Barbara Brown v. Lafayette Association of Retarded Citizens, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1595

BARBARA BROWN

VERSUS

LAFAYETTE ASSOCIATION OF RETARDED CITIZENS, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF LAFAYETTE, NO. 10-02240
SHERAL KELLAR, WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED AND RENDERED.

Gremillion, J., concurred in part and dissented in part and assigns reasons.

John H. Pucheu
Pucheu, Pucheu & Robinson
P.O. Box 1109
Eunice, LA 70535-1109
(337) 457-9075
COUNSEL FOR PLAINTIFF/APPELLEE:
Barbara Brown

M. Jeremy Berthon
Johnson, Stiltner & Rahman
P. O. Box 98001
Baton Rouge, LA 70898-8001
(225) 231-0925
COUNSEL FOR DEFENDANTS/APPELLANTS:
Lafayette Association of Retarded Citizens, Inc.
Louisiana Workers’ Compensation Corporation

PETERS, J.

The defendants, the Lafayette Association of Retarded Citizens, Inc. and the

Louisiana Workers‘ Compensation Corporation, appeal from a judgment of the

workers‘ compensation judge (WCJ) finding that the plaintiff, Barbara Brown,

suffered a work-related accident and that she was entitled to statutory penalties and

attorney fees. Mrs. Brown answered the appeal, seeking an award of additional

attorney fees for work performed by her attorney on appeal. For the following

reasons, we affirm the WCJ judgment in all respects and award Mrs. Brown an

additional $5,000.00 as attorney fees for work performed by her attorney on appeal.

DISCUSSION OF THE RECORD

The evidentiary record establishes that on the morning of November 3, 2009,

Mrs. Brown was employed by the Lafayette Association of Retarded Citizens, Inc.

(LARC) as a direct care specialist in LARC‘s Lafayette Parish facility. LARC

provides a home environment for intellectually disabled individuals at its facility.

Mrs. Brown had been employed by it for a period of approximately seven months.

As a direct care specialist, Mrs. Brown was directly involved in the care of the

residents, and this care including lifting, feeding, bathing, changing, training, and

transporting the residents as the need arose.

On November 3, 2009, Mrs. Brown arrived at work at 6:00 a.m. and began

her daily routine. While attempting to lift a resident, she felt a pain in her chest.

Although the resident weighed only approximately 160 pounds, Mrs. Brown had to

wait for five to ten minutes after experiencing the initial pain before moving the

resident into her wheelchair.

A short time later, after returning to her work obligations, Mrs. Brown felt

the pain in her chest return. Because she had suffered a heart attack in 2007, she

sat down and took a nitroglycerine pill. She testified that she spilled her pills when

attempting to retrieve one from her purse, and one of her co-workers, Connie

Redeaux, helped her pick them up. Ms. Redeaux recalled the incident, testifying

that she came upon Mrs. Brown sitting down and holding her chest. Ms. Redeaux

recognized that something was very wrong and advised Mrs. Brown to inform

Henrietta Grant, their supervisor, of her condition.

Mrs. Brown did not initially follow Ms. Redeaux‘s advise. Instead, she

returned to her duties after sitting for a few minutes. However, a short time later

while delivering medication to a resident, she became hot and felt a heaviness over

her left shoulder and down her legs. At this point, she knew that she was suffering

another heart attack. She returned to her assigned area, informed Ms. Grant of her

situation, and asked Ms. Grant to telephone her husband, Ivory J. Brown, Jr. Ms.

Grant made the telephone call, and a co-worker drove Mrs. Brown to meet her

husband. Mr. Brown, driving from Crowley, intercepted the co-worker between

the facility and Crowley and carried his wife to the Crowley American Legion

Hospital. Once stabilized, she was transported by ambulance to the Heart Hospital

of Lafayette in Lafayette, Louisiana, where she was treated for a blocked stent by

her regular cardiologist. Upon her release the next day, her husband drove her to

the LARC facility where she gave her supervisor a work excuse from her

cardiologist.

Two days later, Mrs. Brown presented herself to Dr. Yamen Korab, a

Crowley, Louisiana family practice physician and Mrs. Brown‘s family physician,

complaining of left-sided neck pain. She returned to Dr. Korab on November 24,

2009, complaining of pain in her neck and down into her shoulder and behind her

left knee, numbness in her toe, and ringing in her ears. A cervical MRI ordered by

Dr. Korab revealed a small central disc protrusion at C3-4 and mild spondylosis

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impinging on the left side of the neural foramina at C5-6 and C6-7. Based on this

finding, Dr. Korab recommended that Mrs. Brown see a neurosurgeon.

