Elaine Smith v. Town of Olla

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-384

ELAINE SMITH

VERSUS

TOWN OF OLLA

**********

APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - #1E
PARISH OF LASALLE, NO. 04-03927
BRENZA IRVING, WORKERS’ COMPENSATION JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

AFFIRMED AS AMENDED; REVERSED IN PART. ADDITIONAL
ATTORNEY FEES AWARDED FOR WORK PERFORMED ON APPEAL.

Robert McCuller Baldwin
Brian P. Bowes
D. Brian Allen
Travis Oliver, IV
Hudson, Potts & Bernstein, L.L.P.
Post Office Drawer 3008
Monroe, LA 71210-3008
(318) 388-4400
COUNSEL FOR DEFENDANT/APPELLANT:
Town of Olla

Kathryn Fowler Van Hoof
Van Hoof Law Firm
Post Office Drawer 339
LeCompte, LA 71346
(318) 776-4836
COUNSEL FOR PLAINTIFF/APPELLEE:
Elaine Smith

AMY, Judge.

In this workers’ compensation matter, the employee alleges a work-related

accident and injury. The employer filed a 1008 form to compel the employee to

submit to a physical examination. The employee reconvened, seeking, among other

things, SEBs, TTD benefits at the correct rate, penalties and attorney fees. Following

a hearing, the workers’ compensation judge found in the employee’s favor. The

employer appeals. For the following reasons, we affirm as amended and reverse in

part. Additional attorney fees are awarded for work performed on appeal.

Factual and Procedural Background

The record indicates that Elaine Smith (Smith) was hired by the Town of Olla

(the Town) on May 5, 2003, as a garbage truck driver. According to Smith, “it was

explained to [her] by [her] supervisor and the mayor that if [they] were ever

shorthanded [she] would have to ride the back of the truck and pick up garbage

instead of driving the truck.” Smith testified that such a situation arose on Thursday,

October 16, 2003. She explained that as the garbage truck was making its route, she

anticipated that the driver was going to stop at a particular spot, but he did not.

Consequently, “[she] jumped off the truck before it stopped and [she] twisted [her]

knee and [she] felt it pop.” Smith testified that as she was not in any immediate pain,

she did not mention the accident to her co-workers. She worked two more hours

before going on her lunch break. According to Smith, she spent the remainder of the

day studying for a license to become certified as a sewer and water technician.

Smith testified that on the next day, Friday, October 17, 2003, she drove the

garbage truck and that this shift lasted for an hour and a half. She studied for the rest

of the day. Smith denied any problems with her knee. However, she testified that

when she awoke on Saturday morning, her knee was swollen and hurting. Despite

her symptoms, Smith returned to work on Monday and worked her full shift. She

stated that she was in pain. Nevertheless, Smith testified that it was not until Tuesday

that she informed her supervisor, Henry Ross (Ross), that her knee was hurting her.

Ross approved Smith’s request to see a doctor.

Smith first presented to Hardtner Medical Center (Hardtner) emergency room

where she was diagnosed with a knee strain and given medication. She subsequently

visited her family physician, Dr. Kenneth Mauterer, Jr., who ordered x-rays and also

prescribed her medication. The x-rays did not show any significant abnormalities.

Noting tenderness over the medial meniscus and that the medication was not working,

Dr. Mauterer recommended that she see an orthopedic surgeon. Upon examining an

MRI of Smith’s knee, Dr. C. Terry Texada, Smith’s orthopedic surgeon, found that

the medial meniscus was intact. After utilizing conservative treatment, such as

physical therapy and intra-articular injections, to no avail, it was recommended that

Smith undergo surgery. The record indicates that the workers’ compensation carrier

for the Town requested a second opinion regarding whether surgery was medically

necessary. According to Dr. Douglas Brown, the physician who was chosen to render

a second opinion, he did not “think she needed to have her knee arthroscoped.”

The record further indicates that on June 1, 2004, Ronald Reibe (Reibe), the

casualty claims manager for Risk Management, Inc. (RMI), the third party administer

for the Town’s workers’ compensation claims, filed a disputed claim for

compensation form. Reibe alleged that Smith “refuses our IME for the “tie-breaker”

as it relates to the necessity of surgery.1 According to Reibe, Smith also abandoned

treatment in January 2004.

1
This issue was later rendered moot because prior to the hearing, Smith submitted to
physical examination.

2

Smith reconvened against the Town seeking temporary total disability benefits

(TTD benefits) at $196.98 per week, instead of $196.00 per week, approval of

arthroscopy as recommended by Dr. Texada, penalties and attorney fees, and interest

on all amounts. An amended reconventional demand was filed in which Smith

requested TTD benefits and supplemental earnings benefits (SEBs), mileage

reimbursement, vocational rehabilitation, penalties and attorney fees, and interest on

all amounts. In a second amended reconventional demand, penalties and attorney fees

were sought for the Town’s failure to authorize follow-up appointments with Dr.

Texada. A third reconventional demand was filed for the Town’s refusal to pay an

x-ray bill associated with a court-appointed IME; penalties and attorney fees were

requested.

Following a December 2005 hearing, the workers’ compensation judge ordered

that the Town approve the arthroscopic surgery and “pay any additional reasonable

and necessary medical treatment recommended by Dr. C. Terry Texada.” The

workers’ compensation judge further ordered the Town to reimburse Smith for her

mileage expenses, provide vocational rehabilitation, and to:

pay temporary total disability benefits to ELAINE SMITH for the period
May 12, 2004 to November 1, 2004 and supplemental earnings benefits
based on actual wages earned at Bill’s Dollar Store from November 1,
2004 until employment ended at Bill’s Dollar Store on March 21, 2005;
and supplemental earnings benefits based on zero earnings from the date
employment ended at Bill’s Dollar Store on March 21, 2005 through
April 29, 2005; and supplemental earnings benefits continuing after
April 29, 2005 and as authorized by law.

The workers’ compensation judge further held that the Town owed Smith an

additional ninety-eight cents for each week that “temporary total disability benefits

were paid at the incorrect rate, from date of injury through May 12, 2004.”

3

The Town was assessed with multiple penalties: (1) a $2,000.00 penalty for the

failure to correct the discrepancy in the compensation rate; (2) a $2,000.00 penalty

for the termination of and failure to reinstate TTD benefits; (3) a $2,000.00 penalty

for the failure to reimburse Smith for her mileage expenses and for the failure to

provide vocational rehabilitation; and (4) a $2,000.00 penalty for the failure to

authorize follow-up appointments with Dr. Texada and for failure to pay the medical

expenses associated with the court-appointed IME. Smith was awarded $10,000.00

in attorney fees, plus interest, and all costs.

The Town appeals, raising the following issues:

I. Whether the Workers’ Compensation Judge was clearly wrong
and manifestly erroneous by calculating TTD’s at 67% of weekly
wage rather than 66 2/3 % as mandated by law.

