Ryan Dietz v. Lowe's Home Centers, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-401

RYAN DIETZ

VERSUS

LOWE’S HOME CENTERS, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF ACADIA, NO. 09-10162
HONORABLE SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.

MOTION TO STRIKE DENIED. AFFIRMED.

M. Blake Monrose
Hurlburt, Monrose & Ernest
Post Office Drawer 4407
Lafayette, LA 70502-4407
(337) 237-0261
COUNSEL FOR DEFENDANT/APPELLEE:
Lowe’s Home Centers, Inc.

Michael B. Miller
Jacqueline B. Manecke
Michael Miller & Associates
Post Office Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Ryan Dietz

AMY, Judge.

The claimant challenged his employer’s assertion that he could return to

work following a work-related accident. He further sought continued treatment for

injury to his brachial plexus, for mental injury, and for cervical complaints. The

employer, however, sought return of indemnity benefits paid after an orthopedic

surgeon approved a submitted job description. While the workers’ compensation

judge continued pain treatment for the claimant’s shoulder injury, she found no

work-related causation of the cervical complaints and rejected the mental injury

claim. The workers’ compensation judge found that no indemnity benefits were

owed after the treating physician’s approval of the job position. The parties’

respective claims for penalties and attorney fees were denied. The claimant

appeals and has also filed a motion to strike. For the following reasons, we deny

the motion to strike and affirm the ruling under review.

Factual and Procedural Background

Ryan Dietz alleges that he sustained injury while moving a refrigerator in

the course and scope of his employment at Lowe’s Home Centers, Inc. in July

2009. In December 2009, Mr. Dietz filed an initial disputed claim form

challenging Lowe’s compensation rate and seeking his choice of orthopedic

physician. Mr. Dietz also requested penalties and attorney fees. In response,

Lowe’s sought an offset/credit in the event the workers’ compensation judge found

compensation benefits due.

Acting upon the initial dispute, the workers’ compensation judge ordered

that Mr. Dietz was permitted to see Dr. Robert Morrow, an orthopedic surgeon, as

his initial choice of physician “with a sub-specialty in hands.” Dr. Morrow’s

records indicate that Mr. Dietz complained of upper left body pain extending up to

his neck. A 2010 MRI of the cervical spine was read as negative. Dr. Morrow’s

treatment ultimately focused on injury to the brachial plexus.

The parties agreed to a December 2010 consent judgment indicating that the

claimant was injured in the course and scope of his employment and that Lowe’s

would pay a penalty and attorney fees to cover those issues through October 14,

2010. The consent judgment also reflected that Lowe’s “agreed to pay weekly

compensation benefits in the amount of $277.88 beginning on November 30, 2009

through the present and that the actual weekly compensation rate calculation will

be reserved to be established at a later date.”

Mr. Dietz returned to the workers’ compensation judge, requesting

psychiatric treatment as recommended by Dr. Morrow. He also sought penalties

and attorney fees associated with Lowe’s refusal to provide the treatment. Lowe’s

responded with an exception of improper use of summary proceedings, noting that

medical treatment was not covered by the consent judgment. The workers’

compensation judge granted the exception, converting the matter to a disputed

claim for compensation in October 2011.

By November 2011, Mr. Dietz began treating with Dr. James Blackburn, a

psychiatrist. Thereafter, and upon motion of Lowe’s, the workers’ compensation

judge ordered Mr. Dietz to submit to an evaluation by the employer’s choice of

psychologist, Dr. Charles Frey, and by the employer’s choice of neurosurgeon, Dr.

Ricardo Leoni.

Lowe’s additionally filed an answer to the converted disputed claim for

compensation in which it denied Mr. Dietz claims on the merits and sought offsets

for benefits previously provided. Before the merits of the underlying claim were

addressed, however, Mr. Dietz filed an amended motion for penalties and attorney

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fees, again citing the December 2011 consent judgment for the proposition that

Lowe’s failure to approve treatment as recommended by Dr. Morrow warranted

the imposition of penalties and attorney fees. In this instance, the contested care

was the previously discussed psychiatric care as well as physical therapy for Mr.

