Johnette Wilzcewski v. Brookshire Grocery Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1148

JOHNETTE WILZCEWSKI1

VERSUS

BROOKSHIRE GROCERY COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DIST. 02
PARISH OF RAPIDES, NO. 08-03619
HONORABLE JAMES L. BRADDOCK
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir and, Jimmie C. Peters,
Judges.

AFFIRMED AS AMENDED AND RENDERED.

Joe Payne Williams
Williams Family Law Firm, LLC
P. O. Box 15
Natchitoches, LA 71458-0015
(318) 352-6695
COUNSEL FOR PLAINTIFF/APPELLEE:
Johnette Wilczewski

1
The proper spelling of “Wilzcewski” is “Wilczewski.”

Dale G. Cox
Bradley Murchison Kelly & Shea LLC
401 Edwards Street
Suite 1000
Shreveport, LA 71101-5529
(318) 227-1131
COUNSEL FOR DEFENDANT/APPELLANT:
Brookshire Grocery Company

PETERS, J.

In this workers’ compensation matter, the defendant, Brookshire Grocery

Company (Brookshire), appeals the workers’ compensation judge’s (WCJ’s) denial

of its La.R.S. 23:1208 fraud defense and its judgment in favor of the plaintiff,

Johnette Wilczewski, reinstating her weekly indemnity benefits, awarding her the

implementation of a permanent spinal cord stimulator, and award her of statutory

penalties and attorney fees. Mrs. Wilczewski answered the appeal seeking additional

statutory penalties and attorney fees. For the following reasons, we affirm the WCJ’s

judgment as amended, and we render judgment awarding Mrs. Wilczewski additional

statutory penalties and attorney fees for work performed by her counsel on appeal.

DISCUSSION OF THE RECORD

The accident giving rise to this litigation occurred on December 22, 2005, and

this appeal marks the second time this matter has been before us. The first review by

this court occurred as a result of a WCJ decision approving the use by Mrs.

Wilczewski of a spinal cord stimulator for a nine-day trial, approving her

participation in a behavioral pain management program, and awarding her statutory

penalties and attorney fees for her employer’s failure to approve these treatments.

The WCJ rendered this judgment on April 2, 2008, and Brookshire timely appealed.

This court affirmed that judgment and awarded additional attorney fees to Mrs.

Wilczewski for work performed by her counsel on appeal. Wilczewski v. Brookshire

Grocery Co., 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.

Rather than attempt to rewrite the facts and procedural history that led up to the

April 2, 2008 judgment, we adopt the prior opinion’s recitation of those facts and

procedural history as our own:

On December 22, 2005, Johnette Wilczewski (Wilczewski)
claimed that she injured her mid-back when she lifted a case of hams
while working for Brookshire Grocery Company (Brookshire).
Unloading the boxes of hams, which weighed approximately fifty to
sixty pounds, was a normal part of her regular duties in the meat market
department for Brookshire.

Within twenty-four hours, Wilczewski saw her family physician,
Dr. James Knecht, complaining of mid-back pain. Dr. Knecht’s nurse
took a history from Wilczewski wherein she indicated that she has
suffered from back pain for about the last twenty-four hours, and,
further, that she has suffered pain from her left arm, wrapping around
her back for the last month. Dr. Knecht testified that the
wrapping-around pain was not related to the work incident, but the
posterior mid-back pain was due to her accident citing objective findings
of muscle spasm.

Dr. Knecht continued to see Wilczewski into January of 2006. He
referred her for physical therapy where a TENS unit was prescribed to
help with the pain in her thoracic spine. Due to continued pain, Dr.
Knecht referred her to an orthopedic specialist, Dr. Phillip Bacilla.

Dr. Bacilla ordered an MRI of Wilczewski’s thoracic and lumbar
spine as well as a bone scan. He interpreted an MRI and bone scan of
Wilczewski’s thoracic spine to be normal, but noted the MRI of the
lumbar spine showed a bulging disc at L2-3 and L3-4. Dr. Bacilla felt
that the bulges could be causing some of the pain in her upper lumbar
region, but did not explain the pain in the thoracic region that radiates
to the chest. He then referred her to Dr. Melanie Firmin, a pain
management specialist, with Wilczewski to return to his office after
seeing Dr. Firmin. Dr. Bacilla did not see Wilczewski again until
February 2007, wherein he suggested she be seen by a neurosurgeon.

Dr. Firmin, a board certified anesthesiologist and pain
management specialist, began treatment of Wilczewski in April of 2006
with various types of neuromodulator and anti-depressant medication in
an attempt to discover the source of the thoracic pain. Dr. Firmin’s
treatment progressed to a thoracic spine epidural steroid injection. That
injection temporarily relieved Wilczewski’s pain, and also showed an
immediate change in the discoloration pattern on the thoracic area of her
spine. This lead Dr. Firmin to believe that a trial of a spinal cord
stimulator would assist in both diagnosing the actual problem that
Wilczewski had and in determining if a permanent spinal cord stimulator
would be of any benefit. Given the unusual nature of this potential
diagnosis, Dr. Firmin sought a second opinion of her idea to use the trial
spinal cord stimulator from Dr. Steven A. Staires, an interventional pain
management specialist.

2

Dr. Staires saw Wilczewski and wrote a report to Dr. Firmin with
the results of his consultation. In the report Dr. Staires indicated that he
did see signs of exaggeration of symptoms for secondary gain or desire
to convince others of the seriousness of her plight. His impression was
that Wilczewski suffered from chronic thoracic pain syndrome and
possible complex regional pain syndrome in the thoracic spine. Further,
Dr. Staires stated that he clearly saw no contraindication to the trial of
the spinal cord stimulator that Dr. Firmin was considering
recommending.

Eddie Crawford, the adjuster working on the workers’
compensation claim filed by Wilczewski, received a copy of this report
written by Dr. Staires. As a result of the findings by Dr. Staires, Dr.
Firmin testified that her office requested the trial of the spinal cord
stimulator in October of 2006. Eddie Crawford testified that he received
no such request from Dr. Firmin’s office, but he did remember getting
the request in October, but was not sure whether it was October of 2006
or 2007.

In February of 2007, per the recommendation of Dr. Bascilla’s
office that Wilczewski see a neurosurgeon, Wilczewski obtained
Brookshire's approval to see Dr. Cavanaugh. She did not see him and
instead saw Dr. Anil Nanda, a neurosurgeon.

