Katherine Williams v. Tioga Manor Nursing Home

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-0417-WCA

KATHERINE WILLIAMS

VERSUS

TIOGA MANOR NURSING HOME

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, NO. 06-08296
HONORABLE JAMES BRADDOCK
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED AS AMENDED.

George A. Flournoy
Flournoy & Doggett (APLC)
P. O. Box 1270
Alexandria, LA 71309
(318) 487-9858
COUNSEL FOR PLAINTIFF/APPELLANT:
Katherine Williams

Lawrence B. Frieman
Janna C. Bergeron
Juge, Napolitano, Guilbeau, Ruli,
Frieman & Whiteley
3320 West Esplanade Avenue North
Metairie, LA 70002
(504) 831-7270
COUNSEL FOR DEFENDANT/APPELLEE:
Tioga Manor Nursing Home

PETERS, J.

The plaintiff in this workers’ compensation litigation, Katherine Williams,

suffered a work-related back injury in 2003, while employed by the defendant, Tioga

Manor Nursing Home (Tioga Manor). She re-injured her back in 2005, and this event

is the basis of the litigation now before us. Following a trial on the merits, the

workers’ compensation judge (WCJ) rendered judgment in Ms. Williams’ favor on

a multitude of issues, and both parties have sought relief from that judgment in this

court. In her appeal, Ms. Williams raises three assignments of error while, in its

answer to the appeal, Tioga Manor raises eight. For the following reasons, we amend

the WCJ’s judgment and affirm it as amended.

DISCUSSION OF RECORD

Both the work history and medical history giving rise to this litigation are

rather straight forward and generally undisputed. It is the interpretation of these

histories that creates the issues now before us.

The evidence establishes that Ms. Williams first injured her back on August 28,

2003, while assisting a patient from a wheelchair. At the time, Tioga Manor

employed her as a certified nurse’s aide. On September 17, 2003, Tioga Manor

commenced paying Ms. Williams temporary total disability (TTD) benefits in the

amount of $127.05 per week, based on an average weekly wage of $190.57. She

received treatment for this initial injury from Dr. Robert Smith, an Alexandria,

Louisiana specialist in occupational industrial medicine, and Dr. M. Lawrence

Drerup, an Alexandria, Louisiana neurosurgeon.

Dr. Drerup diagnosed this injury as a herniated disc at L5-S1, on the right, and

Ms. Williams underwent a minimally invasive microdiskectomy on October 22, 2003.

Her surgery was considered to be successful and, on December 9, 2003, Dr. Drerup

released her to return to work performing only light duty. Dr. Smith withdrew all

restrictions on February 18, 2004, and she returned to her employment with Tioga

Manor without restrictions.

However, her return to work was short lived. In May and June 2004, she began

experiencing pain in her lower back, and Dr. Smith restricted the amount of weight

she could lift while working. On October 18, 2004, Dr. Smith noted that Ms.

Williams had suffered an acute onset of pain in her lower back and he restricted her

from working at all. However, when he saw her two days later, her condition had

improved significantly, and he modified her restrictions by suggesting that she should

lift no more than ten to fifteen pounds while working.

On October 25, 2004, Dr. Smith noted that Ms. Williams was eager to return

to work and that her lower back was non-tender, had palpable spasms, and that she

had a slight decreased range of motion on forward flexion. Based on these findings,

Dr. Smith released her to return to work, and Tioga Manor stopped her indemnity

benefits effective October 21, 2004.

On February 23, 2005, Ms. Williams presented herself to Dr. Smith’s physician

assistant with complaints of lower back, right buttock, and right leg pain. She

received two injections for pain, inflamation, and muscle spasm, and Dr. Smith

ordered an MRI of her lumbar spine. Although her status that day was reported as

“working,” Dr. Smith restricted her from working. Effective February 23, 2005,

Tioga Manor reinstated Ms. Williams’ indemnity benefits at the rate of $180.00 per

week.

On March 10, 2005, after an unsuccessful left S1 nerve root block, Ms.

Williams complained to Dr. Smith of left leg pain and spasms and tenderness to

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palpation at L3 through S2. The straight leg raising test produced positive results on

the left side, and Dr. Smith’s impression was that she suffered from L5 radiculopathy

and lumbar and left leg spasms. He continued to restrict Ms. Smith from working.

On March 29, 2005, Dr. Drerup ordered EMG nerve conduction studies of her

left leg, x-rays with lateral flexion and extension views of her lumbosacral spine, and

a lumbar myelogram with a post-myelographic CT scan. By June 28, 2005, Dr.

Drerup noted that Ms. Williams’ condition had improved. Although she still suffered

from intermittent lower back pain, she no longer suffered from leg pain. The EMG

nerve conduction studies revealed very mild S1 radiculopathy on the left, whereas the

lumbar myelogram and post-myelographic CT scan demonstrated postoperative

changes at L5-S1 on the right, but was otherwise unremarkable.

In an August 22, 2005 phone conversation and by a September 1, 2005 letter,

Employers Risk Management Services (Employers Risk), Tioga Manor’s workers’

compensation administrator, informed Dr. Smith that he was no longer authorized to

treat Ms. Williams as she was still being treated by Dr. Drerup. The letter stated that

treatment by Dr. Smith would not be authorized until Dr. Drerup released Ms.

Williams from his care.

Despite the fact that Tioga Manor had expressed its intention to cease

authorization of Dr. Smith’s treatment, he continued to treat his patient. When he did

see Ms. Williams in August and September 2005, his opinion of her working ability

remained the same, and this opinion was supported by the results of an MRI that

revealed a recurrent right-sided disc herniation at L5-S1. On September 16, 2005, Dr.

Drerup noted that Ms. Williams’ complaints of lower back pain continued, and she

now complained of pain in both legs, the left worse than the right. As a result, he

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ordered an S1 nerve root block bilaterally and an MRI of the lumbar spine. At a

November 10, 2005 visit, Ms. Williams complained to Dr. Smith of pain in the dorsal

aspect of her right leg. This time, the straight leg raising test proved positive

bilaterally, and he noted that she had a discrete S1 radiculitis. On November 18,

2005, Dr. Drerup noted lumbar radiculopathy bilaterally, secondary to a recurrent disc

herniation on the right at L5-S1.

