Clifton Maricle v. Sunbelt Builders, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-398

CLIFTON MARICLE

VERSUS

SUNBELT BUILDERS, INC.

************
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 03-05244,
HONORABLE JAMES L. BRADDOCK,
WORKERS’ COMPENSATION JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

Eric Waltner
Allen & Gooch
P.O. Box 3768
Lafayette, LA 70502-3768
COUNSEL FOR DEFENDANTS/APPELLANTS:
Sunbelt Builders, Inc. and Ohio Casualty Group

George A. Flournoy
Flournoy & Doggett
P.O. Box 1270
Alexandria, LA 71309-1270
COUNSEL FOR PLAINTIFF/APPELLEE:
Clifton Maricle

GENOVESE, Judge.

In this workers’ compensation case, the employee, his employer and its

workers’ compensation insurer seek review of a judgment on the issues of penalties

and attorney fees under La.R.S. 23:1201. The employer and its insurer have appealed

and the employee has answered the appeal. For the following reasons, we affirm in

part, reverse in part, and render. We also award an additional $2,500.00 in attorney

fees for work done on appeal.

FACTS

Plaintiff, Clifton Maricle (“Maricle”), sustained a work related injury while

employed with Defendant, Sunbelt Builder’s, Inc. (“Sunbelt”), on July 11, 2002.

Sunbelt’s workers’ compensation insurer, The Ohio Casualty Group, paid Maricle

workers’ compensation benefits. Maricle filed a disputed claim for compensation,

commonly referred to as a 1008, alleging untimely payment of medical benefits,

failure to provide medical treatment, and failure to timely pay indemnity benefits.

After trial on the merits, the workers’ compensation judge (“WCJ”) assessed

the Defendants with six different penalties in the amount of $2,000.00 each for their:

(1) failure to approve physical therapy; (2) failure to timely authorize surgery; (3)

payment of indemnity benefits on a biweekly basis; (4) failure to pay the first week

of indemnity benefits; (5) late payment of various installments of benefits; and (6)

failure to timely reinstate indemnity benefits following surgery. The WCJ also

assessed a $10,000.00 attorney fee, and awarded Maricle the first unpaid week of

indemnity benefits. It is from these rulings that Defendants appeal.

Maricle filed an answer to the appeal asserting his entitlement to an increase

in attorney fees as a result of the work necessitated by Defendants’ appeal and by the

1

WCJ’s refusal to award a separate attorney fee under La.R.S. 23:1201.2.1 Maricle

also claimed that he was entitled to an increase in penalties as a result of the

Defendants’ failure to timely pay medial expenses.

ISSUES

The following issues are presented by Defendants for our review:

I. Whether the trial judge committed legal error or, in the
alternative, manifest error in litigating extraneous issues;

II. Whether the trial judge committed legal error or, in the
alternative, manifest error in concluding that there was a
failure to approve the physical therapy recommended by Dr.
DeLapp on September 24, 2002, and awarding penalties and
attorney fees;

III. Whether the trial judge committed legal error or, in the
alternative, manifest error in concluding that there was a
failure to authorize the surgery on time and awarding penalties
and attorney fees;

IV. Whether the trial judge committed legal error or, in the
alternative, manifest error in awarding penalties and attorney
fees in reference to the following: (1) the payment of
indemnity benefits on a biweekly basis as opposed to a weekly
basis; (2) the failure to pay the first week of indemnity
benefits (December 7, 2002 to December 13, 2002); (3) the
payment of various installments of benefits on a late basis,
including the first installment of indemnity benefits that was
never actually paid; and (4) the failure to timely reinstate
indemnity benefits after the surgery was performed; and

V. Whether the trial judge committed legal error or, in the
alternative, manifest error in awarding more than $8,000.00 in
penalties, thereby disregarding the penalty cap.

Additionally, Maricle raises the following issues in his answer to appeal:

I. Whether he is entitled to an increase in the attorney fee
award due to the work necessitated by the appeal.

1
Although the Answer to Appeal raises the issue of a separate attorney fee under La.R.S.
23:1201.2 (now repealed), Maricle failed to assign this issue as an error in the brief filed with
this court. Therefore, this issue is not to be considered. Uniform Rules Court of Appeal - Rule 2-
12.4.