II. Whether the Workers’ Compensation Judge was clearly wrong
and manifestly erroneous by finding that [Smith met] her burden
of proof to prove that she was injured at work with only her
testimony alone when the two essential elements to do so were
not satisfied: (1) no other evidence discredits or casts serious
doubt upon [Smith’s] version of incident [and] (2) [Smith’s]
testimony is corroborated in [sic] by the circumstances following
the alleged incident.

III. Whether the Workers’ Compensation Judge was clearly wrong
and manifestly erroneous by awarding [Smith] supplemental
earnings benefits even though she has been released to full duty
by two doctors and she has failed to submit any pay stubs to the
insurer within thirty (30) days of the termination of the week
which is being claimed as required by law.

IV. Whether the Workers’ Compensation Judge was clearly wrong
and manifestly erroneous awarding [Smith] penalties and attorney
fees for [the Town’s] termination of Workers’ Compensation
Indemnity and Medical Benefits where the [Town] was not
arbitrary and capricious and reasonably controverted [Smith’s]
allegations [that] her [knee] injury arose from her employment.

Smith answered the appeal, seeking additional attorney fees for work performed on

appeal.

4

Discussion

Work-Related Accident and Injury

The Town contends that Smith did not prove by a preponderance of the

evidence that there was a work-related accident and injury. It questions Smith’s

credibility in that she denies any previous knee injury or complaints. Accordingly,

the Town alleges that Dr. Texada’s opinion should be accorded little weight in that

it was based on an inaccurate history from Smith. Further, the Town “argues that if

an accident did occur, [Smith] has not presented evidence of disability arising from

accident. She is currently able to work full time.”

A workers’ compensation claimant has the burden of proving by a

preponderance of the evidence a work-related accident and injury. Hebert v. C.G.

Logan Constr., Inc., 06-612 (La.App. 3 Cir. 11/2/06), 942 So.2d 77. This court

explained:

A worker’s testimony alone may be sufficient to discharge this burden
of proof, provided two elements are satisfied: (1) no other evidence
discredits or casts serious doubt upon the worker’s version of the
incident and (2) the worker’s testimony is corroborated by the
circumstances following the alleged incident. Bruno v. Harbert Int’l,
Inc., 593 So.2d 357 (La.1992). Corroboration of the worker’s testimony
may be provided by the testimony of co-workers, spouses, friends, or by
medical evidence. Id.

Id. at 80. “Whether a claimant has carried his burden of proof and whether testimony

is credible are questions of fact to be determined by the workers’ compensation

judge.” Id. at 79. The factual findings of the workers’ compensation judge are

subject to the manifest error standard of review. Id.

In her reasons for ruling, the workers’ compensation judge explained:

5

In regard to the issue concerning whether [Smith]2 was injured
while working in the course and scope of her employment with [the
Town], this Court is persuaded she was. [Smith] described an
unexpected, unforseen actual, identifiable, precipitous event occurring
October 16th, 2003. She testified she stepped off the back of a moving
garbage truck while working for the Town of Olla. She recalls twisting
her right knee, feeling pain and hearing a pop.

[Smith’s] testimony concerning the occurrence of an accident was
credible and supported by medical evidence. The [Town’s] report of
injury recorded the occurrence of the accident with a resulting torn
cartilage of [Smith’s] right knee. On October 22nd, 2003, only six days
after sustaining the injury to her knee, Elaine Smith presented to the
emergency room of Har[d]tner Medical Center. She complained of right
knee pain since the Friday of the previous week. She was diagnosed
with a knee strain, prescribed medications and released from work.
[Smith] was examined by her family physician, Dr. Kenneth Mauterer,
on October 28th, 2003. She complained of right knee pain. At that
time, [Smith] did not recall doing anything to hurt her knee. However,
as of the November 5th, 2003 visit with Dr. Mauterer, [Smith] recalled
the event occurring prior to the onset of pain and swelling. She recalled
jumping from the garbage truck and having the difficulty with her knee.

During the October 28th, 2003 visit, Dr. Mauterer noted [Smith’s]
knee was very tender over the medial meniscus. Effusion was noted. As
of November 5th, 2003, [Smith] continued with complaints of pain. Dr.
Mauterer noted, “Extremely tender over medial meniscus and she may
have a tear.” She was referred to an orthopaedic physician and Dr.
Mauterer noted, “She may require scoping.”

The injury was reported to [Smith’s] supervisor within the
timeframe required by Louisiana Revised Statute[s] 23:1301. He
authorized medical treatment. The mayor of the Town of Olla certainly
did not question the occurrence of [Smith’s] accident. He, instead,
considered the actions of Risk Management a “lack of progress due to
mismanagement.”

No evidence discredits nor casts serious doubt on [Smith’s]
version of the incident and her testimony is corroborated by the
circumstances following the incident. The record is void of any
evidence indicating [Smith] had difficulties performing her job due to
complications with her right knee. However, following the October
16th, 2003 incident, complications with her knee began and resulted in
a disability.

2
We note that in her reasons for ruling, the workers’ compensation judge used both
“claimant” and “defendant” to refer to Smith. For consistency of discussion, the names have been
changed to Smith and the Town.

6

Jurisprudence has held a workers’ compensation claimant’s
disability is presumed to have resulted from an accident if before the
accident the injured person was in good health, but commencing with
the accident symptoms of the disabling condition appeared and
continuously manifested themselves, provided either that there is
sufficient medical evidence to show there to be a reasonable possibility
of a causal connection between the accident and disabling condition, or
that the nature of the accident, when combined with other facts of the
case, raises a natural inference through human experience of such causal
connection. Therefore, this Court finds that [Smith] was injured while
working in the course and scope of her employment with the Town of
Olla on October 16th, 2003. According to Louisiana Revised Statute[s]
23:1301, an employer is liable for workers’ compensation benefits and
necessary medical expenses when an employee receives personal injury
by accident arising out of and in the course and scope of her
employment.

After reviewing the record, we find that it supports a determination that Smith

proved by a preponderance of the evidence that her accident occurred in the course

and scope of her employment with the Town. Smith testified that she injured her

right knee on October 16, 2003 while jumping off the back of a garbage truck. She

asserted that her knee twisted and that she felt it pop.

According to Smith, her accident happened at 10:00 a.m. She stated that “at

the time I didn’t think anything about it. I went on and did my regular work. We

worked until about 12 o’clock.” Smith testified that she was not in any severe pain,

and consequently, she did not tell anyone of her injury. In fact, the next day, Smith

was able to return to work without incident. It was not until Saturday morning that

she experienced pain and swelling in her knee. According to her testimony, there was

not any intervening event between Thursday and Saturday that resulted in an injury

to her knee.

Although her knee was swollen, Smith returned to work on Monday morning

and worked a full day. She stated that even though her knee was bothering her, she

did not mention it to anyone because she “didn’t know what was going on[.]”

7

However, on Tuesday, she spoke with Ross, her supervisor, and “told him that [her]

knee had been hurting and [she] didn’t know why. And [she] asked him if [she] could

go to the doctor.”

