Dr. Fayez K. Shamieh (Rudolph Jackson) v. Liquid Transport Corp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1282

DR. FAYEZ K. SHAMIEH (RUDOLPH JACKSON)

VERSUS

LIQUID TRANSPORT CORP., ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 05-04552
AARON FRANK MCGEE, WORKERS COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Glenn B. Gremillion, Elizabeth A. Pickett, and J. David Painter,
Judges.

REVERSED AND REMANDED.

Thomas Allen Filo
Cox, Cox, & Filo
723 Broad Street
Lake Charles, LA 70601
Counsel for Secondary Plaintiff/Appellant:
Dr. Fayez K. Shamieh

Henry Clay Ward III
Attorney at Law
1111 Ryan St.
Lake Charles, LA 70601
Counsel for Defendant/Appellant:
Liquid Transport Corp. and
Great West Casualty Company

Perry R. Staub Jr.
Mark VanHorn
Larry E. Demmons
Taggart, Morton, Ogden, Staub & O’Brien, L.L.C.
Counsel for Intervenor:
CCN Managed Care, Inc.

Judy Y. Barrasso
Stephen L. Miles
Edward R. Wicker Jr.
Barrasso, Usdin, Kupperman
909 Poydras St., Suite #2400
New Orleans, LA 70112
Counsel for Other—Amicus for CCN :
Liberty Mutual Insurance Co.
Helmsman Management Services Co.
Employers Insurance of Wausau

PICKETT, Judge.

Both appeals before this court, 07-1159 and 07-1282, come from the same

proceedings, 05-4552, in the Office of Workers’ Compensation (OWC). In appeal

07-1159, the defendants, Liquid Transport Corporation and Great West Casualty

Company, appeal a judgment from the OWC ordering the defendants to pay the

plaintiff, Dr. Fayez Shamieh, $122.50 in under-payment on a medical bill for the

plaintiff’s treatment of Rudolph Jackson, a workers’ compensation claimant. The

OWC also awarded Dr. Shamieh $4,000.00 in penalties ($2,000.00 for under-payment

and $2,000.00 for late payment) and $3,950.00 in attorney’s fees. The plaintiff, Dr.

Shamieh, also appeals seeking additional attorney’s for the work necessitated by this

appeal. In appeal 07-1282, Community Care Network, Inc. (CCN), appeals a

judgement of the WCJ denying its petition to intervene. We reverse the judgment of

the Workers’ Compensation Judge (WCJ), on CCN’s petition to intervene, nullify the

judgment signed July 25, 2007 (in appeal 07-1159), and remand the case for

additional proceedings consistent with this opinion. We defer consideration of the

plaintiff’s request for additional attorney’s fees.

FACTS

The plaintiff, Dr. Shamieh, sought to recover the difference between what he

was paid for his services to a patient, a workers’ compensation claimant, under a

Preferred Provider Organization (PPO) agreement and what the workers’

compensation schedule of payments allowed. Dr. Shamieh is a member of the Lake

Charles Physicians Hospital Organization (PHO). The PHO entered into a PPO

contract with the intervenor/appellant CCN. In order to have claims(bills) processed

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and paid, CCN, either directly or indirectly, entered into contracts with Reny Co.,

Medata Inc., and with one of the original defendants, Great Western Casualty Co.

The contract between CCN and PHO states in pertinent part as follows:

1. DEFINITIONS

1.01 “Beneficiary” or “Claimant” is a person as defined in the

applicable Insuring Agreement who may be entitled to

Health Care Services or Benefits.

1.02 “Insuring Agreement” is the contract, certificate, policy,

plan document, or any other legally enforceable instrument

issued or sponsored by a Payer under which a Beneficiary

or Claimant may be entitled to or receive Health Care

Services or Benefits.

1.03 “Health Care Services or Benefits” shall be any and all

covered medical services or benefits for such services

rendered or provided to a Beneficiary or Claimant under an

Insuring Agreement.

1.04 “Reimbursement Amounts” are the amounts payable to

Provider for Health Care Services or Benefits rendered or

provided to a Beneficiary or Claimant pursuant to Payer

Agreements between CCN and the respective Payors. Such

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Reimbursement Amounts shall be established solely by

CCN and Payers as specified in Exhibit A attached hereto

and incorporated herein or as established by any state

regulatory agency, whichever is less. Providers shall not

individually or collectively with other providers determine

or establish such Reimbursement Amounts.

1.05 “Payor” is an employer, insurance carrier, claims

administrator, health care service plan, trust, nonprofit

facility service plan, any governmental unit or any other

entity which has an obligation to provide Health Care

Services or Benefits to a Beneficiary or Claimant.

1.06 “Payor Agreement” is an instrument between a Payor and

CCN or its authorized representative which provides for

CCN providers, including Provider pursuant to this

Agreement, to render Health Care Services or Benefits at

Reimbursement Amounts determined and established by

CCN and such Payor.

