Fru-Con Construction Corporation v. Xchanging and Oscar Kierum II

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-529

FRU-CON CONSTRUCTION CORPORATION

VERSUS

XCHANGING AND OSCAR A. KIERUM, II

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
LASALLE PARISH, NO. 10-10742
JAMES BRADDOCK, WORKERS’ COMPENSATION JUDGE

SYLVIA R. COOKS
JUDGE

Court composed of Sylvia R. Cooks, James T. Genovese, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Bolen, Parker, Brenner & Lee, Ltd.
Madeline J. Lee
Christina S. Slay
P.O. Box 11590
Alexandria, La 71315-1590
(318) 445-8236
Counsel for Plaintiff/Appellant; Fru-Con Construction Corporation

Broussard, Halcomb & Vizzier
Daniel E. Broussard, Jr.
P.O. Box 1311
Alexandria, LA 71309-1311
(318) 487-4589
Counsel for Defendant/Appellee; Oscar A. Kierum, II

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Oscar A. Kierum, II (Claimant) was injured while employed by Fru-Con

Construction Corporation (Fru-Con) as a pipe fitter. Claimant was injured in 2004

and was treated by Dr. Michel Heard (Dr. Heard), an orthopedic surgeon; Dr.

Douglas Gamburg, an orthopedic surgeon; Dr. Rick Ahmad, an orthopedic

surgeon; Dr. John McCabe, a plastic reconstructive surgeon; and Dr. Peter Vizzi,

(Dr. Vizzi) an orthopedic surgeon. Dr. Vizzi performed surgery on Claimant‟s

shoulder in 2006, and Dr. Heard performed surgery on Claimant‟s wrist in 2008.

Claimant alleges he is presently disabled and cannot return to work as a pipe fitter

because of the injuries he suffered while employed with Fru-Con. He is receiving

Social Security disability benefits.

On August 19, 2010, Dr. Robert Holliday (Dr. Holliday) performed an IME

and rendered his opinion that Claimant is receiving excessive, unnecessary medical

treatment, including excessive medication, and is visiting his doctor‟s office too

frequently each month. Additionally, Dr. Holliday opines that Claimant is

physically capable of performing medium work activities. Dr. Holliday informed

Dr. Heard by letter of his findings and requested that he implement Dr. Holliday‟s

recommendations for Claimant‟s medical treatment. His recommendations

included that Claimant‟s office visits to his treating physician be decreased to “no

more than once every 3-4 months” and that the only medication that should now be

given to Claimant for his work-related injury is an anti-inflammatory. Dr.

Holliday informed Dr. Heard that all other prescription medications being taken by

Claimant are either not related to his work-related injury at Fru-Con or are no

longer necessary or reasonable. Dr. Heard did not respond to Dr. Holliday‟s

request regarding his patient.

Because Dr. Heard did not respond to nor comply with Dr. Holliday‟s

recommendations, Fru-Con filed a Petition for Declaratory Judgment essentially

asking the Office of Workers‟ Compensation to render an advisory opinion

determining the proper course of treatment for Claimant and additionally seeking a

determination that Claimant is no longer entitled to supplemental earnings benefits.

Claimant filed an Exception of Prematurity, an Exception of No Cause of Action,

as well as a Motion for Sanctions and Attorney Fees alleging that Fru-Con‟s

petition failed to allege any of the exclusive grounds provided in La.R.S. 23:1314

and, under its express provisions, must be dismissed as premature. The Workers‟

Compensation Judge (WCJ) sustained Claimant‟s Exception of Prematurity,

dismissing Fru-Con‟s Petition for Declaratory Judgment. He further dismissed

Claimant‟s Exception of No Cause of Action as moot and denied Claimant‟s

Motion for Sanctions and Attorney Fees.

Fru-Con appeals alleging the WCJ erred in dismissing its Petition for

Declaratory Judgment and in granting Claimant‟s Exception of Prematurity.

Claimant did not appeal the denial of its Motion for Sanctions and Attorney Fees.

For the reasons stated below, we affirm.

