Lauryn Ruebush v. Office of Risk Management & the Care Center of Dequincy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1107

LAURYN RUEBUSH

VERSUS

OFFICE OF RISK MANAGEMENT
& THE CARE CENTER OF DEQUINCY

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION – DISTRICT 3
PARISH OF CALCASIEU, NO. 11-05528
CHARLOTTE L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, John E.
Conery, and David Kent Savoie, Judges.

AFFIRMED. ADDITIONAL ATTORNEY FEES AWARDED FOR WORK
PERFORMED ON APPEAL.

Conery, J., concurs in part, dissents in part, and assigns reasons.
Savoie, J., concurs in part and dissents in part for the reasons assigned by
Conery, J.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
Post Office Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
COUNSEL FOR DEFENDANT/APPELLANT:
The Care Center of DeQuincy

Marcus Zimmerman
4216 Lake Street
Lake Charles, LA 70605
(337) 474-1644
COUNSEL FOR PLAINTIFF/APPELLEE:
Lauryn Ruebush

AMY, Judge.

The claimant alleged that she sustained injury to her hand while working as

a nurse at the defendant nursing home. She resigned from her position following

the accident and alleged that the condition of her hand deteriorated, eventually

resulting in a diagnosis of complex regional pain syndrome. Although the

employer provided certain medical treatment, the claimant filed this matter seeking

medical care that had been denied, indemnity benefits, and penalties and attorney

fees. The workers’ compensation judge ruled in favor of the claimant. The

employer appeals. For the following reasons we affirm, and award additional

attorney fees to the claimant for work performed on appeal.

Factual and Procedural Background

At the time of the December 4, 2010 work-related accident now at issue, the

claimant, Lauryn Ruebush, was employed as a nurse at The Care Center of

Dequincy, a nursing home. The claimant explained that, on that date, she

approached an altercation between two patients and that an aluminum walker used

by one of the patients struck her left hand/wrist. The claimant testified that she

continued with her shift, but that she indicated to her supervisor that she was

resigning due to the stressful nature of the position.

Although the claimant explained that her condition initially improved and

she began working as a nurse at Deer Creek Hospital, she testified that her

condition began to worsen. Specifically, she began having trouble with swelling

and discoloration in her hand. The claimant explained that a physician at the

facility suggested that she could have developed reflex sympathetic dystrophy.

Ms. Ruebush explained that her family physician referred her to Dr. Steven Hale,

an orthopedic surgeon.

Dr. Hale testified in his deposition that, although he found bruising,

―swelling . . . and tenderness near her fifth metacarpal head and decreased

sensation in the ulnar distribution of her hand[,]‖ x-rays were negative for obvious

fracture or dislocation. He explained that, following an EMG, he diagnosed Ms.

Ruebush as having an ulnar nerve injury and that she was beginning to have early

complex regional pain syndrome. Dr. Hale stated that a bone scan and MRI,

conducted in March 2011, were consistent with the complex regional pain

syndrome diagnosis.

On Dr. Hale’s order, Ms. Ruebush underwent a nerve block in June 2011

and also began seeing Dr. Robert LeBlanc, an orthopedic surgeon, for further

investigation of the condition. Ms. Ruebush ultimately reported that her pain did

not decrease following the nerve block. Dr. LeBlanc testified that the failure of the

block to improve the condition could have meant either that she did not have

complex regional pain syndrome or that she was outside of the time frame where it

would be effective. Similarly, as with the nerve block, an injection performed by

Dr. LeBlanc afforded no relief. Dr. LeBlanc offered the claimant an exploratory

arthroscopic surgery for diagnostic purposes. However, that surgery was not

performed.

During this time frame, the claimant’s family physician referred her to Dr.

Tarun Jolly, an anesthesiologist and pain management physician. Although the

employer denied her request to see Dr. Jolly, she began treating with him in

January 2012. He reported that, on this first visit, his diagnosis ―was qualified as

complex regional pain syndrome of Type 1 of the upper [left] limb, as well as

2

chronic pain due to trauma.‖ He explained in his deposition that objective findings

supported the diagnosis. By June 2012, and while under Dr. Jolly’s care, the

claimant had a spinal cord stimulator inserted. At the hearing, she responded

―[a]bsolutely‖ when asked whether she was ―capable of doing some sort of light

duty work‖ due to the success of that procedure. She explained that a revision

surgery to that implantation was required after her symptoms returned. The

claimant denied, however, that she could return to the physical demands of her

prior work as a charge nurse. A November 2013 Functional Capacity Evalution

also indicated that a return to light duty would be possible.