On January 11, 2010, Mrs. Brown saw Dr. Patrick A. Juneau, III, a Lafayette,

Louisiana neurosurgeon, complaining of neck and lower back pain relating back to

November of 2009. Mrs. Brown told Dr. Juneau that she had suffered a heart

attack while lifting a patient but, afterwards, she also began to experience pain in

her neck and lower back. After examining her and reviewing the results of the

MRI ordered by Dr. Korab, Dr. Juneau concluded that Mrs. Brown had suffered a

work-related injury, but that her MRI revealed only mild degenerative changes. At

this point, he ordered that a lumbar MRI be performed, and the results of that test

proved normal.

When she returned to Dr. Juneau on March 1, 2010, Mrs. Brown was

complaining of increased neck and bilateral arm pain, worse on the left side;

numbness and tingling sensations in her arms and legs, worse on the left side;

numbness and tingling sensations in her left foot, particularly in her fourth and

fifth toes; and numbness and tingling sensations in her right great toe. Dr.

Juneau‘s examination revealed that Mrs. Brown exhibited diminished sensation

over the lateral aspect of her left foot, into the fourth and fifth toes, and over the

right great toe. He found these symptoms consistent with left S1 radiculopathy and

possible involvement of the L5 nerve root. Given his findings, Dr. Juneau

prescribed several tests to pinpoint whether Mrs. Brown‘s pain was discogenic or

muscular in nature. LARC refused to approve payment for these tests.

Mrs. Brown‘s physical condition continued to deteriorate and on May 25,

2011, Dr. Juneau noted after examining Mrs. Brown that she continued to have

complaints of pain in her neck; left trapezius muscle; arm; forearm; and hand, with

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tingling sensations in her second, third, and fourth fingers, especially the third

finger; as well as pain radiating across the right trapezius muscle to the shoulder.

After closely reevaluating Mrs. Brown‘s cervical MRI in light of her current

presentation, Dr. Juneau concluded that his patient was suffering from foraminal

stenosis on the left at C5-6 and C6-7. Based on this diagnosis, he recommended

that rather than undergo testing, Mrs. Brown undergo an anterior cervical

discectomy with instrumented fusion at C5-6 and C6-7. LARC refused to approve

payment for this treatment as well.

On March 8, 2010, Mrs. Brown filed a disputed claim for compensation

against LARC and the Louisiana Workers‘ Compensation Corporation (LWCC),

seeking indemnity and medical benefits and the medical testing and treatment

recommended by Dr. Juneau. Following an August 2, 2011 trial on the merits, the

WCJ rendered oral reasons for judgment on August 17, 2011, finding that Mrs.

Brown suffered a work-related accident on November 3, 2009, and awarding her

indemnity benefits and all reasonable and necessary medical treatment, including

surgery and mileage associated with her medical treatment. The WCJ further

awarded Mrs. Brown $6,000.00 in statutory penalties and $12,500.00 in attorney

fees. After the WCJ reduced its reasons for judgment to a written judgment,

LARC and LWCC perfected this appeal. In their appeal, LARC and LWCC raise

three assignments of error:

1. The Workers‘ Compensation Judge committed manifest error in
finding the claimant met her burden of proof that she was injured by
an accident on the job.

2. The Workers‘ Compensation Judge committed manifest error in
awarding penalties and attorney fees.

3. The Workers‘ Compensation Judge committed legal error in awarding
an additional penalty for failure to approve a surgery recommended by
Dr. Patrick Juneau.
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Additionally, Mrs. Brown answered LARC and LWCC‘s appeal to request an

additional award of attorney fees based on the work performed by her counsel in

defending this appeal.

OPINION

In the recent case, Ardoin v. Firestone Polymers, L.L.C., 10-245, pp. 4-7 (La.

