Evergreen Presbyterian Ministries v. Brenda Wallace

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-313

EVERGREEN PRESBYTERIAN MINISTRIES

VERSUS

BRENDA WALLACE

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 3
PARISH OF CALCASIEU, NO. 03-07473
CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

Saunders, J., dissents in part and assigns written reasons.

Charles V. Musso Jr.
Plauche, Smith & Nieset
P. O. Box 1705
Lake Charles, LA 70602
(337) 436-0522
Counsel for Plaintiff-Appellee
Evergreen Presbyterian Ministries

Thomas E. Townsley
Attorney at Law
711 Pujo Street
Lake Charles, LA 70601
(337) 430-0994
Counsel for Defendant-Appellant
Brenda Wallace

PICKETT, Judge.

The claimant, Brenda Wallace, appeals a judgment of the Office of Workers’

Compensation (OWC) finding she was entitled to supplemental earnings benefits

(SEB) rather than permanent and total disability (PTD) benefits or temporary and

total disability (TTD) benefits, finding Mrs. Wallace lacked standing to contest the

under-payments to her physician, and awarding certain penalties and attorney fees.

STATEMENT OF THE CASE

This case is before this court for a second time. Originally, the workers’

compensation judge (WCJ) found that Mrs. Wallace was entitled to SEB at a rate of

$61.34 per week, which was a reduction from the previous TTD payments of $217.33

per week that she had been receiving since the injury. The WCJ severed the issues

of penalties and attorney fees raised in the case and had not ruled on them when both

parties appealed. We dismissed the first appeals filed by Evergreen Presbyterian

Ministries (Evergreen) and Mrs. Wallace, finding that the WCJ had ruled on the

disability issue but had failed to rule on the issues of penalties and attorney fees in the

case. We found that such a piecemeal appeal was not proper and remanded the case

for the WCJ to issue rulings on the remaining issues. Evergreen Presbyterian

Ministries v. Wallace, 05-1343 (La.App. 3 Cir. 4/5/06), 926 So.2d 759.

This matter was heard on remand by the WCJ on November 2, 2006. The

issues presented to the WCJ were: (1) whether the failure of Evergreen to pay for

sympathetic therapy, or STS therapy, entitled Mrs. Wallace to penalties and attorney

fees, (2) whether Evergreen was arbitrary and capricious in terminating Mrs.

Wallace’s TTD benefits and reducing the benefits to SEB, entitling her to penalties

and attorney fees, (3) whether Evergreen failed to pay Dr. Frank Lopez correctly

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according to the fee schedule, (4) whether Mrs. Wallace is entitled to penalties and

attorney fees for the failure to pay Dr. Lopez according to the fee schedule, and (5)

whether Dr. Lopez’s fee should be assessed as costs.

Evergreen objected to the inclusion of the issue of the payments to Dr. Lopez

on remand, arguing that Dr. Lopez, not Mrs. Wallace, was the proper party to bring

such an action, and that the issue was not included in any of Mrs. Wallace’s pretrial

filings. The trial court sustained the objection and denied Mrs. Wallace’s claims

regarding payment of Dr. Lopez’s bills. The WCJ found that the unilateral

termination of TTD benefits by Evergreen was arbitrary and capricious and awarded

$2,000.00 in penalties and $6,500.00 in attorney fees. The WCJ found the STS

therapy was reasonable and necessary and ordered Evergreen to pay for it, but did not

award penalties for the failure to approve the treatment. The WCJ assessed Dr.

Lopez’s $2,500.00 fee as costs. A judgment in conformity with the WCJ’s oral

reasons was signed on November 17, 2006. Evergreen filed a Motion for Suspensive

Appeal, but that appeal has been abandoned. Mrs. Wallace has devolutively appealed

from the judgment of the WCJ.

ASSIGNMENTS OF ERROR

The appellant, Brenda Wallace, asserts three assignments of error:

1. The court erred in finding that the defendant was entitled to supplement
[sic] earning benefits at zero earnings rather than finding Brenda
Wallace temporarily totally disabled (TTD) or totally and permanently
disabile [sic], and, therefore, is entitled to TTD benefits or totally and
permanently disabled (TPD) under the odd-lot doctrine.

