Thomas Vincent v. Napa Auto Parts and Supply

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-295

THOMAS VINCENT

VERSUS

NAPA AUTO PARTS AND SUPPLY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 01-08441
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, C.J., Sylvia R. Cooks, Billie
Colombaro Woodard, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.

PICKETT, J., JOINS THE OPINION OF THE COURT WITH RESPECT TO
SECTIONS I, II, AND III.A., BUT DISSENTS WITH RESPECT TO SECTION
III.B. FOR THE REASONS ASSIGNED BY JUDGE EZELL.

EZELL, J., DISSENTS AND ASSIGNS WRITTEN REASONS.

REVERSED AND RENDERED.

Robert Dean Hoover
1737 Oakdale Drive
Baton Rouge, LA 70810
Telephone: (225) 767-4880
COUNSEL FOR:
Defendant/Appellee - NAPA Auto Parts and Supply

Eugene A. Ledet, Jr.
RIVERS, BECK, DALRYMPLE & LEDET
P. O. Drawer 12850
Alexandria, LA 71315-2850
Telephone: (318) 445-6581
COUNSEL FOR:
Plaintiff/Appellant - Thomas Vincent

THIBODEAUX, Chief Judge.

In this workers’ compensation matter, Thomas Vincent appeals a

judgment denying him penalties and attorney fees against his employer, NAPA Auto

Parts and Supply. Mr. Vincent claims that the workers’ compensation judge erred in

denying these awards for his employer’s alleged failure to timely authorize an

appointment with his doctor of choice and to authorize a diagnostic examination.

The workers’ compensation judge was manifestly erroneous. We reverse

and award a penalty of $2,000.00 each for the failure to authorize an appointment with

Mr. Vincent’s physician of choice and for the failure to authorize a diskogram. We

also award attorney fees of $10,000.00 for work at both trial and appellate levels. The

provision of these benefits was not prompt and was not reasonably controverted.

La.R.S. 23:1203 and 1201(f)(2).

I.

FACTS

On May 7, 2001, Mr. Vincent was involved in a work-related accident

while employed by NAPA Auto Parts. He began receiving workers’ compensation

benefits shortly thereafter. Following his injury, Mr. Vincent was treated by several

physicians, including a chiropractor and two neurosurgeons. However, his pain failed

to resolve. On September 26, 2001, counsel for Mr. Vincent sent a request to see Dr.

John Cobb, an orthopedic specialist, to Myrna Cannon, the claims supervisor working

on Mr. Vincent’s case for NAPA’s insurer. The letter was received on October 2,

2001. An appointment with Dr. Cobb was then authorized on November 14, 2001.

Dr. Cobb examined Mr. Vincent on December 10, 2001. He

recommended that a diskogram be performed upon Mr. Vincent. His report and the

request for the diskogram were received by Ms. Cannon on January 10, 2002. In

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February, Blake Stevens, the vocational rehabilitation specialist assigned to Mr.

Vincent’s case, began to try to schedule an exam for a second opinion. Mr. Vincent

was not seen for the second opinion until August 13, 2002, by Dr. Robert Po, who

agreed with the diagnosis made by Dr. Cobb and the need for a diskogram. After a

consultation with Mr. Stevens, a licensed vocation rehabilitation counselor, in which

he was told of the possible dangers involved in a diskogram, which include paralysis,

Mr. Vincent decided to forego the test and seek another means of diagnosis,

specifically a repeat of an earlier MRI. Two weeks prior to the trial on this matter,

Mr. Vincent changed his mind and became willing to undergo the diskogram.

Authorization for the test was approved the day of trial.

In November 2001, Mr. Vincent filed a complaint with the Office of

Workers’ Compensation seeking penalties and attorney fees, claiming that NAPA

failed to timely authorize the visit to Dr. Cobb. The complaint was later amended to

assert that NAPA failed to timely authorize the diskogram requested by Dr. Cobb.1

After the hearing on the matter, the workers’ compensation judge found that the

appointment with Dr. Cobb was authorized within sixty days of the request, making

the authorization timely.2 Accordingly, he denied penalties and attorney fees on that

claim. The workers’ compensation judge also found that NAPA was not unreasonable

in seeking a second opinion as to the need for a diskogram and that the delay for the

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Mr. Vincent also claimed that NAPA failed to timely notify him of a rehabilitation
conference with Dr. Cobb and that NAPA failed to timely provide him with the report generated by
Dr. Po after his examination. Mr. Vincent was ultimately rewarded $250.00 in penalties and
$750.00 in attorney fees for the failure to provide Dr. Po’s report and his claim based on the
rehabilitation conference was denied. However, as neither of these issues were appealed, they need
not be addressed further.
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The workers’ compensation judge specifically mentioned in his oral reasons that no
penalties or attorney fees were due because the requested appointment had been approved within
sixty days, as if this were a bright line time limit for authorizing a medical exam, rather than noting
the correct arbitrary or capricious standard.

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authorization was also not unreasonable based on Mr. Vincent’s own initial refusal to

have the diskogram performed. From this decision, Mr. Vincent appeals.

