Marlena Alexander v. Autozone, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-871

MARLENA ALEXANDER

VERSUS

AUTOZONE, INC.

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, NO. 02-00734
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, Chief Judge, Sylvia R. Cooks, and
Michael G. Sullivan, Judges.

AFFIRMED.

Edward J. Fonti
JONES, TETE, NOLEN, FONTI & BELFOUR, L.L.P.
P. O. Box 1930
Lake Charles, LA 70602-1930
Telephone: (337) 439-8315
COUNSEL FOR:
Plaintiff/Appellee - Marlena Alexander

Robert Blaine Purser
Purser Law Firm
P. O. Box 1670
Opelousas, LA 70571-1670
Telephone: (337) 948-0815
COUNSEL FOR:
Defendant/Appellant - Autozone, Inc.

THIBODEAUX, Chief Judge.

Marlena Alexander Gainey received a favorable award of temporary total

disability benefits and penalties in this workers’ compensation proceeding. Her

employer, Autozone, contests the award, arguing that she did not demonstrate

temporary total disability. Autozone also questions the existence of a causal link

between her initial injury and her later diagnosis of carpal tunnel syndrome, which

now requires surgery to correct. We affirm the trial court’s award of benefits and

penalties.

I.

ISSUES

Autozone raises three issues on appeal. First, Autozone argues that Ms.

Alexander is not entitled to receive compensation for temporary total disability

because she did not show she was unable to engage in any type of occupation.

Second, Autozone denies responsibility for Ms. Alexander’s carpal tunnel surgery,

claiming she offered insufficient proof that this condition stemmed from the original

employment accident. Finally, Autozone challenges the trial court’s imposition of

penalties for its failure to pay Ms. Alexander’s medical bills.

II.

FACTS

Marlena Alexander Gainey worked for Autozone as a commercial driver,

delivering auto supplies to customers. On October 11, 1999, while making a delivery,

the starter she was lifting from her truck fell through the bottom of its box and injured

her wrist. She returned to Autozone, but went to the emergency room later that night.

Although the emergency room did not make a diagnosis, her family physician referred

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her to an orthopedist, Dr. J. David DeLapp, who determined that her left wrist was

fractured. She was put in a cast, which was later removed and replaced to

accommodate swelling in her wrist. Dr. DeLapp placed her on light duty and

restricted her to lifting no more than ten pounds.

On January 4, 2000, the fracture appeared to have healed, and Dr.

DeLapp released Ms. Alexander to full duty. On June 27, 2000, however, Ms.

Alexander returned to Dr. DeLapp with wrist pain. She also had difficulty picking

up objects. Dr. DeLapp diagnosed de Quervain’s Syndrome in her wrist. According

to Dr. DeLapp’s deposition testimony, de Quervain’s Syndrome is a common and

well-documented complication in wrist fractures. Her condition did not improve, and

Ms. Alexander had surgery to treat her de Quervain’s Syndrome on July 31. Dr.

DeLapp placed her on limited duty after the surgery. On August 24, he set a six week

regimen of physical therapy to further improve her wrist. By the end of November,

Ms. Alexander exhibited early symptoms of carpal tunnel syndrome, including

numbness and tingling. Her symptoms were very mild, however, and her Tinel’s and

Phalen’s tests—examinations used to diagnose carpal tunnel syndrome—were both

negative.

On January 17, 2001, Ms. Alexander had surgery to remove a neuroma

that had developed from her injury. She also had diminished sensation and increased

numbness and tingling. Although her Tinel’s test remained negative, her Phalen’s

test was now positive. She recovered from the neuroma surgery, however, and on

January 31, Dr. DeLapp released her to normal activities as tolerated. On February

16, Ms. Alexander again returned to Dr. DeLapp with a painful mass in her wrist. Dr.

DeLapp diagnosed this as a ganglion cyst, also a common and well-documented

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complication in wrist fractures, and scheduled her for surgery, as the cyst was painful

and impaired Ms. Alexander’s mobility.