Dr. Nanda saw Wilczewski for two visits. On the first visit, he
reviewed the MRI of her lumbar spine. He also saw the disc bulges at
L2-3 and L3-4. He then requested a myelogram/CT with flexion and
extension of her lumbar spine to better evaluate the area. In the second
visit, he read the results of the myelogram/CT to show moderate lumbar
stenosis for L2 to L4, but he did not feel the films were dramatic. He
did suggest that, should Wilczewski not improve, he would recommend
a laminectomy from L2 to L4. In the two visits, Dr. Nanda noted the
redness of Wilczewski’s back but attributed it to excessive use of a
heating pad.

At Brookshire’s request, Wilczewski saw Dr. Karl Bilderback, an
orthopedic surgeon. Dr. Bilderback saw her one time and concluded
that she was at maximum medical improvement. Further, he found no
objective finding to support Wilczewski’s complaints of thoracic pain.
He opined that there was no reason for a spinal cord stimulator, that she
was magnifying her symptoms, and that she could return to work
without restrictions. With regards to the redness of Wilczewski’s back,
Dr. Bilderback did not have any particular diagnosis and felt it would be
helpful for Wilczewski to see a dermatologist.

Brookshire then requested Wilczewski to see Dr. Phillip
Bergeron, a dermatologist. He concluded that the redness of her back
was the result of prolonged use of a heating pad.

3

At Brookshire’s request, Wilczewski saw Dr. Keven Pauza, a
spine specialist for an independent medical evaluation. Dr. Pauza’s
opinion was that Wilczewski was cooperative, honest and forthright in
her evaluation. He concluded the following:

· No objective evidence of thoracic or lumbar radiculopathy.

· He strongly disagreed with Dr. Nanda’s suggestion for a possible
laminectomy.

· Wilczewski did not benefit from the epidural steroid injection
performed by Dr. Firmin because of the normal MRI of the thoracic
spine.

· No evidence of reflex sympathetic dystropy.

· No indication for a spinal cord stimulator.

· The most likely diagnosis was chemical pain originating from a torn
thoracic intervertebral disc or a torn thoracic facet joint capsule or a
combination of the two.

· It was safe for Wilczewski to return to work should [sic] with
restrictions on how she lifts.

· Wilczewski needed and he prescribed her Norco for pain.

Wilczewski also saw Dr. Renee Culver, a psychiatrist. Dr. Culver
concluded that Wilczewski was either suffering from a pain disorder
associated with psychological factors or factitious disorder, or that she
was malingering.

For the duration of these treatments, Dr. Firmin was still seeing
Wilczewski even though she never received approval for the trial of the
spinal cord stimulator. She referred her to Dr. James W. Quillin, a
psychologist, in order to help Wilczewski with any mental aspect of
dealing with her pain. Dr. Quillin diagnosed her with depression
secondary to chronic pain. He recommended and requested
authorization from Brookshire for a behavioral pain management
program. Brookshire denied this request.

Rather, Brookshire sent Wilczewski to be seen by Dr. Darren M[.]
Strother, a psychologist. Dr. Strother diagnosed Wilczewski with
malingering, pain disorder associated with psychological factors, and
mood disorder.

4

Dr. Firmin continued to see Wilczewski, but she decided it would
not be in Wilczewski’s best interest if she were to continue to see her in
November of 2007. Dr. Firmin ceased treating Wilczewski due to
Brookshire’s refusal to approve her recommendation that they attempt
a trial of a spinal cord stimulator.

On June 11, 2007, the Plaintiff filed a 1008 against Brookshire
seeking approval of the spinal cord stimulator and eventually evidence
was allowed to be heard regarding the behavioral pain management
recommended by Dr. Quillin. After a trial on the merits, the workers’
compensation judge (WCJ) ruled that Wilczewski had proven that the
trial of the spinal cord stimulator as well as the behavioral pain
management program were reasonable and necessary for treatment of
the work-related injury she suffered.

Additionally, the WCJ awarded Wilczewski penalties and
attorney’s fees for Brookshire’s failure to reasonably controvert the
requested cord stimulator and pain management program. In a very
through reasons for ruling, the WCJ opined that Brookshire had failed
in its duty under La.R.S. 23:1201 when it denied the requested
treatments by selectively focusing on parts of physician’s reports that
tended to help its position rather than by considering the totality of the
reports and following through with its statutory duty.

Id. at 1217-19.

In summary, Mrs. Wilczewski’s accident occurred on December 22, 2005; she

filed her disputed claim involving the spinal cord stimulator and behavioral pain

management program on June 11, 2007; the WCJ rendered judgment on those issues

on April 2, 2008; this court rendered an opinion affirming that judgment on January

28, 2009; and the supreme court denied Brookshire’s application for supervisory writs

on April 13, 2009.

On April 3, 2008, or one day after the WCJ rendered his oral reasons for

judgment, the same Eddie Crawford referred to in this court’s previous opinion wrote

Mrs. Wilczewski’s counsel informing him that Brookshire would cease paying Mrs.

Wilczewski’s weekly indemnity benefits on April 10, 2008. The letter suggested that

Brookshire based this action on the testimony of Drs. Bilderback and Pauza to the

5

effect that Mrs. Wilczewski could return to work without restrictions. Brookshire has

maintained this position throughout this second stage of this litigation.

On April 28, 2008, Mrs. Wilczewski filed a new disputed claim for

compensation—this time seeking reinstatement of her indemnity benefits and

statutory penalties and attorneys fees for the termination of her benefits. She later

amended her claim to request additional statutory penalties and attorney fees based

on Brookshire’s failure to authorize her treatment with Dr. Michael Dole, an

Alexandria, Louisiana pain management physician.

Because of the pending appeal, Mrs. Wilczewski did not receive the trial spinal

cord stimulator or participate in a behavioral pain management program immediately

after the April 2, 2008 decision. In fact, even after the supreme court denied its

supervisory writ on April 13, 2009, Brookshire took no immediate steps to comply

with the WCJ’s judgment. Brookshire seemed content to take its time with regard to

its obligations even after Mrs. Wilczewski’s counsel wrote Brookshire’s on April 17,

2009, and requested that it comply with the judgment—particularly that it approve

in writing Mrs. Wilczewski’s participation in the pain management program

recommended by Dr. Quillin. It was not until May 15, 2009, or over one month after

the supreme court had rejected its application for supervisory writs, that Brookshire

responded affirmatively to the judgment—but even then only to send payment of the

monetary amount it owed. Mrs. Wilczewski’s counsel received this payment on May

20, 2009, but it was not until June 26, 2009, that Dr. Quillin received authorization

for the program he recommended.

