William Speyrer v. the Gray Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1154

WILLIAM SPEYRER

VERSUS

THE GRAY INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION – DISTRICT 04
PARISH OF LAFAYETTE, NO. 11-00179
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
J. David Painter, Judges.

AFFIRMED.

Jay Anthony Pucheu
P. O. Box 310
Marksville, LA 71351
Telephone: (318) 253-5080
COUNSEL FOR:
Plaintiff/Appellee - William Speyrer

Mark Alan Watson
Stafford, Stewart, & Potter
P. O. Box 1711
Alexandria, LA 71309-1711
Telephone: (318) 487-4910
COUNSEL FOR:
Defendant/Appellant - The Gray Insurance Company and Westgate, Inc.

THIBODEAUX, Chief Judge.

The sole issue in this workers’ compensation proceeding is whether

the workers’ compensation judge (WCJ) erred in permitting the employee, William

Speyrer, to select a physical therapist to conduct a functional capacity evaluation

(“FCE”) following an FCE with a therapist selected by the employer. The

employer’s insurer, The Gray Insurance Company (“Gray”), asserts that the WCJ

erred in her judgment. We disagree with Gray and affirm the judgment of the

WCJ. Specifically, we find that the parties reached a compromise as contemplated

by La.Civ.Code art. 3071. The compromise reached by the parties resolves this

issue in favor of Mr. Speyrer.

I.

ISSUE

We must decide whether the WCJ erred in permitting Mr. Speyrer to

select a physical therapist to conduct an FCE following an FCE with a therapist

selected by the employer.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Speyrer suffered a job-related accident and filed a claim for

benefits under the Workers’ Compensation Act. Gray has paid weekly indemnity

benefits since the inception of Mr. Speyrer’s claim. Indemnity benefits have never

been discontinued, and medical benefits are continuing to be paid.

To force an evaluation of Mr. Speyrer’s capabilities, Gray filed a

Motion to Compel an FCE. Prior to the hearing on the Motion, attorneys for both

parties conferenced with the WCJ. Following that conference, Gray’s attorney

drafted a letter to the WCJ, copying Mr. Speyrer’s counsel, memorializing the

conference. Specifically, the letter indicated that were the Motion to come up for

hearing as scheduled, the WCJ would more likely than not order that Gray is

entitled to its choice of FCE, including its right to choose the examiner and the

duration of the FCE. Conversely, Mr. Speyrer would be authorized to have his

choice of FCE, including choice of examiner and duration of FCE. Gray’s counsel

concluded the letter by stating:

Based on that information, we are advising the
court that the issues presented by the Motion to Compel
FCE have been resolved, and we ask that the hearing be
removed from the Court’s docket and shown as resolved
by the parties. (emphasis added).

Mr. Speyrer participated in an FCE conducted at Rosewood

Rehabilitation on August 17, 2010. Following the Rosewood FCE, Mr. Speyrer

requested a five-day FCE to be performed by an evaluator of his choice. Gray

denied Mr. Speyrer’s request.

At trial, Mr. Speyrer’s counsel introduced as evidence the letter

drafted by Gray’s counsel. The WCJ ultimately granted Mr. Speyrer’s request for

a multi-day FCE to be performed at Mr. Speyrer’s choice of facilities, Fontana

Center. Gray appeals the judgment of the WCJ.

III.

LAW AND DISCUSSION

Standard of Review

This case poses a question of law; accordingly, the appropriate

standard of review is de novo.

Appellate review of questions of law is simply to
determine whether the trial court was legally correct or
legally incorrect. If the trial court’s decision was based
on its erroneous interpretation or application of the law,
rather than a valid exercise of discretion, such incorrect
decision is not entitled to deference by the reviewing
court.
2

Citgo Petroleum Corp. v. Frantz, 03–88, p. 3–4 (La.App. 3 Cir. 6/4/03), 847 So.2d

734, 736, writ denied, 03–1911 (La. 10/31/03), 857 So.2d 484 (quoting Conagra

Poultry Co. v. Collingsworth, 30,155 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280).

Discussion

Gray asserts that the WCJ erred in allowing Mr. Speyrer to select his

own therapist for the FCE. We disagree. Gray points out that this court addressed

a similar issue in Gautreaux v. K.A.S. Construction, LLC, 05-1192 (La.App. 3 Cir.