II.

ISSUES

We shall consider whether:

(1) the workers’ compensation judge erred in finding
that NAPA timely authorized the visit with Dr.
Cobb;

(2) the workers’ compensation judge erred in finding
that NAPA complied with their obligation to provide
prompt medical care with regards to the diskogram;
and,

(3) the workers’ compensation judge erred in failing to
award penalties and attorney fees for the alleged
violations.

III.

LAW AND DISCUSSION

A. Failure to Authorize Appointment With Physician of Choice

There is no factual dispute regarding the evidence on this issue. Mr.

Vincent’s attorney’s letter to the adjuster requesting authorization to see Dr. Cobb was

sent on September 26, 2001, and received by Ms. Cannon, the adjuster, on October

2, 2001. She reviewed the letter on October 3 and failed to communicate with Mr.

Vincent’s attorney until November 14, 2001—a lapse of six weeks. Ms. Cannon

testified that she was familiar with Mr. Vincent’s right to see Dr. Cobb and further

acknowledged that he had not been seen by an orthopedist of his choice. Moreover,

Ms. Canon did not question the accuracy of Mr. Vincent’s medical records which she

had in her possession.

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Authement v. Shappert Engineering, 02-1631 (La. 2/25/03), 840 So.2d

1181, 1186, concluded that “[b]ased on this language [La.R.S. 23:1201(f))2)] a

penalty and attorney fee can be imposed for the failure to authorize treatment except

where ‘the claim is reasonably controverted.’” Authement further explained:

The employer is obligated to ‘furnish all necessary drugs,
supplies, hospital care and services, medical and surgical
treatment, and any nonmedical treatment recognized by the
laws of this state as legal.’ LSA-R.S. 23:1203(a). Thus, we
conclude that a failure to authorize treatment can result in
the imposition of penalties and attorney fees except when
the claim is reasonably controverted. Depending on the
circumstances, a failure to authorize treatment is effectively
a failure to furnish treatment.

Id. at 1187. (Emphasis supplied).

Moreover, “[o]ne purpose of the workers’ compensation statute is to

promptly provide compensation and medical benefits to an employee who suffers

injury within the course and scope of employment. Id. at 1186-87. (Emphasis

supplied). In this case, the failure to authorize an appointment with Dr. Cobb for six

weeks was not prompt. We, therefore, assess a penalty of $2,000.00 and an attorney

fee of $3,500.00 pursuant to La.R.S. 23:1201(f)(2).

B. Failure to Authorize Diskogram

Dr. Cobb examined Mr. Vincent on December 10, 2001 and determined

the need for a diskogram for which he requested authorization to perform. His request

was received by the claims adjuster on January 10, 2002. Having received no

response from NAPA, Mr. Vincent’s attorney wrote to the claims adjuster on February

25, 2002, to again request authorization for the diskogram. Dr. Po saw Mr. Vincent

for a second opinion at NAPA’s request on July 11, 2002. Dr. Po concurred with the

need for a diskogram and informed Mr. Stevens, the vocational rehabilitation

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counselor, on August 13, 2002. Finally, in September 2002, Mr. Stevens called Mr.

Vincent to discuss Dr. Po’s findings. He summarized their conversation as follows:

I advised Mr. Vincent about the diskogram and [advised
him that] it’s a delicate procedure and if [it is] not
performed adequately . . . there could be medical
complications such as paralysis or perhaps false positives
that would show additional findings other than what an
MRI or mylogram indicates.

I told him that due to the delicate procedure,
paralysis can occur [when the] dye is . . . shot into the . . .
spinal cord.

When asked the following question, Mr. Stevens admitted that Mr.

Vincent expressed his fears related to the diskogram procedure only after their

telephone conversation in September.

Q All right. So if I understood your previous testimony
correctly, from December 11 of 2001 through
sometime in September of 2002 Mr. Vincent never
voiced any concern over the diskogram, it was not
until your conversation with him on the possibility of
paralysis, correct?

A He had . . . requested a repeat MRI because he was
fearful of the diskogram.

Q And that was after you told him about the paralysis,
or during the same conversation?

A Certainly.

When Mr. Vincent was asked about the reservations he expressed about undergoing

the diskogram procedure, he stated:

Well, I was scared then at the time, sir. I mean,
Blake [Stevens] had done talked to me and, like I say, it
scared me, he said they had one that blowed up and, you
know, paralyzed him and I mean I was scared.

Later, after talking with his counsel, Mr. Vincent changed his mind and asked him to

get the diskogram procedure set up. Finally, NAPA’s insurer authorized the

diskogram on November 12, 2002, after Mr. Vincent’s attorney filed an amended

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petition alleging the delay in authorizing the diskogram on October 21, 2002. The

trial was held on November 14, 2002.

Again, NAPA was unreasonable in failing to authorize a diskogram until

ten months after the initial request was made by Mr. Vincent’s treating physician, Dr.

