Roshawn Pete v. Quality Construction Specialists

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-642

ROSHAWN PETE

VERSUS

QUALITY CONSTRUCTION SPECIALISTS
AND BRIDGEFIELD CASUALTY INSURANCE COMPANY

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 06-05352
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Billy Howard Ezell, Judges.

AMENDED AND, AS AMENDED, AFFIRMED.

Mark Alfred Ackal
P. O. Box 52045
Lafayette, LA 70505-2045
Telephone: (337) 237-5500
COUNSEL FOR:
Defendant/Appellant - Quality Construction Specialists

Craig Alan Davis
111 Mercury
Lafayette, LA 70503
Telephone: (337) 231-5351
COUNSEL FOR:
Plaintiff/Appellee - Roshawn Pete

THIBODEAUX, Chief Judge.

Defendant-appellants, Quality Construction Specialists and Bridgefield

Casualty Insurance Company, assert that the Office of Workers’ Compensation

(OWC) was manifestly erroneous by finding that (1) Quality’s employee, Roshawn

Pete, proved he had a job-related accident, and (2) Pete was entitled to penalties and

attorney fees. Pete answers the appeal, requesting attorney fees for the work on this

appeal and asking this court to amend the OWC’s judgment as it contains a clerical

error. For the following reasons, we amend the OWC’s judgment and, as amended,

affirm.

I.

ISSUES

We shall consider whether:

(1) the Workers’ Compensation Judge (WCJ) committed
a manifest error by concluding that an employee had
an accident in the course and scope of his
employment, where the employee alleged that his
cousin witnessed the accident, and where the cousin,
three years after the accident, denied witnessing it;
and,

(2) the WCJ committed a manifest error by awarding the
employee attorney fees and penalties for three
different infractions where the insurer:

(a) within sixty days of the request’s
submission, denied the physician-
recommended medical procedure, but
approved it one day after the employee
retained an attorney and filed a
disputed claim for compensation; and,

(b) did not approve two different medical
consultations in excess of six months
after the recommending physician
faxed his recommendations to the
insurer.

II.

FACTS

Pete started working for Quality in October of 2004. On April 15, 2005,

Pete claimed he injured his back while in the course and scope of his employment.

Pete testified that when he attempted to pick up a manhole cover that weighed about

two hundred pounds, he felt pain in his back, fell to his knees and then forward into

the bucket of a front-end loader. Pete testified that his cousin, who was also a co-

worker, witnessed the accident and turned Pete over from his stomach to his back.

The cousin then, according to Pete, summoned the supervisor, Mike Gentry, who,

along with the cousin, lifted Pete up and brought him to the car. Over three years

after the accident, Pete’s cousin testified at the OWC hearing that he did not witness

the accident and did not help Pete to the car.

One day after the accident, Pete sought and received emergency room

treatment. He was taken off work and told to follow up with his personal physician.

Subsequent doctor visits and an MRI revealed that Pete had a disc herniation. After

unsuccessful therapy, massage, and pain medication, Dr. Ilyas Munshi, a neurological

surgeon, recommended a discectomy that he performed in August of 2005.

Although Pete continued to experience back pain, Dr. Munshi reported

that Pete could return to light-duty work. Pete returned to work on January 30, 2006,

but he soon discovered that he could not perform the light-duty work Quality

assigned him to do. He informed Quality that he could not physically perform his

duties and has not attempted to work since.

On June 28, 2006, Pete saw Dr. Michel Heard, a local orthopedist, who

concluded that Pete suffered from severe back and right radiculitis that prevented Pete

from working in any capacity. Dr. Heard recommended, among other things, a

2

Lumbar Epidural Steroid Injection (LESI) series. According to Dr. Heard’s records,

an insurance adjuster denied the recommended LESI series on July 14, 2006. On

August 9, 2006, Pete filed a disputed claim for compensation. On August 10, 2006,

the insurance adjuster reversed her previous position and approved the LESI series.

Dr. Heard subsequently recommended two more LESI series that the insurance

adjuster treated in the same manner, first denying and then approving the treatment.

Dr. Heard’s records of January 22, 2007 indicate that as of that date, Dr.

Heard was waiting for the insurance adjuster’s approval of two consultations he

recommended. The first consultation would have been with Dr. Mark McDonnell,

a spine surgeon. The second recommendation was to consult with a pain management

specialist, Dr. Steven Staires. In the same report, Dr. Heard noted that Pete may need

a discogram.

On February 28, 2007, at the defendants’ initiation, Pete saw Dr.

Gregory Gidman for a second medical opinion. Dr. Gidman concluded that Pete

would not benefit from any further surgical intervention and that a discogram would

not provide any useful information. Based on these conclusions, the insurance

adjuster did not approve the recommended consultations.