Ms. Alexander was now experiencing pain and difficulty with everyday

tasks, including work-related activities, despite extensive physical therapy and

continued use of a brace. Dr. DeLapp testified that her deteriorating condition

hampered her ability to perform her job. Where she once attracted management’s

attention for her outstanding job performance, she now experienced harassment for

her frequent visits to physician’s appointments and physical therapy. At different

intervals during the course of her treatment, her doctor advised her to limit the

amount of weight she lifted, as well as to curb repetitive motion, as that would

exacerbate her carpal tunnel symptoms. Although Autozone provided some

assistance with loading heavy equipment into her truck while at Autozone, she had

no help available when she unloaded the same equipment upon delivery to the

customer. The various equipment and parts weighed between twenty-five to sixty

pounds. Her job also required daily repetitive motion, including using the computer.

Because of the unrelenting pain, Ms. Alexander concluded that she was no longer

able to work and resigned from her position on February 19, 2001. Although she

made efforts to seek employment elsewhere, her continued pain and impairment led

her to believe that she would not be able to perform any kind of work, and she

discontinued her search.

Despite her hiatus from work, her wrist continued to worsen. Although

Dr. DeLapp removed the first ganglion cyst, another mass developed and he

diagnosed her as having a recurrent ganglion cyst. He also diagnosed her with carpal

tunnel syndrome on April 27, 2001. A nerve conduction study performed in May,

however, did not demonstrate carpal tunnel syndrome. Nevertheless, Ms. Alexander

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continued to exhibit symptoms and returned to Dr. DeLapp in August complaining

of numbness and tingling. At deposition, Dr. DeLapp stated that, although the nerve

conduction test is fairly accurate, there is a recognized possibility of a false negative.

In that event, the study would indicate the patient did not have carpal tunnel, although

the patient suffered all the positive symptoms of the syndrome. Dr. DeLapp

determined that was the case here. Ms. Alexander had worn a brace for several

months, but continued to suffer numbness and tingling, particularly during any kind

of repetitive activity. He concluded that the nerve conduction study had yielded a

false negative and that Ms. Alexander did in fact have carpal tunnel syndrome. He

recommended surgery.

Autozone, however, did not approve the surgery. By December of 2001,

Ms. Alexander’s condition had significantly deteriorated. Her carpal tunnel

syndrome had not responded to extensive nonsurgical intervention and her wrist was

painful and swollen. A year went by before Dr. DeLapp saw Ms. Alexander again.

In December of 2002, he again examined her wrist and discovered that, as a result of

her untreated carpal tunnel syndrome, her wrist muscles had started to atrophy.

Atrophy is permanent and irreversible and will inevitably lead to progressive loss of

the use of her hand. Dr. DeLapp recommended immediate surgery to treat the carpal

tunnel syndrome. The sooner Ms. Alexander undergoes surgery, the sooner the

atrophy can be arrested; she may yet avoid accrual of a functional deficit in the use

of her thumb.

The trial court found that Ms. Alexander had suffered temporary total

disability, and ordered Autozone to pay indemnity benefits. The trial court also

ordered Autozone to authorize the carpal tunnel surgery. In addition, the judgment

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included attorney fees and penalties for Autozone’s failure to pay indemnity benefits,

failure to pay certain medical bills, and refusal to authorize the surgery.

III.

LAW AND DISCUSSION

Temporary Total Disability

The trial court found that Ms. Alexander had proved she was temporarily

totally disabled, and ordered Autozone to pay indemnity benefits. Autozone, in turn,

argues that Ms. Alexander offered insufficient medical evidence to show she was

disabled to such an extent that she was unable to work at any kind of job.

Additionally, Autozone reasons that, since she left her position at Autozone

voluntarily, she was actually capable of working but simply chose not to. To the

contrary, the trial court determined that Ms. Alexander presented sufficient evidence

to show her condition rendered her unable to work.