The nine-day trial of the spinal cord stimulator began on August 19, 2009, and

upon its completion, Dr. Firmin declared it a success. Dr. Firmin then recommended

6

that Mrs. Wilczewski undergo a permanent spinal cord stimulator implant whereby

two leads would be placed under the skin and at the thoracic spine. The leads would

then be tunneled under the skin down to one side of either the left or right buttock and

attached to a generator the size of a small pacemaker which would be placed in a

small pocket located in the upper buttock. The generator is powered by rechargeable

batteries which require changing every five to seven years. Dr. Firmin concluded that

this was the only treatment option available to Mrs. Wilczewski.

On November 13, 2009, Brookshire supplemented its answer to Mrs.

Wilczewski’s claim by alleging that she and her husband intentionally misrepresented

her medical condition and physical capacity in order to receive workers’

compensation benefits. By correspondence dated November 30, 2009, Brookshire

refused to authorize the permanent implant procedure recommended by Dr. Firmin.

Following a trial on the merits which began on April 15, 2010, the WCJ issued

oral reasons for judgment awarding Mrs. Wilczewski $3,319.44 in statutory penalties

and $4,500.00 in attorney fees based on Brookshire’s violation of La.R.S.

23:1201(G); ordering the reinstatement of her temporary total disability benefits at

the rate of $355.95 per week beginning on April 10, 2008; awarding her

reimbursement of a $20.00 co-payment she paid to see Dr. Dole under her husband’s

health insurance; awarding her the implementation of a permanent spinal cord

stimulator; awarding her $8,000.00 in statutory penalties and $12,000.00 in attorney

fees pursuant to La.R.S. 23:1201(F) and (I); denying Brookshire’s fraud allegations;

and awarding her various costs associated with her claim and legal interest on all past

due indemnity and medical benefits and on all statutory penalties and attorney fees

awarded.

7

In its appeal of this judgment, Brookshire raises fourteen assignments of error:

1. The Trial Court erred in finding that its judgment in the first suit of
April 17, 2008 barred the defenses in the second suit.

2. The Trial Court erred in unilaterally invoking the doctrine of res
judicata in finding that its first judgment of April 17, 2008 precluded the
defenses in the second suit.

3. The Trial Court erred in finding that the defendant was liable for the
permanent spinal cord stimulator.

4. The Trial Court erred in failing to exercise its gatekeeping function
when it allowed evidence of thoracic reflex sympathetic dystrophy and
the use of a spinal cord stimulator to treat this condition.

5. The Trial Court erred in disallowing the defendant’s Daubert/Foret
evidence concerning the scientific reliability of the diagnosis of thoracic
reflex sympathetic dystrophy and the use of a spinal cord stimulator to
treat this condition.

6. The Trial Court erred in awarding the plaintiff temporary total disability
benefits from the date of termination and continuing forward.

7. The Trial Court erred in rejecting the defendant’s affirmative plea of
willful misrepresentation pursuant to LSA-R.S. 23:1208.

8. The Trial Court erred in finding that the defendant was liable for
plaintiff’s pain management care with Dr. Michael Dole, M.D.

9. The Trial Court erred in finding that the defendant was arbitrary and
capricious for terminating the plaintiff’s indemnity benefits.

10. The Trial Court erred in finding that the defendant failed to reasonably
controvert the plaintiff’s entitlement to the permanent spinal cord
stimulator.

11. The Trial Court erred in finding that the defendant had failed to
reasonably controvert the plaintiff’s entitlement to treatment with Dr.
Michael Dole, M.D.

12. The Trial Court erred in awarding an attorney’s fee of $4,500 for work
on the single claim that the defendant failed to timely pay the preceding
judgment.

13. The Trial Court erred in awarding an attorney’s fee of $12,000 for work
on the remaining issues presented by the second suit.

8

14. The Trial Court erred in failing to admit the video tape surveillance of
the plaintiff taken in 2006 and 2007.

Mrs. Wilczewski has answered Brookshire’s appeal seeking a reversal of the

WCJ’s dismissal of her request for statutory penalties based on Brookshire’s late

authorization and payment of her behavioral pain management program pursuant to

La.R.S. 23:1201(G). She further requests an award of additional attorney fees for

work performed by her counsel on appeal.

OPINION

Standard of Review

The standard of review applied to workers’ compensation cases is well settled:

In workers’ compensation cases, the factual findings of the trial court
are subject to the manifest error standard of review. Smith v. Louisiana
Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132;
Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630
So.2d 733, 737-38. In applying the standard, the appellate court must
not determine whether the trier of fact’s conclusion was right or wrong,
but that it was reasonable. Freeman, 630 So.2d at 737-38; Stobart v.
State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127
(La.1987). Where there are two permissible views of the evidence, a
factfinder’s choice between them can never be manifestly erroneous.
Stobart, 617 So.2d at 882. Therefore, “if the [factfinder’s] findings are
reasonable in light of the record reviewed in its entirety, the court of
appeal may not reverse, even if convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.” Sistler v.
Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Landry v. Furniture Cent., 05-643, pp. 5-6 (La.App. 3 Cir. 1/11/06), 920 So.2d 304,
309, writ denied, 06-358 (La. 4/28/06), 927 So.2d 290.

Res Judicata

In its first two assignments of error, Brookshire asserts that the WCJ erred in

applying the doctrine of res judicata to the second stage of this litigation.

Specifically, Brookshire asserts that the WCJ improperly noticed the res judicata

argument on its own motion and that the WCJ erred in unilaterally invoking res

9

judicata to find that its defenses were barred by the previous judgment in favor of

Mrs. Wilczewski. We find no merit in this argument.

The first issue is easily disposed of by reference to La.Code Civ.P. art. 927(B)

which clearly states that the exception of res judicata “may be noticed by either the

trial or appellate court on its own motion.” A review of the record before us

establishes that the second issue raised by Brookshire is equally without merit

because the WCJ never invoked the application of the doctrine of res judicata.

The WCJ never mentioned res judicata in either its oral ruling or in the April

17, 2008 judgment. At most, the WCJ compared Brookshire’s defense to Mrs.

Wilczewski’s April 28, 2008 filing to that asserted in its opposition to her June 11,

2007 filing and found that they were basically the same. This observation is

supported by the record. Brookshire did indeed raise the same defense and

introduced the same medical evidence that it had accumulated before the WCJ’s April

2008 judgment.2 Thus, in considering Brookshire’s position with regard to Mrs.

Wilczewski’s past and current physical condition, the WCJ was presented with

nothing more than a rehashing of the same medical evidence it had considered

initially. Since Brookshire took no steps to obtain more current medical evidence in

support of its defense, it cannot now be heard to complain that the WCJ rejected that

evidence in favor of the more recent evidence and concluded that Mrs. Wilczewski

continues to be disabled from her accident and requires the medical treatment

recommended by Drs. Firmin and Quillin.