According to Hardtner medical records, Smith presented to its emergency room

on Wednesday, October 22, 2003 complaining of “[right] knee pain since Friday of

last week.” She stated that “five days ago,” her knee started swelling and the pain

increased. Smith was diagnosed as having a strained right knee. The record indicates

that she was taken off of work for a couple of days and prescribed medication. Smith

testified that the emergency room physician told her to follow up with her family

physician if she was not feeling better.

According to Smith, she was not able to get an appointment with her family

physician, Dr. Mauterer, until a week later. When she presented to Dr. Mauterer on

October 28, 2003, she complained of right knee pain. Dr. Mauterer’s notes reflect

that Smith said that “she ha[d]n’t done anything to hurt it. She has to use the [right]

leg a lot when driving a truck.” On physical examination, Dr. Mauterer noted that she

was “[v]ery tender over medial meniscus of [right] leg down into the front part of

leg.” X-rays showed “no abnormalities other than a little fluid.” Dr. Mauterer gave

Smith a prescription for her pain and scheduled a return appointment for the

following week. According to a work excuse that was entered into evidence, Smith

was restricted from driving for a week, and Dr. Mauterer set her return to work for

November 6, 2003.

On November 5, 2003, Smith revisited Dr. Mauterer, complaining that she was

“still having pain in [right] knee on medial aspect” and that the medication was not

working. According to Dr. Mauterer’s notes, Smith related to him that:

8

[S]he doesn’t remember injuring the knee. She drives a truck & uses her
knee a lot & thought it might [be] from that but apparently one of the
workers wasn’t there & she worked the back of the truck. She jumped
off before the truck stopped & she remembered she had some difficulty.
This was on a Thursday. The next night is when the knee started hurting
her & swelling. She wasn’t sure if it was related so she didn’t say
anything.

Because Smith was “[e]xtremely tender over [the] medial meniscus[,]” Dr. Mauterer

opined that “she may have a tear.” He, therefore, recommended that she see an

orthopedic surgeon as she “may require scoping.” Dr. Mauterer stated that Smith

could “not return to work until seen by [an] orthopedist.”

On November 13, 2003, Smith met with Dr. Texada, an orthopedic surgeon,

and informed him that she had “jumped off the back of a garbage truck 1 month ago

injuring the knee.” When examining her, he found “tenderness along the medial joint

line.” Believing that Smith may have a medial meniscal tear, Dr. Texada ordered an

MRI of her right knee.

The MRI showed “small to moderate sized joint effusion and low-grade

chondromalacia3 patella on both facets.” The medial meniscus was intact. Dr.

Texada testified that based on these findings, he administered an intra-articular

injection to try to alleviate Smith’s symptoms. He also recommended that she return

to physical therapy. He noted that she “may need to consider doing an arthroscopic

exam if this doesn’t resolve.” Dr. Texada advised that Smith could not return to

work.

Dr. Texada did not see Smith again until January 6, 2004 wherein he noted that

her pain was still severe. His plan was to “[p]roceed with right knee arthroscopy with

possible lateral release and excision of medial plica on 02/02/04.” Dr. Texada

3
According to Dr. Texada, chondromalacia is “a softening of the cartilage, and then
ultimately becomes, you know, very degenerative[.]”

9

explained that Smith did not undergo surgery because the workers’ compensation

carrier requested a second opinion.

Dr. Brown, an orthopedic surgeon, evaluated Smith on January 23, 2004 at the

request of RMI. According to the history given to him, Smith had jumped off the

back of a garbage truck and “twisted her right knee. She said that since that time -

course, I was seeing her some three months later - that she was having some

occasional swelling, a sense of popping and pain and caused her to limp.” Smith

denied any prior knee injuries. Dr. Brown stated that he reviewed some of the records

of Dr. Mauterer, the October 22, 2003 Hardtner emergency room record, the June 17,

2004 record from Dr. Texada, and records from Smith’s physical therapy sessions.

Additionally, he examined her and reviewed her MRI. Based on his observations and

findings, Dr. Brown concluded:

I didn’t think she needed to have her knee arthroscoped. I thought that
she needed more than that a brace which would hold her kneecap
straight and based on my exam that day I felt like she could go ahead
and work as a garbage truck driver, which is what she had been doing.
So it looked like her weight had a lot to do with the early softening of
the cartilage in her kneecap and she did not describe a direct blow to the
knee, which would be something that could cause this in an accident.
This normally doesn’t occur with a twisting injury, so I felt like it was
a preexisting problem that might have been somewhat aggravated by the
accident, but she had resolved it when I saw her.

Dr. Brown clarified that his findings were consistent with someone who had this

condition prior to October 16, 2003, the date of Smith’s accident.

Upon further questioning, Dr. Brown testified that he did not disagree with the

knee strain diagnosis given at Hardtner. Additionally, he testified that Dr. Mauterer’s

recommendation of scoping seemed reasonable in light of Smith’s injury and

complaints. Of notable significance, Dr. Brown agreed with defense counsel’s

assertion that if Smith had no knee complaints close in time before the incident and

10

then with the incident the knee complaints began, the incident aggravated the

condition. According to Dr. Brown’s testimony, if all of Dr. Texada’s records were

made available to him, his opinion may have changed at the time of his evaluation of

Smith.

Dr. Texada did not see Smith again until May 27, 2004. During this visit, Dr.

Texada noted that Smith was still “symptomatic, especially along the medial aspect

of the knee. She has recurring effusion and persistent pain. She has not been able to

return back to work.” He was still of the opinion that Smith had a symptomatic plica

which was related to the garbage truck incident. He treated Smith conservatively by

giving her another intra-articular injection and referring her back to physical therapy.

During her June 14, 2004 visit, Dr. Texada noted that despite the negative MRI

results, he still opined that Smith had a symptomatic plica and possibly a meniscal

tear. He also noted that Smith was to be seen for a third opinion.

Dr. John Fairbanks, an orthopedic surgeon, examined Smith on October 5,

2004 to render a third opinion regarding her condition. He stated that he reviewed

Smith’s medical records and the notes of Dr. Mauterer, Dr. Texada, and Dr. Brown.

After reviewing the MRI, he noted that there was fluid in the joint and low grade

chondromalacia of the patella. Dr. Fairbanks explained that, “the probabilities are

very high that if she does have chondromalacia patella in that knee, which is more

common than it’s not common, that it would be a pre-existing condition[.]” When

asked whether he thought that Smith’s injury was work-related, Dr. Fairbanks

answered that he did not “think she ha[d] anything objective you c[ould] hang a hat

on to call this an on-the-job injury.”

11

According to Dr. Fairbanks, Smith would not have benefitted from surgery and

could resume her normal activities. He explained how he reached this conclusion:

Well, number one, is lack of any kind of physical findings that
would suggest an indication for an arthroscopy being of benefit to the
patient. Number two, and very important, is that with her provocation
injection she didn’t get any kind of semblance of improvement in her
pain. And number three, was a lack of any kind of MRI findings.
Number four, was the fact that there was -- I felt as though might be --
no. I felt as though, again, there just weren’t any indications for her to
have surgical intervention. And I was trying to be liberal in my
approach. But I just couldn’t find anything there.