2

II. Whether the WCJ judge erred in denying his claims for
penalties due to the untimely payment of medical expenses
relating to treatment at the Lord Clinic and with Dr.
Gunderson.

LAW AND DISCUSSION

Standard of Review

The factual findings of the WCJ in a workers’ compensation case are subject

to a manifest error or clearly wrong standard of review. George v. Guillory, 00-591

(La.App. 3 Cir. 11/2/00), 776 So.2d 1200. “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 fact finder’s conclusion was a reasonable one.” Id. at

1206, quoting Stobart v. State, Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993).

Additionally, as recognized by this court in Corbello v. Coastal Chemical Co., Inc.,

02-1241, p. 3 (La.App. 3 Cir. 3/5/03), 839 So.2d 1152, 1154, writ denied, 03-0994

(La. 5/30/03), 845 So.2d 1051 quoting Mitchell v. Brown Builders, Inc., 35,022, p.

8 (La.App. 2 Cir. 8/22/01), 793 So.2d 508, 515, writ denied, 01-2649 (La. 12/14/01),

804 So.2d 636:

It is a well-settled legal principle that the factual findings in
workers’ compensation cases are entitled to great weight. Reasonable
evaluations of credibility and reasonable inferences of fact will not be
disturbed even though the appellate court may feel that its own
evaluations and inferences are as reasonable. The trier of fact’s factual
determinations shall not be disturbed in the absence of a showing of
manifest error. When the trier of fact’s findings are reasonable in light
of the entire record, an appellate court may not reverse a choice between
two permissible views of the evidence.

Finally, “[t]he determination of whether an employer should be cast with

penalties and attorney fees is a question of fact which should not be reversed absent

manifest error.” Sigler v. Rand, 04-1138, pp. 10-11 (La.App. 3 Cir. 12/29/04), 896

So.2d 189, 196, writ denied, 05-0278 (La. 4/1/05), 897 So.2d 611, citing Romero v.

Northrop-Grumman, 01-24 (La.App. 3 Cir 5/30/01), 787 So.2d. 1149, writ denied,

3

01-1937 (La. 10/26/01), 799 So.2d 1144.

Extraneous Issues

Defendants contend that the WCJ erred in allowing Maricle to introduce

evidence at trial that went beyond the scope of the pleadings. We disagree and affirm

the ruling of the WCJ on this issue.

In his oral reasons for judgment, the WCJ explained his ruling on this issue.

The court noted that “[a] review of the record and the 1008 dispute filed on behalf of

Mr. Maricle discloses that all of the issues raised in the post-trial memorandum and

with the introduction of evidence are contained in the issues presented in the 1008

filed on behalf of Mr. Maricle.” This court has also reviewed the record of these

proceedings, including the Plaintiff’s disputed claim for compensation, and finds that

the issues concerning penalties and attorney fees arising from allegations of

nonpayment or incorrect payment of indemnity benefits, failure to authorize medical

treatment, nonpayment or untimely payment of medical expenses are contained

therein. Defendants were aware of these allegations which they denied in their

answer. This court also notes that the pretrial statement filed on behalf of Defendants

discusses the issues of penalties and attorney fees. The record further reveals that

the WCJ identified these particular issues at the pretrial conference, the transcript of

which is contained in the record of these proceedings. Therefore, we find no merit

in Defendants’ assertion that these were “last minute lagniappe” issues.

Failure to Approve Physical Therapy

Defendants contend that the WCJ erred in concluding that there was a failure

to approve the physical therapy recommended by Dr. DeLapp on September 24, 2002,

and awarding penalties and attorney fees. We disagree and find the following

determination of the WCJ to be correct:

4

The records indicate that Dr. DeLapp [sic] recommended physical
therapy for Mr. Maricle on September 24th of 2002. Mr. Maricle did not
immediately cease his employment after his injury but continued to work
for the employer. And on August 23rd of 2002, Dr. Delapp [sic], noted
that Mr. Maricle indeed wanted to continue to work, and he did not want
to undertake physical therapy at that time. Nevertheless, on return visit
of September 24th of 2002, Dr. Delapp [sic] recommended physical
therapy as well as a referral of Mr. Maricle to Dr. Velingker. Mr.
Maricle testified at trial that he did not receive any physical therapy until
the year of 2003.

