Anthony Kinard v. New Iberia Wastewater Treatment Facility

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1393

ANTHONY KINARD

VERSUS

NEW IBERIA WASTEWATER
TREATMENT FACILITY

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APPEAL FROM THE
OFFICE OF WORKERSʼ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 09-04210
SHARON MORROW, WORKERS COMPENSATION JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.

REVERSED IN PART AND AFFIRMED.

Jacqueline B. Manecke
Michael Miller
P. O. Drawer 1630
Crowley, LA 70527
(337) 785-9500
COUNSEL FOR PLAINTIFF-APPELLANT:
Anthony Kinard

Matthew Richards
P. O. Box 98001
Baton Rouge, LA 70898
(225) 231-0521
COUNSEL FOR DEFENDANT-APPELLEE:
New Iberia Wastewater Treatment Facility

PAINTER, Judge.

In this workers’ compensation case, the injured employee, Anthony Kinard

(Kinard) appeals the ruling of the Workers’ Compensation Judge (WCJ) finding

that some of his medical treatment was not reasonable and necessary. Kinard also

seeks additional penalties and an increased award of attorney fees. The employer,

New Iberia Wastewater Treatment Facility and its workers’ compensation insurer,

LWCC (hereinafter collectively referred to as “Defendants”), have answered the

appeal, seeking to have the award of penalties and attorney fees imposed by the

WCJ reversed. For the reasons that follow, we reverse one of the awards of

$2,000.00 in penalties imposed by the WCJ. In all other respects, the judgment is

affirmed.

FACTS AND PROCEDURAL HISTORY

On September 10, 2007, Kinard was involved in a motor vehicle accident

while in the course and scope of his employment with New Iberia Wastewater

Treatment Facility. As a result of that accident, Kinard suffered injuries to his

neck and low back. Kinard treated primarily with Dr. Robert D. Franklin (Dr.

Franklin), a physiatrist, and Dr. John Cobb (Dr. Cobb), an orthopedic surgeon. Dr.

Cobb diagnosed a central disc protrusion at C3-4 with cord compression,

degeneration at L2-3, and arthritis in the lumbar facet joints. In July of 2009, Dr.

Cobb recommended an anterior cervical discectomy and fusion at C3-4. Dr. Cobb

also recommended a psychological evaluation and referred Kinard to Dr. James H.

Blackburn. At that point, Defendants requested a second opinion, and Kinard was

seen by Dr. Kyle C. Girod (Dr. Girod). Dr. Girod recommended a full course of

physical therapy and steroid injections if the physical therapy was not effective in

alleviating Kinard’s symptoms. Dr. Girod was of the opinion that surgery was

unnecessary. In February of 2010, Dr. Cobb again recommended surgery. Then,

Defendants filed a motion seeking an independent medical examination (IME).

The court ordered an IME, and one was performed by Dr. Clark Gunderson (Dr.

Gunderson) on April 27, 2010. Dr. Gunderson agreed with Dr. Girod that Kinard

did not require the surgery recommended by Dr. Cobb. Dr. Gunderson’s

recommended course of treatment was a course of physical therapy and a

functional capacity evaluation (FCE).

In May of 2010, Kinard began treating with Dr. Ilyas Munshi (Dr. Munshi).

Dr. Munshi recommended cervical and lumbar injections. Kinard received

injections from Dr. Amarendar Kasarla (Dr. Karsala) at Lafayette Surgical

Hospital. Payment for this treatment was denied by Defendants.

Kinard has been receiving weekly indemnity benefits. However, a dispute

arose concerning the payment of certain medical bills and the necessity of certain

medical treatment. Following a trial on the merits, the WCJ issued a judgment

finding that Kinard was injured in the course and scope of his employment on

September 10, 2007, and was entitled to medical treatment and weekly indemnity

benefits. The WCJ ordered Defendants to pay: (1) a $2,000.00 penalty for failure

to timely authorize medical treatment with Dr. Blackburn as requested by Dr. Cobb

in his report dated October 21, 2009; (2) a $2,000.00 penalty for failure to timely

pay Dr. Cobb’s bill for medical treatment rendered on February 2, 2009; (3) the

bill associated with medical treatment at Abbeville General Hospital on September

11, 2007; and (4) $4,000.00 in attorney fees. The judgment further found that the

medical treatment rendered to Kinard by Dr. Munshi and Dr. Kasarla, following

the independent medical exam performed by Dr. Gunderson, was not reasonable or

medically necessary. In her reasons for judgment, the WCJ specifically pointed

out that Kinard did not seek authorization from Defendants before beginning that

treatment.
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Kinard appealed. Defendants answered the appeal, asserting manifest error

in the findings that it did not timely authorize medical treatment with Dr.