Louisiana Revised Statutes 23:1221(1)(c) establishes the criteria for

awarding temporary total disability benefits. The employee must show “by clear and

convincing evidence . . . that the employee is physically unable to engage in any

employment or self-employment . . . .” The trial court’s determination that an

employee has or has not fulfilled her burden of proof under the statute requires a

finding of fact “governed by the manifest error or clearly wrong standard and will not

be disturbed absent such a finding.” Ratliff v. Brice Bldg. Co., 03-624, p. 6 (La.App.

5 Cir. 11/12/2003), 861 So.2d 613, 617. 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.” Newson v. Richard Spurgeon Masonry, 03-1367, p. 2

(La.App. 3 Cir. 3/3/04), 867 So.2d 78, 81, writ denied, 04-839 (La. 5/14/04), 872

So.2d 523.

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In order to receive benefits for a temporary total disability, the employee-

claimant must show, by clear and convincing evidence, that she is physically unable

to engage in any kind of employment. Veazie v. Gilchrist Const. Co., 04-118

(La.App. 3 Cir. 6/2/04), 878 So.2d 742. Clear and convincing proof has been defined

as an “‘intermediate’ standard falling somewhere between the ordinary preponderance

of the evidence civil standard, and beyond the reasonable doubt criminal standard.”

Sarrio v. Stalling Const. Co., 04-34, p. 7-8 (La.App. 5 Cir. 5/26/04), 876 So.2d 157,

162, writ denied, 04-1593 (La. 10/15/04), ___ So.2d ___. To prove a matter by clear

and convincing evidence requires the employee “demonstrate that the existence of a

disputed fact is highly probable [or] much more probable than its nonexistence.”

Carrier v. Debarge’s College Junction, 95-18, p. 5 (La.App. 3 Cir. 9/27/95), 673

So.2d 1043, 1047, writ denied, 96-472 (La. 4/8/96), 671 So.2d 337. In Jackson v.

Domtar Industries, Inc., 98-1335, p. 6-7, (La.App. 3 Cir. 4/7/99), 732 So.2d 733, 738,

writ denied, 99-1369 (La. 7/2/99), 747 So.2d 21, the third circuit determined that

“clear and convincing” proof required “objective medical evidence of [the] disabling

condition” causing his “inability to engage in any employment.” Thus, the claimant

must provide objective, expert testimony as to their medical condition, symptoms,

pain, and treatment, in addition to personal testimony, in order to fulfill this standard.

Hurst v. Sanderson Farms, Inc., 02-1334 (La.App. 1 Cir. 5/9/03), 846 So.2d 954.

Dr. DeLapp testified at trial that Ms. Alexander’s various complications,

including the de Quervain’s syndrome, the neuroma, the recurrent ganglion cyst, and

the carpal tunnel syndrome, all resulted from her original injury. He also

corroborated her complaints of pain, swelling, decreased sensation, and impaired

mobility, testifying that her injuries caused pain “for activities of daily living and

affect[ed] her work performance.” Dr. DeLapp agreed that these injuries would

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interfere with work and physical chores, such as light housework or lifting as little as

ten pounds. Dr. DeLapp confirmed Ms. Alexander’s complaints, stating that “[i]t’s

not uncommon to have pain . . . causing a great deal of disability” and that “[h]er

complaints are not out of the ordinary.” Finally, Dr. DeLapp agreed that Ms.

Alexander’s pain was extensive enough to prevent her from performing the tasks her

job required of her, including using the wrist all day long, lifting objects of ten to

fifteen pounds, loading and unloading a truck, waiting on customers, using heavy

books to look up parts, and using a computer.

Deciding whether a claimant’s pain is adequate to merit an award of

benefits involves a question of fact “to be determined by the totality of

circumstances.” Hilts v. Wal-Mart Stores, Inc., 02-1440, p. 5 (La.App. 3 Cir. 4/2/03),

842 So.2d 465, 469, writ denied, 03-1258 (La. 9/5/03), 852 So.2d 1036. Testimony

showing the “presence of pain without proof that this pain is substantial enough to

make the pursuit of employment an impossibility” is insufficient evidence under

La.R.S. 23:1221(1). Id. In Carrier, 673 So.2d 1043, the third circuit reasoned that

the workers’ compensation claimant was entitled to benefits. He established by clear

and convincing evidence he was unable to work because of disabling pain in his head,

neck, shoulders and arms. His testimony was corroborated by objective medical

evidence, including testimony of his treating physicians and medical reports. Id.