Having reviewed the records introduced at trial, the WCJ was unable to find an

authorization for physical therapy within sixty days of the recommendation for

physical therapy made by Dr. Delapp on September 24, 2002. Louisiana Revised

Statutes 23:1201(E) provides that medical benefits “shall be paid within sixty days

after the employer or insurer receives written notice thereof.” We do not find that the

WCJ was manifestly erroneous in concluding that physical therapy was not timely

authorized. Therefore, we affirm the imposition of the $2,000.00 penalty pursuant

to La.R.S. 23:1201(F).

Failure to Authorize Surgery

Defendants assert that the WCJ erred in finding that there was a failure to

timely authorize Maricle’s cervical surgery. They contend that the appropriateness

of the surgery was “reasonably controverted,” and therefore, a penalty was not

warranted.

La.R.S. 23:1201(F) sets forth the amount and manner in which penalties are to

be assessed. “The sole exception to La.R.S. 23:1201(F) states ‘[t]his [s]ubsection

shall not apply if the claim is reasonably controverted or if such nonpayment results

from conditions over which the employer or insurer had no control.’” Alexander v.

Autozone, Inc., 04-871, pp. 13-14 (La.App. 3 Cir. 12/8/04), 889 So.2d 366, 376

(alteration in original); La.R.S. 23:1201(F)(2). This court discussed the issue of

“reasonably controverted” in Alexander, 889 So.2d at 376, as follows:

5

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 . . . .

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.

In Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d

885, 890, the supreme court stated:

[T]o determine whether the claimant's right has been reasonably
controverted, thereby precluding the imposition of penalties and
attorney fees under La. R.S. 23:1201, a court must ascertain whether the
employer or his insurer engaged in a nonfrivolous legal dispute or
possessed factual and/or medical information to reasonably counter the
factual and medical information presented by the claimant throughout
the time he refused to pay all or part of the benefits allegedly owed.

See also Miller v. Christus St. Patrick Hosp., 03-1631, p. 7 (La.App. 3 Cir. 4/21/04),

872 So.2d 574, 579, writ denied, 04-1196 (La. 10/1/04), 883 So.2d 1010; McCall v.

Wal-Mart Stores, Inc. 02-1343, p. 6 (La.App. 3 Cir 3/5/03), 846 So.2d 832, 836, writs

denied, 03-1329, 03-1343 (La. 9/19/03), 853 So.2d 639, 641.

Therefore, to determine whether or not Maricle’s need for surgery was

“reasonably controverted” it is appropriate to consider, as the WCJ did, what

information was possessed by the Defendants and when authorization was given. The

WCJ conducted a thorough review of the record, including a substantial amount of

6

medical evidence, and gave an extensive and detailed recitation of the history of

treatment. We accept the following findings of the WCJ:

And the next issue is the untimely authorization of surgery. Mr.
Maricle, on his own, after he had seen Dr. Delapp [sic], Dr. Velingker
and Dr. Hajmurad, went to a Dr. Gunderson in Lake Charles . . . in May
of 2003. And on June 5th of 2003, Dr. Gunderson recommended a
cervical disc surgery for Mr. Maricle at the C6-C7 level. And the
employer did not authorize this surgery until after Mr. Maricle had seen
an independent medical examining doctor, Dr. Foster, in December of
2003 where upon Dr. Foster recommended the surgery and it was,
apparently, immediately authorized once the employer received the
report from Dr. Foster. So the question is whether there was an
unreasonable delay between the request from Dr. Gunderson and the
information that the employer had in its possession at the time. So we
look at Dr. Davidson’s records, an orthopaedist whom the employer had
Mr. Maricle see, and he saw Mr. Maricle on February 5th of 2003. And
Dr. Davidson noted that most of the attention had been drawn to Mr.
Maricle’s shoulder with little attention brought to his neck, so Dr.
Davidson took some cervical X-rays and noticed some straightening of
the normal cervical curvature. And he suggested that an MRI be
undertaken which was undertaken and reviewed by Dr. Davidson and
Dr. Hajmurad. The records reflect that after the request for the surgery
was made by Dr. Gunderson the payor of benefits had a nurse case
manager review information of Dr. Davidson and Dr. Hajmurad. There
is contained in Dr. Davidson’s records a letter dated August 15th of 2003
with -- with questions about Dr. Gunderson’s recommendation of the
anterial cervical disc fusion and they had Dr. Davidson review the MRI
which had previously been undertaken. But I do note that in May of
2003, a myelogram and post-myelogram CT had been performed on Mr.
Maricle, which no where in the records can I find that that information
was provided to Dr. Davidson. When Dr. Davidson was asked on
August 15th of 2003 if he felt the recommendation for an anterial --
anterior disc fusion at C6-7 was appropriate, his response was, it
depended on neurological symptoms and he said, “Not at this times [sic]
if Dr. Hajmurad’s evaluation is accurate and current.” And he deferred
to other physicians who had more recently seen Mr. Maricle with regard
to his ability to return to work. The employer also had in it’s possession
information from Dr. Hajmurad that indicted to the employer that Mr.
Maricle had neck problems particular in a Physical Capacity Assessment
Form signed by Dr. Hajmurad on April 30th of 2003. He noted that Mr.
Maricle has spondylosis causing him to have neck pain. He said he
could do some work but he needed to be careful. They have the
possession -- in their possession the MRI study which noted at C6-7
moderate left neural formainal [sic] narrowing which was either
secondary to a disc or spondylotic ridge. They had in their possession
the myelogram studies because they showed those to Dr. Hajmurad, but
they did not show those to Dr. Davidson. They indicated in
correspondence that in as -- in early -- as June of 2003 they were