When asked whether it was reasonable for Dr. Texada to recommend an arthroscopic

exam, Dr. Fairbanks maintained that:

I think it was a reasonable opinion if the patient has been paying
for it out of her own pocket. But this is an independent medical
evaluation considering -- concerning an injured worker, and for me to
be unbiased and try to be objective, I need something to hang my hat on
to say that Olla or her work comp carrier should pay for these services.

Dr. Fairbanks clarified that he did not “feel as though her stepping off the

garbage truck in Olla is something that they [the Town] should be held -- liable for.

I just can’t find that.” Further, with regard to the duration of Smith’s absence from

work, Dr. Fairbanks testified that “in a work comp issue of this magnitude, somebody

should get back to work within six to eight weeks if you’ve done everything that you

can do to help them.” When asked his opinion as to how long Smith should have

remained off of work, Dr. Fairbanks answered, “I think a maximum for subjective

complaints, without objective evidence of compensable injury, is a maximum three

months.”

The Town alleges that the findings of Dr. Brown and Dr. Fairbanks negate the

likelihood that Smith suffered a work-related accident and injury. It reiterates that Dr.

Brown opined that Smith’s chondromalacia was a pre-existing condition which was

12

related to her weight. Likewise, Dr. Fairbanks stated that there was no objective

evidence of a work-related injury. He opined that Smith’s condition was degenerative

in nature.

It is within the province of the workers’ compensation judge to assess the

credibility of the physicians who examined and/or treated Smith. Hebert, 942 So.2d

77. This court recently stated, in Freeland v. Bourgeois, 06-932, p. 31 (La.App. 3

Cir. 1/24/07), 950 So.2d 100, 119-20, that:

[I]n general, the observations and opinions of the treating physician are
to be accorded greater weight than those of a physician who has only
seen the party for purposes of rendering an expert opinion concerning
the party’s condition. However, the treating physician’s testimony is not
irrebuttable, as the trier of fact is required to weigh the testimony of all
of the medical witnesses.” Freeman v. Rew, 557 So.2d 748, 751
(La.App. 2nd Cir.1990) (citations omitted), writ denied, 63 So.2d 1154
(La.6/01/90). Ultimately, “the weight afforded a treating physician’s
testimony is largely dependent upon the physician’s qualifications and
the facts upon which his opinion is based.” Id.

According to Smith’s testimony, she met with Dr. Brown and Dr. Fairbanks on

one occasion each and then only for very brief periods of time. The record indicates

that she visited with Dr. Texada approximately five times over the course of a year.

In light of this evidence, we conclude that the workers’ compensation judge was not

manifestly erroneous in according greater weight to the observations, findings, and

opinions of Dr. Texada.4 See Spell v. Conn Appliances, Inc., 97-309 (La.App. 3 Cir.

10/8/97), 702 So.2d 797 (wherein the workers’ compensation judge, who noted that

4
In discounting Dr. Fairbanks’ opinion, the workers’ compensation judge remarked:

This Court is unable to give substantial weight to the opinion of Dr. Fairbanks. It
seems that his medical opinion is clouded and overshadowed by his desire to prevent
the Town of Olla from suffering any liability for [Smith’s] injury. His opinion
cannot be considered unbiased, reliable nor independent. Nevertheless, even he
eventually noted the absence of a reason to denounce Dr. Texada’s thoughts
concerning [Smith’s] need for physical therapy and the arthroscope. He had no
reason to disagree with Dr. Texada’s opinion that claimant should remain off work.

13

the opinion of the claimant’s treating physician differed with that of three other

physicians, gave great weight to the treating physician’s opinion insofar as he had

observed the claimant over a ten-month period).

We now turn to the Town’s contention that Smith is not credible because she

denied any prior knee injuries. The Town references a notation in the records of Dr.

Mauterer in which it states, “[s]he previously injured it [her knee] yrs ago playing

basketball.” Further, in a record dated March 24, 1999, Dr. Mauterer noted that

Smith had “some problems with her knees.”

At trial, Smith denied ever injuring her knee playing basketball and disputed

telling Dr. Mauterer such. She testified that on March 24, 1999, she had complained

that her ankle, not her knee, was causing her problems.5

Although there may have been an alleged discrepancy between Smith’s

testimony and the notations in her medical records, the workers’ compensation judge

was free to accept Smith’s testimony that she never had any previous problems with

her knees. Harbor v. Christus St. Frances Cabrini Hosp., 06-593 (La.App. 3 Cir.

11/2/06), 943 So.2d 545.

Based on the foregoing testimony and records, we find no manifest error in the

trial court’s conclusion that Smith proved by a preponderance of the evidence a work-

related accident and a disabling condition. The evidence shows that she was in

relatively good health prior to her accident and that after her accident, she

experienced persistent knee problems. See Fluitt v. Christus Health Cent. La., 05-

945, p. 13 (La.App. 3 Cir. 6/28/06), 935 So.2d 369, 379, writ denied, 06-2302 (La.

12/8/06), 943 So.2d 1094 (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146

5
Smith testified that Dr. Mauterer treated her mother for degenerative arthritis in her knees.

14

(La.1979)) (wherein this court explained that, “a claimant’s disability is presumed to

have been caused by an accident, if before the accident the claimant was in good

health but commencing with the accident the symptoms of the disabling condition

appear and continuously manifest themselves, provided that the medical evidence

establishes a reasonable possibility of a causal connection between the accident and

the disabling condition.”)

Therefore, this assignment has no merit.

Temporary Total Disability Benefits

The Town asserts in brief that under La.R.S. 23:1221(1)(a), TTD benefits are

to be paid at “sixty-six and two-thirds percent of wages during the period of such

disability.” Given Smith’s average weekly wage of $294.00, the Town argues that

66 2/3% of this wage is $196.00 and that it paid Smith such amount. The Town

suggests that when the workers’ compensation judge determined that TTD benefits

were owed in the amount of $196.98, she apparently multiplied the average weekly

wage by .67 rather than by .666666666 as it claims is required by statute. Therefore,

the Town argues that the workers’ compensation judge erred in finding that TTD

benefits were paid at the incorrect rate and that Smith was owed an additional ninety-

eight cents for each week that TTD benefits were paid.

Conversely, “[i]t is the position of [Smith] that she should have been paid

$196.98 per week, or $294 x .67 (which is 66 2/3 percent, rounded to the nearest

hundredth), under La.R.S. 23:1221(1)(a) for TTD [benefits].”

Louisiana Revised Statutes 23:1221provides in pertinent part:

Compensation shall be paid under this Chapter in accordance with the
following schedule of payments:

(1) Temporary total.