Additionally, both his chiropractor and his orthopedic surgeon found that the

employee’s injuries were in fact capable of causing such pain, and that his complaints

were credible. Id. The court agreed that this constituted an objective finding that the

employee’s complaints were genuine. Id. Similarly, in Daigrepont v. Grand Casino

Avoyelles, 96-1170 (La.App. 3 Cir. 3/5/97), 692 So.2d 518, the trial court found that

the employee had provided objective medical evidence of her injury, including

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medical reports from her treating physician. Additionally, the court found the

employee’s complaints of pain “to be consistent and credible.” Id. at 521. Finally,

in Gordon v. Sandersons Farms, 96-1587 (La.App. 1 Cir. 5/9/97), 693 So.2d 1279,

the appellate court affirmed the trial court’s finding that the employee had shown his

pain prevented him from working. The employee testified that his pain had been

“very constant,” and his medical records “reflected consistent complaints of . . . pain

since the accident.” Id. at 1285.

Ms. Alexander has provided extensive deposition testimony of her

treating physician. His testimony shows that Ms. Alexander suffered debilitating pain

that prevented her from working. Dr. DeLapp systematically examined each office

visit and testified as to her condition throughout the time following her injury. Ms.

Alexander’s complaints of pain are consistent, and Dr. DeLapp substantiated these

complaints. Her complaints are plausible and believable, and the trial court did not

err in determining that her constant pain resulted in her inability to engage in any kind

of employment, warranting an award of temporary total disability benefits.

Autozone argues that Ms. Alexander was capable of performing her

work, but quit her job, and it is thus because of her own actions that she is

unemployed. Ms. Alexander, however, proved that her condition caused sufficient

pain to prevent her from performing the functions of her job, including using the

computer and lifting heavy items. Her doctor confirmed that she was physically

unable to perform these tasks. In contrast to the conditions here, the supreme court

found a claimant ineligible for temporary total disability benefits when she admitted

she would still be working at her former job had she not been fired. Coats v.

American Tel. & Tel. Co., 95-2670 (La. 10/25/96), 681 So.2d 1243. Ms. Alexander

left her position because she could no longer physically tolerate the work, and felt

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Autozone did not make an effort to accommodate her difficulties. In contrast to Dr.

DeLapp’s extensive testimony, Autozone’s medical witness, Dr. Gidman, stated in

his letter only that he would “encourage her to return to work with light lifting,” but

admitted that her regular job “is not acceptable due to the amount of lifting required.”

The third circuit agreed that an employee was not entitled to benefits when the

treating physician found her able to work and a vocational services counselor

specifically found available jobs the claimant would be capable of performing.

Benjamin v. Asplundh Tree Co., 03-913 (La.App. 3 Cir. 12/10/03), writ denied, 04-78

(La. 3/19/04), 869 So.2d 853. However, Autozone did not provide any evidence that

there might be other appropriate jobs available to Ms. Alexander. Ms. Alexander

testified she did not receive vocational counseling to help her explore positions she

might be capable of performing. In any event, her treating physician has testified, and

the trial court found, that Ms. Alexander was unable to work due to her painful

condition.

Autozone also alleges that her physician never placed her on no-work

status, but only imposed certain restrictions, such as limiting her to “light duty.” Dr.

DeLapp testified that it was not normally his practice to impose no-work status, but

would allow time off for healing after surgery. He advised Ms. Alexander to limit

activities that would exacerbate her condition, such as heavy lifting and repetitive

motion, but the nature of her job required these very activities. Although she was

never on no-work status, she was also never free of these limitations on her activities.