Because of Dr. Heard and Dr. Gidman’s inconsistent recommendations

regarding a discogram, Bridgefield requested an independent medical examination

of Pete that Dr. Peter Vizzi performed on June 28, 2007. Dr. Vizzi concluded that a

discogram and a CT myelogram would provide additional information about Pete’s

condition. Dr. Vizzi also noted that, depending on the information gained from these

procedures, Pete may need a second surgery.

After the insurance adjuster approved a discogram in August of 2007,

Dr. Staires performed the procedure on August 21, 2007. The consultation with the

3

spine surgeon, Dr. McDonnell, whom Dr. Heard recommended in January of 2007,

had to await the adjuster’s approval even longer until the consultation took place on

October 2, 2007.

At the hearing, the WCJ held that the defendants committed three

infractions and awarded penalties in the amount of two thousand dollars per

infraction. The WCJ also ordered the defendants to pay seven thousand dollars in

Pete’s attorney fees. In his reasons for judgment, the WCJ stated that the denial of

the first LESI series was arbitrary and capricious. As the WCJ explained, no one

could fault an adjuster who denied treatment for a good cause but, after receiving

more information, changed her mind. Noting that the record did not supply a valid

reason for the denial and that defendants failed to produce the adjuster at the hearing

so as to ascertain whether the denial was warranted, the WCJ concluded that the

denial was arbitrary and capricious. Although the adjuster ultimately approved the

treatment within the statutory sixty day period, Pete had already undergone the

expense of retaining counsel and filing the disputed claim for compensation based on

the denial. The WCJ stated that the determination of the adjuster’s reasons for denial

was essential because, otherwise, the adjuster could deny the treatment, approve it the

next week, then deny again, and repeat the same pattern for sixty days.

The WCJ further held that the defendants supplied no adequate

explanation for the denial of recommended consultations with the spine surgeon and

the pain management specialist. The WCJ found no support for the delay based upon

Dr. Gidman’s opinion.

In his written judgment, the WCJ awarded Pete only two penalties of two

thousand dollars each and seven thousand dollars in attorney fees. Quality and

Bridgefield appealed, claiming that the WCJ committed manifest errors by

4

concluding that Pete proved he had an accident in the course and scope of his

employment and by imposing penalties and attorney fees upon them. Pete answered

the appeal stating that the OWC’s judgment contained a clerical error as to the

number of penalties. Pete requested this court to correct the error and to award an

increase in attorney fees for the work on this appeal.

III.

STANDARD OF REVIEW

The WCJ’s findings of fact are reviewed under the “manifest error” or

“clearly wrong” standard. Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3

Cir. 6/21/06), 934 So.2d 239. The appellate courts do not disturb the WCJ’s findings

of fact as long as they are reasonable and supported by the record. Id. Finally, the

WCJ’s imposition of penalties and attorney fees upon an employer are likewise

findings of fact subject to the manifest error standard. Guilbeau, 934 So.2d 239.

IV.

LAW AND DISCUSSION

(1) The Occurrence of a Work-related Accident

The determination as to whether an accident occurred involves a

judgment of credibility to which an appellate court gives great deference on review.

Francis v. BFI, 01-769 (La.App. 3 Cir. 12/12/01), 801 So.2d 604, writ denied, 02-101

(La. 3/22/02), 811 So.2d 934. Thus, the appellate court may find manifest error in a

credibility determination where the “objective evidence so contradicts an employee’s

testimony, or testimony is so internally inconsistent or implausible on its face that a

reasonable factfinder would discredit the story . . . .” Butterfield v. Turner Indus., 06-

1098, p. 6 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 480, writ denied, 07-507 (La.

5

4/27/07), 955 So.2d 692 (quoting Hubbard v. Allied Bldg. Stores, Inc., 41,534, p. 5

(La.App. 2 Cir. 11/1/06), 942 So.2d 639, 643).

Here, Pete testified that his co-worker cousin witnessed the accident and

helped him to the car afterward. The cousin testified that he did not witness the

accident and did not help Pete. The WCJ apparently determined that Pete’s

testimony, supported by contemporaneous medical and other evidence, was more

credible. Considering that the cousin provided his testimony over three years after

the accident, we find no error in the WCJ’s decision to accord this testimony less

weight than Pete’s account of the events and his medical and other evidence.

Therefore, the WCJ was not manifestly erroneous by concluding that the accident in

the course and scope of Pete’s employment occurred.