1.07 “Provider” is the provider group composed of members

listed in Exhibit B, attached hereto, and incorporated

herein.

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....

2. HEALTH CARE SERVICES OR BENEFITS

2.01 Provider hereby agrees to provide Health Care Services or

Benefits to Beneficiaries or Claimants as set forth in

Beneficiary Agreements, at the Reimbursement Amounts

determined and established by CCN through Payer

Agreements with Payers, which Payer Agreements are

incorporated herein by reference. Such Reimbursement

Amounts are set forth in Exhibit A attached hereto and

incorporated herein.

2.02 Provider agrees to accept the Reimbursement Amounts as

payment in full for Health Care Services or Benefits

rendered or provided, and not to seek additional payments

or compensation from Beneficiaries or Claimants unless

required or permitted to do so by the applicable Payer

Agreement. The foregoing restriction shall not apply to

deductibles and co-payments which may be collected by

Provider in accordance with the provisions of the

applicable Insuring Agreement, nor to services or benefits

rendered to Beneficiaries or Claimants which are not

covered by the applicable Insuring Agreement.

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....

4. AUTHORIZATION TO CONTRACT

4.01 Provider hereby specifically authorizes CCN to act on its

behalf to contract for the provision of Health Care Services

or Benefits at Reimbursement Amounts as set forth on

Exhibit A.

4.02 Provider further authorizes CON, if applicable under the

respective Payor Agreement, to coordinate and transmit

billings to Payors for payment, on behalf of Provider.

....

6. COVENANTS OF CCN

CCN covenants and agrees to The following:

6.01 To accept sole responsibility for filing reports, obtaining

approvals and complying with applicable laws and

regulations of state, federal and other regulatory agencies

having jurisdiction over CCN, provided however, that

Provider agrees to cooperate by providing CCN with any

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information and assistance reasonably required in

connection therewith;

Even though CCN was a party to the contract with PHO, CCN was not

originally a party in this suit. The record, i.e., testimony and documentary, indicates

that CCN sought to intervene on more than one occasion. CCN’s last attempt to

intervene, a written motion to intervene, filed June 19, 2007, the morning of the

hearing, was denied. That action by the WCJ led to the filing of appeal 07-1282

which makes up part of this case.

LAW AND DISCUSSION

The linchpin of this appeal is the determination of whether CCN is an

indispensable party to this litigation. Louisiana Code of Civil Procedure Article 641

provides as follows (emphasis ours):

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those
already parties.

(2) He claims an interest relating to the subject matter of the action and
is so situated that the adjudication of the action in his absence may
either:

(a) As a practical matter, impair or impede his ability to protect that
interest.

(b) Leave any of the persons already parties subject to a substantial risk
of incurring multiple or inconsistent obligations.

It is well settled that the lack of an indispensable party to a proceeding in the

trial court is fatal to any adjudication of the dispute. La.Code Civ.P. art. 641; Frey

v. American Quarter Horse Ass’n, 95-157 (La.App. 5 Cir. 7/25/95), 659 So.2d 849.

A party shall be deemed necessary for just adjudication when that party’s presence

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is absolutely necessary to protect its substantial rights. Industrial Companies, Inc.

v. Durbin, 02-0665 (La. 1/28/03), 837 So.2d 1207.

The WCJ, in his reasons for judgment, stated: “In accordance with the

aforementioned agreements and stipulation, the Court concludes that there is

connexity between the defendants in this case and the CCN contract, and Dr.

Shamieh.” He then went on to rule that “[a]ny contract which purports to reduce

medical bills below the Louisiana Workers’ Compensation Reimbursement Schedule

are invalid and unenforceable, and the same are a violation of Louisiana Workers’

Compensation Act, and the reimbursement schedule, and against public policy.” The

WCJ also stated: “The CCN contract, in and of itself, is not notice sufficient to

constitute compliance with Revised Statute 40:2201 or 2203.”

Before issuing his ruling, the WCJ denied CCN’s petition for intervention. He

then went on to rule CCN to be a party to the contracts at issue in this suit and finally

ruled adversely to CCN on the contracts. The effect of the judgment issued was to

invalidate that portion of CCN’s contract that pertained to workers’ compensation

claims. Considering the foregoing, we find that the presence of CCN was absolutely

necessary to protect its substantial rights, that the WCJ’s denial of its petition to

intervene was clear error, and that the judgment entered was, thus, a nullity.

Accordingly, for the reasons stated, the judgment of the Office of Workers’

Compensation judge rendered on June 6, 2007, denying CCN’s motion to intervene

is reversed; the judgment rendered on July 25, 2007 is annulled and set aside. The

case is remanded for further proceedings consistent with this opinion. Costs of this

appeal are deferred, pending the outcome of the case.

REVERSED AND REMANDED.

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