Mary Brown Versus Walmart, Inc.

MARY BROWN NO. 23-C-201

VERSUS FIFTH CIRCUIT

WALMART, INC. COURT OF APPEAL

STATE OF LOUISIANA

May 05, 2023

Linda Wiseman
First Deputy Clerk

IN RE MARY BROWN

APPLYING FOR SUPERVISORY WRIT FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7, PARISH OF WORKMENS COMP, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
SHANNON BRUNO BISHOP, NUMBER 23-62

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.

WRIT GRANTED IN PART; DENIED IN PART

In this worker’s compensation matter, the relator, Mary Brown, seeks review
of the OWC Judge’s determination that her employer, Walmart, Inc. (“Walmart”),
was entitled to a $2,500.00 offset on arrearages owed to the relator, based upon her
failure to appear at a scheduled independent medical examination (“IME”).

The application before us shows that on November 7, 2022, Ms. Brown was
provided with a second medical opinion appointment notice. Her IME with Dr.
Douglas Lurie was scheduled to take place at 8:00 a.m., with a 7:30 a.m. arrival
time, on December 2, 2022. Walmart apparently provided Ms. Brown with funds
in advance to take a taxi service to the appointment on that date. In connection
with the IME, Walmart was required to pay Dr. Lurie’s office a $2,500 deposit,
which would be forfeited in the event that the appointment was canceled less than
24 hours before the exam, or if the person to be examined was a “no show.” A
string of emails between counsel for Ms. Brown and Walmart, introduced at the
hearing on Ms. Brown’s motion to lift suspension of benefits, illustrates the
following series of events: On December 1, 2022, at 9:38 a.m., Walmart was
advised by Ms. Brown’s counsel that she would need to reschedule her
appointment because “her ride for tomorrow’s appt canceled.” At 5:05 p.m. on
December 1, 2022, Walmart replied by email and advised that “[c]anceling the
appointment this late will result in a forfeiture of entire fee paid for the
examination.” Walmart further requested “that Ms. Brown take a cab or Uber [to]
the appointment and if that cost is more than the travel check we previously sent to
her, we'll reimburse her for the overage.” No further communication between
counsel appears to have taken place. It is not disputed that Ms. Brown did not
appear for her IME with Dr. Lurie on the following day. Therafter, Walmart

23-C-201

suspended Ms. Brown’s benefits pursuant to La. R.S. 23:1124 due to her failure to
attend the IME.

At the February 17, 2023 hearing on Ms. Brown’s motion to lift the
suspension of her benefits by Walmart, the OWC Judge made several findings.
First, the judge concluded that Walmart had properly suspended Ms. Brown’s
benefits under La. R.S. 23:1124 because she did not attend the scheduled the IME.
Specifically, the judge found that Ms. Brown’s providing less than 24 hours notice
that she would not attend the IME was not acceptable, especially in light of the fact
that Walmart had previously provided funds for Ms. Brown’s transportation to the
appointment. The judge further concluded, however, that Walmart should have
immediately rescheduled the appointment, instead of waiting weeks to do so, while
Ms. Brown’s benefits were suspended. Accordingly, the OWC court reinstated
Ms. Brown’s benefits, and ordered that Walmart pay arrearages back to December
2, 2022. Against these arrearages, the judge gave Walmart a $2,500.00 credit for
the deposit it lost due to the missed appointment by Ms. Brown.

Assessment of the “no show” fee

Ms. Brown argues that the trial court erred as a matter of law by imposing
the “penalty” of a $2,500 fee upon her, when La. R.S. 23:1124 only provides the
consequence of a suspension of benefits for failure to attend an IME. We agree
with her reading of the plain language of the statute. However, the assessment
appears to have been made by the OWC judge as a sanction related to discovery,
and not a penalty under La. R.S. 23:1124.

La.Admin.Code 40:6601 provides that “Unless otherwise provided for in
these rules, any practice or procedure not in conflict with either the Workers'
Compensation Act or these rules will be guided by practice and procedure
provided for in the Louisiana Code of Civil Procedure.” Accordingly, we now
analyze the issue from that perspective. The discovery articles grant the trial court
the power to compel discovery and the discretion to impose various sanctions on a
party or his attorney for unjustified failure to comply with the statutory scheme or
to obey an order compelling discovery. Hardee v. City of Jennings, 10-1540 (La.
App. 3 Cir. 5/11/11), 65 So.3d 266, 269, writ denied, 11-1190 (La. 9/23/11), 69
So.3d 1158. The granting of relief against a recalcitrant party rests within the trial
judge’s discretion and will not be disturbed absent a clear abuse of that discretion.
Id. However, if the trial court's decision was based on its erroneous interpretation
or application of law, rather than a valid exercise of discretion, an incorrect
decision is not entitled to deference by the reviewing court. Mitchell v. Gaylord
Container, 03-2762 (La. App. 1 Cir. 10/29/04), 889 So.2d 300, 302, writ denied,
05-0215 (La. 4/1/05), 897 So.2d 608.