Blackburn and did not timely pay Dr. Cobb’s bill as well as the imposition of

penalties based on these findings and in the award of attorney fees. For the reasons

that follow, we find manifest error in the WCJ’s award of a $2,000.00 penalty for

the late payment of Dr. Cobb’s bill for service rendered on February 2, 2009. We

find no manifest error in any of the other rulings and, therefore, affirm the

judgment in all other respects.

DISCUSSION

In his first assignment of error, Kinard asserts that the WCJ erred in relying

on the opinion of Dr. Gunderson when there was no dispute between the treating

physician and the second opinion from Dr. Girod. Inherent in this argument is an

opposition to the WCJ’s ruling that treatment received by Kinard from Dr. Munshi

and Dr. Kasarla and the surgery recommended by Dr. Cobb were not reasonable or

medically necessary and the corresponding refusal to order Defendants to pay the

medical expenses for Dr. Munshi, Dr. Kasarla, and Lafayette Surgical Hospital.

Kinard argues that this was legal error.

Defendants argue that there was no manifest error in the WCJ’s acceptance

of Dr. Gunderson’s opinion over that of Dr. Cobb and Dr. Girod. Defendants

contend that no dispute was created by the IME as asserted by Kinard because

there was always a dispute as to what treatment was reasonable and medically

necessary. The standard of review in this instance is manifest error. We are also

mindful of the following precepts:

An IME’s medical conclusions should be given significant weight
because the IME is an objective party. Scott v. Wal-Mart Stores, Inc.,
03-858 (La.App. 1 Cir. 2/23/04), 873 So.2d 664; see also La. R.S.
23:1123. However, the opinion of the IME is not conclusive, and the
workers’ compensation judge must evaluate all of the evidence
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presented in making a decision as to a claimant’s medical condition.
Mosley v. Pennzoil Quaker State, 37,199 (La.App. 2 Cir. 7/23/03),
850 So.2d 1100, writ denied, 03-2412 (La.11/21/03), 860 So.2d 553.

Richardson v. Lil’ River Harvesting, 09-1090, p. 2 (La.App. 3 Cir. 3/10/10), 33

So.3d 418, 419.

In this case, the WCJ credited the opinion of Dr. Gunderson over that of Dr.

Cobb and Dr. Girod. None of these doctors testified at trial1, and no depositions

were admitted into evidence. The WCJ did hear the testimony of Kinard and noted

that she did not find him to be entirely credible. The WCJ also specifically noted

that Kinard began treating with Dr. Munshi and Dr. Kasarla shortly after the IME.

These were new doctors, and the WCJ found that there was no notice to the

insurer. We find no error in the WCJ’s decision to give more weight to the opinion

of Dr. Gunderson.

Here, there were obviously several permissible views of the evidence. The

WCJ clearly weighed the evidence, including voluminous medical records, and

chose Dr. Gunderson’s opinion. It is well established that where there are two

permissible views of the evidence, the fact finder’s choice cannot be manifestly

erroneous. Stobart v. State, DOTD, 617 So.2d 880 (La.1993).

Where there is conflict in the testimony, reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed
upon review, even though the appellate court may feel that its own
evaluations and inferences are as reasonable. The court of appeal may
not reverse the findings of the lower court even when convinced that
had it been sitting as the trier of fact, it would have weighed the
evidence differently.

Dean v. Southmark Constr., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117

(citations omitted).

In this case, three different doctors gave opinions as to whether Kinard

required surgery. Only Dr. Cobb was of the opinion that surgery was necessary.

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Dr. Cobb died on December 4, 2011, prior to the trial of this matter.
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Thus, we find no manifest error in the WCJ’s conclusion that the discectomy and

fusion at C3-4 was not reasonable or medically necessary.

Having concluded that the WCJ was not manifestly erroneous in giving Dr.