Even during the time in which Ms. Alexander did not see Dr. DeLapp, she was forced

to wear her brace. In determining whether the claimant has met her burden of

showing she is unable to engage in any kind of employment, the trial court must

weigh the totality of the evidence, both medical and lay. Ratliff, 861 So.2d 613. The

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fact that Dr. DeLapp did not ever put Ms. Alexander on no-work status did not

persuade the trial court that Ms. Alexander otherwise failed to provide sufficient

objective medical evidence of her inability to work due to pain.

Carpal Tunnel Surgery

Autozone argues that Ms. Alexander did not show that her initial work-

related injury caused her carpal tunnel syndrome. Autozone argues that carpal tunnel

syndrome was not diagnosed until approximately two years after the accident; testing

performed on May 21, 2001 did not demonstrate carpal tunnel syndrome.

Additionally, Autozone maintains that the assessment by its own expert, Dr. Gregory

Gidman, establishes no relationship between her fracture and her carpal tunnel

syndrome.

Dr. Gidman asserts that the onset of carpal tunnel syndrome is

temporally removed from the original injury such that they are not causally related.

Dr. DeLapp’s depositions, however, indicate that Ms. Alexander showed signs of

carpal tunnel as early as November 30, 2000. Her physical examinations thereafter

consistently showed signs of carpal tunnel. On January 4, 2001, Ms. Alexander’s

Phalen’s test was positive, indicating carpal tunnel syndrome. On April 27, 2001, Dr.

DeLapp diagnosed carpal tunnel. On May 21, 2001, a nerve conduction study

showed mild carpal tunnel symptoms, but did not conclusively demonstrate carpal

tunnel syndrome. Dr. DeLapp concluded, however, from Ms. Alexander’s symptoms

and complaints of pain, numbness, and tingling, that the test had yielded a false

negative. On August 21, 2001, Dr. DeLapp diagnosed carpal tunnel syndrome and

recommended surgery. Over a year later, she still had not had the necessary surgery,

and now suffers from atrophy of her wrist muscles.

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Ms. Alexander’s symptoms of carpal tunnel syndrome began as early as

November 30, 2000, approximately one year after her injury. Dr. DeLapp testified

that, while the nerve conduction study is normally reliable, there is an acknowledged

and known possibility of a false negative. He reasonably concluded that this was the

case, since Ms. Alexander’s symptoms contradicted the test results. Even if Dr.

Gidman’s calculation that her carpal tunnel did not arise until two years after the

accident is correct, however, Dr. DeLapp testified at his deposition that carpal tunnel

syndrome can appear anywhere from one to two years after a fracture.

In addition, Dr. DeLapp testified to the causal relationship between the

original fracture and the attendant carpal tunnel syndrome. He stated that carpal

tunnel syndrome is one of the “more common entities” that occur after a wrist

fracture. Carpal tunnel is normally caused by either repetitive motion or “a

complication from the fracture.” Although he could not say definitively which was

the cause, he stated that carpal tunnel is a “known related entity to a fracture” of the

type suffered by Ms. Alexander and it was “more probable than not” that her

condition was caused by the fractured wrist.

For a workers’ compensation claimant to satisfy his burden of proof, the

testimony in its entirety must show that it is more probable than not that the work-

related accident had a causal relation to the disability. Kelley v. Stone Container

Corp., 31,790 (La.App. 2 Cir. 5/5/99), 734 So.2d 848, writ denied, 99-1969 (La.

10/15/99), 748 So.2d 1150. The claimant’s case must fail when the evidence “leaves

the probabilities evenly balanced.” Id. at 851. The causal connection must be proved

by “a reasonable preponderance of the evidence.” Sarrio v. Stalling Const. Co., 876

So.2d 157, 160. Dr. DeLapp testified to more than even odds that the fracture caused

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her carpal tunnel syndrome. The trial court found Ms. Alexander’s evidence more

than adequate to show causation.

Furthermore, Dr. Gidman based his assessment of Ms. Alexander’s

condition on one examination only. Dr. DeLapp, on the other hand, saw Ms.