(2) Penalties and Attorney Fees

If the employer or insurer fails to pay medical benefits within sixty days

after the employer or insurer receives written notice thereof, the employee is entitled

to penalties and reasonable attorney fees unless the employee’s claim is reasonably

controverted. See La.R.S. 23:1201. Our jurisprudence has applied these sanctions

not only where the employer or insurer failed to pay benefits, but also where the

employer or insurer failed to authorize a medical procedure, subsequently deemed

necessary, within sixty days of notice. Lambert v. Brookshire Grocery Co., 06-1001

(La.App. 3 Cir. 12/20/06), 945 So.2d 918.

An employer could reasonably controvert a claim if the employer

“engaged in a nonfrivolous legal dispute or possessed factual and/or medical

information to reasonably counter the factual and medical information presented by

the claimant . . . .” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721

So.2d 885, 890. The employer or insurer has a continuing duty to investigate the

6

employee’s claim and to assess factual information before the denial of benefits.

Penn v. Wal-Mart Stores, Inc., 93-1262 (La.App. 3 Cir. 6/15/94), 638 So.2d 1123,

writ denied, 94-1835 (La. 10/28/94), 644 So.2d 651. Thus, a failure to investigate the

employee’s claim subjects the employer or insurer to penalties and attorney fees.

McClendon v. Keith Hutchinson Logging, 96-2373 (La.App. 1 Cir. 11/7/97), 702

So.2d 1164, writ denied, 97-2872 (La. 2/13/98), 706 So.2d 995. Moreover, “a

workers’ compensation claimant is entitled to an increase in attorney fees for time

incurred in defending an employer’s unsuccessful appeal.” Warren v. Maddox

Hauling, 02-733, p. 6 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082, 1087, writ denied,

03-4 (La. 4/21/03), 841 So.2d 791. Finally, “[t]he appellate court shall render any

judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ.P.

art. 2164.

Here, with respect to the first LESI series, the defendants argue that

because they ultimately authorized the treatment within the statutory sixty-day period,

the WCJ committed a manifest error by imposing the penalty. Yet, the issue here is

whether the insurance adjuster possessed factual and/or medical information to

reasonably deny authorization for the treatment. Because the insurers and/or

employers have a duty to investigate prior to the denial, it is reasonable for an

employee to assume that the insurer was not arbitrary and capricious when it denied

the employee’s claim. This is why, in the absence of any information subsequent to

the denial that could reasonably change the adjuster’s mind, an employee can

justifiably assume that the denial was final and act accordingly.1 The defendants

submitted no factual and/or medical information that would justify their refusal to

1
Certainly, as the WCJ pointed out, if the insurance adjuster, after the denial, learns new
information that warrants authorization of the procedure previously denied, then the support for the
imposition of penalties becomes more questionable. Yet, this is not the case here, as there is a
glaring lack of any justification for the initial denial and the subsequent change of position.

7

authorize the first LESI series or their sudden subsequent approval of it. This denial

forced Pete to undergo the expense of hiring an attorney to file a disputed claim for

benefits. Based on these considerations, the WCJ committed no manifest error by

awarding the penalty.

The defendants next point to Dr. Gidman’s report, arguing that it made

reasonable their refusal to approve consultations with the spine surgeon and the pain

management specialist. Dr. Gidman concluded that Pete would not benefit from a

second surgery and would not need a discogram. There is nothing in Dr. Gidman’s

report that questions Dr. Heard’s recommendations to consult a pain management

specialist and a spine surgeon. Although the defendants focus extensively on Dr.

Gidman’s conclusion that a discogram was unnecessary, the WCJ did not impose a

penalty on the defendants for the failure to authorize a discogram. Instead, the WCJ

penalized the defendants for the failure to authorize the recommended consultations.

Based on the considerations above, we find no manifest error with the WCJ’s

decision to impose penalties here.

From the record, it is clear that the OWC’s written judgment contains a

clerical error as to the number of penalties the WCJ imposed on the defendants. The

hearing transcript unambiguously indicates that the WCJ imposed three penalties of

two thousand dollars each for the three infractions discussed above. Yet, the written

judgment provides only for two penalties. Under our authority to render judgment

that is just, legal, and proper upon the record, we amend the OWC’s judgment with

respect to the number of penalties from two to three, and concomitantly increase the

amount of the penalties from four thousand dollars to six thousand dollars.

Finally, we award three thousand dollars in attorney fees for Pete’s

counsel’s work on appeal.

8

V.

CONCLUSION

The judgment in favor of Roshawn Pete is amended and, as amended,

affirmed. In addition, we order Quality Construction Specialists and Bridgefield

Casualty Insurance Company to pay three thousand dollars in Roshawn Pete’s

attorney fees for the work on this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.

9