Dietz’s cervical spine complaints, failure to pay mileage requests, failure to

approve pain medication, and failure to approve a cervical MRI as recommended

by Dr. Daniel Hodges, a physical medicine and rehabilitation physician.

In response, Lowe’s noted that the workers’ compensation judge previously

denied Mr. Dietz’s request for penalties and attorneys fees under the consent

judgment, converting that claim to a disputed claim form. Despite that ruling,

Lowe’s continued, Mr. Dietz filed the identical motion for penalties and attorney

fees again, adding the additional claims. Lowe’s sought sanctions pursuant to

La.Code Civ.P. art. 863, asserting that: “The items set out [in] plaintiff’s original

motion and order for penalties and attorney’s fees as well as the amended motion

and order for penalties and attorney’s fees has absolutely nothing to do with the

Consent Judgment entered on December 6, 2011, even though [Mr. Dietz] avers in

his motion that they do, and even though [the workers’ compensation judge] has

already ruled that the allegations set out in the original motion, which are identical

to the allegations set out in the amended motion, do not.” Lowe’s also filed an

exception of improper use of summary proceedings. The record indicates that the

workers’ compensation judge granted the exception, but deferred ruling on the

sanctions issue until the time of trial.

In March 2012, Lowe’s sought an Independent Medical Examination of Mr.

Dietz for recommendations regarding psychological treatment as previously

commented upon by Dr. Blackburn and Dr. Frey. Over Mr. Dietz’s objection, the

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workers’ compensation judge appointed an “OWC IME” in April 2012. See, e.g.,

La.R.S. 23:1123; La.R.S. 23:1124.1.

When Mr. Dietz again filed an amended motion and order for penalties and

attorney fees for alleged failures to comply with the consent judgment in May

2012, Lowe’s repeated its claim of improper use of summary proceedings and res

judicata. As before, Lowe’s noted the prior filings as well as the workers’

compensation judge’s earlier ruling. Lowe’s again sought sanctions pursuant to

La.Code Civ.P. art. 863, noting that it was defending Mr. Dietz’s claims for the

third time. Subsequently, Mr. Dietz filed an amended claim form to include his

claims for penalties and attorney fees. In its answer, Lowe’s reasserted its prior

defenses and again sought dismissal of all of Mr. Dietz’s claims.

In June 2012, and pursuant to the workers’ compensation judge’s order for

an IME, Mr. Dietz was evaluated by Dr. Harold Ginzburg, a psychiatrist. Dr.

Ginzburg explained in his July 10, 2012 report that he concurred with the opinion

expressed by Dr. Sandra Weitz, a pain management specialist, who suggested that

Mr. Dietz suffered from brachial plexopathy and that he would be able to return to

work in some capacity with better medication management and with some

counseling. Dr. Ginzburg found no clinical evidence of malingering at that time.

However, in a supplemental report, Dr. Ginzburg modified his prior opinion,

finding clinical indication of secondary gain and malingering.

Although the hearing was conducted in September 2012, the workers’

compensation judge rendered verbal reasons for ruling in August 2014 and

determined that Mr. Dietz had, in fact, sustained an accident on July 11, 2009,

causing injury to his brachial plexus. The workers’ compensation judge rejected

Mr. Dietz’s contention that the accident caused injury to his cervical spine.

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Neither did the workers’ compensation judge find that the claimant had proven a

mental injury as a result of the accident. With regard to indemnity benefits, the

workers’ compensation judge found that Mr. Dietz was temporarily totally disabled

from the date of the accident through March 14, 2011, the date that Dr. Morrow

approved the modified job position submitted by Lowe’s and found the employer

entitled to a credit for any possible future indemnity obligation for any indemnity

benefits that it paid after that date. As for medical treatment, the workers’

compensation judge found that Mr. Dietz was entitled to continue receiving

treatment for his brachial plexus injury from Dr. Hodges, and that he was entitled

to treatment by his choice of an anesthesiologist/pain medicine physician for that

injury. The workers’ compensation judge found that Lowe’s had reasonably

controverted the claim and, therefore, denied Mr. Dietz’s claims for penalties and

attorney fees under La.R.S. 23:1201(F), La.R.S. 23:1201(G) or La.R.S. 23:1201(I).