2
The only difference was the introduction of depositions of Drs. Culver and Strother that had
been taken subsequent to the April 2008 judgment, but even these depositions were based on
examinations by these physicians performed in 2007.

10

Spinal Cord Stimulator

In its next three assignments of error, Brookshire argues that the WCJ erred in

finding it liable for the implantation of a permanent spinal cord stimulator, in failing

to exercise its gatekeeping function by allowing the introduction of evidence of

thoracic reflex sympathetic dystrophy and the use of a spinal cord stimulator as

treatment for that condition, and in denying its motion in limine addressing the

scientific reliability of a diagnosis of thoracic complex regional pain syndrome as

well as the use of a spinal cord stimulator to treat such a diagnosis. We will address

these latter two issues first.

On April 8, 2010, or seven days prior to the beginning of the trial on the merits,

Brookshire filed a motion in limine seeking to have Mrs. Wilczewski’s claim

dismissed based on the absence of any scientifically reliable methodology to support

either the diagnosis of thoracic complex regional pain syndrome or the use of a spinal

cord stimulator for that diagnosis. The WCJ considered this motion and rejected it

at the beginning of the April 15, 2010 trial. Specifically, the WCJ found that the

motion was untimely based on the sixty-day provision of La.Code Civ.P. art.

1425(F)(1):

Any party may file a motion for a pretrial hearing to determine
whether a witness qualifies as an expert or whether the methodologies
employed by such witness are reliable under Articles 702 through 705
of the Louisiana Code of Evidence. The motion shall be filed not later
than sixty days prior to trial and shall set forth sufficient allegations
showing the necessity for these determinations by the court.

(Emphasis added).

A reading of the remainder of La.Code Civ.P. art. 1425(F) makes it clear why the

sixty-day filing requirement is mandatory. When such a motion is filed, the trial court

is required to hold a contradictory hearing at least thirty days prior to trial and, in the

11

event the trial court should take the matter under advisement, it may remain under

advisement only five days. La.Code Civ.P. art. 1425(F)(2) and (3). Additionally, the

statutory schedule gives the unsuccessful party the opportunity to seek immediate

appellate review. La.Code Civ.P. art. 1425(F)(5).

In finding Brookshire’s motion to be untimely, the WCJ pointed out that

Brookshire had attempted to raise this motion in the previous proceeding,3 that

approximately two years had lapsed since that hearing, and that Brookshire had more

than adequate time to comply with La.Code Civ.P. art. 1425(F). As stated by the

supreme court, “While we recognize that the rules of evidence and procedure are

relaxed in workers’ compensation proceedings, such proceedings are nonetheless

lawsuits to be conducted in conformity with the accepted standards of practice and

procedure.” Taylor v. Tommie’s Gaming, 04-2254, p. 5 (La. 5/24/05), 902 So.2d 380,

383 (footnote omitted). We find no error in the WCJ’ rejection of Brookshire’s

motion as untimely.

We further find no merit in Brookshire’s argument that the WCJ failed in

exercising its gatekeeping function by allowing Dr. Firmin’s testimony regarding both

the diagnosis of thoracic reflex sympathetic dystrophy and its treatment via a spinal

cord stimulator. In Chaisson v. Cajun Bag & Supply, Co., 97-1225, pp. 9-10 (La.

3/4/98), 708 So.2d 375, 381 (alteration in original), the supreme court stated:

LSA-RS 23:1317 mandates that the hearing officer’s factual
findings be based on “competent evidence.” LA.REV.STAT. ANN.
23:1317(A) (West Supp.1997). This legislative mandate is necessary
because under the express language of LSA-RS 23:1317, worker’s
compensation hearing officers are “not bound by the technical rules of
evidence.” Id. In other words, the hearing officer has the discretion to
admit evidence that would otherwise be inadmissible under the

3
The issue was actually raised and rejected in the prior appeal in two of Brookshire’s nine
assignments of error. Wilczewski, 2 So.3d 1214.

12

Louisiana Code of Evidence. This more relaxed standard for the
admissibility of evidence is the general rule in proceedings before
administrative agencies. MCCORMICK ON EVIDENCE § 352 (4th
ed.1992). The legislative requirement that a hearing officer’s factual
findings be based upon competent evidence is the safeguard that ensures
that the factual findings are made on evidence that has some degree of
reliability and trustworthiness, notwithstanding that the evidence might
fall outside of the technical rules for admissibility. Therefore, when a
reviewing court evaluates the factual findings of a hearing officer under
the manifest error standard, it must determine whether the factual
findings are reasonable and supported by competent evidence in the
record. Although the Legislature has not defined “competent evidence,”
in order to give the relaxed evidentiary standard in LSA-RS 23:1317
effect, it must not be defined so narrowly as to mean only evidence that
would fall within the parameters of the Louisiana Code of Evidence. If
the hearing officer’s factual findings are reasonably supported by
competent evidence, then the reviewing court must affirm them.

Dr. Firmin described neuropathic pain as pain which is generated by nerve

tissue. Unlike traditional or normal pain, which is carried to the brain as a stimulus

by something other than nerve tissue, she stated that neuropathic pain has a burning

or stinging quality. Dr. Firmin testified that this type of pain differs from traditional

pain in two ways: it fails to resolve within an appropriate time frame and it can cause

aberrations of the autonomic nervous system, i.e., “sweating, discoloration, hair going

up on end, or hair coming back down on end.”

According to Dr. Firmin, spinal cord stimulation is an advanced treatment for

patients suffering from neuropathic pain. It confuses the brain by laying down a

positive, pleasant stimulation on top of the unpleasant stimulation (neuropathic pain)

so that the brain has to choose one or the other. Since the pleasant stimulation is

located above the location of the neuropathic pain, the brain hopefully chooses the

pleasant stimulation. She explained that the two leads of the spinal cord stimulator

are placed in the epidural space a level above the damaged nerve tissue. Each lead

has eight contacts, thereby creating sixteen possible interchangeable electrical fields

13

which can be manipulated to produce different sensations in an effort to confuse the

brain.

Use of the spinal cord stimulator is not an automatic thing, according to Dr.

Firmin. A patient being considered for this form of treatment must meet three

criteria: neuropathic pain, the failure of all conservative methods of treatment, and

a psychologically stable patient. Dr. Firmin stated that when she first considered this

treatment for Mrs. Wilczewski, she met all three criteria.

