Patrick Johnson v. Conagra Poultry Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-0986

PATRICK JOHNSON

VERSUS

CONAGRA POULTRY COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS‘ COMPENSATION – DIST. 2
PARISH OF NATCHITOCHES, NO. 10-05586
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 D. Decuir, Jimmie C. Peters, Marc
T. Amy, and Shannon J. Gremillion, Judges.

AFFIRMED AS AMENDED.

Decuir, J., dissents for the reasons assigned by Judge Gremillion.

Gremillion, J., dissents and assigns written reasons.

Maurice Blake Monrose
Hurlburt, Monrose, Dartez & Ernest
P. O. Drawer 4407
Lafayette, LA 70502-4407
(337) 237-0261
COUNSEL FOR DEFENDANT/APPELLEE:
Conagra Poultry Company

George A. Flournoy
Flournoy & Doggett
P. O. Box 1270
Alexandria, LA 71309-1270
(318) 487-9858
COUNSEL FOR PLAINTIFF/APPELLANT:
Patrick D. Johnson

PETERS, J.

This is the second appeal on a similar issue in this workers‘ compensation

matter. The plaintiff, Patrick D. Johnson, appeals from the judgment of the workers‘

compensation judge (WCJ), awarding him a single penalty based upon numerous

violations of the defendant, Conagra Poultry Company 1 (Conagra), of La.R.S.

23:1201(E). Although our prior decision limited Mr. Johnson to one penalty, we

decline to follow that holding and increase his award of penalties and attorney fees.

DISCUSSION OF THE RECORD

The facts in this matter are not disputed. Mr. Johnson injured his back while

employed as a driver for Conagra. In 2008, he filed a disputed claim against Conagra,

based upon, among other issues, its failure or refusal to pay for medications

prescribed by his treating physician. In that instance, as here, Mr. Johnson alleged

that he was entitled to a penalty for each time Conagra ignored requests for payment

of the medication up to the maximum of $8,000.00. Following a hearing on the merits,

the WCJ awarded Mr. Johnson $2,000.00 in penalties. Mr. Johnson appealed and a

divided panel held that Conagra‘s failure to timely pay for the prescription medication

was ―a single, ongoing violation.‖ Johnson v. Conagra Poultry Co., 09-646 (La.App.

3 Cir. 12/9/09), 26 So.3d 982, writ denied, 10-350 (La. 4/16/10), 31 So.3d 1067.

In total, prescriptions were purchased by Mr. Johnson at Causey‘s Pharmacy

(Causey‘s) on thirteen occasions between July 31, 2009 and January 20, 2010. 2

Causey‘s, who bills weekly, mailed statements for each purchase to Mr. Johnson‘s

attorney and faxed copies to Sedgwick CMS (Sedgwick), Conagra‘s third-party

1
Conagra is now known as Pilgrim‘s Pride
2
The record indicates that Mr. Johnson purchased prescriptions on July 31, 2009; August 21,
2009; September 9, 2009; September 24, 2009; October 15, 2009; November 2, 2009; November 17,
2009; December 7, 2009; December 9, 2009; December 21, 2009; January 6, 2010; January 8, 2010;
and January 20, 2010.

adjustor. Counsel for Mr. Johnson also forwarded several billing statements to

Sedgwick, requesting immediate payment of amounts due.3

On June 28, 2010, Mr. Johnson filed a second disputed claim with the Office of

Workers‘ Compensation, based on Conagra‘s failure to timely pay or authorize

payment of medications prescribed by his treating physician. He further sought

penalties, attorney fees, and legal interest. On June 29, 2010, Causey‘s faxed a

statement containing all overdue payments to Sedgwick. Conagra answered by

denying Mr. Johnson‘s claim.