Finally, the workers’ compensation judge denied Lowe’s request for the imposition

of sanctions under La.Code Civ.P. art. 863.

Mr. Dietz appeals, assigning the following as error:

1) The workers’ compensation judge erred in denying psychiatric
and psychological treatment.

2) The workers’ compensation judge erred in finding that Mr.
Dietz did not prove he injured his cervical spine in the accident.

3) The workers’ compensation judge erred in finding that Mr.
Dietz was not entitled to indemnity benefits after March 14,
2011.

4) The workers’ compensation judge legally erred in ordering an
IME with Dr. Harold Ginzburg and in relying upon the IME
reports of Dr. Ginzburg.

5) The workers’ compensation judge erred in not awarding
penalties, attorney’s fees, expenses and legal interest.

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Mr. Dietz additionally filed a motion to strike with this court, seeking the exclusion

of Dr. Ginzburg’s supplemental IME report. That motion was referred to the

merits of the appeal.

Discussion

Motion to Strike

By this motion, Mr. Dietz questioned the workers’ compensation judge’s

consideration of a supplemental report issued by Dr. Ginzburg, the psychiatrist

who performed the IME ordered by the trial court. At the hearing, Lowe’s entered

into evidence Dr. Ginzburg’s initial, July 2012 report. However, the exhibits

forwarded to this court include a copy of a supplemental report issued by Dr.

Ginzburg rendered May 14, 2013, subsequent to the September 2012 hearing date.

Mr. Dietz suggests that the workers’ compensation judge was without authority to

consider this supplemental report which could not have been introduced into

evidence at the hearing.

Review of the August 2013 reasons for ruling indicates that the workers’

compensation judge referenced the “reports” of Dr. Ginzburg. She also explained

to the parties that she had appointed Dr. Ginzburg to perform an IME under

La.R.S. 23:1124.1, which provides, in part, that: “[T]he workers’ compensation

judge, on his own motion, may order that any claimant appearing before it be

examined by other physicians.” Although the record lacks detail regarding the

rendition of the supplemental report, 1 it is notable that the period between the

hearing date and the reasons for ruling spanned over one year.

1
The “Introduction” to his supplemental report, Dr. Ginzburg’s indicated that “Ms.
Jennifer Meche, Dispute Resolution Specialist, Office of Workers’ Compensation
Administration . . . requests that I review additional medical records on Ryan Dietz to determine
if there are any changes in the professional opinions I rendered in my July 10, 2012 report.”

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While Mr. Dietz suggests that he “was deprived of the opportunity to cross-

examine Dr. Ginzburg concerning his supplemental report and have his expert

address Dr. Ginzburg’s supplemental opinion which was rendered without an

additional examination and based upon unknown records[,]” the record does not

support that claim. Instead, the supplemental report includes a cover letter from

the Office of Workers’ Compensation to counsel for both parties stating that:

“Enclosed is a copy of the supplemental report issued by Dr. Ginzburg, the

physician selected by the Office of Workers’ Compensation to conduct the

independent medical examination in this matter. A telephone status conference

will be set. If you need anything before then, please give me a call.” The record is

silent as to any objection to the supplemental record lodged by Mr. Dietz between

the time of the letter, dated May 28, 2013, and the reasons for ruling, which

occurred August 19, 2013.

For these reasons, we deny the motion to strike.

Psychiatric and Psychological Treatment

The workers’ compensation judge concluded that Mr. Dietz “did not prove

he suffered a mental injury as a result of the accident.”2 Mr. Dietz challenges this

finding in his first assignment of error, noting that Dr. James Blackburn, his

treating psychiatrist, attributed his “emotional disorder” to his work-related injury.