DISCUSSION

Fru-Con asserts that this court should not follow the decisions of our three

sister circuit courts of appeal which have held that the provisions of La.R.S.

23:1314 apply to both employers and employees. See La. Commerce & Trade

Ass’n v. Cruz, 09-2014 (La.App. 1 Cir. 5/7/10), 38 So.3d 1041; Michaels Store,

Inc. v. Hart, 01-655 (La.App. 4 Cir. 3/20/02), 815 So.2d 201 citing and attaching

as an appendix, Labor Ready, Inc. v. Lorick, 00-1559 (La.App. 4 Cir. 9/6/00)

unpublished opinion, writ denied, 00-2801 (La. 12/8/00), 776 So.2d 461; Bank

One v. Johnson, 04-508 (La.App. 4 Cir. 8/11/04), 882 So.2d 30; Jim Walter Homes

v. Long, 02-950 (La.App. 4 Cir. 12/18/02), 835 So.2d 877; and Clement v.

Blanchard, 05-531 (La.App. 5 Cir. 2/14/06), 924 So.2d 295. Under these decisions

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Fru-Con concedes the correctness of the WCJ‟s ruling herein. Fru-Con, however,

urges this court to render a decision at odds with these decisions and thereby give

cause for the Louisiana Supreme Court to make a ruling on the matter.

We first note, that the Louisiana Supreme Court refused to take up this issue

in a case before the Louisiana Fourth Circuit Court of Appeal. In Labor Ready,

Inc., the fourth circuit held that the provisions of La.R.S. 23:1314 apply equally to

both employer and employee governing “the procedure every court must follow

when dealing with a worker‟s compensation claim petition form.” Michaels Store,

Inc., at 204. In Labor Ready, Inc. and in Michaels Store, Inc., the fourth circuit

upheld the WCJ‟s dismissal of an employer‟s petition as it failed to allege any of

the bases enumerated in La.R.S. 23:1314 and, therefore, under the express

provisions of the statute, found its petition was premature. In rejecting the

employer‟s argument that the court‟s interpretation of the statute “will surely lead

to absurd results when a court is forced to read this statute‟s requirements strictly

and mandate an „employer‟ claimant to include one of the necessary allegations

mentioned above to avoid a finding of prematurity[,]” the fourth circuit in Labor

Ready, Inc., agreed with the trial court‟s observation that the “employer has the

option under the La. Worker‟s Compensation Act to deny a claim it thinks is not

compensable.” Michaels Store, Inc., 815 So.2d at 204, 205. Thus, the fourth

circuit reasoned, “[w]ith this noted option always available to an employer, the

trial court‟s reading of La.R.S. 23:1314 does not always lead to such an absurd

result as the appellant claims.” Id.

In the case before us, we note with interest the WCJ‟s observation made

during the hearing on the matter before him which illuminates the rationale for his

decision. The WCJ observed that the Petition for Declaratory Judgment filed by

Fru-Con sought to place competing medical advice regarding the care and

treatment of Claimant before him and have him decide whether the advice of the

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IME doctor should be imposed upon Claimant or whether Claimant should be

allowed to follow his treating physician‟s advice. The WCJ correctly observed that

our workers‟ compensation law entitles every claimant to be treated by a physician

of his choice. See La.R.S. 23:1121(B) and Smith v. S. Holding, Inc., 02-1071 (La.

1/28/03), 839 So.2d 5. As he further correctly observed, if and when an employer

is convinced that the IME doctor‟s findings and recommendations are correct, it

has the right to terminate the employee‟s benefits at its peril. But the employer in

this case, and in those decided by our sister circuits, seeks another remedy which

does not put them at risk for penalties and attorney fees for wrongfully

denying/terminating benefits. The employer argues that it should be allowed to

bring its Petition for Declaratory Judgment without meeting the requirements of

La.R.S. 23:1314. Fru-Con admits that none of the mandatory enumerated

allegations of the statute form the basis of its petition, and, under the express

provisions, its petition must be dismissed for prematurity if the statute applies to