This matter was submitted to the WCJ on the record. It was noted at the

hearing that Conagra had previously paid Mr. Johnson $2,000.00 in penalties for

violating La.R.S. 23:1201(E). Mr. Johnson stipulated that Causey‘s received the

outstanding balance of $2,612.92 on January 24, 2011. After taking the matter under

advisement, the WCJ issued an oral ruling, finding that the Mr. Johnson‘s claim is

based on a single, ongoing violation of La.R.S. 23:1201(E), just as in the prior claim.

The WCJ awarded Mr. Johnson $2,000.00 in penalties, $2,000.00 in attorney fees, and

costs. Mr. Johnson filed a motion for a partial new trial, seeking an increase in

attorney fees, which was denied. A judgment was rendered in this matter on May 11,

2011. Mr. Johnson appeals from this judgment.

On appeal, although Mr. Johnson failed to specify any assignments of error, as

required by Rule 2-12.4, Uniform Rules—Courts of Appeal, he sets out two issues in

his appellate brief:

1. Did the WCJ err, as a matter of law, in awarding only one
$2,000.00 penalty, despite undisputed proof of multiple different and

3
The record contains demand letters sent by Mr. Johnson‘s counsel to Sedgwick on January
29, 2009, March 17, 2009, and November 25, 2009. These represent requests for payments in the
amounts of $136.87 for prescriptions filled on January 27, 2009; $417.43 for prescriptions filled
between January 28-February 23, 2010; and $240.14 for prescriptions filled on November 17, 2009.
Mr. Johnson‘s counsel also sent demand letters to Conagra‘s counsel on December 2, 2008 and June
28, 2010. He requested payments of $520.25, for prescriptions filled between December 2-16, 2009,
and $2,612.92, for prescriptions filled between July 31, 2009-June 11, 2010.
2

separate claims for payment of medication expenses, the total of which,
$2,612.92, remained unpaid at time of trial? Stated otherwise, which
decision, Johnson I or Burnett v. Village of Estherwood, 2009-680
(La.App. 3 Cir. 12/9/09); 25 So.3d 997[,] accords more fully with the
precepts enunciated in Fontenot v. Reddell, 2002-0439 (La. 1/14/03); 836
So[.]2d 14, 25.

2. Should the attorney fee award be increased?

OPINION

Multiple Penalties

Louisiana Revised Statutes 23:1201(E) provides, ―Medical payments payable

under this Chapter shall be paid within sixty days after the employer or insurer

receives written notice thereof.‖ In the case of a violation of La.R.S. 23:1201(E),

La.R.S. 23:1201(F) provides:

Failure to provide payment in accordance with this Section . . .
shall result in the assessment of a penalty in an amount up to the greater
of twelve percent of any unpaid compensation or medical benefits, of
fifty dollars per calendar day for each day in which any and all
compensation or medical benefits remain unpaid . . . 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. An award of penalties and attorney fees at any
hearing on the merits shall be res judicata as to any and all claims for
which penalties may be imposed under this Section which precedes the
date of the hearing. Penalties shall be assessed in the following manner:

....

(2) This Subsection shall not apply if the claim is reasonably
controverted or such nonpayment results from conditions over which the
employer or insurer had no control.

Mr. Johnson argues that rather than follow the holding set out by this court in

Johnson, 26 So.3d 982, we should follow the holding reached by this court in Burnett

v. Village of Estherwood, 09-680 (La.App. 3 Cir. 12/9/09), 25 So.3d 997. Meanwhile,

Conagra argues that the holding in Johnson, 26 So.3d 982, is the law of, not only the

third circuit, but also of this case.
3

The law-of-the-case doctrine was set out by this court in Hesse v. Champ

Service Line, 99-1259, pp. 3-4 (La.App. 3 Cir. 2/2/00), 758 So.2d 245, 248:

The law-of-the-case doctrine concerns (a) the binding force of trial court
rulings during later stages of a trial; (b) the conclusive effects of
appellate rulings at the trial on remand; and (c) the rule that, ordinarily,
an appellate court will not reconsider its own rulings of law on a
subsequent appeal in the same case. Barnett v. Jabusch, 94-819 (La.App.
3 Cir. 2/1/95); 649 So.2d 1158. The doctrine is applied merely as a
discretionary guide. Id. Reasons for application of the doctrine include
the avoidance of indefinite relitigation of the same issue, the desirability
of consistency of the result in the same litigation, and the efficiency and
essential fairness to the litigants of affording a single opportunity for
argument and decision of the matter at issue. Id.

