Easton Pharmacy, Inc. v. Kelli Buller

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-585

EASTON PHARMACY, INC.

VERSUS

KELLI BULLER

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF EVANGELINE, NO. 09-08639
JASON GERARD OURSO, WORKERS’ COMPENSATION JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.

AFFIRMED AS AMENDED.

Chuck Randall West
West & Vidrine
Post Office Box 1019
Ville Platte, LA 70586
(337) 363-2772
COUNSEL FOR DEFENDANT/APPELLEE:
Kelli Buller

Jennifer E. Frederickson
Stemmans & Alley, PLLC
2798 O’Neal Lane, Suite B3
Baton Rouge, LA 70816
(225) 752-5266
COUNSEL FOR PLAINTIFF/APPELLANT:
Easton Pharmacy, Inc.

AMY, Judge.

In this workers’ compensation matter, the employer provided compensation

benefits after the subject employee sustained injury in a work-related fall. However,

the employer disputed the need for a lumbar fusion sought by the employee and for

certain prescribed medications. It also alleged that the employee made

misrepresentations in order to obtain compensation benefits in violation of La.R.S.

23:1208. In response, the employee sought penalties and attorney fees for the denial

of the surgery and medication. The workers’ compensation judge found in favor of

the employee, ordering the employer to provide the surgery and imposing penalties

and attorney fees. The judge also denied the claim for La.R.S. 23:1208 sanctions. For

the following reasons, we amended the amount of penalties award and affirm as

amended.

Factual and Procedural Background

The record indicates that Kelli Buller was employed as a pharmacy technician

at Eastin1 Pharmacy in August 2003, when she fell from a stool allegedly injuring her

back. The employer began paying compensation benefits, including four surgical

procedures. However, this dispute arose when Ms. Buller’s physician, Dr. George

Williams, recommended an anterior lumbar interbody fusion at the L5-S1 level. Ms.

Buller had previously undergone a fusion at the same level, but the surgery had

ultimately resulted in a non-union of the area.

Following Dr. Williams’ recommendation of the fifth surgery, the employer

sought review of the necessity of the procedure from Dr. Gregory Gidman, also an

orthopedist. Dr. Gidman explained that the recommended surgery was a viable option

if desired by Ms. Buller. However, he explained that his prognosis of the results of

1
The record lists the employer as both “Eastin” and “Easton.” In this discussion, we use the former
spelling insofar as this usage appears on both the claim form and in the judgment under review.

such a procedure was “guarded.” He explained that this was true in light of Ms.

Buller’s poor results from the earlier surgeries.

Accordingly, the employer filed this matter in October 2009, disputing the

necessity of the surgery. Later, the employer amended its claim, alleging that Ms.

Buller violated La.R.S. 23:1208 by failing to disclose information regarding prior

injuries. It also alleged that she exaggerated the physical limitations caused by the

work-related injury.

Ms. Buller answered the claim, seeking approval of the anterior lumbar

interbody fusion recommended by Dr. Williams and, later, approval of certain

medications. Ms. Buller also pursued an award of penalties and attorney fees due to

the denial of the surgery.

The workers’ compensation judge ultimately ordered that the employer provide

the recommended surgery and the medication claimed by Ms. Buller, finding these

items reasonable and necessary. The judgment included an award of penalties in the

amount of $8,000 and attorney fees in the amount of $10,000 due to the failure to

approve surgery. The workers’ compensation judge also found that the employer

failed to carry its burden of proof under La.R.S. 23:1208.

The employer appeals, assigning the following as error:

1. The workers’ compensation judge committed error or
manifest error in finding that claimant did not violate La.R.S. 23:1208.

2. The workers’ compensation judge committed error or
manifest error in finding that the anterior lumbar interbody fusion
recommended by Dr. George Raymond Williams is medically
necessary and awarding same.

3. The workers’ compensation judge committed error or
manifest error in finding that the prescription in dispute are related to
the accident at issue and awarding same.

4. The workers’ compensation judge committed error or
manifest error in finding that the employer was arbitrary and

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capricious to deny the lumbar fusion, awarding penalties and attorney
fees, and the amount thereof.

Discussion

Willful Misrepresentation of Facts

The employer questions the determination that Ms. Buller did not violate

La.R.S. 23:1208 due to what it contends were misrepresentations regarding her

physical limitations, disability, subsequent injuries, and prior medical or

psychological conditions. The employer argues that, not only did Ms. Buller fail to

reveal prior injuries and accidents, but that she exaggerated the limitations posed by

her injury.

In this regard, La.R.S. 23:1208 provides, in part, that:

A. It 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.

....

E. Any employee violating this Section shall, upon
determination by workers’ compensation judge, forfeit any right to
compensation benefits under this Chapter.