2. The court erred in reversing her ruling on an objection, in an effort to
avoid ruling on the substance of the matter, and not making a finding
that the defendant improperly made payments of medical bills under the
fee schedule of Dr. Frank Lopez’s bills.

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3. The court committed clear legal error in only awarding $2,000.00 in
penalties and $6,500.00 in attorney fees for the defendant’s “sham
rehab” proven at trial and the improper unilateral reduction of
defendant’s wages from $217.33 per week to $61.34 per week. The
rehabilitationist, Karen Herron, admitted that she did not notify
defendant of Dr. Gerald Nickerson’s approval of one of the jobs she
submitted nor did she check to see if the job was available following the
approval by the doctor, as required under the law, thus, giving rise to
penalties and attorney fees. The undersigned counsel put in an
enormous amount of time, effort, skill and clearly demonstrated
egregious conduct; yet, the trial court awarded a minimal amount given
two trials and one appeal to achieve the judgment.

DISCUSSION

In her first assignment of error, Mrs. Wallace argues that the symptoms of her

condition are such that any employment she may be able to find would aggravate her

condition and make her job performance inconsistent. This issue was litigated at the

first trial. She suggests that the WCJ should have applied the odd-lot doctrine to find

that she is incapable of working and therefore entitled to TTD or PTD benefits.

The evidence supports the WCJ’s findings that Mrs. Wallace is capable of

employment and therefore entitled to SEB and not total disability benefits. Dr.

Lopez, her own treating physician, testified she was capable of some type of

employment, though she may have to work in pain. Further, a functional capacity

evaluation performed by New Day Rehabilitation found that she is capable of gainful

employment with occasional sedentary lifting. We find no manifest error in the trial

court’s determination. This assignment of error lacks merit.

In the second assignment of error, Mrs. Wallace argues that Evergreen should

be required to pay penalties and attorney fees for failing to pay for Mrs. Wallace’s

treatment with Dr. Lopez according to the fee schedule published by the OWC. In

the original trial, Mrs. Wallace submitted explanations of benefits from F. A. Richard

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and Associates (FARA), Evergreen’s insurer, indicating network credits which Dr.

Lopez testified were not applicable. Dr. Lopez testified that he had not billed Mrs.

Wallace for any of the treatments. At the hearing following our remand to the OWC,

the WCJ determined that the issue was not properly pled in pre-trial filings and that

Dr. Lopez, not Mrs. Wallace, was the proper party to bring an action against

Evergreen or FARA.

Louisiana Revised Statutes 23:1034.2 instructs the OWC to establish a

reimbursement schedule for the payment of medical benefits due in workers’

compensation cases. Section F of the statute states:

(1) Should a dispute arise between a health care provider and the
employee, employer, or workers’ compensation insurer, either party may
submit the dispute to the office in the same manner and subject to the
same procedures as established for dispute resolution of claims for
workers’ compensation benefits.

(2) In addition to any other occasion when consolidation of claims
is otherwise allowed by applicable law, whenever multiple disputes exist
between a single health care provider and a single “payor” as defined in
R.S. 23:1142(A) concerning the proper amount payable pursuant to the
reimbursement schedule, then either the health care provider or the
payor shall have the right to have all such disputes between the payor
and the health care provider consolidated and tried together. The venue
for such consolidated claims shall be in either the workers’
compensation district of the parish in which the domicile of the provider
is located or the workers’ compensation district of the parish in which
the domicile of the payor or employer is located.

“Payor” is defined as the “entity responsible, whether by law or contract, for the

payment of the medical expenses incurred by a claimant as a result of a work related

injury.” La.R.S. 23:1142.

Evergreen argues that section F entitles the health care provider to bring an

action against FARA or Evergreen, not Mrs. Wallace. Mrs. Wallace has not been

denied treatment because of these network credits (which on most of the bills was

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$6.80), and Dr. Lopez has not required her to pay the difference between the fee

schedule and the amount he was paid. Furthermore, the reimbursement schedule was

not entered into evidence, so it is impossible to tell what Dr. Lopez should have been

paid. As the workers’ compensation statute specifically provides a cause of action

for Dr. Lopez to prove he was not paid according to the reimbursement schedule, we

find he is the proper party to bring this action, not Mrs. Wallace. This assignment of

error lacks merit.