As stated above, the application of the law-of-the-case doctrine is discretionary.

However, this doctrine should not be applied in instances where its application will

―effectuate an obvious injustice or where the former appellate decision was clearly

erroneous.‖ Trans La. Gas Co. v. La. Ins. Guar. Ass’n, 96-1477, p. 6 (La.App. 3 Cir.

5/9/97), 693 So.2d 893, 896.

We find that applying our prior holding in this matter will result in an obvious

injustice as Conagra will, once again, escape the consequences of its numerous

violations of La.R.S. 23:1201(E). In Fontenot v. Reddell Vidrine Water District, 02-

439, 02-442, 02-478, pp. 14-15 (La. 1/14/03), 836 So.2d 14, 25 (second alteration in

original), the supreme court stated:

[W]e find it consistent with the legislative intent to interpret ―claim‖ as a
demand for particular benefits as found by the appellate court. Such an
interpretation is consistent with the other provisions of LA.REV.STAT.
ANN. § 23:1201 and in accord with the purpose for the Legislature‘s
inclusion of penalties and attorneys‘ fees in the scheme of workers‘
compensation law. In those instances where a claim is either not
reasonably controverted or if nonpayment results from conditions under
the control of the employer or insurer, this proviso for multiple penalties
will address the recalcitrant employer or insurer and will encourage
employers and their workers‘ compensation insurers to honor their
continuing obligation to the injured worker. ―[T]o conclude otherwise
would dilute the deterrent effect of these statutory provisions, which are
not intended to make the worker ‗whole‘ but rather to discourage specific
conduct on the part of the employer.‖ Haynes, 805 So.2d at 231(quoting
Gay v. Georgia Pacific Corp., 32,653 (La.App. 2 Cir. 12/12/99), 754
4

So.2d 1101); see also Sharbono [v. Steve Lang & Son Loggers, 97-110
(La. 7/1/97)], 696 So.2d [1282,] 1386. Simply stated, without such an
understanding of the statute, there would be nothing to leverage the
obstinate employer or its insurer to comply with their statutory obligation
to the injured worker.

In Haynes v. Williams Fence and Aluminum, 01-26, p. 24 (La.App. 3 Cir.

7/25/01), 805 So.2d 215, 229-30 (alteration in original), which the supreme court

quoted with approval in Fontenot, 836 So.2d 14, this court stated:

In Fontenot v. Reddell Vidrine Water District, 00-762 (La.App. 3
Cir. 2/21/01); 780 So.2d 1197, writ granted, 01-752 (La.5/11/01); 792
So.2d 1, this court held that, while an employee may receive separate
penalties for both indemnity and medical benefits claims, the employee
in the case at bar was entitled to receive only one penalty for the insurer's
failure in two respects, i.e., its miscalculation of indemnity benefits and
its improper reduction of benefits. The author of the instant opinion
dissented in Fontenot, stating in part:

Under La.R.S. 23:1201(F), it is the ―[f]ailure to
provide payment in accordance with this Section [La.R.S.
23:1201]‖ that ―shall result in the assessment of a penalty.‖
Pursuant to La.R.S. 23:1201(B), (C), and (D), ―all such
compensation then due‖ must be paid and it must be paid
within the time specified. Additionally, pursuant to La.R.S.
23:1201(E), ―[m]edical benefits payable‖ must be paid
within the specified time. Thus, Subsections (B), (C), (D),
and (E) essentially place two requirements on the
employer/insurer—payment of the correct amount of
benefits and timely payment of those benefits.