Less than two weeks later, on November 30, 2005, Ms. Williams presented

herself to the Rapides Regional Medical Center emergency room complaining of

severe back and right leg pain. She was diagnosed by the emergency room physician

as suffering from a degenerative disc, right-sided acute sciatica, and radiculopathy,

and was given an injection of Toradol for pain.

Dr. Smith again saw Ms. Williams on February 15, 2006, and after recording

her complaints and examining her, he recommended that she be seen by Dr. Stephen

Katz, an Alexandria, Louisiana pain management specialist, for management of her

chronic pain, and Dr. James Quillin, an Alexandria, Louisiana psychologist, for

evaluation of her depression and somatization. Employers Risk denied this request

via a February 23, 2006 letter. In the letter, it stated that it had previously mailed

numerous letters to Dr. Smith noting that no further treatment would be authorized

by him, as Ms. Williams’ care had been referred to Dr. Drerup.

On April 3, 2006, Dr. Drerup performed a microdiskectomy on Ms. Williams.

This procedure relieved her lower back pain, but her right leg pain continued. On

June 15, 2006, Dr. Drerup noted that from a neurosurgical standpoint, he had very

little to offer Ms. Williams short of a lumbar interbody fusion. After conferring, he

and Dr. Smith agreed to refer her to Dr. Katz for management of her pain and to Dr.

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Quillin for psychological intervention. By July 2006, Dr. Quillin was of the opinion

that Ms. Williams was suffering from major depression and chronic pain syndrome.

Despite the seemingly bleak medical prognosis, by the time Dr. Smith saw her

on July 18, 2006, Ms. Williams’ pain had improved significantly. In fact, it had

improved to such an extent that Dr. Smith acquiesced to her request and released her

to work. However, he conditioned his release to that of a sedentary level of work as

defined by the United States Department of Labor. Given her restricted release, Ms.

Williams began working at The Summit Retirement Center in Alexandria, Louisiana

on July 24, 2006, and continued working there through August 17, 2006, earning

$6.40 per hour. Dr. Drerup released Ms. Williams on August 11, 2006, to return to

work as a sitter, to activity as she could tolerate. Her indemnity benefits were

terminated by Tioga Manor on August 8, 2006, pursuant to Dr. Smith’s release. After

her employment with The Summit Retirement Center ended, Ms. Williams worked

for Matthews Memorial Nursing Home in Alexandria, Louisiana from late August

through November 2006.

On November 3, 2006, Ms. Williams returned to Dr. Smith after suffering two

weeks of intermittent right leg pain. Dr. Smith noted that it was difficult to assess her

motor function due to the pain in her legs, and he reported that a straight leg raise test

was exquisitely positive on the right and was positive for pain on the left at ninety

degrees. On November 7, 2006, he stated that he was having trouble keeping Ms.

Williams comfortable and that he had ordered an MRI, which had not been done. He

opined that her lumbar spine showed an anterior spondylolithiasis at L5-S1, and he

noted a significant loss of normal lordotic curve in her spine. Ms. Williams was

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restricted from working by Dr. Smith. She requested that Tioga Manor reinstate her

indemnity benefits as of that date. Tioga Manor refused to reinstate her benefits.

On November 9, 2006, Dr. Drerup noted that Ms. Williams complained of

spasms affecting her right buttock and the posterior lateral aspect of her right leg. He

found these symptoms suggestive of L5 root syndrome on the right. He

recommended a lumbar myelogram and post-myelographic CT scan. On December

28, 2006, Ms. Williams’ complaints of lower back and leg pain continued, with

increased severity. Dr. Drerup diagnosed her as suffering from S1 radiculopathy on

the right without evidence of structural pathology to account for her symptoms. He

again noted that he had very little to offer Ms. Williams, other than a lumbar

interbody fusion with pedicle screw instrumentation.

Ms. Williams was seen by Dr. Clark Gunderson, a Lake Charles, Louisiana

orthopedic surgeon, on April 3, 2007. In his report, Dr. Gunderson noted that she had

mild lumbar scoliosis, diminished strength in her right extensor hallicis longus

muscle, diminished sensation at the L5-S1 dermatome, an absent right Achilles reflex,

and a positive straight leg raise test on the right at forty degrees. She also exhibited

tenderness at the right L5 region, as well as the right sacroiliac and sciatic notch

regions. Dr. Gunderson opined that Ms. Williams was suffering from persistent

radiculopathy and requested that she return with her actual MRI films. He felt that

she might be a candidate for a repeat laminectomy with fusion with pedicle screw

instrumentation. He further stated that he did not feel she was capable of working.

In an April 17, 2007 fax transmission to Ms. Williams’ attorney, Dr. Gunderson

requested authorization for a transforaminal lumbar interbody fusion at L5-S1, with

posterolateral fusion at L5-S1, with pedicle screws. By correspondence dated ten

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days later, April 27, 2007, Tioga Manor refused authorization for this surgery, stating

that it did not recognize Dr. Gunderson as Ms. Williams’ treating physician because

she had not requested permission to change her treating physician and because Dr.

Drerup had never issued an opinion requesting an orthopedic referral. Tioga Manor

refused payment of Dr. Gunderson’s fees for service as well.

Rather than approve of Dr. Gunderson’s surgical recommendation, Tioga

Manor sent Ms. Williams to be examined by Dr. Allen S. Joseph, a Baton Rouge

neurosurgeon. When Dr. Joseph examined Ms. Williams on June 19, 2007, he noted

that she continued to suffer chronic back and right lower extremity pain, but found

her neurologic examination to be somewhat inconsistent, with no objective findings.

Dr. Joseph disagreed with Drs. Drerup’s and Gunderson’s recommendation for

surgery. In his opinion, the proposed surgery was unproven in this situation and

provided little likelihood for a meaningful and lasting benefit to Ms. Williams. Dr.

Joseph was of the opinion that Ms. Williams was capable of performing work at a

light, sedentary level, but recommended that she undergo a functional capacity

examination to identify specific job restrictions commiserate with her physical

capabilities.