Dr. Firmin testified that she determined the source of Mrs. Wilczewski’s pain

to be neuropathic because her pain did not originate from a determinable pain

receptor source. That is to say, the pain was not produced from her faucet joints, a

disc irritation, or an external nerve irritation. While Mrs. Wilczewski’s subjective

complaints were burning pain and pulling of the skin, she also exhibited mottled skin

which stopped at the midline axillary line, a dermatomal pain consistently from T2-3

straight down to T9-10,and excessive sweating in that area.4 She testified that she

entertained a diagnosis of complex regional pain syndrome early in her treatment of

Mrs. Wilczewski because of her interesting presentation. Now, based on Mrs.

Wilczewski experiencing a greater than fifty percent reduction in pain from the

spinal-cord-stimulation trial, Dr. Firmin was firmly convinced that Mrs. Wilczewski

suffered from thoracic reflex sympathetic dystrophy. In fact, according to Dr. Firmin,

Mrs. Wilczewski opposed removing the stimulator after the end of the trial period

because of the relief she was receiving. Dr. Firmin stated that these findings led her

to conclude that Mrs. Wilczewski fit the criteria for the implementation of a

permanent stimulator and that this was the correct therapy for her.

4
As time passed, the mottling and sweating ceased, but Dr. Firmin found this insignificant
in the grand scheme of things.

14

With regard to future treatment, Dr. Firmin testified that because of the delay

caused by Brookshire’s refusal to authorize the permanent stimulator, Mrs.

Wilczewski’s current status, including her psychological status, would have to be

evaluated to determine if she still met the required criteria. Because she had nothing

more to offer Mrs. Wilczewski, Dr. Firmin had ceased seeing her patient on August

28, 2009.

Mrs. Wilczewski testified that the trial period using the spinal cord stimulator

provided her with significant relief from her thoracic pain. Before the trial period

began, she would have rated her pain level at eight on a ten point scale. By the end

of the nine-day trial, that level had been reduced to three.

Brookshire’s only response to Dr. Firmin’s proposed treatment was to again

submit the medical evidence obtained from 2007 examinations. Thus, Brookshire

blindly relied on medical evidence which was more than two years old as justification

to deny the treatment recommended by Dr. Firmin despite the fact that the only

evidence before the WCJ was that the trial use of the spinal cord stimulator actually

gave Mrs. Wilczewski relief. Instead of applauding such progress, Brookshire seemed

satisfied with the status quo. In this court’s prior opinion, the issue before the court

was “whether it was reasonable and necessary that [Mrs. Wilczewski] would benefit

either diagnostically, or by obtaining relief, or both, from the trial of the spinal cord

stimulator.” Wilczewski, 2 So.2d at 1224. Brookshire now attempts to challenge the

positive evidence of relief through use of the spinal cord stimulator with three-year-

old medical, which does not address the correct medical situation. That being the

case, we find that the WCJ’s evaluation of the evidence on this issue was reasonable

and was based on competent evidence in the record.

15

The law is clear that an employer has a duty to furnish all reasonable and

necessary medical treatment resulting from an employee’s work-related accident.

La.R.S. 23:1203(A). It is equally clear that encompassed in “reasonable and

necessary medical treatment” is that palliative treatment necessary to relieve an

employee of pain caused by their work injury. Jennings v. Ryan’s Family Steak

House, 07-372 (La.App. 1 Cir. 11/2/07), 984 So.2d 31.

After reviewing the record, we find no error in the WCJ’s finding that Mrs.

Wilczewski is entitled to the implementation of a permanent spinal cord stimulator.

Temporary Total Disability Benefits

In its next assignment of error, Brookshire argues that the WCJ erred in

awarding Mrs. Wilczewski temporary total disability benefits (TTD) from April 10,

2008 forward. Brookshire bases this position on the argument that the WCJ erred in

finding Mrs. Wilczewski unable to work because of her psychological status rather

than her physical status, based on the recommendation of Dr. Quillin.

An employee who proves, by clear and convincing evidence, unaided by any

presumption of disability, that she is physically unable to engage in any employment

as a result of a work-related injury will be awarded TTD benefits. La.R.S.

23:1221(1). Disability can be proven by both medical and lay testimony, and the

WCJ must weigh all of the evidence in order to determine whether the employee has

satisfied her burden of proof. Jack v. Prairie Cajun Seafood Wholesale, 07-102

(La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 07-2388 (La. 2/15/08), 976

So.2d 178. The WCJ’s finding of disability is a factual determination that is subject

to the manifest error analysis. Id.

16

Dr. Firmin testified that once the permanent spinal cord stimulator is implanted,

Mrs. Wilczewski will be restricted from any turning or bending for eight weeks. She

suggests that thereafter, Mrs. Wilczewski would require two to four additional

months of reconditioning before she could return to work. Once reconditioning is

completed, Mrs. Wilczewski should be able to perform at the same level of work she

performed prior to her work accident.

Dr. Quillin, the only doctor to continuously see Mrs. Wilczewski since the first

hearing, opined that she is presently unable to engage in any employment based on

her current psychological status. As of July 13, 2009, Dr. Quillin’s impression was

that she was suffering from a mood disorder (depression) secondary to her medical

condition (chronic pain syndrome); Bipolar Disorder, Type II (well controlled with

treatment), somatization, and mixed personality features. Based on his knowledge

of Mrs. Wilczewski, Dr. Quillin did not believe that she would be able to adequately

manage even the low-grade stress experienced in any type of employment without

deteriorating psychologically and experiencing a worsening of her depression or an

exacerbation of her hypomanic episodes.

According to Dr. Quillin, Mrs. Wilczewski’s depression was directly related

to her pain. He explained that chronic pain results in substantial depression in most

patients because the abnormal signal sent into the parts of the brain controlling

emotional response, causes the patient to become depressed, which, in turn, causes

the pain to seem worse.

Dr. Quillin also agreed that chronic pain patients experience a fear of reinjury

and that it is natural for a person who is hurt to protect the injured part of their body.

He explained that this guarded movement becomes a natural built-in response if the

17

pain is prolonged and that their response causes the patient to become deconditioned.

At that point, even basic movement causes pain. For this reason, he encouraged Mrs.

Wilczewski to be physically active.

During his treatment of Mrs. Wilczewski, Dr. Quillin observed that she

developed a Type II Bipolar Disorder. He explained this as a milder type of Bipolar

Disorder involving less manic episodes than Type I. Still, this condition caused Mrs.

Wilczewski to go through episodes of extreme irritability, screaming, and throwing

and smashing things. Although he felt that Mrs. Wilczewski was most likely

genetically predisposed to this condition, Dr. Quillin felt that the stress caused by her

pain was a relevant factor in causing the condition. He further testified that chronic

pain patients are more likely to experience psycho-social consequences, i.e., not able

to work, financial problems. Dr. Quillin did not feel Mrs. Wilczewski is capable of

working as a cashier in a self-serve gas kiosk (a position proposed by Brookshire)

based on the level of her depression and pain. He stated that unless one of these

conditions resolves itself (the depression or the pain), she will have difficulty

sustaining this position on a day-to-day basis.

