Thomas Boyd Bihm v. Unit Drilling Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-569

THOMAS BOYD BIHM

VERSUS

UNIT DRILLING COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION – DISTRICT 04
PARISH OF LAFAYETTE, NO. 11-02798
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED AS AMENDED.

Lawrence N. Curtis
Lawrence N. Curtis, LTD.
P. O. Box 80247
Lafayette, LA 70598-0247
(337) 235-1825
COUNSEL FOR PLAINTIFF/APPELLANT:
Thomas Boyd Bihm
Joseph R. Pousson, Jr.
Kendrick J. Guidry
Plauche, Smith & Nieset
P. O. Drawer 1705
Lake Charles, LA 70602-1705
(337) 436-0522

COUNSEL FOR DEFENDANTS/APPELLEES:
Unit Drilling Company
Liberty Mutual Insurance Company

PETERS, J.

The plaintiff in this workers’ compensation case, Thomas Boyd Bihm,

appeals the sufficiency of the attorney fee awarded in his favor. For the following

reasons, we affirm the hourly rate used by the workers’ compensation judge (WCJ)

to calculate the attorney fee award, but amend the award by adjusting upward the

number of hours on which the award is based.

DISCUSSION OF THE RECORD

On November 8, 2000, Mr. Bihm sustained a knee injury while working as a

tool pusher for Unit Drilling Company. During the rehabilitation process, Mr.

Bihm gained a significant amount of weight which precluded the necessary knee-

replacement surgery recommended by his treating physician. To address this

complication, his physician ordered bariatric evaluation and surgery. When

presented with this recommendation, Liberty Mutual Insurance Company (Liberty

Mutual), the employer’s workers’ compensation insurer, refused to approve the

recommendation.

In response, on April 14, 2011, Mr. Bihm filed a Disputed Claim for

Compensation with the Office of Workers’ Compensation. In his claim, Mr. Bihm

identified the dispute as being the insurer’s failure to authorize the medical

treatment, and he requested a judgment authorizing the treatment and awarding

penalties, attorney fees, and interest for Liberty Mutual’s actions. The WCJ

ultimately scheduled the matter for trial on November 10, 2011, but approximately

two weeks before the scheduled trial, Liberty Mutual agreed to approve the

bariatric evaluation and subsequent surgery, if found to be necessary. This action

by Liberty Mutual left only the issues of penalties and attorney fees to be

determined by the WCJ.

At the November 10th trial, the litigants entered into a stipulation

concerning the agreement on the medical treatment. The WCJ then continued the

remaining matters until a December 6, 2011 telephone conference hearing, to allow

Mr. Bihm’s counsel the opportunity to prepare and submit an affidavit concerning

his time spent in the prosecution of the claim.

On November 16, 2011, Mr. Bihm’s counsel submitted an affidavit

reflecting that he had worked 108.8 hours on the litigation, that his hourly rate was

$250.00, and that he was entitled to a $27,200.00 attorney fee. Both sides briefed

the attorney fee issue after the affidavit was filed. The December 6, 2011

telephone conference resulted in the WCJ awarding attorney fees based on sixty

hours of work at an hourly rate of $200.00. On January 24, 2012, the WCJ

executed a written judgment awarding Mr. Bihm a $2,000.00 penalty, $2,998.98 in

expenses, and a $12,000.00 attorney fee.

Thereafter, Mr. Bihm perfected this appeal, wherein he asserts as his sole

assignment of error that the WCJ erred in not awarding him the $27,200.00 as

evidenced by his attorney’s affidavit.

OPINION

The record before us establishes that Mr. Bihm sustained his injury on

November 8, 2000. It does not seem to be disputed that he needs knee replacement

surgery, but is not a candidate because of his excess weight. The record also

establishes that by fax correspondence dated February 10, 2011, Liberty Mutual

denied Mr. Bihm’s request for approval of gastric sleeve surgery. This rejection

resulted in Mr. Bihm filing his April 14, 2011 Disputed Claim for Compensation

wherein the only issue raised was the insurer’s refusal to pay for this medical

procedure.

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Liberty Mutual and Unit Drilling Company filed an answer to Mr. Bihm’s

claim on May 16, 2011. Despite having paid benefits since 2000, the defendants

pled numerous defenses not directly related to the medical care claim. The

defendants first denied that Mr. Bihm sustained an on-the-job injury. Then, in the

event the WCJ determined that Mr. Bihm did sustain a compensable injury, the

defendants asserted that their failure to pay for the medical procedure was ―based

on competent medical opinion and the investigation of this complaint‖; that Mr.

Bihm was currently able to return to gainful employment; that they were entitled to

a reduction in benefit payments based on payments from other sources of disability

payments; and that Mr. Bihm was only entitled to supplemental earnings benefits.