Mr. Dietz also asserts that Dr. Frey, Lowe’s choice of psychologist, indicated that

his “emotional functioning” had been impacted by the pain and diminished activity

2
In reasons for ruling, the workers’ compensation judge explained that:

I think with the reports of Dr. Gin[zburg], it is evident that pain
management is appropriate, not psychiatric treatment; and therefore, the evidence
does not clearly and convincingly establish the need for continued psychiatric
treatment forever. I think all of the opinions except Dr. Blackburn’s perhaps,
were interested in a psychological evaluation to investigate the symptom
magnification and psychological overlay.

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stemming from the accident. Mr. Dietz suggests that these physicians’ reports

warranted a finding of medical necessity for the psychological treatment.

At the time Mr. Dietz met with Dr. Blackburn, the psychiatrist determined

that the claimant had pain disorder with psychological factors of anxiety and

depression. Dr. Blackburn recommended psychiatric and psychological treatment

for that condition. However, that recommendation was early in the timeline of Mr.

Dietz’s injury and, as noted by the workers’ compensation judge, some of the

various physicians’ references to psychological treatment/evaluation were within

the context of investigation of “symptom magnification and psychological

overlay.” Notably, the court-appointed IME psychiatrist, Dr. Ginzburg, agreed that

Mr. Dietz should maintain treatment for pain management, but did not relate

mental injury to the accident in either the initial, July 2012 report or in his

supplemental, May 2013 report. Instead, by the time of the May 2013 report, Dr.

Ginzburg opined that “malingering/secondary gain seems to be, at this point in

time, more likely than not.” Dr. Ginzburg reported that “[t]here is clinical

evidence of malingering” and that “[t]here is clinical indication of secondary gain.”

In light of these factors, we find no manifest error in the workers’

compensation judge’s determination that Mr. Dietz failed to prove the existence of

a mental injury by clear and convincing evidence. See La.R.S. 23:1021(8)(c)(“A

mental injury or illness caused by a physical injury to the employee’s body shall

not be considered a personal injury by accident arising out of and in the course of

employment and is not compensable pursuant to this Chapter unless it is

demonstrated by clear and convincing evidence.”).

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Causation – Cervical Spine

Throughout this matter, Mr. Dietz alleged that he sustained injury to his

neck in the work-related accident. He references medical record documentation of

his complaints and suggests that “[t]here is no medical opinion that [his] cervical

injury was not caused by the accident or that he did not need the treatment

recommended.” Therefore, he questions the workers’ compensation judge’s

determination that there was no evidence of cervical injury.

Certainly, early medical records commemorate Mr. Dietz’s complaints of

cervical pain and physician consideration of whether there was cervical

involvement associated with the brachial plexopathy diagnosis. Significantly,

however, a May 2010 cervical MRI performed at the request of Dr. Morrow was

reported as “negative” and a 2012 cervical MRI performed at the request of Dr.

Hodges was described by Dr. Hodges as “completely normal.” By the time of the

second MRI, Dr. Hodges commented only that he felt that Mr. Dietz’s “issue”

would be “permanent relative to his arm and shoulder.” Dr. Hodges made no

mention of neck at that point, but did recommend long term pain management.

Although the workers’ compensation judge concluded that the need for pain

management was demonstrated, she found no similar support for continued

cervical treatment. The record supports that determination.

This assignment lacks merit.

Indemnity Benefits

In framing his argument with regard to indemnity benefits, Mr. Dietz

contends that disability should not have been considered as an issue at the hearing

on the merits. Rather, he asserts that the fact of his disability was established by

the October 2010 consent judgment and that, thereafter, only his issues of penalties

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and attorney fees had been set for trial. Mr. Dietz addressed his argument

regarding scope of the hearing in a post-trial memorandum as well.