Mrs. Wilczewski testified that she was physically incapable of working when

Brookshire terminated her TTD and that nothing had changed since then. While she

has good and bad days, she still suffers a pain level on a daily basis of six to eight on

a scale of ten. She described her mid back as feeling numb or having a stabbing pain,

and suggested that it feels as though a hatchet has been buried in her back. Because

of her constant pain, she is careful to avoid quick movements.

Mrs. Wilczewski stated that prior to the trial stimulator, she had trouble

sleeping or working around her home and that during the trial, she slept better, moved

18

better, and felt better. According to Mrs. Wilczewski, Brookshire queried her about

an attendant position in a gas-station kiosk, but never followed up with her about the

position. Although she feels she could perform this position for four to six hours per

day, she does not think she could work an eight-hour shift. She further stated that her

Brookshire store does not have a gas station with a kiosk.

Mrs. Wilczewski testified that she is the primary grocery shopper in the family

and that she daily waters the family dogs and sweeps the back porch. She testified

that watering the dogs requires her to carry a water bowl weighing approximately five

to six pounds a distance of five to ten yards. She sweeps the porch once or twice a

day depending on both the porch’s condition and her condition.

David Wilczewski testified that his wife never had any mid-back complaints

prior to her work accident, but that she has complained constantly since then. He

testified that his wife could not return to work when Brookshire terminated her

employment and since that time, there has been no change in her condition.

According to Mr. Wilczewski, Mrs. Wilczewski walks more carefully and

guardedly and she has become anxious and agitated because of her injury. He

testified that she has complained of a weight gain from taking her medication, and he

acknowledges that this might possibly be the cause of some of her anxiety and

depression. Mr. Wilczewski stated that there was no noticeable change in Mrs.

Wilczewski’s behavior after she completed the behavioral pain management program.

Mr. Wilczewski testified that since the accident, Mrs. Wilczewski no longer

cuts the grass in their yard, but that she washes clothes, occasionally cooks, waters

the dogs, and sweeps the porch. The most weight she picks up is approximately five

19

pounds. He testified that while they normally shop together, there are times that Mrs.

Wilczewski shops by herself and carries in the groceries by herself.

Mr. Crawford testified that he terminated Mrs. Wilczewski’s weekly indemnity

benefits on April 10, 2008, based on his belief that none of Brookshire’s examining

doctors found any objective reason for Mrs. Wilczewski’s pain, there was no

recognized diagnosis for thoracic reflex sympathetic dystrophy, and because

treatment via a spinal cord stimulator was not indicated in this instance.5

Although the WCJ’s award of the trial stimulator was eventually affirmed by

the supreme court and the actual trial was declared a success by Dr. Firmin, Mr.

Crawford relied on the same medical records to deny Mrs. Wilczewski’s request for

a permanent spinal cord stimulator. He admitted that he never inquired about the

results of the trial stimulator nor did he contact Dr. Firmin’s office. He stated that he

made no further attempts to gather any new information pertaining to thoracic reflex

sympathetic dystrophy because as far as he knew, nothing had changed in the medical

literature. Mr. Crawford testified that he also relied on surveillance video of Mrs.

Wilczewski which contradicted her prior statements to Brookshire’s physicians

concerning her ability to function. He stated that the video showed her acting

normally at home, sweeping, carrying her dogs’ water bowl, feeding the dogs, etc.

He said that these actions contradicted Dr. Bilderback’s report that Mrs. Wilczewski

moved very slowly, took small steps, was very rigid, and complained of the pain

while bending over.

5
Mr. Crawford relied on the medical records of Drs. Bilderback, Pauza, Strother, Culver, and
Staires. In doing so, he completely ignored the WCJ’s ruling concerning the trial of the spinal cord
stimulator—a finding that most would consider as being at least indicative of the WCJ’s conclusion
that Mrs. Wilczewski suffered from some disabling condition.

20

The WCJ held that Mrs. Wilczewski was currently disabled and entitled to

TTD based on the opinions of both Drs. Firmin and Quillin. The WCJ rejected

Brookshire’s reliance on its previously introduced medical records and held that since

Mrs. Wilczewski was still in need of treatment via the permanent spinal cord

stimulator, she was still disabled and entitled to TTD.

After reviewing the record, we find no error in the judgment of the WCJ

reinstating Mrs. Wilczewski’s TTD from April 10, 2008, and onwards. Drs. Quillin

and Firmin are the only doctors to treat Mrs. Wilczewski since the first hearing; thus,

they are the only doctors who are familiar with her current condition. As such, it was

not unreasonable for the WCJ to rely on their opinions in determining that Mrs.

Wilczewski has been and still is disabled and entitled to TTD. Mr. Crawford was

unapologetic and almost arrogant in his reasons for terminating Mrs. Wilczewski’s

benefits. As far as he knew, there was no new medical literature concerning thoracic

reflex sympathetic dystrophy. In fact, Mr. Crawford testified that he should have

terminated Mrs. Wilczewski’s indemnity benefits long before he did, but he “just

didn’t do it” because he had “[l]ots of other cases going on.” He admitted that the

only reasons he reviewed Mrs. Wilczewski’s case was because he was prompted to

by the WCJ’s April 2, 2008 ruling. Accordingly, we find no error in the WCJ

judgment awarding the reinstatement of Mrs. Wilczewski’s TTD as of April 10, 2008,

and continuing onwards.

Brookshire further argues that the WCJ erred in finding that it was arbitrary

and capricious in terminating Mrs. Wilczewski’s indemnity benefits. Louisiana

Revised Statutes 23:1201(I) provides for the award of statutory penalties and attorney

fees based on the employer’s discontinuance of indemnity benefits if the

21

discontinuance is found to be arbitrary and capricious or without probable cause.

“Arbitrary and capricious conduct is ‘willful and unreasonable action, without

consideration and regard for the facts and circumstances presented.’” Key v. Monroe

City Sch. Bd., 45,096, p. 10 (La.App. 2 Cir. 3/10/10), 32 So.2d 1144, 1151 (quoting

J.E. Merit Constructors, Inc. v. Hickman, 00-943, p. 5 (La. 1/17/01), 776 So.2d 435,

437-38).

We find no need to reexamine Brookshire’s actions in terminating Mrs.

Wilczewski’s indemnity benefits. Needless to say, we find that Mr. Crawford’s

actions in this instance are classic examples of the definition of “arbitrary and

capricious.” Accordingly, this assignment of error is dismissed as being without

merit.