7

considering undertaking an IME but they did not undertake an IME
request until November 7th of 2003. Based on the information that the
Court finds the employer had available to it, I find that there was an
inordinate or unreasonable delay in authorizing the surgery
recommended by Dr. Gunderson.

In support of this conclusion, the WCJ further noted that:

Even Dr. Hajmurad who is not an orthopaedic surgeon nor a
neurosurgeon who recommended against the surgery, recommended that
the payor of benefits have Mr. Maricle seen by a neurosurgeon and he
recommended to Dr. Nanda [sic] [Davidson], and he did this in the
summer of 2003 and this referral was never made by the payor of
benefits.

Based on our review of the record, we cannot say that the WCJ was manifestly

erroneous in finding that Defendants did not reasonably controvert the claim.

Accordingly, we affirm the penalty award in the amount of $2,000.00.

Payment of Indemnity Benefits

The next issue raised on appeal is the payment of indemnity benefits. It was

the judgment of the WCJ that penalties were warranted for the failure on the part of

Defendants: (1) to pay indemnity benefits on a weekly basis; (2) to pay claimant’s

first week of indemnity; (3) to pay various installments of benefits in a timely

manner; and (4) to timely reinstate indemnity benefits after the surgery was

performed. For the reasons set forth below, we find that the WCJ was not manifestly

erroneous in assessing Defendants with a $2,000.00 penalty for each of the foregoing

acts.

Weekly v. Biweekly Basis of Payment

Louisiana Revised Statute 23:1201 makes it clear that “[p]ayments of

compensation under this Chapter shall be paid as near as may be possible, at the same

time and place as wages were payable to the employee before the accident . . . . ”

Thus, a claimant who is paid on a weekly basis is entitled to receive indemnity

benefits the same way he receives his paycheck.

8

As noted by the WCJ, “Mr. Maricle testified, and his testimony is

uncontradicted and confirmed the documentary evidence that he received his

paycheck on a weekly basis from the employer and the records indicate, . . . that he

was paid benefits on a two-week basis rather than a one-week basis.” We agree with

this conclusion of the WCJ; therefore, we affirm the award of penalties for the

Defendants’ failure to comply with La.R.S. 23:1201(A).

First Week of Indemnity Benefits

Maricle stopped working for Sunbelt on December 6, 2002. However, the

WCJ found that “[t]he payor of benefits was aware of his lay off December 9th of

2002, and they did not commence paying him benefits until December 14th of 2002.”

Therefore, the WCJ concluded, and we agree, that Maricle was not paid indemnity

benefits for the week of December 7, 2002 through December 13, 2002, to which he

was clearly entitled. Therefore, we affirm the award for indemnity benefits for the

week of December 7, 2002 through December 13, 2002, and we affirm the $2,000.00

penalty imposed on Defendants for their failure to pay Maricle his first week of

indemnity benefits.

Timeliness of Indemnity Benefits

The initiation of indemnity benefits is governed by La.R.S. 23:1201(B) which

provides that “[t]he first installment of compensation payable for temporary total

disability, permanent total disability, or death shall become due on the fourteenth day

after the employer or insurer has knowledge of the injury or death, on which date all

such compensation then due shall be paid.”