The disputed claim form instituting this matter was filed in July 2011 against

both the employer and Risk Management Services,1 by which the claimant sought

indemnity benefits, medical benefits, and penalties and attorney fees for the failure

to provide services. At the workers’ compensation hearing, the parties entered into

several stipulations, including: the occurrence of the work-related accident; the

fact that the employer had not paid indemnity benefits (but that some medical

expenses were paid); and the fact that the employer denied Dr. Jolly’s involvement

and any treatment emanating from him.

Following a hearing, the workers’ compensation judge ruled in favor of the

claimant. The ruling, and an amended ruling, awarded: temporary total disability

benefits for the period between January 24, 2012 through September 9, 2012 and

supplemental earnings benefits after September 10, 2012. The workers’

compensation judge also ordered the reimbursement of the claimant’s out-of-

pocket medical expenses, as well as a penalty of $2,000 for the failure to reimburse

1
The record indicates that the employer was self-insured and that this claim was
administered by Risk Management Services.

3

sums expended in co-payments and $2,000 for failure to provide indemnity

benefits. The workers’ compensation judge awarded attorney fees in the amount of

$18,000 as well as litigation expenses and court costs.

The employer appeals, arguing that the workers’ compensation judge erred

in: 1) finding that the claimant proved that her condition arose as a result of a

workplace accident; 2) finding that the claimant is entitled to reimbursement of

out-of-pocket medical expenses; 3) finding that the claimant is entitled to

indemnity benefits; and 4) awarding penalties and attorney fees.

The claimant answers the appeal, seeking an increase in attorney fees and

asserting that the workers’ compensation judge erred in limiting reimbursement.

Discussion

Work-Related Injury

In its first assignment of error, the employer suggests that the workers’

compensation judge erred in the finding that the claimant suffers from complex

regional pain syndrome in her upper left extremity as a result of the work-related

accident. Chiefly, the employer suggests that the workers’ compensation judge

erred in relying upon the testimony of Dr. Jolly since he was not the claimant’s

initial choice of physician and it did not approve of a change of physician pursuant

to La.R.S. 23:1121(B). 2 In particular, the employer asserts that Dr. LeBlanc,

whose testing led him away from a complex regional pain syndrome diagnosis,

was claimant’s choice of physician for her hand injury. Had the workers’

2
Louisiana Revised Statutes 23:1121(B)(1) provides, in part:

The employee shall have the right to select one treating physician in any field or
specialty. . . . After his initial choice the employee shall obtain prior consent from the
employer or his workers’ compensation carrier for a change of treating physician within
that same field or specialty. The employee, however, is not required to obtain approval
for change to a treating physician in another field or specialty.

4

compensation judge disregarded Dr. Jolly’s opinion, the employer argues, the

claimant would not have met her burden of proof.

Louisiana Revised Statutes 23:1031(A) provides: ―If an employee not

otherwise eliminated from the benefits of [Chapter 23] receives personal injury by

accident arising out of and in the course of his employment, his employer shall pay

compensation in the amounts, on the condition, and to the person or persons

hereinafter designated.‖ Thus, the statute requires that, in order to receive

workers’ compensation benefits, the employment must cause the accident, the

accident must cause the alleged injury, and the injury must cause the claimed

disability. Buxton v. Iowa Police Dep’t, 09-0520 (La. 10/20/09), 23 So.3d 275. A

claimant bears the burden of proving, by a preponderance of the evidence, that the

claimed disability is related to the alleged on-the-job injury. Id.

In this case, the occurrence of the work-related accident was established by

stipulation and is not now at issue. Rather, the employer questions the workers’

compensation judge’s reliance on Dr. Jolly’s opinion that the claimant suffers from

complex regional pain syndrome, the purportedly disabling condition. Challenging

that diagnosis, the employer noted at the hearing that Dr. LeBlanc ultimately

rejected the complex regional pain syndrome diagnosis. The employer also

referenced its choice of orthopedist, Dr. Joe Morgan, who examined the claimant

in December 2011 and who stated in his report that he ―did not identify any

orthopedic or neurologic abnormality in the left upper extremity[.]‖ Instead, Dr.

Morgan found the most appropriate diagnosis to be ―somatization disorder‖ and

concluded that the claimant could return to work without restriction.