Ms. Williams filed the instant claim against Tioga Manor alleging numerous

issues in dispute: the extent and duration of disability; non-payment or incorrect

payment of indemnity benefits; failure to provide authorization for medical treatment;

non-payment and/or untimely payment of medical and travel related expenses; failure

to furnish reports of treating physicians within thirty days; failure to provide

vocational rehabilitation; wages; the arbitrary withholding of consent for

recommended treatment; and penalties and attorney fees.

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Following a two day trial, the WCJ rendered oral reasons which included

numerous findings. The WCJ determined that Ms. Williams’ compensation rate was

$182.27 per week, based on an average weekly wage of $273.52 and $9.52 per week

for fringe benefits; that she was not entitled to TTD benefits for the three days that

she was unable to work in October 2004, and that Tioga Manor was entitled to a

credit for all indemnity benefits previously paid; that Ms. Williams was not entitled

to TTD benefits or supplemental earnings benefits (SEB) for February 4-22, 2005;

and that she was entitled to reinstatement of her TTD benefits beginning on August

27, 2007. The WCJ awarded Ms. Williams SEB: $528.84 for July 24, 2006-August

23, 2006 (The Summit Retirement Center); $376.56 for August 2006, and $648.36

for November 2006 (Matthews Memorial Nursing Home); and $643.87 for April

2007 (Future Expectations Community Care). Ms. Williams was also awarded

$111.20 as reimbursement for travel expenses.

The WCJ further held that Tioga Manor was arbitrary and capricious and

awarded penalties in several instances: $2,000.00 for incorrect payment of indemnity

benefits (failure to include fringe benefits); $2,000.00 for discontinuance of Dr.

Smith’s treatment and the refusal to pay Red River Pharmacy for medication he

prescribed; $2,000.00 for refusal to authorize Dr. Gunderson’s treatment; $2,000.00

for failure to pay for an emergency room visit to Rapides Regional Medical Center;

and $850.00 for late payment of her indemnity benefits. The WCJ awarded Ms.

Williams $2,000.00 for Tioga Manor’s arbitrary and capricious August 6, 2006

termination of her indemnity benefits, based on Dr. Smith’s July 19, 2006 release of

Ms. Williams to sedentary work, and awarded her $6,500.00 in attorney fees.

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Finally, the WCJ held that Ms. Williams was entitled to reasonable medical

care, including treatment by Dr. Smith and Dr. Gunderson, and stated that their

treatment, as well as the payments to Red River Pharmacy and Rapides Regional

Medical Center, should be reimbursed pursuant to the fee schedule.

Ms. Williams has appealed this judgment raising three assignments of error:

1) The facts surrounding plaintiff’s inability to work from
February 5-22, 2005 were not disputed. In its post-trial
brief, defendant did not even contest plaintiff’s entitlement
to indemnity benefits for this period of time. Did the WCJ
err, as a matter of law, in refusing to award indemnity
benefits from February 5, 2005 through February 22, 2005?

2) The WCJ correctly determined that defendant’s termination
of indemnity benefits on August 15, 2006 was arbitrary, as
was defendant’s discontinuance of Dr. Smith’s treatment in
September, 2005. In view of the rationale of this Court in
Mullins v. Concrete & Steele Erectors, 06-510 (La.App. 3
Cir. 9/27/06); 940 So.2d 803, was the WCJ’s award of only
a $2,000.00 penalty in accord with 23:1201(I) for the
discontinuance of indemnity benefits and Dr. Smith’s
treatment unreasonably low?

3) After considering all relevant factors enunciated in
McCarroll v. Airport Shuttle, Inc., 2000-1123 (La.
11/28/00); 773 So.2d 694, and awards in similar cases, was
the WCJ’s attorney fee award of only $6,500.00
unreasonably low?

Tioga Manor answered Ms. Williams’ appeal and alleged additional errors it

claimed were committed by the WCJ:

1) The trial court erred in the calculation of the average
weekly wage on the grounds that the claimant was a full-
time employee who regularly worked less than forty hours
at her own discretion.

2) The trial court erred in failing to recognize Appellee’s
credit for overpayment of indemnity benefits.

3) The trial court erred in finding that the Appellant was
entitled to indemnity benefits after August 5, 2006 through
August 27, 2007.

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4) The trial court erred in awarding the Appellant the medical
expenses of Dr. Smith from August 19, 2005 through
December 6, 2006.

5) The trial court erred in awarding the Appellant the medical
expenses of Dr. Gunderson prior to the surgery.

6) The trial court erred in awarding the Appellant $8,000 in
penalties pursuant to LSA-R.S. 23:1201(F) for the
following:

A. incorrect payment of indemnity benefits;

B. failure to authorize and pay for treatment by Dr.
Gunderson;

C. failure to pay emergency room treatment at Rapides
Regional Medical Center;

D. failure to pay Red River Pharmacy medications and
medical bills of Dr. Smith from August 19, 2005
through December 6, 2006;

E. untimely payment of benefits for the weekly periods
from July 2, 2006 through July 22, 2006.

7) The trial court erred in awarding the Appellant a $2,000
penalty pursuant to LSA-R.S. 23:1201(I) for the
discontinuance of indemnity benefits on August 5, 2006.

8) The trial court erred in awarding the Appellant a $6,500
attorney fee pursuant to LSA-R.S. 23:1201(J).

OPINION

The standard of review applying in workers’ compensation cases was set forth

by the supreme court in Dean v. Southmark Construction, 03-1051, p. 7 (La. 7/6/04),

879 So.2d 112, 117:

In worker’s [sic] compensation cases, the appropriate standard of
review to be applied by the appellate court to the OWC’s findings of fact
is the “manifest error-clearly wrong” standard. Brown v. Coastal
Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97),
704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite,
93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the
findings of the OWC will not be set aside by a reviewing court unless

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they are found to be clearly wrong in light of the record viewed in its
entirety. Alexander, 630 So.2d at 710. Where there is conflict in the
testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even though the
appellate court may feel that its own evaluations and inferences are as
reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1
Cir.[6/27/03]), 865 So.2d 98, 105. The court of appeal may not reverse
the findings of the lower court even when convinced that had it been
sitting as the trier of fact, it would have weighed the evidence
differently. Robinson, 865 So.2d at 105.

