louisiana Revised Statute

§23:1201(F), for failure to timely pay indemnity benefits. The trial court found

that the appellants failed to reasonably controvert the appellee’s claim and/or

establish that there were conditions over which it had no control when they failed

to pay this claim. Accordingly, the trial court assessed penalties of $2,000.00

against the appellants, pursuant to Louisiana Revised Statute §23:1201 (F), for

failure to pay medical benefits timely.

The trial court also assessed penalties against the appellants for their failure

to reasonably controvert this claim and/or establish that there were conditions over

which it had no control when they failed to timely authorize necessary medical

treatment, in the amount of $2,000.00, pursuant to Louisiana Revised Statute

17

§23:1201 (F). Lastly, the trial court assessed penalties of $2,000.00 against the

appellants for their failure to reasonably controvert this claim and/or establish that

there were conditions over which it had no control when they failed to timely and

properly investigate the accident, pursuant to Louisiana Revised Statute

§23:1201(F). For each of these violations of La. R.S. §23:1201(F), the trial court

assessed attorney’s fees of $2,000.00. The total sum of penalties and attorney’s

fees assessed against the appellants is $16,000.00.

La. R.S. §23:1201(F) authorizes the imposition of penalties and attorney’s

fees against an employer or insurer who fails to pay workers’ compensation

benefits. However, if employers and insurers have reasonably controverted the

claim or if such nonpayment results from conditions over which the employer or

insurer had no control, penalties and attorney fees will not be assessed against the

employer or insurer. La. R.S. §23:1201(F)(2).

“The determination of whether an employer or insurer should be cast with

penalties and attorney fees in a workers’ compensation action is essentially a

question of fact” and subject to manifest error/clearly wrong standard of review.

Authement v. Shappert Eng’g, 02-1631, p. 12 (La. 2/25/03), 840 So. 2d 1181,

1188-89 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p.

7 (La. 7/1/97), 696 So. 2d 551, 556). Courts must evaluate “whether the employer

or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or

medical information to reasonably counter the factual and medical information

presented by the claimant throughout the time he refused to pay all or part of the

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benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.

12/1/98), 721 So. 2d 885, 890. Employers must have “some valid reason or

evidence upon which to base his denial of benefits.” Id. Stated another way,

employers must possess an “articulable and objective reason to deny benefits at the

time it took action.” Authement, 02-1631, p. 11, 840 So. 2d at 1188 (citing

Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99), 737 So. 2d 41, 46).

In Johnson v. Sewerage & Water Bd. New Orleans, the claimant was injured

during the course and scope of her provisional employment. Johnson v. Sewerage

& Water Bd. New Orleans, 15-0950, p. 1 (La. App. 4 Cir. 3/30/16), 190 So. 3d

785, 788. The employee submitted a claim for arthroscopic surgery and her

employer submitted her request to an outside agency for evaluation. Id., 15-0950,

p. 30, 190 So. 3d at 804. A board-certified orthopedist at the outside agency

reviewed materials provided by the claimant’s treating orthopedist and did not

recommend surgery, finding “that there was limited evidence [in the plaintiff's

medical records] to suggest that physical therapy treatment has been tried and,

therefore, the ‘medical necessity’ for the requested surgery was ‘not established.’”

Id. The claimant received written notice of this finding, including language

advising her that she should submit any objection or disagreement with the

recommendation to the Workers’ Compensation Office within fifteen days. Id.

The record contained no indication that the claimant ever disputed or objected to

the recommendation. Id. This Court found that by fully examining the medical

records of the claimant, submitting them for objective review, and providing a

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claimant with the opportunity to dispute the results of its review, the employer had

reasonably controverted the worker’s claim for surgery. Id., 15-0950, p. 31, 190

So. 3d at 804-05. The Court overturned an award of penalties and attorney fees.

Id., 15-0950, p. 31, 190 So. 3d at 805.

In the case at bar, the appellants do not claim that nonpayment occurred due

to circumstances beyond their control. Instead, the appellants contend that they

have reasonably controverted the appellee’s claim. They argue that the appellee’s

failure to inform them of the accident and the medical provider note releasing her

to return to work on January 10, 2019, provided a sufficient basis to initially deny

the appellee’s claim. However, the appellee states that she did inform the

appellants of the accident on January 15, 2020. The appellants do not claim to

have any other reason to deny benefits at that time.