2/22/06), 923 So.2d 850, and argues that Gautreaux controls the instant matter.

We are mindful of Gautreaux, but we find that it is not implicated here.

In Gautreaux, the plaintiff argued that he had the right to choose a

physical therapist to conduct the FCE. This court stated:

We now are called upon to face the issue [of choice]
squarely as it relates to FCEs. After careful review, we
find that the statute itself addresses the issue.
Specifically, it provides that an injured employee “shall
submit himself to an examination by a duly qualified
medical practitioner” selected by his employer. La.R.S.
23:1121(A) (emphasis added). However, the statute also
provides that an injured “employee shall have the right to
select one treating physician” in each field or specialty.
La.R.S. 23:1121(B)(1) (emphasis added).

Gautreaux, 923 So.2d at 851-52.

The court concluded that a physical therapist falls within the scope of

the boarder term “medical practitioner,” and, accordingly, the plaintiff was

“required to submit to the FCE with the medical practitioner arranged by the

Defendants.” Id. at 852. Moreover, the court noted that because the clear

language of La.R.S. 23:1121(B)(1) grants only the employee the right to choose a

treating physician, and not a medical practitioner, the plaintiff had no right to select

a physical therapist to conduct the FCE.

3

Gautreaux is distinguishable from this matter. In Gautreaux, the

parties had not reached a prior agreement about the FCE. Here, the parties

compromised, as indicated by the letter written by Gray’s counsel that asked the

court to remove the motion hearing from the docket and that alerted the court that

the parties had “resolved” the FCE issue.

Louisiana Civil Code Article 3071 states that “[a] compromise is a

contract whereby the parties, through concessions made by one or more of them,

settle a dispute or an uncertainty concerning an obligation or other legal

relationship.” Moreover, Article 3072 states, “[a] compromise shall be made in

writing or recited in open court, in which case the recitation shall be susceptible of

being transcribed from the record of the proceedings.”

The letter drafted by Gray’s counsel, copying Mr. Speyrer’s counsel,

fits the definition of a compromise. In the letter, Gray acknowledges that based

upon the information provided by the court that it would allow each party to

choose a therapist to conduct the FCEs, Gray was withdrawing its Motion to

Compel, and the parties 1 consider the issue “resolved.” 2 To settle the dispute

involving the FCE, Gray made the concession that Mr. Speyrer would be allowed

to choose his own therapist to conduct an FCE following an FCE conducted by

Gray’s therapist of choice. The record indicates that Mr. Speyrer agreed to these

terms because his attorney entered the letter as evidence in support of his case at

trial. Thus, when Mr. Speyrer requested an additional FCE with a therapist of his

choice, the terms of the compromise governed, and Gray was required to grant the

request.

1
The letter repeatedly uses the pronoun “we,” implying that the parties have had a
meeting of the minds and have reached a compromise.
2
We note that in the letter, Gray uses the phrase, “the employee is conversely authorized
to have his choice of FCE . . .” (emphasis added). The term authorized indicates payment by
Gray of the FCE under La.R.S. 23:1121(B)(1).
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Gray now argues, however, that the letter its attorney drafted does not

meet the requirements of a compromise as contemplated by La.Civ.Code art. 3071

or 3072. Specifically, Gray cites jurisprudence stating that both parties must sign a

compromise document for it to be valid, or, alternatively, the compromise must be

read in open court. See Trahan v. Coca Cola Bottling Co. United, Inc., 04-100

(La. 3/2/05), 894 So.2d 1096; Brasseaux v. Allstate Ins. Co., 97-526 (La.App. 1

Cir. 4/8/98), 710 So.2d 826; DeSoto v. DeSoto, 96-1079 (La.App. 5 Cir. 4/29/97),

694 So.2d 1043. While we are cognizant of this jurisprudence, we refuse to

elevate form over substance. The parties clearly had a meeting of the minds, and

their compromise was memorialized in the letter Gray’s counsel drafted and sent to

the WCJ. Mr. Speyrer’s counsel implicitly accepted the compromise and

acquiesced to its terms as evidenced by his use of the letter in support of his case at

trial.

Though our rationale differs from the WCJ, the judgment of the WCJ

was legally correct. Gray should have authorized Mr. Speyrer to receive an FCE

administered by a physical therapist of his choosing.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the WCJ.

Costs of this appeal are assessed against Appellant, The Gray Insurance Company.

AFFIRMED.

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