An employer/insurer can violate these requirements in
a number of ways. In the instant case, LWCC violated
Subsection (B) by initially miscalculating the benefits and
then again by improperly reducing TTD benefits to SEB.
LWCC also violated Subsection (E) by failing to authorize
emergency medical treatment. The majority suggests that
the two separate violations of Subsection (B) give rise to
only one penalty. In reaching this conclusion, the majority
suggests that Mr. Fontenot has attempted to have the court
―equate the word ‗claim‘ with ‗violation.‘‖ While I concede
that each instance of a continuing violation does not give
rise to a new claim, each new claim requires a violation on
the part of the employer/insurer. Importantly, when an
employer/insurer miscalculates the benefits due, that is a
violation which gives rise to a claim. Additionally, when
that same employer/insurer improperly reduces the benefits
being paid from TTD benefits to SEB, that transgression is a
separate violation which gives rise to a separate claim. The
5

former action has nothing to do with the latter. In the matter
before us, the workers‘ compensation judge found two
separate violations which gave rise to two separate claims
under La.R.S. 23:1201(F). I have difficulty seeing how it
can be interpreted any other way.

Through La.R.S. 23:1201(F), the employee has a
means of discouraging such violations and motivating the
recalcitrant or indifferent employer/insurer to comply with
its obligations. As quoted by the majority, Williams v. Rush
Masonry, Inc., 98-2271, p. 8 (La.6/29/99); 737 So.2d 41, 46,
recognized that awards of penalties and attorney fees are
―imposed to discourage indifference and undesirable
conduct by employers and insurers.‖

The focus is on the conduct of the employer/insurer.
An employer/insurer may exhibit indifference and
undesirable conduct toward the employee in different ways,
at different times and/or regarding different elements of an
item of benefits to which the employee is entitled. However,
as I appreciate the majority‘s interpretation, the employee
may seek penalties to discourage the indifference and
undesirable conduct of the employer/insurer only once
concerning compensation benefits and only once concerning
medical benefits. As such, the employer/insurer has carte
blanche to behave as it wishes, and that without further
consequence. Thus, the benefit/leverage given to the
employee through La.R.S. 23:1201(F) is stripped away upon
the first violation, and the employee is thereafter subject to
the whim and caprice of the employer/insurer. Conceivably,
an employer/insurer could initially refuse to pay mileage
reimbursement due for medical travel, pay a $2,000.00
penalty in that regard, and then unreasonably delay payment
of the more expensive medical services. In essence, the
majority opinion extends the res judicata effect of the initial
penalty award to all future violations by the
employer/insurer, despite the employer/insurer‘s continuing
obligation to provide benefits.

If, however, the majority opinion authorizes not just
one penalty for the duration of the employer/insurer‘s
obligation to pay benefits but authorizes one penalty for
each 1008 claim that is filed, then the number of penalties
the employee could recover would be controlled by the
fortuity of the timing of the violations or his attorney‘s
acumen in filing multiple 1008 forms for violations
occurring within the same time frame. Thus, the employee
encounters a form-over-substance situation, when it is the
substance that should control, i.e., the employer/insurer‘s
conduct, and not the form/timing of the presentation of the
situation to a workers‘ compensation judge. A resourceful
6

employee will be better served by filing separate 1008 forms
for separate violations to preserve his penalty rights under
La.R.S. 23:1201 for each individual claim. Of course, as
argued by counsel for LWCC, the employer/insurer would
surely seek consolidation of these claims, thus returning the
injured employee to the penalizing effect of this majority
decision. Of course, the employer/insurer would also raise
the exception of res judicata, even for future actions, if
penalized once.

Essentially, the majority‘s holding chips away at the
quid-pro-quo arrangement contemplated by the legislature
when it limited the employee to workers‘ compensation
benefits.

Id. at 1201-03 (alterations in original).