1/19/11), 56 So.3d 215, 218-220 (emphasis in original), the Louisiana Supreme

Court detailed the law pertaining to a worker‘s burden of proof on causation:

A worker in a compensation action must establish ―personal
injury by accident arising out of and in the course of his
employment.‖ La.Rev.Stat. 23:1031(A). An accident is ―an
unexpected or unforeseen actual, identifiable, precipitous event
happening suddenly or violently, with or without human fault, and
directly producing at the time objective findings of an injury which is
more than simply a gradual deterioration or progressive
degeneration.‖ La.Rev.Stat. 23:1021(1). As in other civil actions, the
plaintiff-worker in a compensation action has the burden of
establishing a work-related accident. Nelson v. Roadway Express,
Inc., 588 So.2d 350 (La.1991); Prim v. City of Shreveport, 297 So.2d
421 (La.1974). An employee may prove by his or her testimony alone
that an unwitnessed accident occurred in the course and scope of
employment if the employee can satisfy two elements: (1) no other
evidence discredits or casts serious doubt upon the worker‘s version
of the incident; and (2) the worker‘s testimony is corroborated by the
circumstances following the alleged accident. Bruno v. Harbert
International, Inc., supra, 593 So.2d at 361 (citing West v. Bayou
Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson,
13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d
Ed.1980)). As we noted in Bruno, corroboration of the worker‘s
testimony may be provided by the testimony of fellow workers,
spouses, or friends, or by medical evidence. Id. (citing West, Nelson,
and Malone and Johnson).

In Bruno, we cautioned that, in deciding whether the plaintiff-
worker has discharged his or her burden of proof, the fact-finder
―should accept as true a witness‘s uncontradicted testimony, although
the witness is a party, absent ‗circumstances casting suspicion on the
reliability of this testimony.‘‖ 593 So.2d at 361 (quoting West, 371
So.2d at 1147, and citing Holiday v. Borden Chemical, 508 So.2d
1381, 1383 (La.1987)). The fact-finder‘s determinations as to
whether the worker‘s testimony is credible and whether the worker
has discharged his burden of proof are, most certainly, factual
determinations that should not be disturbed on appellate review unless
clearly wrong or manifestly erroneous. Id. (citing Gonzales v. Babco
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Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536
So.2d 1200 (La.1988)).

It is well-settled that a reviewing court may not disturb the
factual findings of the trier of fact in the absence of manifest error.
Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v.
Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, we set
forth a two-part test for the appellate review of facts: (1) the appellate
court must find from the record that there is a reasonable factual basis
for the finding of the trial court, and (2) the appellate court must
further determine that the record establishes the finding is not clearly
wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see
also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the trial court‘s
findings are reasonable in light of the record reviewed in its entirety,
the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co.,
558 So.2d 1106, 1112 (La.1990). Consequently, when there are two
permissible views of the evidence, the factfinder‘s choice between
them cannot be manifestly erroneous. Stobart v. State, Through
Department of Transportation and Development, 617 So.2d 880, 883
(La.1993); Sistler, 558 So.2d at 1112.

In this case, the hearing officer‘s factual finding that the
plaintiff succeeded in establishing the existence of a work-related
accident was based on his determination with regard to the plaintiff‘s
credibility. As we pointed out in Bruno, 593 So.2d at 361, this court
in Rosell v. ESCO explained the concept of ―clearly wrong‖ or
―manifestly erroneous‖ with regard to credibility determinations as
follows:

When findings are based on determinations
regarding the credibility of witnesses, the manifest error-
clearly wrong standard demands great deference to the
trier of fact‘s findings; for only the factfinder can be
aware of the variations in demeanor and tone of voice
that bear so heavily on the listener‘s understanding and
belief in what is said. Where documents or objective
evidence so contradict the witness’s story, or the story
itself is so internally inconsistent or implausible on its
face, that a reasonable fact finder would not credit the
witness’s story, the court of appeal may well find
manifest error or clear wrongness even in a finding
purportedly based upon a credibility determination. But
where such factors are not present, and a factfinder‘s
finding is based on its decision to credit the testimony of
one of two or more witnesses, that finding can virtually
never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d at 844-45 (emphasis added and citations
omitted).

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LARC and LWCC argue that the WCJ erred in finding that Mrs. Brown

suffered a work-related accident on November 3, 2009. They point to several

factors supporting their argument: Mrs. Brown‘s failure to report this incident

until January 11, 2010; inconsistencies between her trial testimony and her

recorded statement; the absence of any mention of a lifting incident in Dr. Korab‘s

medical records; Dr. Juneau‘s reliance on Mrs. Brown‘s explanation for the cause

of her pain and his initial finding of degenerative changes in her cervical spine; and

her past history of three automobile accidents resulting in similar pain in her left

shoulder.

Mrs. Brown testified that she contacted LARC about returning to work

following her clearance by her cardiologist but that David Batiste, LARC‘s

administrator, refused to allow her to return to work until she obtained an

additional release from Dr. Korab. This was complicated, according to Mrs.