In the case of Maricle, the WCJ found that “despite the fact that Mr. Maricle

had restrictions and that he was not working and that he was due his payment of first

benefits 14 days after his last day of work, that these benefits were not paid timely.”

9

To the contrary, he concluded that the evidence showed that several weeks of

compensation were later paid in a lump sum amount.

The record reveals that the first payment of benefits was made to Maricle on

January 24, 2003. However, pursuant to La.R.S. 23:2301(B) cited above, the first

payment was due fourteen days after December 6, 2002, the last day that Maricle

worked for Sunbelt. Since the first payment was not processed until January 24,

2003, it was late, as was the second payment, which was due on December 27, 2002.

Given the untimely payment of these benefits, we affirm the imposition of the

$2,000.00 penalty for the late payment of indemnity benefits.

Reinstatement of Benefits Following Surgery

Defendants also contend that the WCJ erred in awarding a $2,000.00 penalty

to Maricle for the late reinstatement of benefits following surgery. We disagree.

The WCJ again provides a detailed overview of the treatment undergone by

the claimant relative to this issue as follows:

[T]he surgery was performed January 22nd of 2004. Benefits were not
reinstated until March of 2004. The employer contends that it was not
arbitrary and capricious in the termination of Mr. Maricle’s benefits
based on Dr. -- a release from Dr. Hajmurad for Mr. Maricle to return to
work on April 3th of 2003. When Dr. Hajmurad released Mr. Maricle
to return to work, the records indicate that he noted that Mr. Maricle had
neck problems and that he was limited in what he could lift. This was
confirmed by the [sic] Dr. Davidson, by Dr. Delapp [sic]. He noted the
release was with restrictions in the document he signed on April 30th of
2003. Subsequent to that the employer had in its possession the records
of Dr. Hajmurad on June 30th of 2003 after he had had a consult,
apparently, with the case manager. He noted that he reviewed only the
report of the myelogram and the post-myelogram CT scan. He never
had saw [sic] the actual studies. He said he explained to the rehab nurse
that the patient does have a problem and the best thing was to send him
to a neurosurgeon, which the employer failed to do. So the employer,
in this Court’s view, arbitrarily and capriciously terminated the benefits
of Mr. Maricle in April -- on April the 30th of 2003. . . . Based on that
information as well as the recommendation for an anterial cervical disc
fusion, the knowledge that the fusion surgery was performed in January
of 2004, and the late reinstatement of benefits in March of 2004, the
Court finds that the failure to timely reinstate Mr. Maricle’s benefits was

10

unreasonable and I award a Two Thousand Dollar ($2,000.00) penalty.

After reviewing the record, this court does not find this conclusion of the WCJ

to be manifestly erroneous or clearly wrong. Accordingly, the $2,000.00 penalty

imposed for the Defendants failure to timely reinstate benefits is affirmed.

Penalty Cap

Defendants also assert on appeal that the WCJ erred in its award of penalties

by disregarding the “penalty cap” of $8,000.00 set forth in La.R.S. 23:1201(F). We

disagree.

Louisiana Revised Statute 23:1201(F) was amended by the legislature by 2003

La. Acts No. 1204, § 1, to expressly provide for multiple penalties and to place a cap

on the amount of penalties which may be awarded at $8,000.000. The effective date

of the legislative amendment was August 15, 2003. The events which occurred in

this case giving rise to the imposition of penalties occurred prior to the amendment’s

August 15, 2003 effective date. Thus, whether or not the WCJ erred in awarding

penalties in excess of $8,000.00 depends upon whether or not the 2003 amendment

to La.R.S. 23:1201(F) is retroactive.

This court has not specifically addressed the issue of the retroactivity of the

2003 amendment to La.R.S. 23:1201(F) relating to the $8,000.00 “penalty cap.”

However, this court has previously held that the amendment to La.R.S. 23:1201(J),

which applied to attorney fee awards, was substantive in nature and could not be

given retroactive effect. Smith v. Roy O. Martin Lumber Co., 03-1441 (La.App. 3 Cir.