Cobb, and three months after that request was corroborated by NAPA’s physician of

choice, Dr. Po. The failure to authorize the diskogram is indeed a failure to authorize

treatment, entitling Mr. Vincent to a penalty of $2,000.00 and an attorney fee in the

amount of $3,500.00. La.R.S. 23:1201 and 1203(a); La.R.S. 23:1201(f)(2).

We award an attorney fee of $3,000.00 for work performed at the

appellate level.

IV.

CONCLUSION

For the foregoing reasons, the judgment appealed from is reversed. A

penalty of $2,000.00 each is assessed for the failure to authorize an appointment with

Mr. Vincent’s physician of choice and the failure to authorize a diskogram. Further,

attorney fees of $3,500.00 is assessed for each violation in addition to an award of

$3,000.00 for work done at the appellate level.

All costs are assessed against NAPA Auto Parts and Supply.

REVERSED AND RENDERED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 03-295

THOMAS VINCENT

VERSUS

NAPA AUTO PARTS AND SUPPLY

EZELL, J., dissents.

I respectfully disagree with the majority opinion and, for the following

reasons, would affirm the decision of the trial court.

In Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8

(La. 7/1/97), 696 So.2d 551, 556 (alteration in original), the supreme court clearly set

out the standard of review for factual findings in workers’ compensation matters as

follows:

Factual findings in workers’ compensation cases are subject to the
manifest error or clearly wrong standard of review. Smith v. Louisiana Dep’t of
Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v.
Poulon/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In
applying the manifest error-clearly wrong standard, the appellate court must
determine not whether the trier of fact was right or wrong, but whether the
factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d
at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d
1120, 1127 (La.1987). Where there are two permissible views of the evidence, a
factfinder’s choice between them can never be manifestly erroneous or clearly
wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are
reasonable in light of the record reviewed in its entirety, the court of appeal may
not reverse, even if convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d
1106, 1112 (La.1990).

Louisiana Revised Statutes 23:1121(B) provides that employee shall have

the right to select one treating physician in any field or specialty when injured in the

course and scope of his employment. Furthermore, La.R.S. 23:1121(C)(emphasis

ours) provided at the time Vincent was injured:

If the employer or insurer has not consented to the employee’s request
to select a treating physician or change physicians when such consent is required
by this Section, and it is determined by a court having jurisdiction that the
withholding of such consent was arbitrary and capricious, or without probable
cause, the employer or the insurer shall be liable to the employee for reasonable
attorney fees related to this dispute and for any medical expense so incurred by
him for an aggravation of the employee’s condition resulting from the withholding
of such physician’s services.

Based on the evidence before him, the workers’ compensation judge

found that NAPA did not unduly delay Mr. Vincent in seeing Dr. Cobb. Although the

workers’ compensation judge seemingly applied an incorrect standard in reaching this

conclusion1, he clearly found that the seven-week time between the request and the

approval was not unreasonable, arbitrary or capricious. Accordingly, the workers’

compensation judge ruled that penalties and attorneys’ fees would not be appropriate.

I find nothing in the record which indicates NAPA’s actions were arbitrary or

capricious, or that the workers’ compensation judge’s findings were manifestly

erroneous.

As for Mr. Vincent’s claim that the workers’ compensation judge erred

in failing to award penalties and attorneys’ fees for the delay in authorizing the

diskogram, again, I disagree.

Myrna Cannon received Dr. Cobb’s report requesting the test on January

10, 2002. In February, Blake Stevens began making attempts on behalf of NAPA to

schedule a second opinion as to the necessity of this test. After several attempts were

made with various doctors, Mr. Stevens finally arranged an examination with Dr. Po.

After the need for the diskogram was confirmed by Dr. Po, a consultation with Mr.

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The workers’ compensation judge specifically mentioned in his oral reasons
that no penalties or attorneys’ fees were due because the requested appointment had
been approved within sixty days, as if this were a bright line time limit for authorizing
a medical exam, rather than noting the correct arbitrary or capricious standard.

1

Stevens occurred in which Mr. Vincent was told of the possible dangers involved in

a diskogram, including paralysis. Mr. Vincent decided to forego the test and seek

another means of diagnosis. In fact, Mr. Vincent did not indicate that he desired the

diskogram until two weeks prior to the trial. After he indicated that he had changed

his mind and sought the diskogram, the test was approved shortly thereafter.

As noted by the workers’ compensation judge in his oral reasons for

judgment, Mr. Vincent himself declined the test, based on his fears of risks associated

with the exam. The workers’ compensation judge found that NAPA was not

unreasonable in “seeking a second medical opinion to address the need for a

diskogram” and that NAPA was not “unreasonable in not authorizing the diskogram

until November of 2002, given the fact that Mr. Vincent himself declined having a

diskogram [until] that time.” The workers’ compensation judge found that NAPA

reasonably controverted Mr. Vincent’s claim that the authorization for the diskogram

was delayed in an arbitrary and capricious manner. The limited record in this matter

contains no evidence which shows this finding to be manifest error.

Because NAPA was neither arbitrary nor capricious in authorizing either

the visit to Dr. Cobb or the diskogram, NAPA should not owe Mr. Vincent penalties

or attorneys’ fees for its actions.

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