Gunderson’s opinion the most weight, we likewise find no manifest error in the

WCJ’s finding that the treatment received from Dr. Munshi and Dr. Kasarla was

not reasonable or medically necessary. Dr. Gunderson did not recommend

injections, and Dr. Girod recommended injections only if physical therapy was not

effective. Even Dr. Cobb recommended physical therapy in January of 2008, and

noted that Kinard had an “option” for surgery. Dr. Cobb’s records reflect that as of

February 11, 2008, Kinard had not been to physical therapy. Dr. Cobb continued

to recommend physical therapy. In June of 2008, Dr. Cobb’s records indicate that

Kinard “has had some physical therapy.” There is no indication that Kinard ever

completed a full course of physical therapy. Kinard did not initially seek

authorization to see Dr. Munshi or Dr. Kasarla, and he had already seen another

pain management doctor, Dr. Franklin. Kinard testified that he did not initially tell

Dr. Kasarla that it was a workers’ compensation matter.

Based on our finding that the treatment received from Dr. Munshi and from

Dr. Kasarla at Lafayette Surgical Hospital was not reasonable or medically

necessary, we find no error in the WCJ’s refusal to order Defendants to pay these

medical expenses.

In his second assignment of error, Kinard argues that the WCJ erred in not

awarding the maximum penalties of $8,000.00 pursuant to La.R.S. 23:1201(F).

The WCJ awarded a total of $4,000.00 in penalties: $2,000.00 for the failure to

timely authorize medical treatment by Dr. Blackburn as requested by Dr. Cobb and

$2,000.00 for the failure to timely pay Dr. Cobb’s bill for medical treatment

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rendered on February 2, 2009. In their answer to appeal, Defendants seek to have

the imposition of these penalties reversed.

“The applicable standard of review in determining whether a defendant

should be cast with penalties and attorney fees is the manifest error-clearly wrong

standard.” Rutledge v. Resource Transp., 08-1149, p. 2 (La.App. 3 Cir. 3/4/09), 7

So.3d 794, 795 (quoting Bennett v. Pilgrim’s Pride, 07-753, p. 10 (La.App. 3 Cir.

12/12/07), 972 So.2d 423, 429, writ denied, 08-103 (La. 3/7/08), 977 So.2d 907).

We will address Defendants’ argument as to penalties first. Defendants

argue that no penalty is owed with respect to the authorization of treatment by Dr.

Blackburn because it was timely given. In the alternative, Defendants argue that

even if the treatment was not timely authorized, the maximum penalty should be

$200.00 pursuant to La.R.S. 23:1201(F) because authorization was given four days

past the period provided in La.R.S. 23:1201(E). Dr. Cobb’s records reflect that he

first recommended a psychological evaluation by Dr. Blackburn on June 3, 2009,

and that an appointment was scheduled. Kinard did not see Dr. Blackburn, and Dr.

Cobb’s records reflect that Kinard did not want to see Dr. Blackburn. Defendants

contend that this was a revocation of the request for that treatment. We do not

agree. Dr. Cobb again recommended evaluation by Dr. Blackburn on October 21,

2009, noting in his records that “the referral to Dr. Blackburn has not yet been

authorized.” The claims adjuster who testified at trial stated that the letter

approving treatment by Dr. Blackburn was dated January 28, 2010. Thus, we find

no manifest error in the imposition of the $2,000.00 penalty with regard to the

authorization of treatment by Dr. Blackburn.

Defendants next argue that no penalty is owed with regard to the alleged late

payment of Dr. Cobb’s bill for medical services provided on February 2, 2009.

Defendant contends that the evidence shows that Dr. Cobb did not sign the HCFA
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form seeking payment for services rendered on February 2, 2009, until June 2,

2009, such that written notice was not received until that date. The testimony of

the claims adjuster at trial established that this bill was paid June 10, 2009. Thus,

we find no basis for the award of $2,000.00 penalty in this respect, and that award

is reversed.

Kinard seeks a $2,000.00 penalty for the denial of authorization and

payment for steroid injections as recommended by Dr. Munshi and given by Dr.

Kasarla. As we have already found that the treatment received from Dr. Munshi

and Dr. Kasarla was not reasonable or medically necessary, we find no manifest

error in the WCJ’s refusal to award a penalty in this respect.