Due to the number of issues raised by both parties, we will attempt to address

them in an organized and sequential manner.

AVERAGE WEEKLY WAGE

Tioga Manor argues that the WCJ erred in calculating Ms. Williams’ average

weekly wage based on a forty-hour work week when, by her own discretion, she

worked an average of less than forty hours per week. It concedes, however, that she

is entitled to fringe benefits of paid vacation and paid holidays and that this amount

should have been included in calculating the average weekly wage.

Prior to her August 29, 2003 accident, Ms. Williams worked full-time as a

certified nurse’s aide for Tioga Manor. Her work schedule was not week-to-week,

but she would work eight hours per day for four straight days, have two days off, and

resume her four-day work schedule. She claims that based on this schedule, she was

also entitled to accumulate forty hours of vacation time and forty hours for five paid

holidays. On occasion, she worked overtime.

Donna Beaubouef, the administrator for Tioga Manor, testified that Ms.

Williams was employed full time, at a rate of $6.60 per hour. According to Ms.

Beaubouef, a full-time employee for Tioga Manor works 7.5 hours per day, 37.5

hours per week, and only obtains forty or more hours per week if he or she volunteers

for an extra shift. Ms. Beaubouef also disagreed with Ms. Williams’ calculation of

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vacation and holiday time. According to Ms. Beaubouef, Ms. Williams’ vacation and

holiday pay was calculated on a 37.5-hour work week and not a forty-hour work

week. Ms. Beaubouef testified that Ms. Williams had missed seven days of work in

the four weeks immediately prior to the accident and that she provided a reason for

only three of the four days she called in.

Lyman Phillips, a supervisor for Employers Risk, testified that following Ms.

Williams’ initial injury, Employers Risk determined her average weekly wage to be

$190.58 based on the four full weeks prior to the accident, 37.5 hours of employment

per week, and an hourly rate of $6.60. Based on this calculation, Tioga Manor set her

initial weekly compensation rate at $127.50. According to Mr. Phillips, after the

reinjury in February 2005, the Employers Risk adjustor requested additional wage

records from Tioga Manor and, using those records, calculated the new weekly

indemnity benefit at $180.00. Mr. Phillips asserted in his testimony that even using

the additional records, this amount was $4.00 per week more than she was entitled to.

In fact, he asserted that use of the new wage records was improper and should have

only been used if Ms. Williams had suffered a new work-related injury. Thus, Mr.

Phillips asserted, the new award should have been the same as the original, or

$127.50 per week.

The WCJ held that Ms. Williams was entitled to the forty-hour presumption in

calculating her average weekly wage. In reaching this conclusion, the WCJ relied on

the fact that Tioga Manor failed to present evidence to show that the complained-of

absences from work were unexcused.

Louisiana Revised Statutes 23:1021(12)(a) provides the calculation for

determining the average weekly wage of an employee who is paid hourly:

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(i) If the employee is paid on an hourly basis and the employee
is employed for forty hours or more, his hourly wage rate multiplied by
the average actual hours worked in the four full weeks preceding the
date of the accident or forty hours, whichever is greater; or

(ii) If the employee is paid on an hourly basis and the employee
was offered employment for forty hours or more but regularly, and at his
own discretion, works less than forty hours per week for whatever
reason, then, the average of his total earnings per week for the four full
weeks preceding the date of the accident; or

(iii) If the employee is paid on an hourly basis and the employee
is a part-time employee, his hourly wage rate multiplied by the average
actual hours worked in the four full weeks preceding the date of the
injury.

In Guillory v. Bofinger’s Tree Service, 06-86 (La.App. 1 Cir. 11/3/06), 950

So.2d 682, the first circuit held that where an injured worker fails to fit literally

within any of the three categories listed in La.R.S. 23:1021(12), his or her wage

should be determined by deciding which of the three categories best fit his or her

situation. We are faced with the same dilemma in the matter before us and find the

first circuit’s approach to be correct.

Ms. Williams is, by Tioga Manor’s own description, a full-time employee.

However, a full-time employee at Tioga Manor only works 37.5 hours per week and

only works forty or more hours if he or she volunteers for overtime. Subsection (iii)

is not applicable because Tioga Manor hired Ms. Williams as a full-time employee;

she was never classified as being part-time. La.R.S. 23:1021(11). Moreover,

subsection “(ii)” does not fit because Ms. Williams did not regularly, and at her own

discretion, refuse to work less than the 37.5 hours offered by Tioga Manor. Thus, the

description which bests fits Ms. Williams is that found in subsection “(i).”

In the four weeks prior to her accident, Ms. Williams worked 52.50 hours for

the pay period ending August 9, 2003; she worked 63 hours for the pay period ending

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August 23, 2003; and she worked 30.5 hours for August 24-29, 2003. In reviewing

her prior work history, she consistently worked at least 75.5 hours every pay period:

74.75 hours for the period ending June 12, 2003; 81.75 hours for the period ending

June 28, 2003; 8.50 hours for the period ending July 12, 2003; and 83.50 hours for

the period ending July 26, 2003. Based on the work history in evidence, we cannot

say that the WCJ erred in finding that Tioga Manor failed to rebut the presumption

that Ms. Williams was entitled to forty hours in calculating her average weekly wage.

Based on her wages of $264.00 and her fringe benefits of $4.76 for paid vacation and

$4.76 for paid holidays, Ms. Williams’ average weekly wage equals $273.52.

Accordingly, we find no error in the WCJ’s calculation of Ms. Williams’

compensation rate of $182.36.

INDEMNITY BENEFITS

Ms. Williams

In her first assignment of error, Ms. Williams argues that the WCJ erred in

finding that she was not entitled to indemnity benefits during February 5-22, 2005.

Ms. Williams argues that the WCJ’s error was an error of law, rather than an error of

fact, as Tioga Manor failed to dispute this fact in its post-trial brief to the WCJ.

However, Tioga Manor vehemently disputes that contention and explains its failure

to address this issue in its post-trial brief on the actions of Ms. Williams’ counsel in

failing to fully disclose the trial issues in its pre-trial statement and its late filing of

the same. Neither of these arguments changes the fact that entitlement of benefits is

based on the determination of the underlying facts, and factual findings are reviewed

on appeal pursuant to the standard of review set forth in Dean, 879 So.2d 112.