In reasons for ruling, the workers’ compensation judge explained that it made

“a specific finding of fact that Kelli Buller was a credible witness based upon viewing

her testify in open court and despite any inconsistencies alleged by the employer.

This credibility serves as a basis for the Court’s Judgment, including but not limited to

the denial of the fraud allegations.” On appellate review, a workers’ compensation

judge’s determination as to whether an employee forfeited his or her right to benefits

under La.R.S. 23:1208 is a factual question, which will not be reversed in the absence

of manifest error. Armand v. Denton-James, L.L.C., 08-920 (La.App. 3 Cir. 2/4/09), 2

So.3d 1272.

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Although it is unquestioned that Ms. Buller failed to disclose certain previous

conditions, either to her physicians or at her pre-hearing deposition, the instances

complained of by the employer were not of a nature so as to require a determination

that they were willfully made in order to obtain benefits. Instead, based on both the

questioning and Ms. Buller’s explanations, the workers’ compensation judge could

have permissibly determined that Ms. Buller failed to appreciate the medical or

technical aspects behind the questions as posed by either counsel or her physicians.

Certainly Ms. Buller did not disclose, at various times, that she had previously

received treatment for back pain. Notably, in 1999, Ms. Buller received steroid

injections in the lumbar region due to back pain and an MRI taken at that time

revealed a herniation at the L5-S1 level. However, and while Ms. Buller testified that

she thought she had told her physicians of her earlier back compliants, she further

testified that she reported what she was told, i.e., that the 1999 MRI did not disclose a

condition with her back. On this point, a report from Ms. Buller’s orthopedic surgeon

indicated that the disc bulge revealed on the 1999 MRI did not evidence nerve root

compressions and that he was doubtful that this was the cause of her back complaints.

Also, Dr. Williams explained that the 1999 MRI substantially differed from those

resulting from her 2003 work-related accident. Further, Ms. Buller stated that the pain

she experienced when being treated in 1999 differed from the pain experienced from

the subject accident.

The employer also asserts that Ms. Buller denied having been previously treated

for any type of psychological disorder or mental condition before the accident at issue.

Yet, the employer is able to point to earlier records indicating that Ms. Buller was

treated with a number of medications for depression. At the hearing, Ms. Buller

acknowledged these past occurrences of depression and that she had not revealed the

condition when asked during her deposition whether she had ever received treatment
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for a “psychological or mental condition.” Ms. Buller stated simply that she did not

think her earlier depression qualified as a “mental illness.” Further, Ms. Buller, did, in

fact, reveal her prior treatment when she was treated in 2004 for pain management

issues by Dr. Steven Staires.

Further, a portion of Ms. Buller’s claim involved prescriptions issued for reflux

allegedly caused by her pain medication. However, the employer questions Ms.

Buller’s denial in her deposition that she “hadn’t had a problem with stomach

medication, before[.]” But, the employer observes that Ms. Buller had been issued a

number of prescriptions for Prevacid and Phenargin before this accident. Ms. Buller

stated that she had not revealed this treatment at her deposition because she had

forgotten.

Moreover, the employer also relies on the fact that Ms. Buller denied

involvement in an accident subsequent to the 2003 work-related fall. She was,

however, involved in an automobile accident in 2005. At the hearing, Ms. Buller

admitted being a passenger in a vehicle involved in an accident and that she was taken

to the emergency room afterwards. She explained that she did not inform her

physician about the accident on her subsequent visit because she had forgotten about it

and, furthermore, that the accident had not changed her symptoms. She stated that she

did not make a claim for personal injuries after the 2005 accident.

Finally, the employer argues that Ms. Buller’s contention that the injury has

limited her physical activities is contradicted by surveillance tape. While the

employer contends that the surveillance tape reveals Ms. Buller engaging in activities

outside of her limitations, the footage was submitted into evidence. It was within the

workers’ compensation judge’s fact finding role to evaluate this evidence of Ms.

Buller’s movement. We find no manifest error in its conclusion that the evidence did

not warrant a finding that Ms. Buller misrepresented her capabilities.
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In sum, we find no merit in the employer’s contention regarding La.R.S.

23:1208. Although various inconsistencies existed in the multiple-year progression of

this suit, the evidence regarding these alleged misrepresentation was not so

compelling as to require a reversal of the determination that any such

misrepresentations were willful for the purpose of obtaining benefits.

Necessity of Surgery

The employer next questions the order that it provide an anterior lumbar

interbody fusion at the L5-S1 level, a procedure it argues is not medically necessary.

The employer observes that Dr. Gidman expressed doubt regarding a positive outcome

from the procedure and that the physician who performed an independent medical

examination, also opined that the fusion was not a “medical necessity.”

