Katie Tidwell v. Premier Staffing, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-185

KATIE TIDWELL

VERSUS

PREMIER STAFFING, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION DISTRICT 03
PARISH OF CALCASIEU, DOCKET NO. 99-05054
HONORABLE CHARLOTTE BUSHNELL, WORKERS’ COMPENSATION
JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Judges Sylvia R. Cooks, Marc T. Amy and Phyllis M. Keaty.
Amy, J., concurs in the result.

AFFIRMED IN PART, REVERSED IN PART.

Michael W. Whitehead
P.O. Box 1270
Livingston, LA 70754
(225) 686-9700
ATTORNEY FOR DEFENDANT/APPELLANT
Premier Staffing, Inc.

Michael B. Miller
Attorney At Law
P.O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
ATTORNEY FOR PLAINTIFF/APPELLANT
Katie Tidwell

Cooks, Judge.

FACTS AND PROCEDURAL HISTORY

In Tidwell v. Premier Staffing, Inc. 05-500 (La.App. 3 Cir. 2/1/06), 921

So.2d 1194, this court affirmed the Workers’ Compensation Judge’s (WCJ) finding

that Katie Tidwell (Tidwell) suffered a compensable on-the-job injury while

employed by Premier Staffing, Inc. (Premier). No writs were taken on the matter

and it has long been a final judgment. Despite the finality of that judgment,

Premier in its brief to this court in the present matter refers to “an alleged accident”

and a “disputed claim” for “injuries allegedly” sustained by Tidwell. This

misstatement of the case is indicative of Premier’s behavior since judgment was

rendered. After this court’s ruling, affirming the WCJ’s award of benefits to

Tidwell, Premier made no payment on the judgment, requiring Tidwell to file a

Motion for Penalties and Attorney Fees for the failure to pay the workers’

compensation judgment. The WCJ awarded penalties and attorney fees to Tidwell

assessing a penalty of 24% on all amounts due Tidwell under the original

judgment.

Tidwell filed a second Motion for Penalties and Attorney Fees. The WCJ

ordered Premier to pay $40,000.00 in penalties. Subsequently, Tidwell filed a

third Motion and Order for Penalties and Attorney Fees because Premier stopped

making benefit payments to Tidwell for a period of four weeks and allegedly failed

to properly pay ten separate mileage reimbursement requests related to her ongoing

medical treatment. The WCJ ordered Premier to pay penalties under the provisions

of La.R.S. 23:1201(F) in the capped amount of $8,000.00 for multiple infractions.

The WCJ believed it was limited to a maximum penalty of $8,000.00. The WCJ

also awarded a $3,000.00 penalty under La.R.S. 23:1201(F), for Premier’s

discontinuance of court ordered weekly benefits.

Tidwell appeals asserting (1) the WCJ erred as a matter of law in failing to

apply the uncalled witness rule raising an adverse presumption against Premier; (2)

the WCJ erred as a matter of law in failing to apply the provisions of La.R.S.

23:1201(I) regarding Premier’s discontinuance of weekly compensation benefits;

and (3) the WCJ erred in awarding too low a sum as penalties for Premier’s failure

to pay Tidwell’s mileage requests on ten separate occasions. Tidwell seeks

attorney fees for this appeal.

Premier also appeals asserting three assignments of error maintaining (1)

some of Tidwell’s claims regarding Premier’s failure to pay mileage benefits are

prescribed; (2) Tidwell’s testimony without supporting evidence is insufficient to

prove Premier is obligated to pay the requested travel expenses as medically

necessary; and (3) the WCJ acted improperly in applying La.R.S. 23:1201(F) in

effect at the time of its alleged conduct rather than applying the statute in effect at

the time of Tidwell’s accident.

LAW AND ANALYSIS

Because a finding of prescription would pretermit consideration of other

issues presented by both parties we will address this issue first. Premier asserts

several of Tidwell’s alleged claims for mileage reimbursement for medical

treatment were filed more than a year “following the conduct giving rise to

claimant’s cause of actions for penalties and attorney fees.” In support of its

argument that La. Civ.Code art. 3492 applies, which provides for a one year

prescriptive period for delictual actions, Premier relies on the holdings in Craig v.