In Burnett, 25 So.3d 997, this court affirmed an award of multiple penalties for

the defendant‘s underpayment/late payment of three mileage submissions. We held

that ―there were three separate mileage submissions which were either underpaid or

paid late for different reasons. Multiple penalties for multiple violations are allowed

by statute. See La.R.S. 23:1201(F).‖ Id. at 1001.

In its oral ruling, the WCJ, finding that this matter was indistinguishable from

Mr. Johnson‘s prior claim, held that his present claim is a single, ongoing violation

and awarded him $2,000.00 in penalties. We find that it is error for the WCJ to award

only one penalty in this instance, especially as Conagra admitted to numerous

violations of La.R.S. 23:1201(E). To award only one penalty will, as this court stated

in Haynes, 805 So.2d 215, deprive Mr. Johnson of all leverage he might have against

Conagra and leave him subject to Conagra‘s whim and caprice, as borne out by the

instant claim. In this case, Conagra admitted to thirteen violations of La.R.S.

23:1201(E). Each violation entitles Mr. Johnson to penalties and reasonable attorney

fees pursuant to La.R.S. 23:1201(F). Based on Conagra‘s admission of guilt, we find

that Mr. Johnson is entitled to a penalty based on each of the thirteen violations of

La.R.S. 23:1201(E). However, since La.R.S. 23:1201(F) limits the maximum amount

7

of penalties awarded pursuant to this section to $8,000.00, the WCJ‘s judgment is

amended to increase the penalty awarded to Mr. Johnson from $2,000.00 to $8,000.00.

Based on this finding, we further amend the WCJ‘s judgment to increase the attorney

fee award from $2,000.00 to $5,000.00.

DISPOSITION

Based on the foregoing findings, the judgment of the WCJ is amended to award

Mr. Johnson $8,000.00 in penalties and $5,000.00 in attorney fees based on Conagra‘s

violations of La.R.S. 23:1201(E). Costs of this appeal are assessed to the defendant,

Conagra Poultry Company.

AFFIRMED AS AMENDED.

8

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-986

PATRICK JOHNSON

VERSUS

CONAGRA POULTRY COMPANY

GREMILLION, Judge, dissents and assigns written reasons.

The majority has issued a cogent and scholarly opinion concluding with a

determination that thirteen violations of the relevant statutory law necessitates

multiple penalties. However, a previous majority of this court, in considering the

very same issues presented here by the very same parties determined that there

were, indeed, no multiple violations. Rather there was “a single, ongoing

violation.” Johnson v. Conagra Poultry Company, 31 So.2d 1067. While that

court’s analysis and conclusions were different from this majority opinion, they

were no less cogent and no less scholarly.

Appellee has urged that we affirm the worker’s compensation judge based

primarily on the employment of the law of the case doctrine, and I agree. There

are numerous reasons for the development and application of this doctrine to

include the promotion of consistency and essential fairness. Cree Oil Company v.

Home Insurance Company, 653 So.2d 620. However, I would respectfully suggest

that the primary reason for the doctrine is the promotion of judicial efficiency by

the avoiding litigation over the same issues time and again.

In this matter, one can imagine Mr. Johnson and Conagra returning to this

court again and again, trading back and forth their roles as appellant and appellee,

making the same arguments, and expecting different rulings from new and

different panels as they have already done twice. Obviously, it is this type of

panel-shopping repetition that the law of the case doctrine was developed to avoid.

It is true that the doctrine should not be applied when doing so would result

in “palpable error” or “manifest injustice.” Petition of Sewerage and Water Bd. of

New Orleans, 278 So.2d 81 (La. 1973). However, in this case, the ruling of the

prior panel of this court was neither palpably erroneous nor was it manifestly injust.

It was merely different. Accordingly, I respectfully dissent, finding that the

worker’s compensation judge properly applied the law of the case doctrine and his

award of a single penalty should be affirmed.

2