In the third assignment of error, Mrs. Wallace argues she is entitled to penalties

and attorney fees for the “sham rehab” provided by Karen Herron, and an increase in

penalties and attorney fees for Evergreen’s unilateral reduction of benefits.

The only time penalties and attorney fees have been awarded relative to

rehabilitation is for discontinuation of rehabilitation, not for providing sham

rehabilitation. See Haynes v. Williams Fence and Aluminum, 02-442 (La. 4/21/03),

851 So.2d 917. Mrs. Wallace has not cited a case which awards penalties and

attorney fees for sham rehabilitation. Thus, we find that penalties and attorney fees

are not available.

Finally, Mrs. Wallace seeks an increase in the amount of penalties and attorney

fees awarded by the WCJ for Evergreen’s improper reduction of benefits. The WCJ,

in her judgment, found that Evergreen was arbitrary and capricious in unilaterally

reducing benefits. Thus, penalties were awarded pursuant to La.R.S. 23:1201(I),

which allows penalties up to $8,000.00 and attorney fees. The amount award by the

WCJ will not be disturbed unless we find that the WCJ abused her discretion. George

v. M & G Testing and Services, Inc., 95-31 (La.App. 3 Cir. 7/19/95), 663 So.2d 79,

writ denied, 96-0039 (La. 3/8/96), 669 So.2d 403. We do not find an abuse of

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discretion in the awards of penalties and attorney fees, and will not disturb the finding

of the WCJ.

CONCLUSION

The judgment of the WCJ is affirmed in all respects. Costs of this appeal are

assessed against Mrs. Wallace.

AFFIRMED.

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NUMBER WCA 07-0313

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

EVERGREEN PRESBYTERIAN MINISTRIES

VERSUS

BRENDA WALLACE

SAUNDERS, J., dissents in part and assigns written reasons.

I am unable to agree with the conclusion reached by the majority as to the

second assignment of error charged by the appellant, Ms. Brenda Wallace, and so I

must respectfully dissent.

DISCUSSION:

The majority reasons that La.R.S. 23:1034.2 authorizes a health care provider,

and only a health care provider, to bring an action for attorney fees and penalties

against an employer or workers’ compensation insurer in connection with the non-

payment of bills owed for treatment rendered, yet there is nothing in the language of

the statute to suggest that the legislature intended such a reading. On the contrary,

La.R.S. 23:1034.2 frames the resolution of disputes involving health care providers

permissively: “Should a dispute arise between a health care provider and the

employee, employer, or workers’ compensation insurer, either party may submit the

dispute to the office in the same manner and subject to the same procedures as

established for dispute resolution of claims for workers’ compensation benefits.”

La.R.S. 23:1034.2(F)(1) (emphasis added). Rather than precluding an injured

employee from bringing an action regarding a dispute involving the non-payment of

his or her health care provider by his employer or workers’ compensation insurer,

La.R.S. 23:1034.2(F)(1) merely includes such a health care provider in the list of

claimants with access to workers’ compensation dispute resolution procedures.

Similarly, neither does La.R.S. 23:1034.2(F)(2) have the preclusive effect that

the majority interprets it to have. That statute states:

In addition to any other occasion when consolidation of claims is
otherwise allowed by applicable law, whenever multiple disputes exist
between a single health care provider and a single “payor” . . . then
either the health care provider or the payor shall have the right to have
all such disputes between the payor and the health care provider
consolidated and tried together.

La.R.S. 23:1034.2(F)(2). As it relates to that statute, “payor” is defined as the “entity

responsible, whether by law or contract, for the payment of the medical expenses

incurred by a claimant as a result of a work related injury.” La.R.S. 23:1142.

While the majority is correct in concluding that Mrs. Wallace, as an injured

employee, fails to fit the definition of “payor,” it is unclear how such a failure

precludes her from asserting the action at issue here. La.R.S. 23:1034.2(F)(2) applies

to cases involving multiple disputes between a health care provider, here Dr. Lopez,

and a “payor,” here Evergreen or FARA, yet the instant case does not involve the

propriety or impropriety of a consolidation of multiple disputes. There is but one

dispute at issue here—namely, the non-payment of bills owed to Dr. Lopez. Whether

or not Mrs. Wallace meets the definition of “payor” is of no moment to the resolution

of the instant case. Furthermore, like La.R.S. 23:1034.2(F)(1), La.R.S.