Alexander regularly for two years, beginning with her original injury. The trial court

had the discretion to discount Dr. Gidman’s opinion. Normally, “[t]he general rule

is that the testimony of a treating physician should be accorded greater weight than

that of a physician who examines a patient only once or twice.” McKinney v.

Coleman, 36,958, p. 5 (La.App. 2 Cir. 3.14.03), 839 So.2d 1240, 1244. The treating

physician has the advantage of familiarity, since he or she “is more likely to know the

patient’s symptoms and complaints due to repeated examinations and sustained

observations.” Halker v. Am. Sheet Metal, 03-678, p. 7 (La.App. 3 Cir. 12/10/03),

861 So.2d 740, 746. Even in light of the presumption in favor of the treating

physician, however, the trial court weighed Autozone’s medical evidence and found

Dr. Gidman’s conclusions unpersuasive. The trial court discussed Dr. Gidman’s

findings extensively in its oral rulings, noting that Dr. Gidman had not read Dr.

DeLapp’s depositions. Thus, the trial court did not simply choose to accept Dr.

DeLapp’s analysis of Ms. Alexander’s condition, but impressively and carefully

assessed the evidence of both physicians. Longoria v. Brookshire Grocery Co.,

37,975, p. 10 (La.App. 2 Cir. 12/19/03), 862 So.2d 1172, 1179.

The trial court found Autozone’s refusal to approve Ms. Alexander’s

carpal tunnel surgery unreasonable. The evidence satisfied the trial court of the

connection between her original injury and the subsequent carpal tunnel condition,

and thus the court did not err when it assigned responsibility to Autozone for the

surgery to treat this condition. Once the surgery is completed, she will have a short

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recovery period followed by physical therapy. Dr. DeLapp testified that Ms.

Alexander should be able to return to work once she has recovered from surgery. If

she does not have the surgery, she will suffer continued atrophy of the muscles in her

hand, and will eventually suffer disability in that hand, in essence extinguishing her

chances of returning to work. The procedure therefore is clearly necessary for her to

overcome her disability and return to work.

Penalties for Unpaid Medical Bills

The trial court awarded Ms. Alexander a total of $12,000.00 in penalties

and $17,000.00 in attorney fees. Louisiana Revised Statutes 23:1201 was amended

in 2003 to include a provision capping total penalties at $8,000.00. In workers’

compensation matters, however, we apply the law in existence at the time of the

injury. At the time of Ms. Alexander’s injury, there was no limit on the total amount

of penalties. Autozone argues that each of these awards represents manifest error on

the part of the trial court. The trial court imposed $6,000.00 in penalties for

Autozone’s failure to pay three medical bills totaling $928.65. In addition, the trial

court also awarded a $4,000.00 penalty and $10,000.00 in attorney fees for

Autozone’s failure to pay temporary total disability benefits. Finally, the trial court

awarded Ms. Alexander a $2,000.00 penalty and $7,000.00 in attorney fees for

Autozone’s failure to authorize the carpal tunnel surgery.

Louisiana Revised Statutes 23:1201 governs the procedure for payment

of workers’ compensation benefits. Subsection (E) requires payment of medical bills

“within sixty days after the employer or insurer receives written notice thereof.”

Subsection (F) describes the assessment of penalties for the failure to pay these

benefits, and sets the maximum payment per penalty at $2,000.00 per claim. The sole

exception to La.R.S. 23:1201(F) states “[t]his [s]ubsection shall not apply if the claim

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is reasonably controverted or if such nonpayment results from conditions over which

the employer or insurer had no control.” La.R.S. 23:1201(F)(2).

The Louisiana supreme court has interpreted “reasonably controverted”

to require that “the defendant . . . have some valid reason or evidence upon which to

base his denial of benefits.” Brown v. Texas-La Cartage, Inc., 98-1063 (La. 12/1/98),

721 So.2d 885. The third circuit adopted this explanation in Johnson v.

Transamerican Waste Co., 99-190 (La.App. 3 Cir. 6/2/99), 741 So.2d 764. The

claimant sought penalties for the failure of his employer to pay workers’

compensation benefits. The employer asserted that it reasonably controverted the

employee’s claim to benefits, and the claimant was therefore not entitled to penalties.