In their answer, the defendants also entered an advance objection to Mr. Bihm

attempting to introduce any of the medical reports attached to his Disputed Claim

for Compensation as being hearsay and otherwise not properly verified by the

Office of Workers’ Compensation Administration Rules and Regulations. Finally,

the defendants attempted to affirmatively plead all defenses available to them

pursuant to La.R.S. 23:1208 (for fraud in seeking workers’ compensation benefits)

and La.R.S. 23:1208.1 (for failure to disclose prior injuries).

On August 2, 2011, the WCJ issued a Scheduling Conference Order which,

among other matters, set September 20, 2011, as a cut-off date for discovery and

set trial for November 10, 2011. However, because of outstanding discovery

responses due from Mr. Bihm, the defendants sought and obtained an extension of

the discovery cut-off date until October 21, 2011. The WCJ executed this order on

September 20, 2011.

The August 2, 2011 Scheduling Conference Order also ordered that pre-trial

statements be filed by October 20, 2011. On October 7, 2011, Mr. Bihm filed his

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pre-trial statement, and the defendants followed suit on October 20, 2007. In his

pre-trial statement, Mr. Bihm set forth the particulars of his claim for payment of

the medical procedure and attached a number of documents in support of his claim.

The defendant’s pre-trial statement expanded Mr. Bihm’s claim by listing five

issues and eight defense contentions to be addressed by the WCJ. The only claim

not continued from the original answer filed by the defendants was that Mr. Bihm

did not sustain an on-the-job injury. Both litigants suggested that the records to be

introduced into evidence were voluminous and that there would be multiple

witnesses called at trial.

Next came a pretrial dispute over an October 25, 2011 subpoena and

subpoena duces tecum requested by Mr. Bihm and directed at obtaining the

contents of Liberty Mutual’s case file. However, before the WCJ ruled on this

dispute, Liberty Mutual agreed to authorize the medical procedure.

On November 10, 2011, the litigants appeared for trial, but announced to the

WCJ that the underlying issue had been resolved and that the only remaining issue

was that of penalties and attorney fees. Obviously, Liberty Mutual conceded

without the necessity of evidence being adduced that it was arbitrary and

capricious in failing to authorize the medical procedure because, while the January

24, 2012 judgment awarded Mr. Bihm a $2,000.00 penalty, the December 6, 2011

telephone conference mentions only the attorney fee issue. In fact, it appears from

the record before us that the WCJ’s ruling on the attorney fee issue was based

solely on the affidavit of Mr. Bihm’s counsel and the briefs submitted on that issue.

In rendering its decision, the WCJ stated the following:

And I’m going to fix the attorney’s fees at Twelve Thousand
Dollars ($12,000.00). I think the issue was a narrow one. It was, as
Mr. Pousson said in his brief, primarily a legal one. Facts were not in
great dispute, and the gastric surgery was authorized two weeks
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before the trial. I think sixty hours is a reasonable amount of time,
and I think Two Hundred Dollars ($200.00) is a reasonable fee, and I
came out at Twelve Thousand Dollars.

There’s another case that I ruled on, one of mine, the Lester
Smith case, where the court even set the award at One Hundred
Dollars ($100.00) an hour for Mr. Michael Miller, who I think we all
recognize as a very experienced competent attorney also. I approach
it somewhat along the sliding scale that the factors governing
attorney’s fees allow for, and that is the issues versus the skill of the
attorney. Here, we have a very, very skilled attorney. The issue was
not an overly complicated one. For that reason, I do set the fee at
Twelve Thousand Dollars.

With regard to attorney fee awards, this court has stated:

The reasonableness of an attorney fee award is based on ―the degree
of skill and ability exercised, the amount of the claim, the amount
recovered for the plaintiff, and the amount of time devoted to the
case.‖ Naquin v. Uniroyal Inc., 405 So.2d 525, 528 (La.1981); see
also Cormier v. State, Dep’t of Wildlife and Fisheries, 07-642, pp. 26-
27 (La.App. 3 Cir. 11/21/07), 970 So.2d 1216, 1232, writ denied, 07-
2466 (La.2/15/08), 976 So.2d 186 (quoting Lambert v. Brookshire
Grocery Co., 06-1001, pp. 21-22 (La.App. 3 Cir. 12/20/06), 945 So.2d
918, 933).

Williams v. Tioga Manor Nursing Home, 09-417, pp. 26-27 (La.App. 3 Cir.
11/18/09), 24 So.3d 970, 986, writ denied, 10-298 (La. 4/9/10), 31 So.3d 389.