4/14/04), 871 So.2d 661, writ denied, 04-1311 (La. 9/24/04), 882 So.2d 1144. See

also Metoyer v. Roy O. Martin, Inc., 03-1540 (La.App. 3 Cir. 12/1/04), 895 So.2d

552, on rehearing, writ denied, 05-1027 (La. 6/3/05), 903 So.2d 467.

For the same reasons set forth in our prior decisions applying paragraph (J) of

11

La.R.S. 23:1201, we hold that the amendment to La.R.S. 23:1201(F), providing for

an award of multiple penalties subject to an $8,000.00 cap, is a change in the law and

must be given substantive effect. Louisiana Civil Code Article 6 provides that

substantive laws apply prospectively only and cannot be given retroactive effect in

the absence of contrary legislative expression. Since the cap on the amount of

penalties which may be awarded was not in existence when the actions occurred in

the present case, we find that the WCJ did not err in awarding penalties in excess of

$8,000.00.

Employee’s Attorney Fees

In his answer to appeal, Maricle contends that he is entitled to an increase in

the attorney fee award due to the work necessitated by the appeal. Considering the

record of these proceedings, the issues presented on appeal and the additional work

required on appeal, this court finds that an increase in the award for attorney fees in

warranted. We, therefore, render judgment in favor of Maricle and against

Defendants in the amount of $2,500.00 in attorney fees for work necessitated by the

present appeal.

Penalties for Untimely Payment of Medical Expenses

Also in his answer to appeal, Maricle seeks a reversal of the judgment of the

WCJ denying his claims for penalties due to the untimely payment of medical

expenses relating to treatment at the Lord Clinic and with Dr. Gunderson. On this

issue, we affirm in part, reverse in part, and render.

The WCJ correctly noted that Maricle had the burden of proving that the bills

relating to his treatment at the Lord Clinic and with Dr. Gunderson were received by

Defendants, relying on Daugherty v. Domino’s Pizza, 95-1394 (La. 5/21/96), 674

So.2d 947, and Newson v. Richard Spurgeon Masonry, 03-1367 (La.App. 3 Cir.

12

3/3/04), 867 So.2d 78, writ denied, 04-0839 (La. 5/14/04), 872 So.2d 523. Having

reviewed the record, this court finds that the record is devoid of evidence that the

Defendants received the medical bills from the Lord Clinic. Although a printout of

medical expenses incurred at the Lord Clinic was introduced into evidence which

shows the dates of Maricle’s treatment, and the date that certain statements were sent

out, there is insufficient evidence in the record to prove that those statements were

sent to the Defendants, or that said statements were ever received by them as required

by La.R.S. 23:2301(E). We, therefore, affirm the judgment of the WCJ denying

penalties and attorney fees for the alleged untimely payment of bills relating to

Maricle’s treatment at the Lord Clinic.

However, a Health Insurance Claim Form was introduced at trial evidencing

treatment by Maricle with Dr. Gunderson on August 14, 2003. This document clearly

contains a stamp thereon showing “OCG CLAIMS” dated August 29, 2003. We find

that this evidence is sufficient to prove that the medical bill for treatment by Maricle

with Dr. Gunderson on August 14, 2003 was received by the insurer. Pursuant to

La.R.S. 23:1201(E), payment was required to have been made within sixty days of

receipt of written notice, which the Defendants failed to do. The patient financial

history, which was introduced along with Dr. Gunderson’s records, shows that the

first payment made on the account after receipt of the Health Insurance Claim Form

by Ohio Casualty was on January 2, 2004. We find that the WCJ erred in concluding

that Maricle failed to meet his burden of proving that payment of the medical bill

relating to his treatment with Dr. Gunderson was untimely. We, therefore, reverse

that portion of the judgment and render a $2,000.00 penalty award in favor of

Maricle. No additional attorney fee is awarded herein as this court finds the

$10,000.00 attorney fee awarded by the WCJ to be sufficient.

13

DECREE

For the foregoing reasons, we reverse the judgment of the WCJ on the issue of

the untimely payment of medical expenses for treatment by Maricle with Dr.

Gunderson and award a $2,000.00 penalty in favor of Maricle and against Sunbelt

and Ohio Casualty. Additionally, we render judgment in favor of Maricle and against

Sunbelt and Ohio Casualty in the amount of $2,500.00 for attorney fees necessitated

by the present appeal. The judgment is affirmed in all other respects.

Costs of this appeal are assessed against Defendants/Appellants.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

14