Myrtle K. Latigue v. Christus St. Patrick Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-871

MYRTLE K. LATIGUE

VERSUS

CHRISTUS ST. PATRICK HOSPITAL

**********

APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 02-05371
CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

**********

ULYSSES GENE THIBODEAUX
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Oswald A. Decuir, and Jimmie C.
Peters, Judges.

AFFIRMED.

Robert Thomas Jacques, Jr.
P. O. Box 1883
Lake Charles, LA 70602
Telephone: (337) 433-4674
COUNSEL FOR:
Plaintiff/Appellee - Myrtle K. Latigue

Todd Michael Ammons
Stockwell, Sievert, Vicellio, Clements & Shaddock
P. O. Box 2900
Lake Charles, LA 70602
Telephone: (337) 436-9491
COUNSEL FOR:
Defendant/Appellant - Christus St. Patrick Hospital
THIBODEAUX, Judge.

In this workers’ compensation case, the claimant, Ms. Myrtle K. Latigue

(Ms. Latigue), claims that the defendant, Christus St. Patrick Hospital (St. Patrick),

failed to authorize a neuropsychological examination. St. Patrick denied the referral

for the examination because the claimant (1) had not chosen the psychologist and (2)

was not diagnosed with a mental injury or illness by a licensed psychiatrist or

psychologist. The workers’ compensation judge found that reasonable and necessary

treatment was requested and St. Patrick did not reasonably controvert the claimant’s

request to consult a neuropsychologist. A $2,000.00 penalty was imposed and an

attorney fee of $2,000.00 was awarded.

We agree with the workers’ compensation judge and, thus, affirm the

judgment. We also award an additional $3,000.00 for work done on appeal pursuant

to the answer filed by the claimant.

I.

ISSUES

We shall decide:

1) whether the workers’ compensation judge properly
decided that defendant failed to authorize a
neuropsychological examination;

2) whether the workers’ compensation judge was
manifestly erroneous in awarding penalties and
attorney fees to the claimant.

II.

FACTS

On September 15, 2000, Ms. Latigue injured her lower back at St. Patrick

Hospital. Ms. Latigue was an employee of St. Patrick working in the course and

1

scope of her employment at the time of injury. She is presently receiving workers’

compensation benefits.

Following the injury, Dr. John Noble, an orthopedic surgeon, treated Ms.

Latigue. On March 14, 2002, Dr. Noble referred Ms. Latigue to Dr. Kevin Gorin, a

pain management specialist. Dr. Gorin treated Ms. Latigue for a brief period of time

and then referred her to Dr. Charles Robertson for a neuropsychological evaluation.

St. Patrick declined the request for the neuropsychological examination. After St.

Patrick declined to authorize the visit with Dr. Robertson, Ms. Latigue filed a disputed

claim for compensation alleging that medical treatment with Dr. Charles Robertson

was denied. The claim for compensation also included a claim for penalties and

attorney fees.

A mediation conference was held on August 16, 2002. As a result of the

mediation conference, St. Patrick chose Dr. Kevin Bianchini, a psychologist, to

evaluate Ms. Latigue. An appointment was subsequently scheduled with Dr.

Bianchini. Ms. Latigue did not attend the appointment. St. Patrick filed a motion to

compel Ms. Latigue to attend the appointment. Judgment ordering Ms. Latigue to

attend the appointment with Dr. Bianchini was rendered in open court on February 6,

2003. The order conditioned Ms. Latigue’s appointment with Dr. Bianchini on her

having the opportunity to be examined by a psychiatrist or psychologist of her choice.

Subsequently, St. Patrick scheduled an appointment with Dr. Robertson for April 14,

2003.

Ms. Latigue’s claim for penalties and attorney fees proceeded to trial on

April 4, 2003, resulting in a $2,000.00 penalty and a $2,000.00 attorney fee award

against St. Patrick Hospital. Thereafter, this appeal was filed.

2

III.

LAW AND DISCUSSION

Standard of Review

“Factual findings in worker's compensation cases are subject to the

manifest error or clearly wrong standard of appellate review.” Seal v. Gaylord

Container Corp., 97-0688, p. 4 (La.12/02/97), 704 So.2d 1161, 1164. The issue to be

resolved by the reviewing court is not whether the trier of fact was right or wrong, but

whether the fact finder’s conclusion was a reasonable one. Seal, 704 So.2d at 1164.

Where there is a conflict in the testimony, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review even though the

appellate court may feel that its own evaluations and inferences are more reasonable.

Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Deference is due to the

factfinder’s determinations regarding the credibility of witnesses “for only the

factfinder can be aware of the variations in demeanor and tone of voice that bear so

heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO,

549 So.2d 840, 844 (La.1989). Since the findings of fact in a workers’ compensation

case are subject to the manifest error-clearly wrong standard of review, they will only

be reversed if they are clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225

(La. 3/4/98), 708 So.2d 375.

Applicable Law

St. Patrick contends that the workers’ compensation judge erred in

finding that it failed to approve a neuropsychological examination for Ms. Latigue. It

further argues that the workers’ compensation judge erred in finding it did not

reasonably controvert Ms. Latigue’s claim.

3

St. Patrick’s position is that La.R.S. 23:1121 is applicable to this case.

This position is untenable. This section focuses on the examination of an injured

worker by an employer’s choice of physician and an employee’s choice of physician.

The present case is not about choice of physician; it is one of failure to authorize

under La.R.S. 23:1201 and 1203.

St. Patrick also argues that La.R.S. 23:1021(7)(d) is applicable to this

case. This section requires a diagnosis by a licensed clinical psychologist or

psychiatrist of mental illness before an employer becomes responsible for any medical

treatment. The hospital’s reliance on La.R.S. 23:1021(7)(d) is equally untenable.

