Debra Capdeville v. Winn-Dixie Store 1473

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-870

DEBRA CAPDEVILLE

VERSUS

WINN-DIXIE STORE #1473

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 00-01646
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and Glenn
B. Gremillion, Judges.

AFFIRMED IN PART; REVERSED IN
PART; AND RENDERED.

Michael B. Miller
Miller & Miller
P. O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
Counsel for Plaintiff/Appellant:
Debra Capdeville

James M. Taylor
Jacqueline A. Romero
Taylor, Wellons, Politz & Duhe, APLC
1515 Poydras St., #1900
New Orleans, LA 70112
(504) 525-9888
Counsel for Defendant/Appellee:
Winn-Dixie Store #1473

GREMILLION, Judge.

The plaintiff, Debra Capdeville, appeals the judgment of the workers’

compensation judge denying her request for penalties and attorney’s fees after

determining that the defendant, Winn Dixie Store #1433, failed to authorize required

medical treatment. She further appeals the workers’ compensation judge’s refusal to

allow her counsel to testify as to work performed in conjunction with her request for

penalties and attorney’s fees for Winn Dixie’s failure to pay a mileage request. For

the following reasons, we affirm in part, reverse in part, and render judgment.

FACTS

Capdeville injured her head and neck when a ten-pound bag of dough

fell and struck her as she walked into a freezer at work. She was initially treated by

Dr. John Cobb, an orthopedic surgeon, who eventually referred her to Dr. James

Pearce, a dentist specializing in temporomandibular disorders. Capdeville filed a

disputed claim for compensation seeking workers’ compensation benefits, medical

treatment, and penalties and attorney’s fees when Winn Dixie failed to provide her

with workers’ compensation indemnity benefits and medical treatment.

On March 26, 2001, an Interim Order was reached in which the parties

agreed that Winn Dixie would pay temporary total disability benefits to Capdeville

at the rate of $145.34 per week and would provide medical benefits, including all

reasonable and necessary treatment by Dr. Pearce and other doctors, and the

reimbursement of her prescribed medication. On April 21, 2001, a consent judgment

was reached based on the parties’ stipulations that Capdeville was injured as a result

of a work-related injury. The judgment awarded her temporary total disability

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benefits of $145.34 per week, based on her average weekly wage of $218, and all

reasonable necessary medical treatment, including treatment by Dr. Pearce. It further

awarded her $1,601.67 in past due weekly compensation benefits, $4,000 in penalties,

and $10,000 in attorney’s fees. A second consent judgment was rendered on April

21, 2003, in which Winn Dixie agreed to pay Capdeville $4000 in penalties and

$2000 in attorney’s fees due to its failure to authorize medical treatment for her by

Drs. Bertuccini, Pearce, and Berard.

On October 12, 2004, Capdeville filed a Motion and Order for Penalties

and Attorney’s Fees based on Winn Dixie’s failure to authorize medical treatment

recommended by Dr. Pearce. She further alleged that she was not fully reimbursed

for her mileage expenses associated with her visits to two doctors. Following a

hearing on the motion, the workers’ compensation judge gave oral reasons for

judgment. She ordered Winn Dixie to authorize Dr. Pearce’s treatment and further

ordered either it or its third-party administrator, Sedgwick CMS, to inform Dr.

Pearce’s office of the authorization. However, she denied Capdeville’s request for

penalties and attorney’s fees on this issue finding that the matter was reasonably

controverted. She did award her $2000 in penalties and $1000 in attorney’s fees due

to Winn Dixie’s failure to pay the mileage request. Judgment was rendered in this

matter on April 14, 2005. This appeal by Capdeville followed.

ISSUES

On appeal, Capdeville argues that the workers’ compensation judge erred

in denying her request for penalties and attorney’s fees due to Winn Dixie’s failure

to approve Dr. Pearce’s recommendations. She further argues that the workers’

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compensation judge erred in refusing to allow her counsel to testify as to the work

performed by him with regard to her mileage request.

MEDICAL TREATMENT

Capdeville first argues that the workers’ compensation judge erred in

finding that Winn Dixie reasonably controverted her request for authorization of

medical treatment by Dr. Pearce.

Capdeville testified that she has seen Dr. Pearce twice and has been

seeking follow-up treatment from him since her initial appointments. She stated that

she called Dr. Pearce’s office every day up until the beginning of 2004, checking on

the status of her request from Winn Dixie, but stated that she never received it. She

further explained that she called his office rather than going in person because she

had gone there previously only to be refused treatment because Dr. Pearce did not yet

have Winn Dixie’s approval.

Capdeville introduced the depositions of Rena King and Karen Hebert into the

record. King, an employee of Sedgwick, is the current adjuster of Capdeville’s claim.