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Ms. Williams testified that she was unable to perform the duties of a restorage

aide between December 2003 and February 23, 2005, due to back and leg pain. She

stated that in February 2005, she suffered a reoccurrence of this pain while helping

a patient into the whirlpool. Her time card for February 4, 2005, reflects that she

worked 4.9 hours that day, and she claims that she did not return to work before her

initial visit to Dr. Smith’s office on February 23, 2005.

Dr. Smith’s records reveal that Ms. Williams was seen by his physician

assistant on February 23, 2005, at which time she complained of pain in her lower

back and in her right buttock and leg. Her working status that day was listed as

“working,” although she was restricted from working that day. His records also

reflect that when she returned to him on February 25, 2005, she reported that she had

not worked since her last visit and that her pain had decreased. He further restricted

her from working at that time.

According to Mr. Phillips, Ms. Williams’ file reflected that she began missing

work on February 23, 2005, not February 4, 2005. However, he acknowledged that

prior to February 23, 2005, her file had been closed. His reason for believing that she

had worked between February 4 and February 23, was that on March 1, 2005, the

adjustor working on the file requested that Tioga Manor provide him Ms. Williams’

wage records for the four weeks preceding February 23, 2005. According to Mr.

Phillips, if Ms. Williams’ records had revealed that she last worked on February 4,

2005, the adjustor would have investigated and determined whether benefits were

owed as of that date.

In his oral reasons, the WCJ stated that Dr. Smith thought that Ms. Williams

was suffering from a recurrent disc herniation as of October 2004. He noted that her

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symptoms had worsened by February 2005, and that she was restricted from working

as of February 23, 2005. This was the date that Tioga Manor resumed her indemnity

benefits. Based on Dr. Smith’s records, the WCJ held that Ms. Williams failed to

prove her entitlement to TTD benefits between February 4-22, 2005.1

Based on the evidence in the record, we find no error in the WCJ’s judgment

denying Ms. Williams TTD benefits during the weeks in question.

Tioga Manor

In its answer to appeal, Tioga Manor questions the WCJ’s award of indemnity

benefits to Ms. Williams during the period of August 5, 2006 through August 27,

2007. According to Mr. Phillips, Employers Risk terminated Ms. Williams’

indemnity benefits based on two reasons: (1) Dr. Smith’s July 18, 2006 release to

work, and (2) because Ms. Williams applied for certified nurse’s aide positions at The

Summit Retirement Center and Lexington House Nursing Home, and was

subsequently hired by both The Summit Retirement Center and Matthews Memorial

Nursing Home. He suggested that the totality of this information indicated that Ms.

Williams had been released to work, had applied for a certified nurse’s aide position,

and had been hired in that position. That being the case, the adjustor concluded that

Ms. Williams was not entitled to SEB, and the WCJ erred in awarding benefits for

that period.

With regard to Dr. Smith’s release, the record establishes that on August 11,

2006, Ms. Williams received a letter from Employers Risk informing her of the

immediate termination of her indemnity benefits as of August 5, 2006. Included in

the letter was a copy of Dr. Smith’s Work Status Report, dated July 18, 2006. This

1
The WCJ used the date of February 4, 2005 in his oral reasons. However, Ms. Williams’
employment records show that she worked a partial day on February 4, 2005.

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report noted that Ms. Williams’ work status was “Return without modifications,”

effective that day. However, further in the report, under “Other Modifications,” Dr.

Smith wrote, “Sedentary work as defined by US [Department of Labor].”

On the one hand, Tioga Manor claims that Dr. Smith’s July 18, 2006 release

was inconsistent, yet on the other, it claims that it relied partially on that release to

terminate Ms. Williams’ benefits on August 5, 2007. Dr. Smith testified that he did

not think this made the report inconsistent. He stated that had he marked Ms.

Williams’ work status as modified, Tioga Manor would not have allowed her to return

to work. By checking “return without modification,” he said that in reality, Ms.

Williams was released without modification, but for sedentary work only.

The record also establishes that on August 1, 2006, Ms. Williams was

examined by Dr. Drerup. His progress report that day noted that Ms. Williams

wished to return to work at sedentary duty, as a sitter, a position that required no

lifting. Dr. Drerup approved her request and released her to return to work with

activity to tolerance. A copy of this report was sent to Employers Risk.

The WCJ did not accept Tioga Manor’s excuse that Dr. Smith’s July 19, 2006

release was inconsistent—nor do we. If it was confused as to Dr. Smith’s intent,

Tioga Manor should have asked him for clarification—especially in view of Dr.

Drerup’s August 1, 2006 progress report. What is especially glaring about Tioga

Manor’s reliance on Dr. Smith’s “inconsistent” release is the fact that it failed to

recognize Dr. Smith as Ms. Williams’ treating physician and refused to pay for any

treatment recommended by him subsequent to August 18, 2005.

With regard to the second reason for termination of benefits, Mr. Phillips

testified that Employers Risk’s adjustor spoke to the administrators of The Summit

17

Retirement Center and Lexington House Nursing Home on July 26, 2006, and learned

that Ms. Williams was seeking employment at those facilities as a certified nurse’s

aide. However, other than the basic inquiry by the adjustor, Mr. Phillips could not

provide any more specific information concerning the adjustor’s inquiry.

Ms. Williams testified that after Dr. Smith released her to sedentary work,

Tioga Manor offered her a position as a certified nurse’s aide, but not as a restorage

aide, the position she was performing at the time of her reinjury. Because she could

no longer perform the duties involved in the position offered at Tioga Manor, she

applied for employment at The Summit Retirement Center. According to Ms.

Williams, the position was titled certified nurse’s aide, but her new employer was

well aware of her condition and placed her with other employees, who performed her

lifting. She ultimately left that position because she was to be moved into a situation

where she would be required to lift her own patients, something she could not

physically do. She began working with The Summit Retirement Center on July 24,

2006, and left that position on August 23, 2006. During her employment, she was

paid $6.40 per hour.

She next worked for Matthews Memorial Nursing Home from August through

November 2006. As was the case at The Summit Retirement Center, her employer

was also aware of her condition and made accommodations. According to Ms.