15

(a) For any injury producing temporary total disability of an
employee to engage in any self-employment or occupation for wages,
whether or not the same or a similar occupation as that in which the
employee was customarily engaged when injured, and whether or not an
occupation for which the employee at the time of injury was particularly
fitted by reason of education, training, or experience, sixty-six and two-
thirds percent of wages during the period of such disability.

The issue posed in this appeal is whether the compensation rate should be

calculated by multiplying the average weekly wage by 67% or by 66 2/3%. However,

a plain reading of the statute clearly and specifically conveys that TTD benefits are

to be paid at 66 2/3% of the average weekly wage during the period of disability. See

La.R.S. 1:3.6 To require the calculation imposed by the workers’ compensation judge

would be to essentially disregard the “sixty-six and two-thirds” provision of positive

law in favor of “sixty-seven” percent.7 Therefore, we conclude that the workers’

compensation judge erred in finding that TTD benefits were paid at an incorrect rate

and in ordering the Town to pay Smith an additional ninety-eight cents for each week

that TTD benefits were paid.

Supplemental Earnings Benefits

In this assignment of error, the Town alleges that the workers’ compensation

judge erred in awarding SEBs because two physicians have released Smith to full

duty. Furthermore, according to the Town, Smith “has failed to submit any pay stubs

to the insurer within thirty (30) days of the termination of the week which is being

claimed.”

6
Louisiana Revised Statutes 1:3 provides: “Words and phrases shall be read with their
context and shall be construed according to the common and approved usage of the language.”
7
We note that in the workers’ compensation judge’s reasons for ruling, she does not
specifically state that she is multiplying Smith’s average weekly wage by .67. Rather she states that,
“the Workers’ Compensation Statute requires the payment of sixty-six and two-thirds percent of the
injured workers’ average weekly wage; not sixty-six and two-thirds percent minus ninety-eight cents
($.98).” However, mathematical calculations demonstrate that multiplying the average weekly wage
by 66 2/3%, as is required by the statute, results in the sum of $196.00, not $196.98.

16

Louisiana Revised Statutes 23:1221(3) provides in pertinent part:

(a) For injury resulting in the employee’s inability to earn wages
equal to ninety percent or more of wages at time of injury, supplemental
earnings benefits equal to sixty-six and two-thirds percent of the
difference between the average monthly wages at time of injury and
average monthly wages earned or average monthly wages the employee
is able to earn in any month thereafter in any employment or
self-employment, whether or not the same or a similar occupation as that
in which the employee was customarily engaged when injured and
whether or not an occupation for which the employee at the time of the
injury was particularly fitted by reason of education, training, and
experience, such comparison to be made on a monthly basis. Average
monthly wages shall be computed by multiplying his “wages” by fifty-
two and then dividing the quotient by twelve.

(b) For purposes of Subparagraph (3)(a), of this Paragraph, the
amount determined to be the wages the employee is able to earn in any
month shall in no case be less than the sums actually received by the
employee, including, but not limited to, earnings from odd-lot
employment, sheltered employment, and employment while working in
any pain.

(c)(i) Notwithstanding the provisions of Subparagraph (b) of this
Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the
employee is not engaged in any employment or self-employment, as
described in Subparagraph (b) of this Paragraph, or is earning wages less
than the employee is able to earn, the amount determined to be the
wages the employee is able to earn in any month shall in no case be less
than the sum the employee would have earned in any employment or
self-employment, as described in Subparagraph (b) of this Paragraph,
which he was physically able to perform, and (1) which he was offered
or tendered by the employer or any other employer, or (2) which is
proven available to the employee in the employee’s or employer’s
community or reasonable geographic region.

Louisiana Revised Statutes 23:1221(3)(f) states: “Any compensable supplemental

earnings benefits loss shall be reported by the employee to the insurer or self-insured

employer within thirty days after the termination of the week for which such loss is

claimed.”

When awarding SEBs, the workers’ compensation judge explained:

On November 27th, 2004, she began employment with Bill’s Dollar
Store. She earned a salary of five dollars fifty cent[s] ($5.50) per hour

17

according to her trial testimony. She ended employment with Bill’s
Dollar Store due to the discomfort of her knee. Her ending salary was
six dollars ($6) per hour. There is no dispute that [Smith] was paid an
average weekly wage at the time of her injury of two hundred ninety-
four dollars ($294.00) per week. Her salary at Bill’s Dollar Store does
not amount to ninety percent of her pre-injury wage. Therefore, [Smith]
is entitled to supplemental earnings benefits based upon her actual
earnings from November 27th, 2004 through the end of her employment
with Bill’s Dollar Store. Supplemental earnings benefits shall continue
based upon zero earnings from her last day of employment with Bill’s
Dollar Store through May 8th, 2005. On May 8th, 2005, [Smith] began
employment with Columbia State School. Her starting salary was six
dollars sixty-three cent[s] ($6.63) per hour. She currently earns six
dollars seventy-six cent[s] ($6.76) per hour. During her employment
period [Smith] is entitled to supplemental earnings benefits for any
period wherein she did not earn ninety percent of her pre-injury wage.

At the outset, we note that Dr. Texada, Smith’s treating orthopedic surgeon, did

not release Smith to full duty. Rather the record shows that as of June 14, 2004, Dr.

Texada’s last appointment with Smith, he was still of the opinion that she was

incapable of working. Moreover, as we have already concluded, the workers’

compensation judge did not err in giving more weight to Dr. Texada’s opinion that

Smith could not work. See Freeland, 950 So.2d 100.

At trial, Smith testified that when she worked for the Town, she was paid $7.35

per hour and that she worked forty hours per week. She further testified that after her

accident, she tried to return to her prvious position. However, she stated that the

mayor informed her that “without surgery [she] couldn’t return to work and that his

insurance company wouldn’t cover [her].” Smith testified that she found employment

with Bill’s Dollar Store in November 2004. According to Smith, she earned $5.50

an hour, and her duties included “running the cash register and stocking and doing

some lifting. Just things you do in a store. But I didn’t stay there because of all the

standing -- was bad on my knee and the lifting.”

18

She testified that she subsequently began working at Columbia Developmental

Center as a residual service support employee. Her duties consisted of assisting two

women “with their needs, which is not much. I just do a lot of sitting.” Smith

explained that when she first began working there, she was paid $6.63 an hour and

that she worked full-time (40 hours per week). At the time of trial, she was earning

$6.76 per hour.

After reviewing the record, we find that it supports a determination that when

Smith worked at Bill’s Dollar Store, she did not earn ninety percent of her pre-injury

wages. Therefore, she is entitled to SEBs for the period she was employed by Bill’s

Dollar Store and the period thereafter in which she was unemployed. With regard to

her employment at Columbia Developmental Center, Smith testified that her starting

salary was $6.63 per hour and that she worked forty hours per week. When her

average monthly wages are calculated, they are greater than ninety percent of her pre-

injury wages.8 Accordingly, we find that the workers’ compensation judge erred in

awarding SEBs for the period in which Smith worked at Columbia Developmental

Center.

Penalties

According to the Town, Smith is not entitled to penalties because “all of her

requests for medical care and indemnity are not related to employment.”