Brown, by the fact that Dr. Korab refused to release her to return to work pending

the result of her consultation with a neurosurgeon. At this early stage, Mrs. Brown

recognized that she had sustained a bodily injury in addition to her heart attack, but

did not realize the seriousness of that injury. She acknowledged that she did not

initially relate to Ms. Grant or Mr. Batiste the connection between her non-heart-

related complaints and the incident of November 3, 2009—partly because despite

her pain at the time, she fully intended to return to work. In fact, the first time

LARC and LWCC were informed of a possible work-related claim was

correspondence from her attorney dated January 11, 2010. During the time in

between, she applied for and received unemployment benefits (from mid-

December 2009 to January 2010). Mrs. Brown stated that she ceased receiving

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these benefits once she was no longer capable of working. At the time of trial, she

had not worked for anyone since the November 3, 2009 accident.

When questioned about her recorded statement to LWCC‘s claims adjuster,

Gerrod Galliano, Mrs. Brown admitted that some of her responses in that statement

were inconsistent with her trial testimony. In her statement to Mr. Galliano, she

had informed him the following concerning what she had told Ms. Redeaux about

the events of November 3, 2009:

So she say, Barbara you can‘t hardly breath, huh? Is [sic] say no. I
say I can do the (unclear), I say, but it – it bothers me a little. I say
but, my neck, something is wrong with my neck and that‘s what I told
Connie. I say, something wrong with neck [sic].
....
She say girl, you might have hurt yourself lifting up on Tasha. I say,
Connie, I said I don‘t know, I said, but I know one thing, my neck is
hurting and I say, I got a heart pain in my chest.

She acknowledged at trial that she never suggested to Ms. Redeaux on November 3,

2009, that she had injured herself lifting the resident; nor did she relate any

complaints of neck pain to Ms. Redeaux on that day. In fact, at trial, Ms. Brown

testified that she recognized the onset of neck pain a few days after being treated

for the heart attack and believed it to be a ―Charlie horse‖ caused from lifting the

resident on November 3, 2009.

Mrs. Brown acknowledged that she was involved in three automobile

accidents before her November 3, 2009 accident, but denied any residual effects

from those accidents. The only one in which she received injuries similar to those

now giving her difficulties occurred in September of 2001. After that accident, she

was treated by Dr. Joseph A. George, a Rayne, Louisiana family medicine

physician, and Dr. George‘s medical records indicate that Mrs. Brown complained

of pain over C6-7 going into the left shoulder from September through November

2001. Mrs. Brown acknowledged that she suffered pain in her shoulder as a result
8

of that accident, but denied suffering from pain in her neck and down into her left

shoulder and arm similar to the pain associated with the November 3, 2009

accident.

According to Mrs. Brown, Dr. George released her in December of 2001,

and she experienced no residual effects from that accident or any other before her

November 3, 2009 accident. Furthermore, she had no difficulty in lifting her

patients as a part of her employment with LARC. The testimony of both Ms. Grant

and Mr. Brown supported Mrs. Brown on this point. Ms. Grant testified that Mrs.

Brown was a good, hard-working, dependable employee, who never complained of

any health issues. Mr. Brown acknowledged the history of the 2001 accident and

his wife‘s treatment with Dr. George, but also testified that she had not complained

of neck or back pain since her release from Dr. George. Mr. Brown did testify that

while being treated for her heart attack, Mrs. Brown complained to him that her

neck was bothering her. However, the seriousness of her heart attack

overshadowed the significance she gave her neck pain.

Ms. Grant testified that not only did Mrs. Brown not tell her of the back and

shoulder injury during or after her heart attack, but that when she telephoned Mr.

Brown to check on his wife‘s status, he did not mention it either. However, she

also acknowledged that she only spoke to Mrs. Brown one time after the accident,

in a telephone conversation with her a few days after November 3, 2009.

Dr. Juneau testified that Mrs. Brown‘s cervical MRI was abnormal from the

beginning because she had bony foraminal stenosis at two levels and a protruding

disc off to the left side, and that by May of 2011, her symptoms had lateralized off

to the left side. He explained that the symptoms in her fingers are a classic sign of

C7 nerve-root irritation, and that Mrs. Brown‘s minimal disc protrusion at C6-7

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prominently narrowed the foramen on the left side. Dr. Juneau opined that Mrs.

Brown‘s neck pain resulted from the work-related injury at LARC on November 3,

2009. He reached this conclusion based primarily on the fact that her symptoms of

neck and back pain began almost immediately after November 3, 2009. Dr. Juneau

also stated that in reaching this conclusion, he was aware of the history of the 2001

automobile accident. According to the doctor, had Mrs. Brown suffered residual

pain from that injury, she would not have been able to perform her duties at LARC.