Williams, she left this position when Dr. Smith restricted her from working in

November 2006. She stated that in late April 2007, she began employment as a sitter

with Future Expectations Community Care Services, LLC, and remained employed

there through July 2007. Her beginning pay was $6.65 per hour and she was making

$7.00 per hour when she left that position.

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The WCJ determined that Ms. Williams’ average monthly wage prior to her

injury was $1,185.25, and that ninety percent of that amount equaled $1,066.73. The

WCJ then determined the monthly wages earned by Ms. Williams for each month

between August 2006 and June 2007 and, after doing so, awarded SEB in the

following amounts: $376.56 for August 2006; $648.36 for November 2006; and

$643.87 for April 2007. The WCJ found that Ms. Williams was not entitled to an

award of SEB for the months of September and October 2006, and May and June

2007, as her wages exceeded $1,066.73 for those months. The WCJ further held that

she was entitled to SEB for the other time periods between July 24, 20072 through

August 26, 2007, however, he could not make an award based on the incomplete

records before him.

Pursuant to La.R.S. 23:1221(3), an injured employee who is unable to earn at

least ninety percent of his pre-injury wages is entitled to SEB in the amount equal to

sixty-six and two-thirds percent of the difference between his or her average monthly

wage at the time of the injury and the average monthly wages earned thereafter. After

reviewing Ms. Williams’ payroll records for the months at issue in light of La.R.S.

23:1221(3),we find no error in the WCJ’s determination that Ms. Williams was

entitled to SEB benefits for the periods at issue.

Tioga Manor further argues that the WCJ erred in failing to recognize that it

was entitled to a credit for the overpayment of indemnity benefits. This is based on

its own determination that Ms. Williams’ compensation rate is $133.34. However,

2
The WCJ’s oral reasons for judgment discuss the period of time between July 2007 through
the date of Ms. Williams’ surgery in late August 2007. The judgment lists the time period as being
between July 24, 2006 through August 26, 2007. However, as SEB was already awarded for these
months in 2006, July 24, 2006 was obviously an error and the correct year should have been 2007.

19

based on our prior affirmation of the WCJ’s determination that Ms. Williams is

entitled to $182.36 in weekly benefits, we find no merit in this issue.

MEDICAL EXPENSES

In its answer to appeal, Tioga Manor argues that the WCJ erred in awarding

Ms. Williams Dr. Smith’s medical expenses, for August 19, 2006 through December

6, 2006, and Dr. Gunderson’s medical expenses, for treatment prior to her third

surgery. Tioga Manor’s grounds for refusing to authorize treatment by either doctor

was the same: Ms. Williams’ treating physician is Dr. Drerup, thus, she is not entitled

to treatment from either Dr. Smith or Dr. Gunderson. We disagree.

Louisiana Revised Statutes 23:1121(B)(1) provides:

The employee shall have the right to select one treating physician
in any field or specialty. . . . After his initial choice the employee shall
obtain prior consent from the employer or his workers’ compensation
carrier for a change of treating physician within that same field or
specialty. The employee, however, is not required to obtain approval for
change to a treating physician in another field or specialty.

Mr. Phillips testified that after August 19, 2005, the adjustor handling Ms.

Williams’ claim refused authorization for all of Dr. Smith’s recommendations and

requests for payment, and notified Dr. Smith numerous times thereafter informing

him that no authorizations or payments would be forthcoming until Dr. Drerup

released Ms. Williams from his care. Mr. Phillips stated that this refusal was done

in order to avoid a duplication of treatment.

Mr. Phillips further testified that Employers Risk refused authorization for Dr.

Gunderson’s request for surgery and payment for his treatment for basically the same

reason. In an April 27, 2007 letter to Ms. Williams’ counsel, Tioga Manor denied Dr.

Gunderson’s request on the grounds that Dr. Drerup, her treating physician, had not

20

referred her to Dr. Gunderson and because it did not recognize him as her treating

physician since she failed to obtain prior approval for the change of doctors.

Dr. Smith, although a surgeon, specializes in occupational industrial medicine.

Dr. Drerup is a neurosurgeon, and Dr. Gunderson is an orthopedic surgeon. Dr.

Smith testified that his treatment focused on managing Ms. Williams’ pain, whereas

Dr. Drerup’s treatment focused on the neurosurgical aspect. Numerous references are

made by Dr. Drerup in his medical records pertaining to the coordination between

him and Dr. Smith in Ms. Williams’ treatment.

Pursuant to La.R.S. 23:1121(B)(1), Ms. Williams was entitled to seek treatment

from all three physicians as they specialize in different fields. No prior approval by

Tioga Manor was necessary. Furthermore, we note that this is not a new concept in

workers’ compensation law as this issue has been litigated numerous times. Thus,

Tioga Manor has no excuse for refusing to allow Ms. Williams treatment by either Dr.

Smith or Dr. Gunderson. Therefore, we find no error in the WCJ’s judgment

awarding Ms. Williams medical expenses for treatment by these doctors.

PENALTIES

La.R.S. 23:1201(I)

In her second assignment of error, Ms. Williams argues that the WCJ awarded

an unreasonably low penalty when it awarded her only $2,000.00 in penalties for

Tioga Manor’s termination of her indemnity benefits and $2,000.00 for its

discontinuance of Dr. Smith’s treatment. However, Tioga Manor questions whether

either award was warranted. We agree with Ms. Williams and increase the amount

of penalties awarded to her.

21

The 2003 revision of La.R.S. 23:1201 enacted subsection (I), which provides

for the imposition of penalties and attorney fees in the event an employer/insurer

discontinues the payment of claims to an employee, when such discontinuance is

found to be arbitrary, capricious, and without probable cause. The statute further sets

a cap on the penalties awarded under this subsection at $8,000.00.

“In determining whether an employer’s actions are arbitrary and capricious, the

crucial inquiry is whether the employer can articulate an objective reason for

terminating benefits at the time of the termination.” Doyal v. Vernon Parish Sch. Bd.,

06-1088, p. 10 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, 909, writ denied, 07-832 (La.