Alternatively, it argues that Smith’s requests “were reasonably controverted based on

the medical records and reports of D[octors] Brown and Fairbanks.”

8
Pursuant to La.R.S. 23:1221(3), Smith must show that her post-injury wages were less than
ninety percent of her pre-injury wages. Smith’s average monthly wages at the time of her injury
were $1,274.00. Given her starting salary at Columbia Developmental Center, Smith’s average
monthly wages were $1,149.20, slightly greater than ninety percent of her pre-injury wages.

19

Pursuant to La.R.S. 23:1201(E), “[m]edical benefits . . . shall be paid within

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

Revised Statutes 23:1201(F) provides in pertinent part:

F. Failure to provide payment in accordance with this Section or
failure to consent to the employee’s request to select a treating physician
or change physicians when such consent is required by R.S. 23:1121
shall result in the assessment of a penalty in an amount up to the greater
of twelve percent of any unpaid compensation or medical benefits, or
fifty dollars per calendar day for each day in which any and all
compensation or medical benefits remain unpaid or such consent is
withheld, together with reasonable attorney fees for each disputed claim;
however, the fifty dollars per calendar day penalty shall not exceed a
maximum of two thousand dollars in the aggregate for any claim. The
maximum amount of penalties which may be imposed at a hearing on
the merits regardless of the number of penalties which might be imposed
under this Section is eight thousand dollars. An award of penalties and
attorney fees at any hearing on the merits shall be res judicata as to any
and all claims for which penalties may be imposed under this Section
which precedes the date of the hearing. Penalties shall be assessed in
the following manner:

....

(2) This Subsection 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.

The sanctions of La.R.S. 23:1201(F) also apply for the failure to timely authorize

necessary medical treatment or procedures within sixty days. Lambert v. Brookshire

Grocery Co., 06-1001 (La.App. 3 Cir. 12/2/06), 945 So.2d 918.

In Landry v. Furniture Center, 05-634, p. 10 (La.App. 3 Cir. 1/11/06), 920

So.2d 304, 311, writ denied, 06-358 (La. 4/28/06) (citations omitted), this court

explained:

To avoid the imposition of penalties and attorney fees, the employer and
its insurer must provide factual and medical evidence to reasonably
controvert a workers’ compensation claim. The employer must have an
“articulable and objective reason to deny benefits at the time it took the
action.”

20

Unless manifestly erroneous, the awarding of penalties and attorney fees will not be

overturned on appeal. Id.

In assessing various penalties, the workers’ compensation judge remarked:

Arbitrary and capricious behavior consists of wilful and
unreasonable action without consideration and regard for the facts and
circumstances presented or of seemingly unfounded motivation. The
facts known to the employer/insurer at the time of its action helps
determine whether the behavior complained of is arbitrary and
capricious. Crucial to the inquiry is whether the employer had objective
reasons for denying or discounting benefits at the time it took action.
No representative of the Town of Olla testified at trial. Only an
employee of the self-insured fund in which the [T]own participates,
Ronald Reibe, testified at trial. Mr. Reibe testified and he is the person
with ultimate authority to determine whether payments should be made
on the claim. He is, in fact, the person who filed the Louisiana
Department of Labor disputed claim for compensation form 1008 in this
case against Elaine Smith. No witness was brought to explain any of the
other determinations on this case after Mr. Reibe claimed he ended his
hands-on activities on the claim. Mr. Reibe claimed a lack of
knowledge in response to most questions under examination by counsel
for Ms. Smith in spite of the fact that he had the payment authority and
knew well in advance of trial that he was subpoenaed to appear at trial.
He is a supervisor on the claim and yet did not bring an informed
witness to defend this claim. Therefore, [the Town] did in fact fail to
reasonably controvert [Smith’s] claim for reinstatement of benefits,
surgery, continued medical treatment, mileage reimbursement and
vocational rehabilitation services. They were clearly arbitrary and
capricious in their denial of her request for reinstatement of workers’
compensation benefits and the payment of medical expenses. Therefore,
for these reasons, the penalties as noted hereinabove are assessed and
attorney fees are awarded in this case in the amount of ten thousand
dollars ($10,000). All interest on all claims shall be paid in accordance
with law.

Given the number of penalties, we will address them separately.

Termination of TTD Benefits

The Town contends that Smith “was not injured in the course and scope of her

employment, and that any condition she does suffer from is caused by other factors,

such as her weight.” It argues that it reasonably controverted her claim based on the

21

testimonies of Dr. Brown and Dr. Fairbanks that Smith’s injury was not caused by a

work-related accident.

In assessing a penalty for the termination of TTD benefits, the workers’

compensation judge noted:

[The Town] was also arbitrary and capricious in their termination
of temporary total disability benefits. [The Town] terminated [Smith’s]
workers’ compensation benefits on May 14th, 2004 [sic]. They contend
benefits were terminated because [Smith] refused their “IME for tie
breaker.” They also contend [Smith] abandoned medical treatment.
Evidence demonstrates the alleged “tie breaker” was actually [the
Town’s] second choice of physician in the field of orthopaedics, and
[Smith] was continuing to seek treatment with her choice of orthopaedic
physician but said request was denied. [Smith’s] failure to attend a
medical examination with [the Town’s] second choice of physician did
not provide a basis for the termination of her temporary total disability
benefits. Also, [Smith] did not abandon medical treatment. According
to the testimony of Dr. Texada, any lapse between treatment periods for
[Smith] were due to [the Town’s] failure to authorize said treatments.
Furthermore, at the time of the termination of benefits, the only doctor
finding [Smith] able to return to work was Dr. Douglas Brown. He
found she was able to return to work as of January 23rd, 2004.
However, she was released from work again by her treating physician,
Dr. Texada, on June 14th, 2004.

Jurisprudence has held that an employer/insurer may not avoid
penalties for arbitrary nonpayment by relying on an initial optimistic
medical report if they receive substantial evidence to indicate the
employee has a continuing disability. Further, this Court notes the
termination of benefits on May 12th, 2004. However, defendant’s
exhibit twelve shows the correspondence requesting the appointment
with the “tie breaker” is dated May 13th, 2004. Benefits were
terminated prior to a request for [Smith] to be examined by a second
choice of physician. Therefore, her failure to attend said examination
could not serve as the reason for said termination of benefits.

The record shows that Reibe wrote a letter to Smith dated May 13, 2004,

stating that TTD benefits were paid through May 12, 2004. He explained: “You have

not supplied us with any additional medicals to substan[t]iate your continued

disability status therefore we are withholding any further indemnity payments until

your status can be determined.” Reibe further explained that because of Dr. Brown’s

22

opinion that Smith could return to work, she was scheduled for “a third opinion to

help you, your employer, and RMI determine your status for continued benefits.”

We note that on January 6, 2004, Dr. Texada opined that Smith was unable to

return to work and that surgery was needed. Following his examination of Smith on

January 23, 2004, Dr. Brown opined that Smith’s injury was not work-related, that

she could return to work, and that surgery was not necessary. The Town did not have

Dr. Fairbanks’ opinion indicating the same findings because Dr. Fairbanks did not

examine Smith until months after TTD benefits were terminated.