The Louisiana Code of Civil Procedure contemplates the filing of a motion
to compel prior to the imposition of sanctions for failure to comply with discovery.
A proceeding to impose sanctions for failure to comply with a discovery order
must be by written contradictory motion; the practice of incorporating sanctions in
a discovery order and then imposing sanctions ex parte without notice is
disapproved. Halley v. Guerriero, App. 2 Cir.1991, 577 So.2d 781. La. C.C.P. art.
1471 authorizes the imposition of fees and expenses incurred in connection with
“the failure” to obey the discovery order. Generally, when a party fails to comply
with party-initiated discovery, he may be required only to pay the reasonable
expenses of obtaining an order compelling discovery. JP Morgan Chase Bank,

2

N.A. v. Boohaker, 14-0594 (La. App. 1 Cir. 11/20/14), 168 So.3d 421, 429. In the
instant case, the application before us does not show that Walmart either filed a
motion to compel the IME or a motion for sanctions for Ms. Brown’s failure to
attend the IME. The issue of the lost IME fee first appears in Walmart’s
memorandum in opposition to the motion to lift suspension of benefits. At the
February 17, 2023 hearing, Walmart referred to the lost fee in the context of
defending its suspension of Ms. Brown’s benefits. We also note that a new
appointment had been scheduled for Ms. Brown with Dr. Lurie for March 7, 2023.

As the IME was not scheduled pursuant to a court order or a motion to
compel, we find that, under the facts of this case, the trial court erred in awarding
discovery sanctions where Walmart failed to first file a motion to compel the
discovery as set forth in La. C.C.P. art. 1469, which provides the available remedy
or course of action for a party facing a witness or adverse party’s noncompliance
with discovery. See, Reich, Album & Plunkett, L.L.C. v. Mugnier, 14-339 (La.
App. 5 Cir. 12/22/21), 334 So.3d 986, 989-91.

We further note that, even if the issue had been properly before the OWC
judge, the factual evidence before the court in support of a sanction was not
compelling. Although the sanction was assessed against the benefits the court
determined were owed to Ms. Brown, there is no statement from Ms. Brown in the
record detailing her version of why she did not attend the IME. It is not outside the
realm of possibility that her counsel could have misinterpreted the circumstances
of her absence. As observed by the court in Horton v. McCary, 635 So.2d 199,
204 (La. 1994), if a client is an innocent party, no sanctions should be imposed on
them. In another case related to discovery sanctions, the Louisiana Supreme court
opined that the criteria to be considered in imposing sanctions are the prejudice to
the other party and the willfulness of the disobedient party. Horton v. McCary, 93-
2315 (La. 4/11/94), 635 So.2d 199, 204. In the instant case, it has not been asserted
that Ms. Brown has willfully evaded undergoing an IME. To the contrary, the
OWC judge found that Walmart had not been diligent in rescheduling the
appointment with Dr. Lurie. While Walmart did lose its IME deposit, it was aware
of Dr. Lurie’s policy on “no shows” when it retained him. We find that there has
been no showing of prejudice to Walmart as a result of the rescheduled
appointment.

Based on the foregoing, the writ is granted in part, and we reverse the OWC
judge’s $2,500.00 sanction against Ms. Brown.

Attorney’s fees and costs

Counsel for Ms. Brown argues that the OWC judge was manifestly
erroneous in failing to award penalties and attorney's fees pursuant to La. R.S. 23:
1201 as a result of Ms. Brown’s suspension of benefits.

Factual findings in workers’ compensation cases are subject to the manifest
error or clearly wrong standard of appellate review. Banks v. Industr. Roofing &
Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556. In the instant
case, it is not disputed that Ms. Brown failed to attend the IME. Accordingly, we
also find no error in the trial court’s decision not to award attorney fees and costs
to counsel for Ms Brown under La. R.S. 23:1201, and deny relief on this issue.

3

Conclusion

For the foregoing reasons, the sanctions against Ms. Brown in the amount of
$2,500.00 is reversed. In all other respects, the writ application is denied on the
showing made.

Gretna, Louisiana, this 5th day of May, 2023.

JJM
SMC
MEJ

4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

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23-C-201
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Office of Workers' Compensation, District 7 (Clerk)
Hon. Shannon Bruno Bishop (DISTRICT JUDGE)
Timothy E. Benedetto (Relator)

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