The third circuit stated that “[i]n order to avoid the imposition of penalties, an

employer must reasonably controvert the workers’ compensation claimant’s right to

benefits. The test to determine if the employer has fulfilled its duty is whether the

employer or his insurer had sufficient factual and medical information presented by

claimant.” Id. at 770. The court held that the employer offered no valid reason to

contradict the claimant’s account of his injury, and no medical evidence to suggest

the claimant’s injures were not disabling. Thus, the employer failed to present

sufficient information to controvert the employee’s claim for temporary total

disability benefits. Id.

Thus, the critical focus in deciding to allocate penalties or attorney fees

is whether the employer had an articulable, reasonable, and objective rationale for

denying benefits sufficient to overcome the employee’s claim to benefits. Authement

v. Shappert Eng’g, 02-1631 (La. 2/25/03), 840 So.2d 1181; Galeano v. Taco Bell

Corp., 02-904 (La.App. 5 Cir. 2/25/03), 839 So.2d 472. This issue requires an

analysis of facts explaining the denial of the employee’s claim. Therefore, the trial

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court’s decision should not be disturbed on appeal absent manifest error, or unless

clearly wrong. Authement, 840 So.2d 1181; Frank v. Kent Guidry Farms, 01-727

(La.App. 3 Cir. 5/8/02), 816 So.2d 969, writ denied, 02-1608 (La. 6/27/03), 847

So.2d 1273; Johnson v. Johnson Controls, Inc., 38,495 (La.App. 2 Cir. 5/12/04), 873

So.2d 923.

Ms. Alexander testified that she called Autozone’s corporate office

several times regarding the unpaid bills, but continued to receive collection notices.

The manager at her store, Louis Clinkscales, testified that his only responsibility was

to forward information regarding any workers’ compensation claim he received from

an employee to Troy Calhoun, the regional manager. Ms. Alexander further testified

that she spoke to Mr. Calhoun about the unpaid bills several times, and he promised

to call the corporate office on her behalf. By the time the case reached trial, the bills

were seriously overdue. Autozone asserts that their failure to pay represents a mere

administrative oversight, particularly in light of the many other bills they had

successfully paid.

Administrative error, however, does not establish a reasonable

explanation for their failure to pay these bills. Autozone had no good reason for

overlooking these bills but paying others, since there is no doubt that the treatment

represented by each bill was related to Ms. Alexander’s injury. Autozone does not

argue it did not receive notice of the bills; in fact, Autozone admits that it received

paperwork regarding many bills, and only argues that these three specific bills were

inadvertently overlooked. Also, Autozone cannot argue that the mistake arose from

a situation beyond their control, since they successfully paid other bills. Additionally,

Louisiana jurisprudence has specifically rejected administrative error as sufficient to

overcome the claimant’s right to benefits. In Arnold v. Wal-Mart Stores, Inc., 03-609

15

(La.App. 3 Cir. 11/5/03), 858 So.2d 776, writ denied, 03-3347 (La. 3/19/04), 869

So.2d 850, the court found that Wal-Mart did not provide any evidence that the

clerical mistake that caused the claimant’s benefits to go unpaid resulted from

circumstances beyond the employer’s control. The third circuit found that Wal-

Mart’s excuse did not sufficiently controvert the employee’s right to benefits, and the

claimant was therefore entitled to penalties and attorney’s fees. Id. Autozone’s only

basis for its failure to pay these particular bills is clerical error, which does not

controvert Ms. Alexander’s right to have her medical bills paid. Thus, Autozone

violated the provision of La.R.S. 23:1201 requiring payment of medical bills within

sixty days of receiving notice, and is therefore subject to penalties under La.R.S.

23:1201(F).