The challenging procedural history in this matter reflects Mr. Dietz’s

ongoing concern regarding both the content of the consent judgment and the scope

of the hearing ultimately conducted. The record contains several motions for

penalties and attorney fees allegedly arising under the consent judgment. The

workers’ compensation judge rejected that contention, converting these matters to

a claim on the merits and ultimately considering the expanse of the parties’

ongoing claims.

Reference to the consent judgment reveals measured language indicating

that Lowe’s “agreed to pay weekly compensation benefits in the amount of

$277.88 beginning on November 30, 2009 through the present[.]” The consent

judgment did not reflect an agreement as to disability at some point in the future.

See also La.R.S. 23:1204 (“Neither the furnishing of medical services nor

payments by the employer or his insurance carrier shall constitute an admission of

liability for compensation under this Chapter.”). The record contains no judicial

determination regarding disability.

Further, after the confection of the consent judgment, the employer filed an

answer to the ongoing claim indicating that “only in the event that this Honorable

Court finds defendant liable for any workers’ compensation benefits, which is at all

times specifically denied, then defendant pleads entitlement to any offset and/or

offsets as per La.R.S. 23:1225 and/or La.R.S. 23:1212 and/or La.R.S. 23:1223

and/or La.R.S. 23:1206.” It re-urged that claim in an answer to the claimant’s

disputed claim for compensation. Accordingly, we find no merit in Mr. Dietz’s

assertion that he was not provided with notice of Lowe’s challenge to his disability

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claim and no error in the workers’ compensation judge’s consideration of the

indemnity issue.

As for the merits of the indemnification ruling, Mr. Dietz maintains that the

workers’ compensation judge erred in finding that benefits were not due after the

March 2011 date on which Dr. Morrow approved a modified job position. He

argues that the benefits should have continued after that date because of Dr.

Morrow’s April 2011 exam report in which he explained that the return to work

should be delayed because of continued complaints and because of the need for

psychological evaluation. However, Mr. Dietz’s argument blurs the applicable

burden of proof in this regard.

The workers’ compensation judge did not terminate benefits as of March

2011. Instead, she determined that the claimant was not entitled to continuation of

those benefits. This determination is consistent with La.R.S. 23:1221, which

provides that an employee seeking indemnity benefits must prove his or her

entitlement by clear and convincing evidence. See also Snelling Personnel Serv. v.

Duhon, 00-661 (La.App. 3 Cir. 11/2/00), 772 So.2d 350 (wherein a panel of this

court addressed a claim for indemnity benefits following an employer’s prior

voluntary provision of those benefits).

In addressing Mr. Dietz’s claim for continued benefits, the workers’

compensation judge noted physicians’ reports in which they questioned the extent

of his limitations from his injuries as well a functional capacity evaluation

concluding that the extent of work capabilities was difficult to determine. The

workers’ compensation judge further explained that a functional capacity

evaluation “showed sub-maximal or self-limited effort and concluded that Mr.

Dietz was capable of sedentary work; but because of his sub-maximal, self-limited

11

effort, his true abilities may have been greater.” Subsequently, the workers’

compensation judge returned to her concern regarding credibility and explained

that:

Because of Mr. Dietz’s symptom magnification, I think his
histories, his complaints are unreliable. Dr. Morrow did mention this
in his deposition that Mr. Dietz’s complaints changed every time he
saw him. He didn’t see him that often, but it was something
significant enough for Dr. Morrow to comment on. Dr. Morrow did
ultimately approve the job tendered by the employer, and that was
given credence to his complaints. I think when one takes away the
complaints, you’re back to what the FCE examiner found, in that his
abilities would be higher if we had a true picture of his physical
capabilities.

Therefore, at this time, no further indemnity is due.

Mr. Dietz notes that there were positive medical indications of his ongoing

physical injury after the March 2011 job approval by Dr. Morrow. Additionally,

he references physician notations indicating the possibility of a return to work only

after future treatment. Mr. Dietz asserts that this type of documentation indicates

that the workers’ compensation judge’s determination that he was not entitled to

indemnity benefits after March 2011 was in error.

