Central La. Ambulatory Surgical Center, (David Nardin) v. Rapides Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-86 (consolidated with) 10-91, 10-92, 10-96, 10-97, 10-99,
10-100, 10-115, 10-117, and 10-118

CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC.
(BRIDGET HUIE)

VERSUS

PAYLESS SHOESOURCE, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 08-02882
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ON REHEARING

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and David E. Chatelain,* Judges.

Gremillion, J., concurs in part and dissents in part and assigns written reasons.

AFFIRMED.

Roger Anthony Javier
The Javier Law Firm
800 Energy Centre
1100 Poydras Street
New Orleans, LA 70163
Telephone: (504) 599-8570
COUNSEL FOR:
Defendant/Appellant - Payless Shoesource, Inc.

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Richard Bray Williams
Williams Family Law Firm, LLC
P. O. Box 15
Natchitoches, LA 71458-0015
Telephone: (318) 352-6695
COUNSEL FOR:
Plaintiff/Appellee - Central Louisiana Ambulatory Surgical Center,
Inc. (Bridget Huie)

THIBODEAUX, Chief Judge.

ON REHEARING

Defendants in these consolidated cases applied for rehearing on the issue

of notice. We deny these applications. Plaintiffs have filed applications for rehearing

on the issues of attorney fees and penalties. They have requested rehearing en banc.

We deny the request for en banc consideration but grant Plaintiffs’ rehearing

applications.

We reverse our original decision to deny penalties and attorney fees and

now affirm the awards of $1,500.00 in attorney fees and $2,000.00 in penalties in

each of the consolidated cases. We additionally award $1,500.00 for work done on

appeal to the prevailing Plaintiffs.

Louisiana Revised Statutes 23:1201(F)(4) states:

In the event that the health care provider prevails on
a claim for payment of his fee, penalties as provided in this
Section and reasonable attorney fees based upon actual
hours worked may be awarded and paid directly to the
health care provider. This Subsection shall not be
construed to provide recovery of more than one penalty or
attorney fee.

La.R.S. 23:1201(F)(2) states that “[t]his 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 phrase “as provided in this Section” of

La.R.S. 23:1201(F)(4) encompasses the “reasonably controverted” standard of

La.R.S. 23:1201(F)(2) as it applies to an award of penalties. The award of reasonable

attorney fees has no such restriction. That is, once a health care provider prevails on

an underpayment claim, the award of attorney fees is discretionary and is not subject

to the “reasonably controverted” limitation.

The determination by the Office of Workers’ Compensation that an

employer or insurer should be cast with penalties and attorney fees is a question of

fact subject to the manifest error or clearly wrong standard of review. Authement v.

Shappert Eng’g, 02-1631 (La. 2/25/03), 840 So.2d 1181. The workers’ compensation

judge appropriately exercised his discretion and was not clearly wrong in awarding

attorney fees pursuant to La.R.S. 23:1201(F)(4).

While Defendants may have a plausible argument on the impropriety of

awarding penalties under La.R.S. 23:1201(F)(4) based on the validity of the PPO

discount agreement, the argument is untenable with regard to the notice provisions

of La.R.S. 40:2203.1. Gunderson v. F.A. Richard & Associates, Inc., 09-1498

(La.App. 3 Cir. 6/30/10), __So.3d__, explained that La.R.S. 40:2203.1 was clear and

unambiguous. When a statute refers to “all preferred provider organization

agreements,” it means just that. Defendants in these consolidated cases were aware

of these clear provisions and cannot escape their applicability with protestations of

ambiguity.

For the foregoing reasons, we vacate our original opinion on the denial

of penalties and attorney fees and reinstate the judgments of the Office of Workers’

Compensation. Additionally, we award attorney fees of $1,500.00 for work done on

appeal in each of the consolidated cases.

AFFIRMED.

2

STATE OF LOUISIANA

COURT OF APPEAL

THIRD CIRCUIT

10-86 (Consolidated with) 10-91, 10-92, 10-96, 10-97, 10-99, 10-100, 10-115,
10-117, and 10-118

CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC.

VERSUS

PAYLESS SHOE SOURCE, INC.

GREMILLION, Judge, concurs in part and dissents in part.

I agree with the majority on the issue of the awards of penalties, given that the

defendants failed to comply with the dictates of La.R.S. 40:2203.1.

I dissent on the issue of attorney fees. Louisiana Revised Statute 23:1201(F)(4)

provides that “[i]n the event that the health care provider prevails on a claim for

payment of his fee, penalties as provided in the Section and reasonable attorney fees

based upon actual hours worked may be awarded. . . .” [Emphasis added]. In the

present matters, counsel for the provider submitted affidavits attesting to the actual

hours worked as of the date of trial on each, which are summarized below.

Docket Actual hours worked
10-86 2.4
10-91 3.7
10-92 3.9
10-96 2.4
10-97 2.3
10-99 2.2
10-100 2.4
10.115 2.3
10-117 2.1

10-118 2.9

Thus, counsel worked a total of 26.6 hours, for which the WCJ and this court

have determined the health care provider is entitled to receive attorney fees awards

totaling $30,000. An hourly rate of $1,127.82 is unreasonable and unwarranted. I

would reduce the attorney fee awards to reflect an hourly rate of $175.00 per hour.