employers. Fru-Con asserts the statute was not intended to apply to employers,

and it is “absurd” to apply its requirements to an employer seeking a declaratory

ruling from a WCJ forcing the WCJ to decide whether an IME doctor‟s

findings/recommendations as to treatment should be implemented instead of the

Claimant‟s treating physician‟s manner of treatment and whether the IME doctor‟s

findings of disability should prevail. These arguments have failed to convince our

sister circuits to make such an interpretation of the provisions of our workers‟

compensation statutory scheme and likewise fail to convince this court. The

Louisiana Supreme Court refused to accept writs to address the findings of our

sister circuits on this issue when it had an opportunity to do so. Such refusal is at

least indicative of the correctness of the fourth circuit‟s ruling.

Fru-Con attempts to raise the issue of the constitutionality of La.R.S.

23:1314 as applied to employers for the first time in its reply brief. We cannot

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address the issue of this statute‟s constitutionality in this case as it was not

mentioned, briefed, nor argued in any filings in the court below. Louisiana

Revised Statutes 23:1310.3(G) expressly provides:

(1) Any person challenging the constitutionality of any provision of
this Chapter shall specially plead such an allegation in the original
petition, an exception, written motion, or answer, which shall state
with particularity the grounds for such an allegation.

(2) Within thirty days of the filing of any pleading raising the issue
of unconstitutionality, the party making such an allegation must
file a petition in a state district court of proper jurisdiction for
purposes of adjudicating the claim of unconstitutionality. Such
filing shall be given priority in hearing such claim not more than
ten days from being presented to the district court.

(3) Failure to follow the procedures set forth in this Section shall
bar any claim as to the unconstitutionality of any provision of this
Chapter on appeal.

When we are presented with a question of law concerning a WCJ‟s ruling

we review the WCJ‟s finding to determine if it is legally correct. Scobee v. Brame,

98-564 (La.App. 3 Cir. 10/28/98), 721 So.2d 977, writ denied, 98-2952 (La.

1/29/99), 736 So.2d 833. We now turn to the applicable statutory provisions

regarding the filing of claims by either the employer or employee. Louisiana

Revised Statutes 23:1310(A) provides:

If at any time after notification to the office of the occurrence of
death or injury resulting in excess of seven days lost time, a bona fide
dispute occurs, the employee or his dependent of the employer or
insurer may file a claim with the state office, or the district office
where the hearing will be held, on a form to be provided by the
director.

Louisiana Revised Statutes 23:1310.3(A) provides in pertinent part: “A

claim for benefits, the controversion of entitlement to benefits, or other relief under

the Workers‟ Compensation Act shall be initiated by the filing of the appropriate

form with the office of workers‟ compensation administration.” The parties herein

agree that the appropriate form for filing this employer‟s Petition for Declaratory

Judgment is a Form 1008 which was filed by Fru-Con. Louisiana Revised Statutes

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23:1314 provides (emphasis added):

A. The presentation and filing of the petition under R.S.
23:1310.3 shall be premature unless it is alleged in the
petition that:

(1) The employee or dependent is not being or has not
been paid, and the employer has refused to pay, the
maximum percentage of wages to which the petitioner is
entitled under this Chapter; or

(2) The employee has not been furnished the proper
medical attention, of the employer or insurer has not paid
for medical attention furnished; or

(3) The employee has not been furnished copies of the
reports of examination made by the employer‟s medical
practitioners after written request therefor has been made
under this Chapter; or

(4) The employer or insurer has not paid penalties or
attorney‟s fees to which the employee or his dependent is
entitled.

B. The petition shall be dismissed when the allegations in
Subsection (A) of this Section are denied by the employer
and are shown at a time fixed by the workers‟ compensation
judge to be without reasonable cause or foundation in fact.

C. The workers’ compensation judge shall determine
whether the petition is premature and must be dismissed
before proceeding with the hearing of the other issues
involved with the claim.

The first, fourth, and fifth circuits have held that the provisions of La.R.S.