This case has not yet developed into a case of mental injury in which La.R.S. 23:1021

would apply. Nor is this a dispute involving a diagnosis of a mental injury which

would involve the use of a licensed psychiatrist or psychologist under La.R.S.

23:1021(7)(d).

Additionally, St. Patrick cites Johnson v. St. Patrick Hospital, 02-0828

(La.App. 3 Cir. 12/11/02), 832 So.2d 1162 to bolster its position that a mental health

diagnosis by a licensed clinical psychologist or psychiatrist is a prerequisite to

employer liability. Johnson involved a claim which was decided after a trial on the

merits and after a determination that the plaintiff’s mental condition was not

employment-related. Johnson was a case of causation. The claim in this case, at least

at this juncture, is not one of causation. Ms. Latigue’s mental condition has not been

litigated and is not an issue at this time. In addition, Johnson did not involve a dispute

over the failure to authorize a medical consultation.

Louisiana Revised Statutes 23:1201 and 1203 are applicable to this case.

In Authement v. Shappert Engineering, 02-1631(La. 2/25/03), 840 So.2d 1181, the

supreme court recognized that failure to authorize comes under La.R.S. 23:1203(A).

The court noted that although “the workers’ compensation statute does not address a

4

failure to authorize medical treatment as such, . . . [the inclusion of “failure to

authorize” is] reflective of the benevolent goals of the workers’ compensation law to

ensure prompt medical attention to injured workers.” Authement, 840 So.2d at 1186.

Additionally, the court noted that inclusion of “failure to authorize” in the title of a

statute may be instructive in determining legislative intent. Id. The court stated,

[a]lthough the language of the statute itself is not
instructive regarding the consequences of a failure to
authorize medical treatment, with the addition of “failure to
authorize” in the title, the legislature apparently
contemplated that a failure to authorize medical treatment
would be a consideration in determining whether to subject
the payor to penalties. Id.

“One 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.” Authement, 840 So.2d at 1186-87. 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.” La.R.S. 23:1203(A). Thus, a failure to authorize

treatment can result in the imposition of penalties and attorney fees except when the

claim is reasonably controverted. Authement, 840 So.2d at 1187. Depending on the

circumstances, a failure to authorize treatment is effectively a failure to furnish

treatment. Id.

In this case, St. Patrick failed to authorize the neuropsychological

examination for Ms. Latigue. This failure to authorize amounted to a failure to furnish

treatment under La.R.S. 1201(A).

5

Penalties and Attorney Fees

When an employer refuses to authorize medical treatment for an injured

worker which is reasonable and necessary, penalties and fees are warranted.

Thibodeaux v. Sunland Const., 00-1472 (La.App. 3 Cir. 4/4/01), 782 So.2d 1203.

However, La.R.S. 23:1201(F)(2) states, in part, that the penalty and attorney fee

provisions “shall not apply if the claim is reasonably controverted.” Based on this

language, a penalty and attorney fee can be imposed for the failure to authorize

treatment except where the claim is reasonably controverted.

In this case, the workers’ compensation judge stated in her oral reasons

for judgment, “the court finds that in this case, reasonable and necessary treatment

was recommended by the claimant’s treating pain management specialist, Dr. Gorin,

and that treatment was not authorized. To simply deny is not reasonable

controversion of the request.” St. Patrick refused to authorize the requested

examination despite a written request for approval. St. Patrick provided no evidence

to controvert Ms. Latigue’s claim.

The appropriate standard of review to be applied by the appellate courts

in determining whether a defendant should be cast with penalties and attorney fees is

the manifest error-clearly wrong standard. Alexander v. Pellerin Marble & Granite,

93-1698 (La. 1/14/94), 630 So.2d 706; Guidry v. Doctors’ Hosp. of Opelousas,

93-1233 (La.App. 3 Cir. 5/4/94), 640 So.2d 548. The record available to the workers’

compensation hearing officer contained sufficient factual information from which to

conclude the employer/insurer failed to provide medical treatment as recommended

by the claimant’s physician. “Failure to authorize medical treatment equates to failure

to provide benefits in accordance with the provisions of the workers’ compensation

law.” Authement, 840 So.2d at 1189. Failure to authorize the neuropsychological

6

examination under the facts and circumstances of this case was a failure to provide

treatment, thus triggering the imposition of penalties and attorney fees.

Accordingly, we find that the workers’ compensation judge was not

manifestly erroneous or clearly wrong in awarding penalties and attorney fees to Ms.

Latigue. The workers’ compensation judge was correct and, therefore, we affirm both

the $2,000.00 penalty St. Patrick was ordered to pay Ms. Latigue and the award of

attorney fees in the amount of $2,000.00 to Ms. Latigue’s attorney.

Request of Additional Attorney Fees

Ms. Latigue has asked for an additional award of attorney fees for work

performed on this appeal. As Ms. Latigue correctly noted, a workers’ compensation

claimant is entitled to an increase in attorney fees to reflect additional time incurred

in defending an employer’s/insurer’s unsuccessful appeal. Hickman v. Allstate Timber

Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133 (La.

6/23/95), 656 So.2d 1017; Aguillard v. Indus. Const. Co., 542 So.2d 774 (La.App. 3

Cir.1989). Accordingly, we award an additional $3,000.00 in attorney fees for the

successful handling of this appeal.

IV.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. We

award an additional attorney fees of $3,000.00 for work done on appeal. Costs of this

appeal are assessed to Christus St. Patrick Hospital.

AFFIRMED.

7