Mr. Galliano testified that prior to taking Mrs. Brown‘s statement, he met

with Ms. Grant, Mr. Batiste, and others at LARC. After taking her statement, he

then discussed the events of November 3, 2009, with Ms. Redeaux. When Ms.

Redeaux assured him that Mrs. Brown made no mention of neck pain on the day of

the accident, he denied Mrs. Brown‘s claim as not being associated with an on-the-

job accident. However, Mr. Galliano also admitted that when he denied the claim,

he had no medical opinion contradicting Dr. Juneau‘s opinion as to the cause of

Mrs. Brown‘s neck pain. He stated that Dr. Korab‘s medical records contained no

indication that Mrs. Brown injured herself while lifting a patient. Mr. Galliano

testified that his decision to deny Mrs. Brown‘s claim has in no way been altered

by Dr. Juneau‘s subsequent opinions because he does not believe that Dr. Juneau

can definitively relate her cervical problems to the November 3 lifting incident.

He admitted that LARC and LWCC has not paid Mrs. Brown indemnity benefits or

medical bills nor has it paid for rehabilitation or offered her vocational

rehabilitation services.

In her oral reasons for judgment, the WCJ held that Mrs. Brown proved that

her medical condition resulted from a work-related accident on November 3, 2009.

10

The WCJ found Mrs. Brown‘s testimony credible, discounting the inconsistencies

between her recorded statement and her trial testimony. The WCJ stated:

Considering the fact that on the date of the alleged accident she
suffered a heart attack, the Court does not find that Brown‘s memory
in this regard casts serious doubt on her credibility. In fact, the Court
finds it quite understandable given the circumstances that she is
confused about having mentioned the lifting incident to anyone. The
Court finds Brown‘s testimony credible. Moreover, the jurisprudence
is replete with cases that hold that an acute trauma can mask a
secondary source of pain until the acute trauma starts to subside.

Based on the totality of the evidence, particularly the testimony of Mrs. Brown and

that of her husband, Ms. Grant, and Dr. Juneau, as well the medical records, the

WCJ held that Mrs. Brown proved she suffered a work-related accident on

November 3, 2009. She found that Mrs. Brown had worked since 2001, without

any complaints of pain and that Ms. Grant admitted that Mrs. Brown had made no

such complaints during the seven months of her employment with LARC.

After reviewing the record, we find no error in the WCJ‘s factual finding

that Mrs. Brown injured her neck while lifting a resident at LARC on November 3,

2009, the same morning that she suffered a heart attack. The WCJ specifically

found Mrs. Brown‘s testimony credible and the evidence overwhelmingly in

support of the finding that she injured her neck in a work-related accident.

Considering the life-threatening situation in which she found herself that morning,

it is not at all astonishing that Mrs. Brown either was unaware of her neck injury or

that she did not tell Ms. Grant this. Other than the inconsistent statement that Mrs.

Brown spoke with Ms. Redeaux about a possible injury while in the throes of her

heart attack, all of the evidence, especially the medical evidence, corroborates Mrs.

Brown‘s version of what occurred. We further find it inconceivable that Ms. Grant

would have taken the time to question Mrs. Brown about her neck pain while she

11

was experiencing a life-threatening condition. Accordingly, the WCJ‘s judgment

finding that Mrs. Brown satisfactorily proved causation is affirmed.

Penalties and Attorney Fees

LARC and LWCC next argue that the WCJ erred in awarding Mrs. Brown

statutory penalties and attorney fees and in awarding an additional penalty for their

failure to approve the surgery recommended by Dr. Juneau.

An employer avoids the imposition of penalties and attorney fees when it

engages in a ―nonfrivoulous legal dispute or possessed factual and/or medical

information to reasonably counter the factual and medical information presented

by the claimant throughout the time [it] refused to pay all or part of the benefits

allegedly owed.‖ Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98),

721 So.2d 885, 890 (alteration ours); La.R.S. 23:1201(F).

Importantly, this obligation is continuing in nature. Parfait v. Gulf
Island Fabrication, Inc., [97-2104 (La.App.1 Cir. 1/6/99),] 733 So.2d
[11,] 25. Where, as here, an insurer or employer first receives a
favorable medical report, but later receives information indicating the
possibility of a continuing disability, it may not blindly rely on the
earlier report to avoid attorney fees. Killett v. Sanderson Farms, [01-
277 (La.App. 1 Cir. 5/10/02),] 818 So.2d [853,] 862. Statutes
authorizing attorney fees in workers‘ compensation cases are imposed
to discourage indifference and undesirable conduct by employers and
insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737
So.2d 41, 46.

