Sims Rachal v. Good Neighbor Glass, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1288

SIMS RACHAL

VERSUS

GOOD NEIGHBOR GLASS, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2
PARISH OF RAPIDES, NO. 02-07294
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Billie Colombaro Woodard, Oswald A. Decuir, and Billy Howard
Ezell, Judges.

AFFIRMED AS AMENDED.

Robert D. Hoover
Matthew W. Tierney
1737 Oakdale Drive
Baton Rouge, LA 70810
(225) 767-4880
Counsel for Defendant/Appellant:
Good Neighbor Glass, Inc.

Jay A. Pucheu
Attorney at Law
P. O. Box 310
Marksville, LA 71351
(318) 253-5080
Counsel for Plaintiff/Appellee:
Sims Rachal

DECUIR, Judge.

Defendant appeals a workers’ compensation judgment awarding claimant

penalties and attorney fees. Claimant answers seeking additional penalties and

attorney fees.

FACTS

It is undisputed that on or about October 23, 2001, Sims Rachal was injured in

the course and scope of his employment with Good Neighbor Glass, Inc. On

September 23, 2002, Rachal filed a disputed claim seeking penalties and attorney fees

for the defendant’s arbitrary and capricious denial of physical therapy, an EMG/NCV,

and a neurological exam by Dr. Domingue. The workers’ compensation judge

awarded $2,000.00 in penalties and $3,000.00 in attorney fees for the denial of

physical therapy. The workers’ compensation judge considered the EMG/NCV and

neurological exam by Dr. Domingue as one issue and awarded $2,000.00 in penalties

and $3,000.00 in attorney fees for denial of those services.

Appellant contends the workers’ compensation judge erred in awarding

penalties and attorney fees in both instances. In the alternative, Appellant argues that

the award of attorney fees is excessive. Claimant answered alleging the workers’

compensation judge erred in combining the neurological exam and EMG/NVC request

and should have awarded separate penalties and attorney fees for the denial of each.

In addition, claimant seeks additional attorney fees for this appeal.

DISCUSSION

When an employer refuses to authorize medical treatment, which is reasonable

and necessary, penalties and fees are warranted. Authement v. Shappert Engineering,

02-1631 (La. 2/25/03), 840 So.2d 1181. Dr. Blanda, Rachal’s treating orthopedist,

recommended that he undergo physical therapy and Rachal received that therapy from

May 13, 2002 until July 10, 2002, when the physical therapist discharged him pending

further medical orders. Defendant claims that its utilization review group, Network

Synergy Inc., sought proof of medical necessity for continued physical therapy from

Dr. Blanda. They contend the denial of benefits was based on the lack of a response

from Dr. Blanda. There is no evidence of this request in the record nor any indication

that Dr. Blanda ordered the physical therapy discontinued.

On June 11, 2002, Dr. Blanda indicated that surgery was warranted and

requested the neurological exam by Dr. Domingue and a EMG/NCV. Defendant

contends that since claimant had previously seen Dr. Gidman and he had not requested

these tests, a dispute existed between the doctors and they properly requested a state

IME. Claimant went to Dr. Gidman again, and Dr. Gidman recommended surgery.

Subsequently, defendant approved the surgery. Defendant never asked Dr. Gidman

for an opinion as to the necessity of the EMG/NCV. Instead they assumed that

because Dr. Gidman recommended surgery that the test was not necessary. Defendant

made this assumption in spite of the fact that Dr. Blanda had made the same

recommendation when he ordered the tests. Defendant never authorized the tests and

belatedly approved additional physical therapy.

An employer may escape liability for its delays in providing medical benefits

if (1) its nonpayment stemmed from conditions over which the employer had no

control, or (2) the employer reasonably controverted the employee’s right to such

compensation or medical benefits. La.R.S. 23:1201(F)(2). Defendant offered no

reasonable explanation for its delay in providing the requested services. The adjuster,

Mike Caillet, testified at trial that he did not provide authorization because there was

a dispute between Drs. Gidman and Blanda on treatment in one case, and Dr. Blanda

failed to provide evidence of medical necessity in the other. As stated above, Caillet’s

testimony was not supported by the evidence in the record.

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After a thorough review of the record, we find no information warranting

defendant’s denial of services. An employer who fails to properly investigate an

employee’s compensation claim subjects itself to statutory penalties and attorney fees.

Nelson v. Roadway Exp., Inc., 588 So.2d 350 (La.1991). There must be a real or

substantial issue to deny benefits to a disabled employee. Id. The only reason offered

by defendant to explain this is the testimony of Caillet that he did not authorize the

physical therapy because the doctor’s office or healthcare provider did not call for

authorization. However, he produced no evidence that Dr. Blanda authorized

discontinuing the therapy. With regard to the other tests, Caillet indicated that he had

seen Dr. Blanda’s written report stating the need for tests, but he presumed there was

a conflict between the doctors and, therefore, denied the services.

The purpose of workers’ compensation penalty statutes is to discourage

employers from assuming attitudes of indifference toward injured employees. Eaton

v. General Accident Group, 292 So.2d 773 (La.App. 4 Cir. 1974). Defendant’s

behavior is a prime example of the behavior that workers’ compensation penalties are

designed to discourage.

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.” Authement, 840 So.2d 1181. Accordingly,

we find that the workers’ compensation judge was not manifestly erroneous or clearly

wrong in awarding penalties and attorney fees to Rachal. The workers’ compensation

judge was clearly correct and, therefore, we affirm the $4,000.00 penalty defendant

was ordered to pay Rachal and also affirm the award of attorney fees in the amount

of $6,000.00 to be paid to Rachal’s attorney.

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REQUEST FOR ADDITIONAL PENALTIES
AND ATTORNEY FEES

Rachal contends the workers’ compensation judge erred in combining the

requested exam by Domingue and the EMG/NCV for penalty purposes. The workers’

compensation judge indicated that he did so because Dr. Domingue would be

conducting the exam and tests. We find no manifest error in that determination. This

assignment lacks merit.

Rachal has also requested an additional award of attorney fees for work

performed on this appeal. A workers’ compensation claimant is entitled to an increase

in attorney fees to reflect additional time incurred in defending an employer/carrier’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.

Accordingly, we award an additional $1,500.00 in attorney fees for the successful

handling of this appeal.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge

is affirmed. Appellant is taxed with all costs of these proceedings and ordered to pay

an additional $1,500.00 in attorney fees to claimant’s counsel for defense of this

appeal.

AFFIRMED AS AMENDED.

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