The twenty-nine page affidavit filed by Mr. Bihm’s counsel is divided into

categories addressing the attorney’s education, experience, membership in

professional organizations, past speaking engagements, the time contributed to the

case, the expenses incurred in the case, and references to other attorney-fee awards.

Thus, the affidavit, when considered in the context of the record before us, clearly

addresses the factors to be considered by the WCJ as set forth in Williams.

Although the attachments to Mr. Bihm’s Disputed Claim for Compensation

establishes that his counsel had been representing him in negotiations with Liberty

Mutual concerning the approval of the gastric sleeve surgery as early as April 30,

2009, the first entry for services rendered to Mr. Bihm by his counsel in the

November 16, 2011 affidavit reflects participation in a conference with a
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vocational rehabilitationist and a physician held on January 13, 2010. The

remaining 121 entries after January 13, 2011, and through November 10, 2011,

comprise twenty-one pages of the affidavit, and those entries are followed by three

pages of thirty-two expense entries.

In their brief to the WCJ, the defendants conceded that Mr. Bihm was

entitled to an attorney fee award and did not question any of the factors set forth in

Williams, other than the amount of time Mr. Bihm’s counsel devoted to the case.

In their brief to the WCJ, the defendants asserted that the hourly rate should be

$150.00 and that the reimbursable time should be reduced to 61.4 hours. The WCJ

rejected the defendants’ argument that the hourly rate should be $150.00, and they

have not appealed that rejection. However, the WCJ did adopt their argument

concerning the amount of time involved and reduced the compensable time to sixty

hours—less than that proposed by the defendants.

The defendants noted in their brief to the WCJ that the affidavit contained a

duplicate four-hour entry on October 4 and October 6, 2011. Otherwise, while

they argued that the litigation was rather uncomplicated, they did not assert that

104.8 hours were not spent in the prosecution of Mr. Bihm’s claim. Instead, the

defendants based their argument to the WCJ, that the compensable hours should be

reduced to 61.4 hours, on adjustments they made to the affidavit’s time entries.

These adjustments derived from the defendant’s arguments that certain entries

should have been handled by office personnel, i.e., a paralegal or a secretary, other

than Mr. Bihm’s attorney or simply from arbitrary reductions the defendants

thought appropriate.

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In its reasons for judgment, the WCJ seemed to base its decision on its

understanding that the litigation was uncomplicated and that the single issue had

been resolved before trial. We find this assessment to be in error.

While the matter should have been uncomplicated, the defendants chose to

complicate it by raising every possible defense imaginable in its answer so as to

preclude early resolution of the single issue. Given the particulars of the answer

and the meritless issues raised therein, it is clear to this court that the defendants

intended to make it as difficult and expensive as possible for Mr. Bihm to pursue

his right to medical care. They followed this path of greatest resistance until the

very last minute, only capitulating to the single issue resolution two weeks before

trial. Their delay strategy is reflected in the fact that they voluntarily abandoned

their position before trial and accepted a $2,000.00 statutory penalty.

We recognize that ―the WCJ’s award of attorney fees, that is the actual

amount awarded, is entitled to great discretion and will not be disturbed absent an

abuse of that discretion.‖ Minor v. J & J Carpet, Inc., 10-45, p. 11 (La.App. 3 Cir.

6/2/10), 40 So.3d 434, 441-42. However, we find no authority to suggest that a

competent attorney should delegate his or her representation responsibilities to a

paralegal or office worker. Additionally, if one breaks down the hours of

representation on a monthly basis beginning in April of 2009, the result would be a

mere 3.5 hours per month devoted to this client. Even if the analysis were made

beginning in January of 2010, corresponding to the first entry in the affidavit, the

time would only be increased to 4.75 hours per month. We find the WCJ abused

its discretion in reducing the number of hours on which to base the attorney fee to

sixty hours.

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However, we find no abuse of discretion in the WCJ’s setting of the hourly

rate for attorney fees at $200.00 per hour. Weldon v. Holiday Inn-Jennings, 11-203

(La.App. 3 Cir. 10/5/11), 76 So.3d 115, writ denied, 11-2463 (La. 1/20/12), 78

So.3d 144 (hourly rate of $225.00 per hour was reasonable); Rougeau v. Gottson

Constr. Co., 10-1082 (La.App. 3 Cir. 2/9/11), 57 So.3d 576, writ denied, 11-492

(La. 4/25/11), 62 So.3d 90 (hourly rate of $225.00 was not abusively high).

DISPOSITION

We affirm the workers’ compensation judge’s setting of the hourly rate at

$200.00, but amend the sixty hour award by increasing it to 104.8 hours. Thus, we

increase the attorney fee award from $12,000.00 to $20,960.00. We assess all

costs of this appeal to Unit Drilling Company and Liberty Mutual Insurance

Company.

AFFIRMED AS AMENDED.

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