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Bantek West, Inc. 885 So.2d 1234 (La.App. 1 Cir. 9/17/04), writ denied, 04-2995

(La.3/18/05), 896 So.2d 1004, and St. Tammany Parish Hospital v. Trinity Marine

Products, Inc., 10-1481 (La. App. 1 Cir. 2/16/12), 91 So.3d 985. We first rejected

the rationale of Craig in our decision in Rave v. Wampold Companies, 06-978

(La.App. 3 Cir. 12/6/06), 944 So.2d 847, and we reiterated the correctness of that

decision in Trahan v. City of Crowley, 07-266, pp. 3-4 (La.App. 3 Cir. 10/3/07),

967 So.2d 557, 560, writs denied, 07-2462, 07-2471 (La.2/15/08), 976 So.2d 185,

187, wherein we stated:

In granting the City’s exception of prescription, the WCJ relied
on the first circuit decision of Craig v. Bantek West, Inc., 03-2757
(La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 04-2995
(La.3/18/05), 896 So.2d 1004, which held that the one-year
prescriptive period set forth in La.Civ.Code art. 3492 applied to a
penalties and attorney fees claim under the provisions of the workers’
compensation act. However, when subsequently presented with the
same issue, this court in Rave v. Wampold Companies, 06-978
(La.App. 3 Cir. 12/6/06), 944 So.2d 847, reached a different result.
This court held in Rave that “[i]t is clear from a reading of the
jurisprudence that when claims for penalties and attorney fees
accompany the claims for benefits, if the underlying claims have not
prescribed, neither have the claims for attorney fees and penalties.” Id.
at 855.
We again reject the argument put forth by Premier in this appeal that Tidwell’s

claims for attorney fees and penalties are prescribed. They have not. See also

Touro Infirmary v. Wm. B. Reily & Co., Inc., 10-74. (La.App. 4 Cir. 7/28/10), 44

So.3d 867, in which the fourth circuit cites our decision in Rave agreeing with the

rationale stated therein.

We continue our analysis with Tidwell’s first assignment of error. We agree

with Tidwell’s assertion that the WCJ legally erred in failing to apply the uncalled

witness rule. The rule has often been cited by the state supreme court and this

court. In Horacek v. Watson, 11-1345, p. 5 (La.App. 3 Cir. 3/7/12), 86 So.3d 766,

769-70, we stated:

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With regard to the uncalled witness rule, the supreme court
discussed its application in Driscoll v. Stucker, 04-589, pp. 18-19
(La.1/19/05), 893 So.2d 32, 47, stating: “An adverse presumption
exists when a party having control of a favorable witness fails to call
him or her to testify, even though the presumption is rebuttable and is
tempered by the fact that a party need only put on enough evidence to
prove the case. Safety Ass’n of Timbermen Self Insurers Fund v.
Malone Lumber, Inc., 34.646 (La.App. 2 Cir. 6/20/01), 793 So.2d 218,
writ denied, 2001-2557 (La.12/07/01), 803 So.2d 073. Explaining
that adverse presumption, the Fourth Circuit recently noted “‘[w]hen a
defendant in a civil case can by his own testimony throw light upon
matters at issue, necessary to his defense and particularly within his
own knowledge, and fails to go upon the witness stand, the
presumption is raised and will be given effect, that the facts, as he
would have them do not exist.’” Taylor v. Entergy Corp., 2001-0805
(La.App. 4 Cir. 4/17/02), 816 So.2d 933 (quoting Davis v. Myers, 427
So.2d 648, 649 (La. App 5 Cir. 1983)). This adverse presumption is
referred to as the “uncalled witness” rule and applies “when ‘a party
has the power to produce witnesses whose testimony would elucidate
the transaction or occurrence’ and fails to call such witness.” Id.
(quoting 19 FRANK L. MARAIST, LOUISIANA CIVIL LAW
TREATISE: EVIDENCE AND PROOF, § 4.3 (1999)). Despite the
advent of modern, liberal discovery rules, this rule remains vital,
especially in cases, such as this one, in which a witness with peculiar
knowledge of the material fact is not called to testify at trial.
Notably, we have also held that:
The determination of whether an insurer or employer has acted
arbitrarily or has reasonably controverted claims for the purpose of
imposing penalties or attorney fees depends primarily upon facts
known to the insurer or the employer at the time of its conduct.
Harris [v. Langston Co., 94-1266 (La.App. 3 Cir. 4/5/95), 653 So.2d
789, writ denied, 95-1178 (La. 6/23/95), 656 So.2d 1020.] To
reasonably controvert a claim so as not to be liable for statutory
penalties, the insurer must have factual or medical information of such
a nature that it reasonably counters that provided by the workers’
compensation claimant. Balsamo v. Jones, 28[,]885 (La.App. 2 Cir.
12/11/96); 685 So.2d 1140.
George v. Guillory, 00-591, p. 14 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209-

10, overruled on other grounds by Smith v. Quarles Drilling Co., 04-179 (La.

10/29/04), 885 So.2d 562. After Tidwell demonstrated that her employer

discontinued court ordered compensation payments for four weeks, and

demonstrated that her employer received written notice of its failure to pay ten

claims for medical reimbursement, it was incumbent on Premier to show that its

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failures were not arbitrary and capricious or that it had probable cause to

discontinue payments or refuse requests for travel related to medical treatment.