23:1034.2(F)(2) frames its provisions permissively, rather than preclusively: “[E]ither

the health care provider or the payor shall have the right . . . .” (emphasis added). In

effect, La.R.S. 23:1034.2(F)(2) is little more than a statute allowing health care

providers and “payors” to consolidate, in the name of judicial efficiency, whatever

disputes may exist between them into a single suit.

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What the majority’s opinion fails to address is that none of the statutes

referenced in the opinion actually controls the question presented by this assignment

of error. On the contrary, suits for attorney fees and penalties in connection with non-

payment are governed by La.R.S. 23:1201: “Failure to provide payment in accordance

with this Section . . . shall result in the assessment of a penalty . . . together with

reasonable attorney fees for each disputed claim.” La.R.S. 23:1201(F). That statute

further reads:

(3) Except as provided in Paragraph (4) of this Subsection, any
additional compensation paid by the employer or insurer pursuant to this
Section shall be paid directly to the employee.

(4) In the event that the health care provider prevails on a claim
for the payment of his fee, penalties as provided in this Section and
reasonable attorney fees . . . may be awarded and paid directly to the
health care provider.

La.R.S. 23:1201(F)(3-4).

Here, the majority finds that applicable law precludes any party but for the

health care provider from bringing suit for attorney fees and penalties in conjunction

with the non-payment of bills owed, yet the language of La.R.S. 23:1201(F)

contemplates scenarios in which either the injured employee or the health care

provider is owed such remuneration for non-payment. In so framing the statutory

language, I find that the legislature must have intended for both health care providers

and injured employees to have standing to bring suit against employers or workers’

compensation insurers for their failure to pay bills owed to health care providers. A

similar conclusion was reached by this court in Ferrier v. Jordache-Ditto’s, 94-1317,

94-1318 (La.App. 3 Cir. 5/17/95), 662 So.2d 14. There, in deciding whether or not

health care providers were entitled under then-applicable law to bring suit for

penalties and attorney fees for the non-payment of bills owed, we concluded:

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From the language of [La.R.S. 23:1202.2], it is clear that its thrust is to
provide that the worker’s claim for compensation benefits will be
promptly paid. In that regard, it also is clear that the statute does not
explicitly provide for the award of attorney’s fees to a party other than
the worker’s compensation claimant. To read the statute to provide such
fees for the health care provider would require us to extend attorney’s
fees to the health care provider by implication.

Id. at 20 (emphasis added). As a consequence of the statutory changes embodied by

La.R.S. 23:1201(F), it is clear that our earlier holding as to health care providers no

longer holds jurisprudential water, yet—as to injured employees—our holding in

Ferrier remains as correct today as it was when first delivered: a workers’

compensation claimant, like Mrs. Wallace, is entitled to bring suit for penalties and

attorney fees as a consequence of the non-payment of medical bills to her health care

provider.

Moreover, if the majority’s emphasis on La.R.S. 23:1034.2(F)(2) affords any

persuasive insight into the issue here presented, it is by highlighting the legislature’s

concern with judicial efficiency in dealing with cases involving workers’

compensation disputes. The majority suggests that the law entitles a health care

provider to bring suit for penalties and attorney fees stemming from non-payment for

services rendered, yet at the same time does not entitle the very patient to whom such

care was provided to bring suit for the selfsame instance of non-payment. Such a

suggestion implies that the conduct which La.R.S. 23:1201(F) seeks to punish is only

punishable if challenged by two separate actions, an implication which runs directly

contrary to the judicial efficiency promoted by La.R.S. 23:1034.2(F)(2). In light of

the overwhelming evidence to the contrary, I cannot, in good conscience, project

intentions such as these upon the legislature.

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CONCLUSION:

For the reasons discussed above, I must respectfully dissent as to the majority’s

holding regarding the second assignment of error. In all other respects I agree with

the majority opinion.

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