Hebert is Dr. Pearce’s office manager. Attached to these depositions were various

letters pertaining to Dr. Pearce’s request to Winn Dixie for authorization to continue

Capdeville’s treatment. The documents were as follows:

1) An August 23, 2000 letter from Debra Rawles, the Sedgwick
adjustor handling Capdeville’s claim at that time, to Dr. Pearce. The
letter acknowledges that Dr. Cobb has referred Capdeville to him and
authorizes him to see her for an initial visit only. An approval form
from Dr. Pearce to Rawles, dated and signed by Rawles on the same
date, authorizes approval for a new patient, limited examination and an
orthopantomogram.

2) A September 21, 2000 letter from Dr. Pearce to Dr. Cobb. Dr.
Pearce recommends a complete evaluation of Capdeville’s masticatory

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apparatus, as well as diagnostic mounted study models and a physical
therapy evaluation. The letter was courtesy copied to Rawles, with an
approval form requesting the described treatment.

3) An October 18, 2000 letter from Rawles to Dr. Pearce requesting
further information from Dr. Pearce as to whether Capdeville’s
condition was related to her cervical fusion and/or her work-related
accident of 1998.

4) An October 24, 2000 letter from Dr. Pearce responding to Rawles
letter, in which he causally related her condition to her work-related
accident.

5) A November 20, 2000 approval by Rawles sent to Dr. Pearce
approving his recommended treatment of Capdeville, on a form
provided by Dr. Pearce.

6) A January 22, 2001 letter from Dr. Pearce to Dr. Cobb. Dr.
Pearce recommends that Capdeville undergo diagnostic splint therapy
for six to nine months in an attempt to reduce the traumatic effects of
bruxing and the dental malocclusions in order to find her a comfortable
and stable jaw position and to eliminate her complaints of headaches and
jaw pain. A copy of this letter was also sent to Rawles along with an
authorization form for the splint therapy.

7) A February 5, 2001 letter from Winn Dixie’s attorney to Dr.
Pearce. Counsel indicated that Winn Dixie had reviewed the doctor’s
reports of September 21, 2000 and October 24, 2000. It authorized Dr.
Pearce’s recommended medical treatment, specifically a complete
evaluation of Capdeville’s masticatory apparatus and a physical therapy
evaluation. Counsel further requested Dr. Pearce to forward any further
written requests for authorization of treatment and reports of treatment
to Rawles.

8) A March 2, 2001 letter from Dr. Pearce to Rawles. Dr. Pearce
noted that Capdeville’s diagnosis was bilateral TMJ capulitis, with the
right worse than the left; myofacial pain of the muscles of mastication
on the right side of her face, head, and cervical region; parafunctional
activity such as bruxism, which was probably perpetuated by her current
pain problem; right side coronoid tendonitis and a Class II, Division 2
dental malocclusion caused by missing and maloppressed teeth, a
developmental problem. A causal connection between her diagnosis and
her August 21, 1998 injury would probably be that her TMJ problem
was secondary to her cervical problem, which was due to a bag falling
and hitting her on the side of her head.

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9) An April 30, 2001 fax from Dr. Pearce to Rawles. Dr. Pearce
resubmitted his January 22, 2001 letter to Dr. Cobb regarding
Capdeville’s condition and his recommendation for splint therapy. He
further resubmitted a form requesting approval for the splint therapy.

10) A March 21, 2003 letter from Winn Dixie’s counsel to Dr. Pearce.
Winn Dixie authorized continued medical treatment by Dr. Pearce,
specifically an updated evaluation of Capdeville. It further requested
that Dr. Pearce forward any further written requests for authorization of
treatment and reports of medical/dental treatment of Capdeville to Linda
Gardner, the current adjuster on her claim.

King did not become involved with Capdeville’s claim until September

2003, and stated that she had no personal knowledge of anything occurring prior to

that time, other than what was contained in the file. Since taking over the claim, she

stated that no requests have been made for Capdeville to see Dr. Pearce. She was

aware of the January 22, 2001 letter from Dr. Pearce to Dr. Cobb containing a

breakdown of the procedures he was recommending for Capdeville’s treatment, but

did not know if that treatment was ever approved.

Hebert testified that Dr. Pearce received a letter from Rawles on August

23, 2000, authorizing Capdeville’s initial visit for treatment. In response to Rawles’

request for further information on October 18, 2000, she stated that Dr. Pearce sent

the requested information on October 24, 2000. Rawles then authorized him to

perform a complete evaluation for a possible TMJ disorder. Hebert testified that Dr.

Pearce wrote to Dr. Cobb on January 22, 2000, updating him as to Capdeville’s

condition and recommending that she undergo upper and lower splint treatment for

six to nine months. She stated that this letter was sent to Rawles, along with a form

requesting authorization of the treatment. She said that she had no record of Rawles

ever signing this request.