Willful Misrepresentation

In its next assignment of error, Brookshire argues that the WCJ erred in

rejecting its affirmative plea of willful misrepresentation pursuant to La.R.S. 23:1208.

Brookshire bases its right to seek forfeiture of benefits on statements it claims Mrs.

Wilczewski made to several doctors which misrepresented both her mental and

physical condition. However, these statements were made in conjunction with the

medical examinations conducted in 2007, prior to the first hearing. As we have

already discounted these medical records, we need not address those claims.

However, Brookshire also relies on video surveillance which it claims shows Mrs.

Wilczewski performing activities she swore she was unable to perform. In this

instance, the video surveillance shows Mrs. Wilczewski watering her dogs, sweeping

the porch, bending down, and helping her husband carry a chair into their house.

22

Louisiana Revised Statutes 23:1208(A) provides in pertinent part that “[i]t shall

be unlawful for any person, for the purpose of obtaining or defeating any benefit or

payment under the provisions of this Chapter, either for himself or for any other

person, to willfully make a false statement or representation.” In order to prove fraud

as defined by this provision, an employer must prove: (1) a false statement or

misrepresentation by the employee, (2) willfully made, and (3) that it was made for

the purpose of obtaining workers’ compensation benefits. Campbell v. City of

Leesville, 07-1061 (La.App. 3 Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La.

4/25/08), 978 So.2d 366. Upon proof of these three elements, the penalty to the

employee is forfeiture of the right to recover any workers’ compensation benefits.

La.R.S. 23:1208(E).

Mrs. Wilczewski denied intentionally lying to Brookshire or its attorney.

When questioned about the surveillance video, she admitted that she sweeps her

porch, that she changes her dogs’ water daily, and that she did help her husband carry

an overstuffed chair from his truck into their house. Mrs. Wilczewski stated that the

water bowl weighs approximately five pounds when filled with water and that she

carries it approximately five to ten yards. She further explained that the chair was a

Christmas present, which her husband brought home the day after Christmas. She

stated that she helped him carry it ten to fifteen yards from his truck into the house

because it began raining. She admitted that she should not have helped, but she said

she did so and her back hurt the next day as a result. Mrs. Wilczewski said that the

chair weighed between forty-five and fifty pounds and that it was hard for one person

to carry because of its bulky in shape. In an earlier deposition, Mrs. Wilczewski

testified that the most weight she lifts is between five and ten pounds. When asked

23

about this statement, she stated that she was sure she had lifted heavier, but she did

not recall making that statement.

Mrs. Wilczewski was also asked about a photograph which depicts her bending

over and touching her toes/shoes. In her deposition, she stated that she was unable

to do so. The surveillance video showed her performing and holding this pose for

approximately fifteen seconds. When questioned concerning the discrepancy

between her actions and her earlier testimony, Mrs. Wilczewski stated that she can

touch her toes, although she admitted that it hurts to do so. She could not say how

often she performs this maneuver and stated that she just does it when she has to or

when it just happens.

When questioned about Mrs. Wilczewski helping move the chair, Dr. Firmin

testified that reflex sympathetic dystrophy is not a structural abnormality. Thus, she

stated that Mrs. Wilczewski should be able to lift any weight she did prior to the

accident without worsening her condition. Yes, she said Mrs. Wilczewski will feel

pain, but structurally, she is still intact. Moreover, Dr. Quillin testified that he

encouraged Mrs. Wilczewski to be active.

In rejecting Brookshire’s fraud defense, the WCJ found no great inconsistency

between Mrs. Wilczweski’s medical condition, her prior comments, and the video

depiction of her actions. Furthermore, he found Mrs. Wilczewski to be forthright and

straight forward about what occurred in the video.

After reviewing the record, we find no error in the WCJ’s rejection of

Brookshire’s fraud defense. The video shows Mrs. Wilczewski sweeping, watering

her dogs, bending down, and, once, assisting her husband in moving a chair.

Although certain of these activities may contradict Mrs. Wilczewski’s deposition

24

testimony, we do not find that these contradictions rise to the level of willful

fraudulent actions intended by La.R.S. 23:1208. Mere contradictions between an

employee’s testimony and surveillance video does not automatically result in a

violation of La.R.S. 23:1208. Palmer v. Schooner Petroleum Servs., 02-397 (La.App.

3 Cir. 12/27/02), 834 So.2d 642, writ denied, 03-367 (La. 4/21/03), 841 So.2d 802.

Accordingly, the WCJ judgment denying Brookshire’s fraud defense is affirmed.

Pain Management Treatment

In its next assignment of error, Brookshire argues that the WCJ erred in finding

it liable for Mrs. Wilczewski’s pain management care with Dr. Michael Dole, an

Alexandria, Louisiana pain management physician. However, we find no error and

affirm the WCJ’s judgment on this issue.

Mrs. Wilczewski testified that she sought authorization from Brookshire for

pain management treatment by Dr. Dole upon Dr. Quillin’s recommendation after her

discharge from Dr. Firmin’s care. She stated that Brookshire refused her request.

She stated that she was seen twice by Dr. Dole, which visits were paid by her

husband’s health insurance after she paid a $20.00 co-pay. She said that her

husband’s insurance refused to pay for any further visits after learning that this was

a workers’ compensation matter.

Dr. Firmin explained that she practices interventional pain treatment, which

involves targeted treatments such as injections. She stated that she does not provide

medication management services for patients. Dr. Firmin testified that she discharged

Mrs. Wilczewski from her care because she had no further treatment to offer her. At

that point, Mrs. Wilczewski was not receiving pain management treatment from any

doctor.

25

Mr. Crawford testified that he refused Mrs. Wilczewski’s request to see Dr.

Dole despite the fact that he knew Dr. Firmin was withdrawing from her care. He

stated that he did so because she had already seen two pain management specialists:

Dr. Firmin and Dr. Staires. Thus, he felt that he had no further obligation to approve

treatment for her by a pain management specialist.

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.”

Here, Mrs. Wilczewski received pain management treatment from Dr. Firmin.

However, once Dr. Firmin discharged Mrs. Wilczewski, she was not receiving pain

management treatment from any doctor. We find no merit in Mr. Crawford’s

argument that she had also received this type of treatment from Dr. Staires.

Louisiana Revised Statutes 23:1121(2)(a) provides, “If the employee is treated

by any physician to whom he is not specifically directed by the employer or insurer,

that physician shall be regarded as his choice of treating physician.” Mrs. Wilczewski

was seen by Dr. Staires once in 2007, at the request of Dr. Firmin for a second

opinion with regards to the proposed trial of the spinal cord stimulator. Thus, Dr.