23:1314 apply to 1008 forms which are filed by employers as well as to such forms

filed by employees. These courts have duly recognized the anomaly created by the

provisions of La.R.S. 23:1310.3 and La.R.S. 23:1314 as applied to employers, but

have rightly concluded that the resolution of this statutory problem is the province

of the Louisiana legislature, not the courts. As Judge Armstrong wrote in her

concurrence in Bank One v. Johnson, 882 So.2d at 33:

Bank One makes a valid argument that employers should have the
prerogative to file a LDOL-WC-1008 form in cases where an
employee is receiving benefits to which he or she may not be entitled.
However, as we noted in Michaels Store, Inc. v. Hart, 2001-0655 (La.
App. 4 Cir. 3/20/02), 815 So.2d 201, that is something that must be

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dealt with by the legislature‟s amending the Workers‟ Compensation
statute or by the Supreme Court‟s holding that La.R.S. 23:1314 does
not apply to LDOL-WC-1008 forms filed by employers.

We note that the earliest case deciding this issue was in 2002 and not since that

time has the legislature deemed it necessary to correct what has been described by

the courts and employers as the “anomaly” presented by the workers‟

compensation statutes concerning the applicability of the provisions of La.R.S.23:

1314 to employers. Further, the Louisiana Supreme Court has at least on one

occasion, when presented with the opportunity to disagree with the courts of appeal

on this issue, refused writs. Perhaps it too recognizes that while employers may

present a valid argument it is the exclusive province of the legislature to write the

laws. This court, as all others, is constrained to apply the laws as written and

cannot substitute or delete words in statutes which we would have to do in order to

rule as Fru-Con asks us to do. See La. Commerce & Trade Ass’n. v. Cruz, 38

So.3d at 1044.

We further note that Fru-Con‟s reliance on our decision in Snelling

Personnel Services v. Duhon, 00-661 (La.App. 3 Cir. 11/2/00), 772 So.2d 350, is

misplaced, and our decision in that case is not dispositive of the issue raised herein.

We addressed an entirely different issue in Snelling, and the dicta recited by Fru-

Con in brief does not support its position. In fact, as we read our language in

Snelling, we find that language supports our decision herein. In Snelling Personnel

Services, 772 So.2d at 353, we said:

Workers‟ Compensation law allows an employer or employee to file a
claim with the Office of Workers‟ Compensation to resolve a dispute
between the employer and the claimant. See La.R.S. 23:1310(A).
The statute provides that “[i]f … a bona fide dispute occurs, the
employee … or the employer or insurer may file a claim … on a form
to be provided by the director.” Id. It was not legally necessary that
Snelling file this form; the employer may terminate voluntary
payments at will and with impunity, provided the termination is not
arbitrary and capricious.

This language supports our position herein that La.R.S. 23:1310 is applicable

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to both employers and employees thus rendering the provisions of La.R.S.

23:1314, as currently written, also applicable to both. Further, as the WCJ pointed

out in the hearing no “dispute” is presented in the Petition for Declaratory

Judgment. The petition, rather than presenting a “bona fide dispute,” seeks to have

the WCJ choose the course of treatment and frequency of visits Claimant must

make to his treating physician and seeks to have the WCJ make medical decisions

for Claimant rather than allowing his treating physician, whom he has an absolute

right to choose, to do so. The WCJ did not manifestly err in refusing to make such

choices. As we said in Snelling, this employer, if convinced of the findings and

recommendations of the IME, may choose to act accordingly and “terminate

voluntary payments at will and with impunity, provided the termination is not

arbitrary and capricious.” Snelling Personnel Services, 772 So.2d at 353. Under

the present statutory provisions, the employer cannot bring an action which does

not comply with the provisions of La.R.S. 23:1314 for, in such instance, the WCJ

is duty bound to dismiss the action as premature and is prohibited from addressing

any other issue in the proceeding. Therefore, under the present statutory

provisions, the WCJ acted properly, and we must affirm. Resolution of this

statutory conundrum is within the province of the legislature. All costs of this

appeal are assessed against Fru-Con.

AFFIRMED.

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