Louisiana Revised Statutes 23:1203(A) requires that, in all cases covered by the

workers’ compensation provisions, an employer “furnish all necessary drugs, supplies,

hospital care and services, medical and surgical treatment, and any nonmedical

treatment recognized by the laws of this state as legal[.]” A workers’ compensation

judge’s determination as to the medical necessity of claimed treatment is a question of

fact subject to the manifest error standard of review. Cajun Welding & Machine Co. v.

Deville, 03-0548 (La.App. 3 Cir. 11/5/03), 858 So.2d 875.

Our review of the record reveals support for the order of the recommended

procedure. The employer’s focus on the physicians’ opinion regarding the “medical

necessity” of the procedure lacks sufficient acknowledgement of the larger context of

the discussion of the surgery. The medical evidence and testimony indicates that Ms.

Buller’s prior fusion at the L5-S1 level resulted in a non-union. There was

speculation about the “viability” of a positive result given her prior poor results.

However, both Dr. Gidman and the physician performing the IME suggested that the

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surgery recommended by Dr. Williams would be appropriate if chosen by the claimant.

In fact, the IME physician’s statement in his September 10, 2010 reveals that:

I agree that this lady has a nonunion at the L5-S1 site of the
previously instrumented posterior L5-S1 fusion. No bone masses
were noted between the transverse process of the L4 and 5 and the
CAT scan indicates some lucency around the S1 pedicle screws. I do
not think that it is a medical necessity that she undergo the fusion. I
think that it is her decision as to whether she accepts the nonunion
with chronic discomfort or consider the recommended anterior
interbody fusion. I do consider the anterior interbody fusion to be a
medical necessity to obtain a solid fusion between the L5-S1 vertebral
bodies. I agree with Dr. Williams in that this procedure does have
some substantial risks compared to the posterior fusion and that if she
were to obtain a solid fusion she has a substantial chance of reducing
the posterior midline pain. A solid fusion offers her the potential of
increasing her physical capabilities. On the other hand, if she does
develop a nonunion (after the anterior interbody fusion) she would
continue with posterior lumbar area pain.

Neither did Dr. Gidman suggest merely that the surgery was not medically necessary.

Taken in context, Dr. Gidman explained that he had given a guarded prognosis for the

fusion in light of the prior failed treatment. He testified that given Ms. Buller’s

situation of likely having “a loose screw in the back,” she would have two options for

future treatment. Either “you could leave her alone” and “accept the condition as is,”

or “if it causes a lot of pain,” she could proceed with the re-fusion. Dr. Gidman stated

that such a procedure would be “a big deal,” but those are “your two choices.” He

explained that it was possible that Ms. Buller would have a significant decrease in her

pain after the recommended procedure, but that it was not probable.

While the physicians relied upon by the employer were reserved in their

expectations of the surgery recommended by Dr. Williams, we do not find that their

opinions, taken in context, undercut the workers’ compensation judge’s determination

regarding the necessity of the lumbar fusion.

This assignment lacks merit.

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Medication

The employer also questions whether the workers’ compensation judge erred in

awarding anti-depression medication prescribed to Ms. Buller. It contends that Ms.

Buller failed to prove that the need for the medication was caused by the work-related

accident in light of previous treatment for depression, as discussed above.

While the claim regarding causation as it relates to the depression medication is

not abundantly supported, we do not disturb the workers’ compensation judge’s award.

Notably, the medication was prescribed by a physician managing Ms. Buller’s pain

due to her work-related accident. Ms. Buller testified that, although she had

previously been on anti-depression medication, she felt her depression resulted from

her work-related accident. She explained that after each of the four back surgeries

following her accident, her pain had returned. Ms. Buller testified that the medication

was required because “since the accident, [her] life is not what it used to be, and to

take the edge off of life.” She denied that anyone had told her that the depression

medication prescription was due to any other reason.

Thus, we find no manifest error in the determination that the depression

medication as prescribed “is reasonable and necessary.”

Penalties and Attorney Fees

Finally, the employer questions the determination that its denial of the anterior

lumbar interbody fusion was arbitrary and capricious, a finding underlying the award

of penalties and attorney fees. The employer also questions the quantum of the $8,000

penalty awarded. It asserts that, if a penalty is appropriate, the penalty should have

been assessed pursuant to La.R.S. 23:1201(F), which limits the applicable penalty to

$2,000, rather than pursuant to La.R.S. 23:1201(I), which permits a penalty of up to

$8,000. While we find no manifest error in the decision to impose penalties and

attorney fees for the failure to authorize the lumbar fusion, we conclude that the
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workers’ compensation judge erred in the manner in which penalties were awarded.