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Hebert stated that Dr. Pearce sent another authorization form to Rawles

requesting approval for the recommended splint therapy, after he received the

February 5, 2001 letter from Winn Dixie’s counsel. This letter approved a complete

evaluation of Capdeville’s masticatory apparatus and a physical therapy evaluation.

She stated that Dr. Pearce never received approval for this treatment. Finally, she

testified that Dr. Pearce received the March 21, 2003 letter from Winn Dixie’s

counsel authorizing further treatment of Capdeville, specifically an updated

evaluation. She further discussed a notation on that letter made by their office, in

which an employee talked to someone at Winn Dixie’s counsel’s office named Susan.

However, we do not find this information relevant to our inquiry.

In her oral reasons, the workers’ compensation judge found that Winn

Dixie never approved Dr. Pearce’s recommendations, evidently due to a breakdown

in communication between either Rawles or Winn Dixie and Dr. Pearce. However,

she finds that the matter was reasonably controverted and denied Capdeville’s request

for penalties and attorney’s fees.

Louisiana Revised Statute 23:1201(F) provides that penalties and

attorney’s fees will be assessed against an employer who fails to timely provide

compensation benefits or medical benefits to the injured employee. However,

penalties and attorney’s fees will not be assessed if the employer reasonably

controverted the injured employer’s claim or if the “nonpayment results from

conditions over which the employer or insurer had no control.” La.R.S.

23:1201(F)(2).

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The term “reasonably controverted” was discussed in Brown v. Texas La

Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890, by the Louisiana

Supreme Court:

The phrase “reasonably controverted,” . . . mandates a different
standard. In general, one can surmise from the plain meaning of the
words making up the phrase “reasonably controvert” that in order to
reasonably controvert a claim, the defendant must have some valid
reason or evidence upon which to base his denial of benefits. Thus, to
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.

The workers’ compensation judge’s decision to award penalties and attorney’s fees

is factual in nature and will not be reversed on appeal absent manifest error. Id.

After reviewing the record, we find the workers’ compensation judge

clearly wrong in denying Capdeville’s request for penalties and attorney’s fees, as a

result of Winn Dixie’s failure to authorize Dr. Pearce’s recommended treatment.

Winn Dixie has already either agreed to or been ordered to authorize the treatment by

Dr. Pearce on three different occasions. The present judgment by the workers’

compensation judge is the fourth time this matter has been addressed. Winn Dixie

has presented no evidence nor a valid reason for its failure to authorize the treatment,

nor has it presented any evidence showing that its failure to authorize the treatment

was due to conditions beyond its control.

Rather, we find that Winn Dixie’s failure to authorize the treatment

evolved from the state of flux surrounding the claims adjusters handling Capdeville’s

claim for Sedgwick. Rawles initially handled the claim, but at some point control

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devolved onto Linda Gardner, and then onto King in September 2003. The

documents attached to the depositions reveal that Dr. Pearce twice requested approval

for the splint therapy, but this was never approved despite the fact that Dr. Pearce

causally related Capdeville’s condition to her work-related accident and Winn Dixie

was thrice ordered to authorize all reasonable and necessary medical treatment

recommended by him. As Winn Dixie’s failure to authorize the treatment resulted

from its own third-party administrator’s inattention to the matter, and as Capdeville

was required to wait three years before receiving the recommended treatment, we find

that an award of penalties and attorney’s fees is appropriate in this instance. Thus,

we reverse the judgment of the workers’ compensation judge denying the award of

the same, and we now order, adjudge, and decree that judgment be rendered awarding

Capdeville $2000 in penalties and $5000 in attorney’s fees for Winn Dixie’s failure

to authorize the recommended medical treatment.

COUNSEL’S TESTIMONY

In her second assignment of error, Capdeville argues that the workers’

compensation judge erred by refusing to allow her counsel to testify with regard to

work he performed on the issue of penalties and attorney’s fees resulting from Winn

Dixie’s failure to reimburse a mileage request. We disagree. As stated by this court,

in Derouin v. Champion Insurance Co., 580 So.2d 1043 (La.App. 3 Cir.), writ denied,

585 So.2d 574 (La.1991), and by the second circuit in Harvey v. B E & K

Construction, 33,475 (La.App. 2 Cir. 8/23/00), 770 So.2d 819, a trial court need not

hear evidence pertaining to the time spent by counsel on a matter in order to decide

the amount of attorney’s fees to award, as the amount of work performed will be

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obvious from the record. Accordingly, this assignment of error is dismissed as being

without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed in

part and reversed in part. We now order, adjudge, and decree that judgment be

rendered in favor of the plaintiff-appellant, Debra Capdeville, awarding her an

additional $2000 in penalties and an additional $5000 in attorney’s fees as a result of

Winn Dixie’s failure to authorize recommended medical treatment. The costs of this

appeal are assessed 25% to Capdeville and 75% to the defendant-appellee, Winn

Dixie Store #1433.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

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