After the February 26, 2019 demand letter was sent, the appellants allege

that they undertook an investigation of the accident. The appellants produced two

emails from an employee stating that an investigation was undertaken and there

was no evidence of a work accident or injury. The investigating employee claims

she asked other employees about an accident and was informed that the appellee

had suffered a stroke. The only evidence of that investigation is one sentence with

the conclusory statement that an investigation occurred and no evidence of injury

was found. The nature and details of the investigation are unclear. The appellants

did not provide any information on the witnesses that were contacted for the

investigation. The appellants have not stated whether they questioned the specific

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hotel employees that the appellee declared she informed of the accident. It does

not appear from the record that the appellee herself was contacted throughout the

investigation. During trial, the appellants did not furnish any further details on the

investigation. There is reference to this being a second investigation, but the

details, timing, and contents of a first investigation are, likewise, not provided.

The appellants also argue that nonpayment was warranted because the

appellee’s medical records indicate a gradual deteriorative condition and not an

accident. However, it has been established that claimants may be compensated

even in the case of an existing infirmity, if that infirmity is “aggravated,

accelerated, or combined with” to cause disability. Walton, 475 So. 2d 320, 324

(La. 1985). Furthermore, the appellee’s medical records are inconsistent with the

results of the appellants’ alleged investigatory finding of a stroke. Despite this

obvious contradiction, the appellants have not provided evidence of any other

investigatory action taken.

Overall, the appellants have provided scant, if any, information regarding

their investigation or investigations. Unlike in Johnson, where outside expert

medical review was engaged, the appellants appear to rely on their lay

interpretation of the appellee’s medical record and an erroneous interpretation of

the law regarding existing conditions. Moreover, the appellee provided

voluminous medical reports documenting the progression of her injury and in-

person testimony regarding the circumstances of the accident. In consideration of

the appellants’ lack of factual and/or medical information to counter the appellee’s

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testimony and medical records and the corresponding lack of a valid reason upon

which to base the denial of benefits, we find that the appellants did not reasonably

controvert the appellee’s claim. Therefore, the trial court did not commit manifest

error in awarding penalties and attorney fees.

Appellate Attorney Fees

The appellee has filed an answer to this appeal seeking attorney fees and

costs in connection with the appeal. “When the defendant in a worker’s

compensation case appeals and obtains no relief, and when the appeal has

necessitated additional work on the part of plaintiff’s counsel, the appellate court

usually awards an increase in attorney fees, provided that the plaintiff has

requested the increase in accordance with proper appellate procedure.” Tillmon v.

Thrasher Waterproofing, 00-0395, p. 8 (La. App. 4 Cir. 3/28/01), 786 So. 2d 131,

137 (citing Miller v. City of New Orleans, 95-1005, p. 13 (La. App. 4 Cir.

12/14/95), 665 So. 2d 1293, 1300); Sam v. Jhane Home Health Care Services, Inc.,

95-0081, p. 3 (La. App. 4 Cir. 6/7/95), 657 So. 2d 559, 561; See Smith v. Kelly

Labor Serv., 239 So. 2d 685, 691; See Skinner v. Baggett Transp. Co., 391 So. 2d

555, 559-60 (quoting Conlay v. Houston General Ins. Co., 370 So. 2d 196, 201

(La. App. 3d Cir. 1979)).

We have determined that the appellants, the workers’ compensation

defendants, are not owed any relief. The appeal has necessitated additional work

by the appellee’s counsel and counsel requested the increase in keeping with

proper appellate procedure, through an answer to the appeal. We hold that the

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appellants are condemned to pay additional reasonable attorney fees in the amount

of $2,000 for opposing this appeal.

CONCLUSION

In conclusion, we affirm the judgment of the trial court in finding that the

appellee suffered a work “accident,” awarding indemnity benefits, holding the

appellants liable for medical expenses incurred prior to the February 26, 2019

demand letter, and awarding penalties and attorney fees. We award additional

attorney fees to the appellee for the opposition of this appeal.

AFFIRMED

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