Autozone also contests the trial court’s award of penalties for its failure

to award benefits for Ms. Alexander’s temporary total disability. Autozone asserts

Ms. Alexander is not entitled to temporary total disability benefits, and therefore it

cannot be sanctioned for failing to pay her these benefits. Autozone argues that it was

not unreasonable for it to take the position that she had not sufficiently proven her

right to claim these benefits as required by La.R.S. 23:1221(1)(c). The trial court,

however, concluded at its oral rulings that Ms. Alexander had satisfied her burden of

proving her disability. The court reviewed the weight of medical evidence in favor

of Ms. Alexander, showing that her injury rendered her incapacitated, and found that

Autozone’s arguments did not controvert her claim.

Autozone also disputes the penalties assigned for its failure to authorize

carpal tunnel surgery. Louisiana courts have uniformly agreed that “failure to

authorize a medical procedure for an employee eligible to receive workers’

compensation is deemed to be a failure to furnish compensation benefits, thereby

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triggering the penalty provisions of the Louisiana Workers’ Compensation Act.”

Frank, 816 So.2d at 972; Authement, 840 So.2d 1181. Therefore, “the period of time

in which the employer or insurer must act is sixty days, as provided in La.R.S.

23:1201(E),” and if the employer fails to comply, it is subject to penalties under

La.R.S. 23:1201(F), even though the language of the statute refers to the “[f]ailure to

provide payment” rather than necessary medical procedures. Harbor v. St. Frances

Cabrini Hosp., 01-1551 (La.App. 3 Cir. 5/15/02), 817 So.2d 1269, 1273. The

penalties and attorney fees are due unless the claim is reasonably controverted or such

nonpayment results from conditions over which the employer or insurer had no

control. Frank, 816 So.2d 969.

Autozone maintains that Ms. Alexander’s original work-related injury

did not cause the carpal tunnel syndrome, and it is therefore not obligated to fund her

surgery. The trial court, however, determined that the medical evidence established

beyond a preponderance of the evidence that her initial fracture ultimately resulted

in her carpal tunnel condition. Thus, Autozone did not reasonably controvert Ms.

Alexander’s claim and is subject to penalties for its failure to authorize and fund the

surgery.

Finally, Autozone challenges its obligation to pay Ms. Alexander’s

attorney fees. In addition to providing for penalties for the employer’s failure to pay

benefits, La.R.S. 23:1201(F) also permits an award of attorney fees. This component

of the statute also does not apply if the employer reasonably controverts the

employee’s claim. La.R.S. 23:1201(F)(2). Because “[a] workers’ compensation

judge is given great discretion in determining whether to award attorney’s fees,” his

or her ruling will be reversed on appeal only in case of manifest error. Semere v. Our

Lady of Lourdes Hosp., 03-1702, p. 14 (La.App. 3 Cir. 6/29/04), 875 So.2d 1048,

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1057. The third circuit established different factors to consider when awarding

attorney fees: “While the legislature has set statutory limits on the amount of

penalties which may be awarded, the legislature has made no such limitation on the

amount of attorney fees which may be awarded. The legislature’s only mandate is

that such attorney fees be reasonable. In setting reasonable attorney fees, the supreme

court has advised us to consider ‘the degree of skill and ability exercised, the amount

of the claim, and the amount recovered for the plaintiff, and the amount of time

devoted to the case.” Id. (citation omitted).

Ms. Alexander’s attorney began work on this case in January of 2002,

when he first filed her disputed claim for worker’s compensation. He conducted

depositions and appeared in court. The case is factually dense and involved extensive

medical testimony. He achieved a good result for his client. The attorney fees

awarded to Ms. Alexander are not unreasonable and do not indicate manifest error.

The purpose of awarding penalties and attorney fees in workers’ compensation cases

is to punish noncompliance with the statute and “to discourage indifference and

undesirable conduct by employers and insurers.” Authement, 840 So.2d at 1188. The

trial court did not err in its decisions to award penalties and attorney fees for

Autozone’s unwarranted failure to provide Ms. Alexander with the benefits to which

she is entitled under law.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs

of appeal are assessed to appellant Autozone, Inc.

AFFIRMED.

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