6/15/07), 958 So.2d 1190. Whether an employer is arbitrary and capricious is a

finding of fact, which is reviewed pursuant to the manifest error standard of review.

Id. However, the WCJ’s award of penalties and attorney fees, that is the actual

amount awarded, is entitled to great discretion and will not be disturbed absent an

abuse of that discretion. Int’l. Maint. Corp. v. Stoddard, 05-676 (La.App. 3 Cir.

12/30/05), 918 So.2d 1077.

In this instance, Tioga Manor discontinued Ms. Williams’ weekly indemnity

benefits on August 5, 2006. It also discontinued authorization for all treatment by Dr.

Smith subsequent to August 19, 2005. The WCJ held that these actions were

arbitrary and capricious and without probable cause and awarded a $2,000.00 penalty

in each instance. We find no error in the WCJ’s findings with regard to the

discontinuance. However, we do find that his award of $2,000.00 for each

discontinuance was abusively low. We now award $4,000.00 for each violation, for

a total penalty of $8,000.00 pursuant to La.R.S. 23:1201(I), in line with the $8,000.00

cap provided therein.

22

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

In its answer to appeal, Tioga Manor argues that the WCJ erred in awarding

$8,000.00 in penalties for the following infractions: (A) the incorrect payment of

indemnity benefits; (B) the failure to authorize and pay for treatment by Dr.

Gunderson; (C) the failure to pay emergency room treatment at Rapides Regional

Medical Center; (D) the failure to pay Red River Pharmacy medications and medical

bills of Dr. Smith from August 19, 2005 through December 6, 2006; and (E) the

untimely payment of benefits for the weekly periods from July 2, 2006 through July

22, 2006.3

Louisiana Revised Statutes 23:1201(F), as revised, provides for the imposition

of penalties and attorney fees if the employer fails to provide payment of

compensation or medical benefits or fails to approve the employee’s request to select

a treating physician or change of physician, if approval is required. The statute limits

the amount of each penalty to $2,000.00. Although the statute does not limit the

actual number of penalties which may be imposed, it caps the total amount which may

be awarded based on those penalties at $8,000.00. However, no penalties and

attorney fees will be assessed if the employer has reasonably controverted the

employee’s claim or if the nonpayment resulted from a condition which was beyond

the employer’s control. La.R.S. 23:1201(F)(2).

“In order to reasonably controvert a claim, the defendant must have some valid

reason or evidence upon which to base his denial of benefits.” Guillory, 950 So.2d

3
The WCJ, in his oral reasons, awarded penalties of $2,000.00 for the incorrect payment of
benefits; $2,000.00 for the failure to pay Dr. Gunderson; $2,000.00 for the failure to pay Rapides
General Medical Center; $2,000.00 for the combined discontinuance of Dr. Smith’s treatment and
the failure to pay Red River Pharmacy; and $850.00 for the late payment of benefits. This amounts
to $8,850.00 in penalties. However, the actual $8,000.00 awarded in penalties in the WCJ’s
judgment accords with the cap set out in La.R.S. 23:1201(F).

23

at 692. However, an employer will not escape punishment via the imposition of

penalties and attorney fees by alleging its own clerical error. Ducote v. La. Indus.,

Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

At the outset, we note that Tioga Manor has failed to present any argument

regarding the WCJ’s award of penalties based on its untimely payment of benefits for

the period of July 2, 2006 through July 22, 2006. Therefore, we will consider this

claim as being abandoned. Uniform Rules—Courts of Appeal, Rules 2-12.4 and 2-

12.5; Tillery v. State, Dep’t of Pub. Safety and Corrs., 07-1228 (La.App. 1 Cir.

2/8/08), 984 So.2d 742.

A. Underpayment of Benefits

In his oral reasons, the WCJ awarded Ms. Williams $2,000.00 in penalties

based on Tioga Manor’s miscalculation of her TTD indemnity benefits. In our prior

calculation, we affirmed the WCJ’s determination of Ms. Williams’ weekly

compensation rate of $182.36. Initially, Tioga Manor paid weekly compensation to

Ms. Williams in the amount of $127.05. This payment continued until December 13,

2004, when Ms. Williams returned to work. Thereafter, on February 23, 2005, Tioga

Manor reinstated Ms. Williams’ indemnity benefits in the amount of $180.00 per

week, and it continued payment at this rate until her benefits were terminated on

August 5, 2006.

The WCJ found that the miscalculation was due to Tioga Manor’s own clerical

error. We agree. Although Tioga Manor increased the amount of weekly indemnity

benefits in February 2006, its figure was still incorrect as it gave no consideration to

the fact that Ms. Williams was receiving paid vacation and paid holidays as part of

24

her wages. Tioga Manor concedes that she was receiving these fringe benefits.

Accordingly, the WCJ’s award of $2,000.00 in penalties is affirmed.

B. Failure to Pay Medical Expenses

Tioga Manor next questions the WCJ’s award of penalties with regard to its

failure to pay the following medical expenses: Dr. Gunderson’s treatment, Rapides

Regional Medical Center emergency room bill, and the Red River Pharmacy bill and

Dr. Smith’s treatment. We need not address the award pertaining to Dr. Smith’s

treatment as that was addressed in the section of our opinion concerning the La.R.S.

23:1201(I) damages award.

With regard to the issue relating to Dr. Gunderson’s treatment, we have already

affirmed the WCJ’s finding that Ms. Williams was entitled to select and receive

treatment from Dr. Gunderson, an orthopedic surgeon. Accordingly, it was

reasonable for the WCJ to find that Tioga Manor had no valid reason for denying his

treatment. The decision to award Ms. Williams $2,000.00 in penalties based on this

denial is affirmed.

We further find no error in the WCJ’s award of penalties based on Tioga

Manor’s refusal to pay the medical bills presented by Rapides Regional Medical

Center and the Red River Pharmacy. The Rapides Regional Medical Center bill

pertained to an emergency room visit by Ms. Williams on November 30, 2005. Tioga

Manor refused payment of this bill on January 5, 2006, based on the fact that Ms.

Williams failed to obtain prior approval for this emergency room visit and because

she already had a treating physician, Dr. Drerup. The bill was eventually paid in

March 2006. The Red River Pharmacy bill pertained to medication prescribed by Dr.