Staires has never treated Mrs. Wilczewski. Accordingly, we find that Mrs.

Wilczewski was entitled to see Dr. Dole for pain management treatment after Dr.

Firmin discharged her as a patient.

Brookshire further argues that the WCJ erred in finding that it failed to

reasonably controvert Mrs. Wilczewski’s right to treatment with Dr. Dole. Louisiana

Revised Statutes 23:1201(F) provides for penalties and attorney fees based on the

26

employer’s failure to reasonably controvert the employee’s request to change

physicians when such consent is required by La.R.S. 23:1121.”

We find no merit in Brookshire’s argument. Mr. Crawford admitted that he

was aware of Dr. Firmin withdrawing from Mrs. Wilczewski’s treatment.

Considering the foregoing, the WCJ judgment finding that Brookshire failed to

reasonably controvert Mrs. Wilczewski’s request to see Dr. Dole is affirmed.

Attorney Fees

Brookshire next argues that the WCJ erred in awarding Mrs. Wilczewski

$4,500.00 in attorney fees based on its failure to timely pay the prior judgment.

Although Brookshire does not contest that it was late in paying the judgment, it

argues that $4,500.00 awarded for attorney fees is excessive as the trial in this matter

only lasted approximately thirty minutes.

Louisiana Revised Statutes 23:1201(G) provides for the award of statutory

penalties and reasonable attorney fees based on the late payment of an award payable

under the terms of a final nonappealable judgment.

Mr. Crawford admitted that he failed to timely pay the amount awarded under

the prior judgment to Mrs. Wilczewski. He also testified that the behavioral pain

management program was not authorized by him until June 26, 2009. This was

despite the fact that Mrs. Wilczewski’s counsel wrote Brookshire on April 17, 2009,

notifying it of the denial of its writ in the prior matter.

In addition to the thirty-minute trial, Mrs. Wilczewski’s counsel filed the

Motion and Order for Rule to Show Cause for LSA-R.S. 23:1201(G) Penalties and

Attorneys Fees and recovered $16,330.99 for Mrs. Wilczewski. Therefore, we find

no error in the WCJ’s award of $4,500.00.

27

Brookshire next argues that the WCJ erred in awarding Mrs. Wilczewski

$12,000.00 in attorney fees based on its violation of La.R.S. 23:1201(F). As we have

already held that the WCJ did not err in awarding Mrs. Wilczewski statutory penalties

based on Brookshire’s termination of her indemnity benefits, its failure to authorize

the permanent spinal cord stimulator and pain management treatment by Dr. Dole, we

also find that he is entitled to an award of reasonable attorney fees. Finding that

$12,000.00 is a reasonable amount, we affirm the WCJ’s award.

Video Surveillance

In its final assignment of error, Brookshire argues that the WCJ erred by

refusing its admission of video surveillance taken of Mrs. Wilczewski in 2006 and

2007. The WCJ sustained Mrs. Wilczewski’s objection to this evidence since she was

not provided a copy of the video prior to trial. “[I]f a party fails to proffer excluded

evidence, an appellate court cannot analyze it and its admissibility, and that party is

precluded from complaining of the excluded testimony.” Whitehead v. Kan. City S.

Ry. Co., 99-896, p. 11 (La.App. 3 Cir. 12/22/99), 758 So.2d 211, 218-19, writ denied,

00-209 (La. 4/7/00), 759 So.2d 767. As Brookshire failed to proffer the excluded

evidence, we need not address this issue on appeal.

Answer to Appeal

In her answer to appeal, Mrs. Wilczewski argues that the WCJ erred in denying

her request for statutory penalties based on Brookshire’s failure to timely authorize

her participation in the behavioral pain management program recommended by Dr.

Quillin.6 Since Brookshire failed to authorize the behavioral pain management

6
In his oral reasons for judgment, the WCJ twice stated that the award of penalties for
Brookshire’s violation of La.R.S. 23:1201(G) included those associated with its late approval of the
behavioral pain management program. However, the judgment states that the WCJ denied Mrs.
Wilczewski’s claim for penalties on this issue. Therefore, we will consider this claim as being
denied. See Bancroft v. Mitchell Offshore Marine, 09-1067 (La.App. 3 Cir. 5/19/10), 44 So.3d 711,

28

program within the thirty days following the supreme court’s denial of its writ, we

find that the WCJ erred in failing to award Mrs. Wilczewski statutory penalties.

Louisiana Revised Statutes 23:1201(G) raises two questions: (1) was the

payment timely, and (2) if not, did the delay result from conditions beyond the

employer’s control. The first question results in a straight yes or no answer. The

second question delves into the reasons behind the employer’s late payment, which

is a finding of fact subject to the manifest error standard of review. If the WCJ finds

that the employer had no control over the delay, then no penalties and attorney fees

are awarded. However, if the delay resulted from the employer’s own actions, then

the award is automatic.

Mr. Crawford testified that he learned that writs were denied by the supreme

court in the prior matter a few days after April 13, 2009. He further acknowledged

that a letter sent to Brookshire’s counsel on April 17, 2009, requested that Brookshire

notify Dr. Quillin of its approval for the behavioral pain management program. Mr.

Crawford testified that Brookshire did not approve the program until June 26, 2009,

three days after receiving a fax transmittal from Dr. Quillin’s office requesting its

approval.

Although La.R.S. 23:1201(G) pertains to the late payment of a monetary award

under the terms of a final nonappealable judgment, we still find that Mrs. Wilczewski

is entitled to attorney fees based on Brookshire’s late approval of the subject program.

Accordingly, we reverse the WCJ’s denial of this issue and we render judgment

awarding her an additional $3,000.00 in statutory penalties based on Brookshire’s

writs denied, 10-2336, 10-2358 (La. 12/10/10), 51 So.3d 730, 733.

29

failure to approve and pay for the behavioral pain management program within thirty

days of when the WCJ’s final judgment became final.

Mrs. Wilczewski further requests that we award additional attorney fees for the

legal services rendered by his counsel in successfully defending this appeal.

Accordingly, we render judgment in favor of Mrs. Wilczewski to award an additional

$7,500.00 in attorney fees for legal services rendered on appeal.

CONCLUSION

For the foregoing reasons, the judgement of the WCJ is affirmed as amended.

We further render judgment to award an additional $3,000.00 in statutory penalties

pursuant to La.R.S. 23:1201(G), based on Brookshire’s late approval and payment of

a behavioral pain management program, and an additional $7,500.00 in attorney fees

for legal services rendered by Mrs. Wilczewski’s counsel’s successful defense of this

appeal. We assess costs of this appeal to Brookshire Grocery Company.

AFFIRMED AS AMENDED AND RENDERED.

30