The workers’ compensation judge obviously determined that Mr. Dietz did,

in fact, sustain physical injury as a result of the accident. The record supports that

view as well the further determination that indemnity benefits were appropriate, at

least until some point in time. However, it is also clear that the workers’

compensation judge determined that Mr. Dietz’s continued complaints and

reporting of those complaints to his physicians were unreliable or became

unreliable as the disability period progressed, thereby undercutting the weight

attributable to any work recommendations. This view supports the workers’

compensation judge’s ultimate conclusion that Mr. Dietz failed to meet his burden

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as to inability to engage in employment as described by La.R.S. 23:1221. See also

Snelling, 772 So.2d 350.

For this reason, we find no merit in this assignment of error.

Independent Medical Exam

In addition to the issue addressed by the motion to strike, Mr. Dietz contests

the workers’ compensation judge’s appointment of Dr. Ginzburg, as a psychiatric

IME pursuant to La.R.S. 23:1124.1. That statute provides:

Neither the claimant nor the respondent in hearing before the
workers’ compensation judge shall be permitted to introduce the
testimony of more than two physicians where the evidence of any
additional physician would be cumulative testimony. However, the
workers' compensation judge, on his own motion, may order that any
claimant appearing before it be examined by other physicians.

Id. Specifically, Mr. Dietz argues that jurisprudence indicates that the authority to

appoint an IME physician pursuant to La.R.S. 23:11241.1 arises only in the

presence of a dispute regarding the claimant’s condition. See, e.g., Iberia Par. Sch.

Bd. v. Broussard, 03-0151 (La.App. 3 Cir. 9/10/03), 854 So.2d 464, writ denied,

03-2852 (La. 12/19/03), 861 So.2d 564. Because, he alleges, there was no dispute

as to the need for psychiatric or psychological treatment or physical disability, the

workers’ compensation judge was without authority to appoint under La.R.S.

23:1124.1.

The workers’ compensation judge specifically rejected this argument,

finding that: “I want to note that claimant’s counsel has made a big issue of the

fact that there was no dispute warranting the appointment of an IME. I appoint

under 1[1]24.1, which doesn’t have any language requiring a conflict of opinion or

a dispute for the appointment. If I have questions, I am entitled to appoint the

IME, and I did so in this case.”

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As noted by the workers’ compensation judge, La.R.S. 23:1124.1 does not

contain language regarding a dispute. But see La.R.S. 23:1123 (which discusses an

IME appointment following a dispute as to an employee’s condition). However, in

this case, the nature of, scope of, and appropriate treatment of Mr. Dietz’s medical

condition was in dispute. For instance, by the time the IME order was requested

and entered, Dr. Blackburn had recommended psychiatric/psychological treatment

whereas Dr. Frey recommended a more rehabilitative cognitive-based treatment to

cope with pain. Accordingly, we find no error in the appointment of Dr. Ginzburg

pursuant to La.R.S. 23:1124.1.

Mr. Dietz also challenges the introduction of Dr. Ginzburg’s supplemental

report after the hearing on the merits. However, we do not address this argument

again as we resolved that issue within the context of the motion to strike. Finally,

Mr. Dietz argues that Dr. Ginzburg’s opinion should be excluded because the

physician’s narrative report indicates that he reviewed correspondence from

Lowe’s counsel describing certain medical records. Mr. Dietz argues that this

communication violated La.R.S. 23:1317.1. In response, Lowe’s asserts that the

report indicates that the correspondence, contained in medical records forwarded to

Dr. Ginzburg by the Office of Workers’ Compensation, pre-dated the IME

appointment and was not addressed to Dr. Ginzburg. Notwithstanding this

argument as to the parameters of La.R.S. 23:1317.1, there is no indication that this

issue was presented to or ruled upon by the workers’ compensation judge. We do

not consider the argument for the first time on appeal. Suire v. Oleum Operating

Co., L.C., 13-736 (La.App. 3 Cir. 2/5/14), 135 So.3d 87, writ denied, 14-0982 (La.