Smith to Ms. Williams as part of his treatment. As Tioga Manor declined to authorize

25

Dr. Smith’s treatment, it likewise refused to pay for medication prescribed by him

after August 19, 2005.

Tioga Manor has a duty to furnish all reasonable and necessary medical care

to Ms. Williams for her work-related injury. La.R.S. 23:1203(A); Wilczewski v.

Brookshire Grocery Store, 08-718 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, writ

denied, 09-456 (La. 4/13/09), 5 So.3d 170. This includes a trip to the emergency

room by Ms. Williams after normal business hours for the treatment of her severe

back pain. Moreover, as we have affirmed the WCJ’s finding that Tioga Manor was

arbitrary and capricious in discontinuing Dr. Smith’s treatment, we also find that it

was arbitrary and capricious for refusing to pay Red River Pharmacy for the

medication he prescribed. Accordingly, we find no error in the WCJ’s award of

$2,000.00 for each of Tioga Manor’s actions.

Attorney Fees

In her third assignment of error, Ms. Williams argues that the trial court erred

in awarding her only $6,500.00 in attorney fees. She argues that in light of the list of

factors to be considered in fixing attorney fees set out by the supreme court in

McCarroll v. Airport Shuttle, Inc., 00-1123 (La. 11/28/00), 773 So.2d 694, and in

consideration of attorney fee awards made in other cases, a more fitting award would

have been $25,000.00. Tioga Manor argues that the $6,500.00 award was justified

and should not be disturbed.

Louisiana Revised Statutes 23:1201(F) and (I) both allow for the award of

reasonable attorney fees in the event penalties are assessed under these two

subsections. However, La.R.S. 23:1201(J) limits the attorney fees awarded pursuant

to this statute to “one reasonable attorney fee.” The reasonableness of an attorney fee

26

award is based on “the degree of skill and ability exercised, the amount of the claim,

the amount recovered for the plaintiff, and the amount of time devoted to the case.”

Naquin v. Uniroyal Inc., 405 So.2d 525, 528 (La.1981); see also Cormier v. State,

Dep’t of Wildlife and Fisheries, 07-642, pp. 26-27 (La.App. 3 Cir. 11/21/07), 970

So.2d 1216, 1232, writ denied, 07-2466 (La. 2/15/08), 976 So.2d 186 (quoting

Lambert v. Brookshire Grocery Co., 06-1001, pp. 21-22 (La.App. 3 Cir. 12/20/06),

945 So.2d 918, 933).

In awarding the $6,500.00 in attorney fees, the WCJ issued the following oral

reasons:

Considering the success Mr. Flournoy has had on behalf of Ms.
Williams in recovering SEB benefits for and having her average weekly
wage properly calculated and obtaining for her penalties in association
with the failure to correctly pay her compensation rate for the deprival
of her medical care with Dr. Smith, and although this trial proceeded
over a course of three days, this was certainly not a trial necessitating
three days to be tried, and Mr. Flournoy argues for himself that he
should be entitled to a Twenty-Five Thousand Dollar ($25,000.00)
attorney fee as this Court awarded such a sum in the matter of Doyle
versus Vernon Parish School Board, 958 So.2d 1190, with regard to a
three-day trial. That was a very complicated trial, very difficult issues,
nothing protracted about the trial due to complications from failure to
provide Pretrial Statement, et cetera, or clearly defined issues.
Everything was clearly defined in the Doyle. Everybody knew what was
happening and the representation was excellent in that case.

That’s not to say that Mr. Flournoy did not do a good job for Ms.
Williams in this case. It is simply to say that this Court does not believe
that an attorney fee award of Twenty-Five Thousand Dollars
($25,000.00) is appropriate. The Court does award an attorney fee of
Six Thousand Five Hundred Dollars ($6,500.00) which I feel is on the
high end of being appropriate since the issues are well settled in a
workers’ compensation law. Nothing difficult about them, although
some similarly presented in some type of convoluted fashion requiring
a three-day trial.

While taking into consideration the above, we point out that counsel for Ms.

Williams was able to correct Ms. Williams’ average weekly wages, reinstate her TTD

27

benefits, obtain SEB on her behalf, and gain approval for treatment by Drs. Smith and

Gunderson. The WCJ also awarded her $10,000.00 in penalties based on numerous

violations by Tioga Manor of La.R.S. 23:1201(F) and (I). These include the

termination, under-payment, and late payment of indemnity benefits, the

discontinuance of Dr. Smith’s treatment, the refusal to authorize and pay for Dr.

Gunderson’s treatment, the failure to pay mileage, and the failure to pay for

reasonable and necessary medical expenses (Rapides Regional Medical Center and

Red River Pharmacy). On appeal, we have increased two of the penalties awarded

from $2,000.00 each to $4,000.00 each, for a total of $16,000.00 in penalties.

It is apparent from this result that counsel for Ms. Williams did exert a degree

of skill and ability in the furtherance of his representation and that he obtained a very

favorable result on her behalf. Although the WCJ stated, and Tioga Manor argues on

appeal, that the issues in this matter were not complicated and that the trial’s two-day

length was a direct result of counsel for Ms. Williams’s failure to timely file and

clarify the trial issues, the results in this instance speak for themselves. Furthermore,

the WCJ’s oral reasons for judgment covered approximately seventeen legal-sized

pages. Obviously, numerous issues were raised and addressed and the length of trial

cannot totally be blamed on Ms. Williams’ counsel.

Considering the foregoing, we find that the WCJ’s award of $6,500.00 in

attorney fees is abusively low, and we raise that to a more appropriate amount of

$15,000.00.

DISPOSITION

Based upon the foregoing reasons, we amend the WCJ’s judgment to increase

from $2,000.00 to $4,000.00 the penalty for Tioga Manor’s termination of Ms.

28

Williams’ indemnity benefits and increase from $2,000.00 to $4,000.00 the penalty

for its discontinuance of Dr. Smith’s treatment. We further amend the WCJ’s

judgment to increase the award of attorney fees from $6,500.00 to $15,000.00. The

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

assessed to the defendant, Tioga Manor Nursing Home.

AFFIRMED AS AMENDED.

29