Connor v. Family Dollar Store, 09-1537, pp. 14-15 (La.App. 1 Cir. 3/26/10), 36
So.3d 339, 350, writ denied, 10-959 (La. 6/25/10), 38 So.3d 344.

The decision to cast an employer with penalties and attorney fees is a question of

fact subject to the manifest error standard of review. Ashworth v. Administaff, Inc.,

10-318 (La.App. 3 Cir. 10/6/10), 48 So.3d 1178.

LARC and LWCC‘s argument that they were not arbitrary and capricious in

the handling of this claim centers around the facts they knew early in the history of

this matter, especially the above-described inconsistent statement contained in Mrs.
12

Brown‘s recorded statement. LARC and LWCC also point to testimony from Mrs.

Brown on cross examination, where she admits that it was reasonable for Mr.

Galliano to question whether she suffered a work-related injury.

In awarding penalties and attorney fees, the WCJ found LARC and LWCC

arbitrary and capricious in their handling of Mrs. Brown‘s claim not because of

their actions early in the handling of the claim. Rather, the WCJ held that once

they became aware of Dr. Juneau‘s later opinions and, based on the fact that they

had alleged no intervening cause for her neck pain, LARC and LWCC clearly

should have known that her disability resulted from the November 3, 2009 work-

related accident.

After reviewing the record, we find LARC and LWCC‘s argument ignores

the facts before them. The WCJ specifically found their actions in initially

handling this claim reasonable, but not so their later actions. The WCJ stated,

―While the initial demand of the claim is understandable given the circumstances

surrounding the accident, subsequent information regarding the accident and injury

do not justify the insurer‘s and employer‘s continued denial of compensation and

medical benefits.‖ We further find that while Mrs. Brown might admit under

leading questioning that it was reasonable for LARC and LWCC to deny her claim,

her belief has no bearing on whether their actions, ultimately, were arbitrary and

capricious. As we find no manifest error in the WCJ‘s finding, the award of

penalties and attorney fees is affirmed.

We further find no error in the WCJ‘s award of a $2,000.00 penalty based on

the failure of LARC and LWCC to authorize the surgery recommended by Dr.

Juneau. LARC and LWCC argue that the failure to authorize medical benefits and

the failure to authorize surgery are the one and the same claim. We disagree. In

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her March 3, 2010 disputed claim, Mrs. Brown alleged that LARC and LWCC

refused to authorize medical treatment and listed four medical tests recommended

by Dr. Juneau. These tests were not authorized. By the date of trial, Dr. Juneau

recommended that Mrs. Brown undergo surgery. LARC and LWCC also refused

authorization for the surgery. Louisiana Revised Statute 23:1201(F) provides for

statutory penalties based on an employer‘s failure to pay medical benefits timely.

The failure to authorize a necessary medical procedure is considered a failure to

furnish medical benefits as required by La.R.S. 23:1203, which subjects the

employer to penalties and attorney fees. La.R.S. 23:1201(F). In this instance, we

find that there were two violations of La.R.S. 23:1203 by LARC and LWCC.

Accordingly, the WCJ‘s award of a penalty based on LARC and LWCC‘s failure

to authorize the recommended surgery is affirmed.

Answer to Appeal

In her answer to appeal, Mrs. Brown requests that we award her additional

attorney fees for the legal services rendered by her counsel in successfully

defending this appeal. Accordingly, we award her an additional $5,000.00 in

attorney fees for legal services rendered on appeal.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers‘

compensation judge. We further render judgment to award an additional $5,000.00

in attorney fees for legal services rendered by Mrs. Brown‘s counsel‘s successful

defense of this appeal. The costs of this appeal are assessed to the Lafayette

Association of Retarded Citizens, Inc. and the Louisiana Workers‘ Compensation

Corporation.

AFFIRMED AND RENDERED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1595

BARBARA BROWN

VERSUS

LAFAYETTE ASSOCIATION OF RETARDED CITIZENS, INC.

GREMILLION, Judge, concurs in part and dissents in part and assigns

written reasons.

I concur in that the worker’s compensation judge did not commit manifest

error in finding the claimant met her burden of proof that she was injured by an

accident on the job.

I dissent with regard to the majority’s findings regarding penalties and

attorney fees. I would reverse the trial court.