We amend the judgment accordingly.

In this case, the workers’ compensation judge concluded that the employer’s

“termination” of benefits, i.e., the failure to approve the recommended back surgery,

was arbitrary and capricious. This terminology appears to order an award of penalties

and attorney fees under La.R.S. 23:1201(I)(emphasis added), which provides that:

Any employer or insurer who at any time discontinues payment of
claims due and arising under this Chapter, when such discontinuance is
found to be arbitrary, capricious, or without probable cause, shall be
subject to the payment of a penalty not to exceed eight thousand dollars
and a reasonable attorney fee for the prosecution and collection of such
claims. The provisions as set forth in R.S. 23:1141 limiting the amount
of attorney fees shall not apply to cases where the employer or insurer is
found liable for attorney fees under this Section. The provisions as set
forth in R.S. 22:1892(C) shall be applicable to claims arising under this
Chapter.

However, in this case, it is clear that the failure to authorize the surgery was not

a discontinuance of benefits. Instead, the employer failed to provide a required

benefit. Thus, the penalties and attorney fees were awardable under La.R.S.

23:1201(F). This paragraph provides for the imposition of penalties and attorney fees

“for failure to provide payment in accordance” with the compensation provided for in

that section. Paragraph (F) establishes that a penalty awarded thereunder may be

assessed:

in an amount up to the greater of twelve percent of any unpaid
compensation or medical benefits, or fifty dollars per calendar day for
each day in which any and all compensation or medical benefits
remain unpaid or such consent is withheld, together with reasonable
attorney fees for each disputed claim; however, the fifty dollars per
calendar day penalty shall not exceed a maximum of two thousand
dollars in the aggregate for any claim. The maximum amount of
penalties which may be imposed at a hearing on the merits regardless
of the number of penalties which might be imposed under this Section
is eight thousand dollars.

The above-prescribed penalty is not warranted if the claim is reasonably controverted.

La.R.S. 23:1201(F)(2). Thus, the applicable penalty was awardable under Paragraph
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F, and should have been limited to $2,000 for the claim regarding the failure to

provide the fusion surgery.2 We amend the penalty award in this regard.

Subject to this amendment, we affirm the award of penalties and attorney fees

insofar as the record supports a determination that the failure to approve the surgery

was not reasonably controverted.3 The employer seemingly denied the surgery based

on fortuitous language from Dr. Gidman indicating that his prognosis for the

recommended surgery was “very guarded.” Yet, reference to Dr. Gidman’s larger

report indicated that the surgery was a “viable surgical option” to offer Ms. Buller. In

his subsequent deposition, Dr. Gidman suggested that although improvement in Ms.

Buller’s condition was not probable if she chose the fusion, it was possible. Again, he

concluded that the choice as to how to proceed was one open to Ms. Buller.

In light of the employer’s continued refusal to authorize the recommended

surgery despite knowledge that it was discussed as an option for treatment by both Dr.

Gidman and the physician performing the IME, we find no manifest error in the

decision to impose a penalty. As stated above, however, we amend that penalty to

reflect a total of $2,000 for the failure to approve surgery.

DECREE

For the foregoing reasons, that portion of the workers’ compensation judgment

is amended to reflect a penalty in the amount of $2,000 rather than a penalty of $8,000.

That portion of the judgment is recast as follows:

2
We do not find it appropriate to amend the judgment to include an additional $2,000 award for
failure to approve payment of the depression medication as the judgment reflects merely that: “[t]he
termination of compensation benefits was arbitrary and capricious, thus entitling claimant to an
award of $8,000.00 in penalties for the failure to approve surgery.”
3
The judgment indicates that the workers’ compensation judge determined that the employer’s
actions were “arbitrary and capricious” whereas La.R.S. 23:1201(F) provides for a penalty unless the
failure to provide benefits was “reasonably controverted.” However, “ʻ[u]nreasonably controverting
a claim . . . requires action of a less egregious nature than that required for arbitrary and capricious
behavior[.]’” Green v. Nat. Oilwell Varco, 10-1041, p. 16 (La.App. 3 Cir. 4/27/11), 63 So.3d 354,
364 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8 (La. 12/1/98), 721 So.2d 885, 890).
10

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
that the refusal to provide the anterior lumbar interbody fusion at L5/S1
recommended by Dr. George Raymond Williams was not reasonably
controverted, thus entitling claimant to an award of $2,000.00 in
penalties for the failure to approve surgery, and an award of $10,000.00
in attorney fees.

We otherwise affirm the judgment as amended. All costs of this proceeding are

assessed to the appellants, Eastin Pharmacy, Inc. and Retailers Casualty Insurance

Company.

AFFIRMED AS AMENDED.

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