Additionally, we note that when Smith returned to Dr. Texada on May 27,

2004, he noted her persistent problems with her knee, that she had not been able to

return to work, and that he felt that her injury was work-related. We further note that

in a June 8, 2004 letter Reibe sent to Dr. Texada, he stated:

We would appreciate you briefly commenting on Ms. Smith’s ability to
return to work under the conditions noted by Dr. Brown, specifically
since her January 6th visit to your office and in light of your May 27th
evaluation indicating she is disabled until her June 16th [sic]
appointment.

While there is no indication in the record what response, if any, Dr. Texada provided

to Reibe regarding Smith’s disability, it shows that after her June 17, 2004

appointment, Dr. Texada restricted her from returning to work.

In Harris v. Langston Co., Inc., 94-1266 (La.App. 3 Cir. 4/5/95), 653 So.2d

789, writ denied, 95-1178 (La. 6/23/95), 656 So.2d 1020, the employer discontinued

the claimant’s benefits based on the opinion of its choice of physician that the

claimant could return to work. When the benefits were terminated, there was no

indication in the record that her treating physician had released her to return to work.

This court did “not find this information sufficient to terminate benefits or that

23

Langston made a reasonable effort to determine Ms. Harris’ exact medical condition

at the time of termination.” Id. at 797. Thus, this court held that the claimant’s right

to benefits was not reasonably controverted.

Here, Dr. Texada restricted Smith from working. Approximately two weeks

later, Dr. Brown evaluated her and opined that she could work. At the time of

termination, the Town stated that because of Dr. Brown’s opinion, a third opinion was

needed to “determine [Smith’s] status for continued benefits.” We note that Smith

was not examined by Dr. Fairbanks until October 5, 2004. Insofar as Smith’s

disability status was not certain at the time of termination, we find that the workers’

compensation judge’s determination that the Town did not reasonably controvert

Smith’s claim for TTD benefits is supported by the record. Therefore, we conclude

that the workers’ compensation judge’s imposition of penalties was not manifestly

erroneous.

This assignment has no merit.

Failure to Pay TTD Benefits at the Correct Rate

As previously mentioned, the Town argues that the workers’ compensation

judge erred in awarding a penalty for its alleged failure to pay TTD benefits at the

correct rate.

The workers’ compensation judge explained her reasons for imposing this

penalty:

[Smith] was paid temporary total disability benefits at the rate of
one hundred ninety-six dollars ($196) per week. Louisiana Revised
Statute[s] 23:1221(1)(a) requires benefits to be paid at the rate of sixty-
six and two-thirds percent of the average weekly wage. Sixty-six and
two-thirds percent of [Smith’s] average weekly wage of two hundred
and ninety-four dollars ($294) amounts to one hundred ninety-six
dollars ninety-eight cent[s] ($196.98) per week. [Smith] is owed ninety-
eight cent[s] for each week that benefits were incorrectly paid. Ronald

24

Reibe, adjuster for Risk Management, was questioned about the
discrepancy in payments. He testified no one “checked out the
discrepancy in the comp rate.” He blames the failure to do so on the
work load and thousands of claims handled by their office. [The Town]
referred to the discrepancy as a “minor and contrived argument.” It has
been considered “not substantial enough.” This court disagrees. . . .
[T]he Workers’ Compensation Statute requires the payment of sixty-six
and two-thirds percent of the injured workers’ average weekly wage; not
sixty-six and two-thirds percent minus ninety-eight cents ($.98). This
Court finds [the Town] to have been arbitrary and capricious in their
failure to correct the discrepancy in [Smith’s] compensation rate.
[Smith’s] request for the adjustment to her compensation rate was
ignored and thus her claim for same was not reasonably controverted.
A penalty of two thousand dollars ($2000) is assessed against [the
Town] for their failure to correct the discrepancy in [Smith’s]
compensation rate.

Because we have determined that the workers’ compensation judge erred in

calculating the amount of TTD benefits that were owed by the Town, we find that the

imposition of a penalty is clearly wrong.

Mileage Reimbursement and Vocational Rehabilitation

The Town appeals the $2,000.00 penalty awarded for Smith’s mileage

reimbursement and vocational rehabilitation claims.

Louisiana Revised Statutes 23:1203 provides:

D. In addition, the employer shall be liable for the actual
expenses reasonably and necessarily incurred by the employee for
mileage reasonably and necessarily traveled by the employee in order to
obtain the medical services, medicines, and prosthetic devices, which
the employer is required to furnish under this Section, and for the
vocational rehabilitation-related mileage traveled by the employee at the
direction of the employer. When the employee uses his own vehicle, he
shall be reimbursed at the same rate per mile as established by the state
of Louisiana for reimbursement of state employees for use of their
personal vehicle on state business. The office shall inform the employee
of his right to reimbursement for mileage.

In addressing Smith’s mileage reimbursement claim, the workers’

compensation judge remarked:

25

Mileage expenses incurred by [Smith] while seeking medical
treatment were not reimbursed. [The Town] fail[ed] to present evidence
to explain and/or justify their refusal to reimburse mileage expenses
incurred by [Smith]. All mileage expenses incurred by [Smith], as a
result of her receipt of medical treatment for the injury received on
October 16th, 2003, shall be reimbursed.

At trial, Reibe testified that Smith’s requests for mileage reimbursement “were

probably not paid in lieu of the fact that when those were submitted there was still the

opinion that this was not a compensable claim based on the information learned from

the doctors at that time.” However, when presented with the fact that the physicians

Smith was traveling to see had been paid, Reibe testified that he did not know why

her mileage expenses were not paid. Accordingly, the record supports the workers’

compensation judge’s determination that Town did not reasonably controvert this

claim with regard to mileage.

With regard to Smith’s claim for vocational rehabilitation, the workers’

compensation judge stated:

Louisiana Revised Statute[s] 23:1226 requires the employer to
provide prompt vocational rehabilitation services to return a disabled
worker to work when they are unable to earn wages equal to their pre-
injury wages. No vocational rehabilitation was provided by [the Town.]
The Town of Olla recognized through its August 24th, 2004
correspondence from its mayor, that no positions were available that
could accommodate [Smith.] Still no vocational rehabilitation services
were offered. Due to [the Town’s] failure to reimburse [Smith] for
mileage expenses and their failure to provide vocational rehabilitation
services, a penalty of two thousand dollars ($2000) is assessed against
[the Town.]

Counsel for Smith introduced into evidence a letter written by the mayor that

was addressed to Reibe. The mayor wrote: “All of the jobs, in the departments she

was hired to work, and in which we have openings would require getting in and out

of vehicles, lifting and bending; manual labor type jobs. Regretfully, due to her

limitations, I do not feel there are any positions available in which we could

26

reasonably accommodate Ms. Smith.” At trial, Reibe testified that Smith was never

provided with vocational rehabilitation and that no explanation was given as to why.