“Arbitrary and capricious conduct may be presumed when an employer fails to pay

any compensation benefits within sixty days after written notice of such claim. An

employer’s good faith defense will preclude such penalties and attorney’s fees.”

Savoy v. McDermott, Inc., 520 So.2d 888, 890 (La. 1987). Premier failed to meet

its burden and failed to call witnesses under its control and uniquely in a position

to testify as to the reasons for its conduct. Premier called Tidwell as a witness and

asked a few brief questions, the answers to which supported her claims. Premier

did not introduce any documents or records and did not call any witness to respond

to any of Tidwell’s allegations. The uncalled witness rule is applicable in this case

and raised a presumption against Premier which it failed to rebut with any

evidence. Tidwell therefore proved her claim that she is entitled to penalties and

attorney fees as well as the benefits requested.

In Tidwell’s third assignment of error she argues the WCJ erred in finding

that it was limited to a maximum penalty of $3,000.00 under the provisions of

La.R.S. 23:1201(G). The trial court found that this was not a case of termination

or discontinuance of benefits but constituted late payments under La.R.S.

23:1201(G) and thus recovery is limited to a $3,000.00 penalty. The trial court

further assessed an attorney fee award of $4,500.00. Tidwell asserts that she

proved without contradiction by Premier that her benefits were terminated contrary

to a final judgment ordering they be paid “until the further orders of the court” and

that her medical reimbursement claims were paid untimely in some instances and

not paid at all in other instances in further derogation of the prior judgment.

Indeed the record shows that Tidwell’s benefits were “restarted” by Premier but

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nevertheless had been terminated for approximately four weeks. Tidwell has

demonstrated she is entitled to penalties under the provisions of La.R.S. 23:1201(I)

which provides a cap at $8,000.00 rather than $3,000.00 as provided under La.R.S.

23:1201(G). The provisions of La.R.S. 23:1201(I) are applicable here and provide

in pertinent part:

Any employer or insurer who at any time discontinues payment
of claims due and arising under this Chapter, when such
discontinuance is found to be arbitrary, capricious, or without
probable cause, shall be subject to the payment of a penalty not to
exceed eight thousand dollars and a reasonable attorney fee for the
prosecution and collection of such claims.
As Tidwell asserts, Premier discontinued court ordered payments to Tidwell in

violation of a prior, final judgment, affirmed by this court in Tidwell v. Premier

Staffing, Inc. 05-500 (La.App. 3 Cir. 2/1/06), 921 So.2d 1194. Clearly, La.R.S.

23:1201(I) applies “at any time” Premier discontinued the court ordered payments

for “compensation benefits” and “all reasonable and necessary medical treatment.”

The phrase “any time” recited in La.R.S. 23”1201(I) certainly includes after

judgment was rendered and affirmed by this court.

Premier asserts that Tidwell failed to show the requested reimbursements for

medical expenses were related to her compensable injury. The WCJ found they

were related and compensable. As we stated in the earlier Tidwell decision “the

factual findings of a worker’s compensation judge are subject to the manifest error

standard of review.” Tidwell, 621 So.2d at 1196, citing Jeanise v. Cannon, 04-1049

(La.App. 3 Cir. 2/23/05), 895 So.2d 651, writs denied, 05-785, 05-788 (La.

5/13/05), 902 So.2d 1021. In the previous Tidwell decision we found a review of

the entire record supported the reasonableness of the WCJ’s finding. In the present

appeal, the WCJ had the entire record of the matter plus the new evidence

introduced from which to reasonably conclude that the mileage reimbursements

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presented for payment post-judgment were obviously related to the compensable

injury. Tidwell’s evidence bespeaks on-going treatment from the same physicians

and continued medications. There is no doubt the expenses were incurred and it

was reasonable for the WCJ to conclude they are part of the on-going medical

treatment which Premier has been ordered to keep paying under a final judgment.

Premier offered nothing to rebut these claims and offered no evidence to justify its

refusal to pay as ordered by the court under the prior final judgment.

For the reasons as stated we reverse the WCJ’s award of $3,000.00 in

penalties and hereby award the sum of $8,000.00 in penalties as per the provisions

of La.R.S. 23:1201(I). In all other respects we affirm the judgment of the WCJ.

We further find that Tidwell is entitled to increased attorney fees for this appeal

and hereby award Tidwell’s attorney the sum of $5,000.00 for attorney fees on

appeal. All costs of this appeal are assessed against Premier.

AFFIRMED IN PART, REVERSED IN PART.

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