8/25/14), __ So.3d __, writ denied, 14-0987 (La. 9/12/14), __ So.3d __. See also

Uniform Rules—Courts of Appeal, Rule 1-3.

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Penalties and Attorney Fees

The workers’ compensation judge denied Mr. Dietz’s request for various

penalties and attorney fees. Mr. Dietz now questions that determination in a

number of respects. First, he argues that a penalty was appropriate pursuant to

La.R.S. 23:1201.3 since, he contends, the employer did not pay judicial interest on

the compensation that was paid under the consent judgment. Lowe’s argues,

however, that La.R.S. 23:1201.3(A) is inapplicable since the underlying judgment

was a consent judgment and the statute relates to compensation awarded and

payments directed “to be made by order of the workers’ compensation judge[.]”

Lowe’s notes that the consent judgment indicates that it was entered by stipulation

of the parties. Despite the opposing views of La.R.S. 23:1201.3, Mr. Dietz’s claim

fails for evidentiary reasons as the record does not demonstrate the extent to which

the consent judgment was satisfied, or not, with regard to interest. Accordingly,

we find no error in the denial of benefits pursuant to La.R.S. 23:1201(G).

Next, the claimant cites error in a failure to award penalties and attorney fees

to him pursuant to 23:1201(F) for Lowe’s failure to provide reimbursement for a

physical therapy mileage request dated March 16, 2011 and for lab work expenses

forwarded on August 9, 2011. This court has previously explained that a claimant

has the burden of establishing that medical bills were not appropriately paid so as

to invoke the penalty provision of La.R.S. 23:1201(F). See Lebert v. McNeese

State Univ., 05-856 (La.App. 3 Cir. 2/1/06), 932 So.2d 678. With regard to the two

reimbursements at issue, Mr. Dietz introduced the reimbursement requests for both

the mileage and the lab work. His counsel then questioned him as to whether he

had received reimbursements for those figures. Initially, Mr. Dietz explained that

he had not received reimbursement. Thereafter, upon questioning by counsel for

15

Lowe’s, Mr. Dietz became more tentative in his response regarding his recollection

generally for reimbursements and his ability to differentiate between what he had

and had not received. In light of this equivocation, we find no error in the

determination that penalties and attorney fees were not established by the evidence.

Finally, Mr. Dietz returns to the issue of psychiatric and/or psychological

treatment. He contends that Lowe’s failed to reasonably controvert his request to

see Dr. Mark Warner upon the recommendation of his psychiatrist, Dr. Blackburn,

and subsequently arbitrarily and capriciously terminated treatment with Dr.

Blackburn. Thus, Mr. Dietz argues that he was entitled to penalties under La.R.S.

23:1201(F) and La.R.S. 23:1201(I) for those respective actions. As explained

above, however, the record in this case reveals rigorous debate regarding the need

for, scope of, and type of psychological or psychiatric care. The workers’

compensation judge ultimately concluded that the necessity of such continued care

was unwarranted due to findings of symptom magnification and unreliable

complaints. This determination supports a finding that penalties were

inappropriate under La.R.S. 23:1201.

For these reasons, Mr. Dietz’s assignment regarding penalties, attorney fees,

and expenses is without merit.

Legal Interest

Finally, Mr. Dietz asserts that the workers’ compensation judge erred in

failing to award legal interest on the judgment since his pleadings included a

prayer for an award of interest on any amounts owed. In this case, however, no

amounts were awarded. Accordingly, we do not amend the underlying ruling.

This assignment lacks merit.

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DECREE

For the foregoing reasons, the ruling of the Office of Workers’

Compensation Judge is affirmed. Costs of this proceeding are assessed to the

claimant—appellant, Ryan Dietz.

MOTION TO STRIKE DENIED. AFFIRMED.

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