Kinard further seeks a $2,000.00 penalty for the denial of the surgery.

Again, we found no manifest error in the decision of the WCJ to credit Dr.

Gunderson’s opinion over the opinion Dr. Cobb. Thus, we find no manifest error

in the failure to award a penalty for the denial of the surgery recommended by Dr.

Cobb.

Kinard also seeks penalties for the failure to reimburse him for his out-of-

pocket expenses related to treatment with Dr. Kasarla, denial of payment for Soma

prescribed by Dr. Kasarla, and failure to pay mileage incurred for treatment by Dr.

Kasarla. Since we have already upheld the WCJ’s finding that treatment by Dr.

Kasarla was not reasonable or medically necessary, we find no manifest error in

the WCJ’s refusal to award penalties in these instances.

Finally, both parties contest the award of attorney fees. Kinard asserts that it

is too low and also seeks an award of additional attorney fees for work done on

appeal. Defendants assert that the $4,000.00 awarded for attorney fees should be

reduced, especially if the amount of penalties is reversed.

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“The amount [of attorney fees] award[ed] by the WCJ will not be disturbed

unless we find that the WCJ abused her discretion.” Evergreen Presbyterian

Ministries v. Wallace, 07-313, p. 5 (La.App. 3 Cir. 10/10/07), 968 So.2d 256, 260

(citation omitted). Moreover,

[t]he only limitation on the amount is the reasonableness of the fee
awarded by the judge. Cain [v. Employers Cas. Co.], 236 La. 1085,
110 So.2d 108 (1959). The amount awarded rests within the
discretion of the workers’ compensation judge, as long as that amount
is supported by the record. Some of the factors taken into account by
the judge in fixing the amount of the fee are the degree of skill and
ability exercised by the attorney, the amount of the claim, the amount
recovered for the employee, and the amount of time the attorney
devoted to the case. H. Alston Johnson, III, supra § 389. The amount
awarded is intended to provide full recovery, without statutory
limitation, for attorney’s services and expenses in connection with the
litigation.

McCarroll v. Airport Shuttle, Inc., 00-1123, pp. 9-10 (La. 11/28/00), 773 So.2d

694, 700.

Given the deference afforded to the WCJ, we find no abuse of discretion in

the amount of the attorney fee awarded. Thus, we find no merit in the contention

of either Kinard on appeal or Defendants in their answer to the appeal relative to

the WCJ’s award of $4,000.00 in attorney fees. Accordingly, we affirm the WCJ’s

ruling in this respect.

Kinard is also requesting an additional attorney fee for work necessitated by

his appeal. Having determined that Kinard’s assignments of error are without

merit, his appeal is unsuccessful, and there is no legal basis for granting his request

for an additional award of attorney fees for this appeal. Minor v. J&J Carpet, Inc.,

11-974 (La.App. 3 Cir. 2/1/12), 84 So.3d 680 (citing Soileau v. R & H Refractory

Servs., Inc., 01-355 (La.App. 3 Cir. 10/3/01), 796 So.2d 903, writ denied, 01-2954

(La. 1/25/02), 807 So.2d 841).

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With respect to Kinard’s argument that he is entitled to recover expenses in

the amount of $707.65, we note that the trial court has broad discretion in assessing

court costs and can render judgment for costs against any party as it may consider

equitable. La.Code Civ.P. art. 1920; Earles v. Ahlstedt, 591 So.2d 741 (La.App. 1

Cir. 1991). Even though Kinard was awarded penalties and attorney fees, we

reversed the imposition of the one of the penalties and note that Kinard was

unsuccessful in many of his claims. Thus, we do not find an abuse of discretion in

the failure to award expenses to him.

Finally, we consider Kinard’s argument that the WCJ erred in allowing the

introduction of evidence of fraud, a violation of La.R.S. 23:1208. The WCJ did not

find a violation of La.R.S. 23:1208, and Defendants are not appealing this finding.

Thus, we find that any error in this respect is harmless.

DECREE

Having found no evidentiary basis for the award of a $2,000.00 penalty for

the alleged late payment of Dr. Cobb’s bill for medical services provided on

February 2, 2009, we reverse that portion of the judgment. The judgment is

affirmed in all other respects. Costs of this appeal are to be shared equally

between the parties.

REVERSED IN PART AND AFFIRMED.

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