Because it was shown that Smith could not return to work with the Town in any

capacity and that vocational rehabilitation was never offered pursuant to La.R.S.

23:1226, we find that the record supports the workers’ compensation judge’s

conclusion that this claim was not reasonably controverted.

This assignment has no merit in that the penalty awarded for the Town’s failure

to pay Smith’s mileage reimbursement and to provide her with vocational

rehabilitation was not manifestly erroneous.

Follow-up Visits and Medical Expenses

The Town argues that the workers’ compensation judge erroneously assessed

it with a penalty for its failure to authorize Smith’s follow-up visits with Dr. Texada

and for its failure to pay an x-ray bill associated with Smith’s examination with a

court-appointed independent medical examiner.

In her reasons for ruling, the workers’ compensation judge stated:

An additional penalty of two thousand dollars ($2000) is assessed
against [the Town] for their refusal to authorize follow-up visits with
[Smith’s] treating physician. Said penalty is also being assessed due to
[the Town’s] failure to pay medical expenses incurred as a result of
[Smith’s] examination by the court appointed independent medical
examiner, Dr. Brent Bankston. All outstanding medical expenses
incurred as a result of medical treatment received by [Smith], due to her
October 16th, 2003 injury, shall be paid by [the Town].

Smith testified that on August 31, 2004, she had an appointment with Dr.

Texada but was not able to see him. She explained:

Well, I got there and signed in and everything. I sat there for
about two hours in the -- in the front, and they finally called me to the
back for about another hour. And then, they came and told me that they
[were] waiting to hear from Dr. Fairbanks and they wouldn’t even see
me -- after I had sat there all that time.

27

According to Smith, on October 12, 2004, she called for an appointment and was

informed that Dr. Texada’s office was waiting on Dr. Fairbanks to make his decision.

Furthermore, she tried to schedule another appointment in July 2005, and was told

“that workman’s [sic] comp would no longer pay for it.”

According to Reibe, he did not know that Dr. Texada testified that he did not

see Smith for a period of time because her appointments were not authorized. Reibe

could not “say one way or the other” whether those visits were authorized. Given the

circumstances, we find that the record supports the workers’ compensation judge’s

determination that Smith was unfairly denied access to her treating physician.

The record shows that Smith was examined by a court-appointed physician, Dr.

A. Brent Bankston9 in the summer of 2005 and that there was a bill for x-rays in the

amount of $180.00. On November 4, 2005, counsel for the Town sent

correspondence to Smith informing her that payment for the bill was due. Yet, on

November 9, 2005, another letter was sent to Smith stating that the previous letter

“was mailed in error.” The record suggests that the bill had not been paid; however,

Reibe confirmed that other charges associated with this exam had been paid.

The Town argues, in brief, that at the time of trial, “the bill for $180.00 had

been put into queue for payment, although this was not introduced into evidence

during the hearing.” It, therefore, contends that because sixty days had not lapsed

between the time the Town was sent notification of the bill and the date of trial, a

penalty should not have been awarded.

9
We note that in his report, Dr. Bankston opined that surgery would not likely be beneficial
for Smith’s problems but that “arthroscopic evaluation of the knee is an option to rule out any other
pathology.”

28

In Dubois v. Louisiana Forest Industries Inc., 98-895, p. 11 (La.App. 3 Cir.

12/9/98), 722 So.2d 409, 415, writ denied, 99-49 (La. 2/26/99), 738 So.2d 586, this

court held that “as a matter of law, an employer cannot urge its own poor clerical

work or administrative lapses to escape penalties for nonpayment.” Here, the Town

cannot successfully argue that it should not have to pay penalties because it made a

mistake in initially denying payment for the x-ray bill and forwarding it to Smith.

Further, there is no indication in the record exactly when the bill was sent to the

Town and if the bill had in fact, as the Town asserts, been put into queue for payment.

Based on the above evidence, we conclude that the penalty imposed by the

workers’ compensation judge for the failure to authorize follow-up visits with Dr.

Texada and for the failure to pay Dr. Bankston’s x-ray bill was not manifestly

erroneous.

This assignment is without merit.

Attorney Fees

The Town argues that attorney fees should not have been awarded.

In Lambert, 945 So.2d at 933, this court stated:

Louisiana Revised Statutes 23:1201(F) allows an award of
attorney’s fees when the employer fails to timely pay medical expenses
and/or authorize treatment. Although there is no limitation on the
amount of attorney’s fees which may be awarded, the award must be
reasonable, and it will not be overturned absent manifest error.
Alexander [v. Autozone, Inc., 04-871 (La.App. 3 Cir. 12/8/04),] 889
So.2d 366. The reasonableness of an award of attorney’s fees is
determined from “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. at 378 (quoting Semere v. Our Lady of
Lourdes Hosp., 03-1702, p. 14 (La.App. 3 Cir. 6/29/04), 875 So.2d
1048, 1057.)

Here, the record is clear that the Town failed to timely pay medical expenses

and authorize treatment. Therefore, attorney fees were properly awarded.

29

Considering the expansive medical evidence, the complexities of this case, and a

favorable outcome for Smith, we find that the workers’ compensation judge did not

abuse her discretion in awarding $10,000.00 in attorney fees. See Jackson v. Christus

Health Cent. La., 05-983, p. 17 (La.App. 3 Cir. 2/1/06), 922 So.2d 748, 759 (quoting

Lemelle v. Wal-Mart Stores, Inc., 04-527, p. 13 (La.App. 3 Cir. 9/29/04), 883 So.2d

526, 534) (wherein this court stated that the “amount of the statutory attorney fees

rests within the discretion of the WCJ [workers’ compensation judge], provided the

amount is supported by the record.”) Accordingly, this assignment has no merit.

Smith answered the appeal seeking additional attorney fees for work performed

on appeal. We award $2,500.00 for work performed on this appeal.

DECREE

For the foregoing reasons, we amend the award for SEBs to include only the

period in which Smith worked at Bill’s Dollar Store and any period thereafter where

she was unemployed. Further, we reverse the workers’ compensation judge’s ruling

that the Town owed Smith an additional ninety-eight cents for each week that TTD

benefits were paid; accordingly, we also reverse the penalty imposed as to that award.

In all other respects, the ruling of the workers’ compensation judge is affirmed.

Additional attorney fees for work performed on appeal in the amount of $2,500.00 are

awarded to Smith. Costs of this appeal are divided equally between Elaine Smith and

the Town of Olla. Pursuant to La.R.S. 13:5112,10 we set forth the total cost of this

appeal as $1,012.00.

AFFIRMED AS AMENDED; REVERSED IN PART. ADDITIONAL
ATTORNEY FEES AWARDED FOR WORK PERFORMED ON APPEAL.

10
Louisiana Revised Statutes 13:5112(A) requires that court costs assessed against the state
or any political subdivision thereof be expressed as a dollar amount in a trial court judgment or
appellate court decree.

30