On review, we find no manifest error in the workers’ compensation judge’s

conclusion that the claimant sustained her burden of proof. Consistent with the

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workers’ compensation judge’s ruling, Dr. Jolly testified that, upon his initial

treatment of the claimant, he arrived at a complex regional pain syndrome

diagnosis and that this diagnosis continued throughout his treatment. He explained

that, through March 2012, the claimant’s pain continued and that she demonstrated

―very objective weakness in extension, flexion, pronation of that left upper

extremity[.]‖ He also noted a ―change in color‖ and that the hand ―was more

dusky‖ than the other. He identified these indications as consistent with his

diagnosis. Ultimately, the spinal cord stimulator was implanted which improved

the claimant’s condition. This success, Dr. Jolly opined, undercut the somatization

disorder diagnosis relied upon by the employer.

Neither do we find merit in the employer’s contention that the workers’

compensation judge erred in relying upon Dr. Jolly’s opinion as an unapproved

second choice of physician. The employer offers Dr. LeBlanc, an orthopedic

surgeon, as the claimant’s choice of hand specialist. Although the claimant treated

with Dr. LeBlanc, we do not find error in the workers’ compensation judge’s

consideration of Dr. Jolly’s treatment of the claimant.3 The claimant treated with

Dr. Jolly upon referral by her family physician after her condition did not improve.

Additionally, Dr. Jolly, who testified that he considers himself an expert in

complex regional pain syndrome, offered treatment from the perspective of a an

anesthesiologist and pain management physician. Noting that Dr. Jolly found the

claimant’s accident was the cause of her injuries, the workers’ compensation judge

found his treatment both ―reasonable and necessary[.]‖ We find no manifest error

in that determination.

3
We note here too that Dr. LeBlanc did not opine that the claimant suffered no injury.
Instead, Dr. LeBlanc continued searching for nature of the claimant’s injury and, in fact, offered
an arthroscopic surgery to investigate the nature of the complaint.

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Medical Expenses

The workers’ compensation judge’s ruling in this case included an award of

out-of-pocket medical expenses. In a cursory assignment of error, the employer

questions that award to the extent it included reimbursement of five, $25 co-pays

that the claimant made to Dr. Hale before the employer assumed payment for the

treatment. The employer asserts that, after becoming aware of the incident, it

reimbursed Dr. Hale for all charges. The employer suggests that the claimant must

now ―seek reimbursement from Dr. Hale, as he was paid in full for the treatment.‖

We do not disturb the reimbursement award. Notwithstanding any evidence that

Dr. Hale was reimbursed for his charges, there is no evidence indicating that the

claimant was otherwise compensated for fees paid by her.

This assignment lacks merit.

Indemnity Benefits

As noted above, the workers’ compensation judge found the claimant

entitled to TTD benefits from January 24, 2012 through September 9, 2012 and

entitled to SEB benefits thereafter. The employer challenges those awards and

points out that the claimant was able to continue employment with Deer Creek

Hospital, was able to pursue further schooling in pursuit of a nursing degree in

2011, and that she then moved out of state.

Louisiana Revised Statutes 23:1221(1)(c) provides that TTD benefits ―shall

be awarded only if the employee proves by clear and convincing evidence, unaided

by any presumption of disability, that the employee is physically unable to engage

in any employment or self-employment, regardless of the nature or character of the

employment or self-employment[.]‖

7

Otherwise relevant to this claim, and pursuant to La.R.S. 23:1221(3), a

claimant is entitled to SEB benefits upon a showing, by a preponderance of the

evidence, that a work-related injury resulted in his or her inability to earn ninety

percent of his pre-injury wages. Winford v. Conerly Corp., 04-1278 (La. 3/11/05),

897 So.2d 560. If the claimant meets this initial burden, the employer must prove,

by competent evidence: 1) the existence of a suitable job within the prescribed

physical capabilities and within the claimant’s community/reasonable geographic

region; 2) the amount of wages a similarly situated employee can be expected to

earn in the job; and 3) an actual position available for that particular job at the time

that the claimant received notification of the job’s existence. Banks v. Indus.

Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551.

In analysis of this assignment, it is important to consider that the indemnity

awards are for periods after the events cited by the employer. As found above, the

workers’ compensation judge was not manifestly erroneous in relying upon the

opinion of Dr. Jolly in preference to those favored by the employer. The period of

TTD benefits awarded reflects the first date on which Dr. Jolly treated the

claimant, January 24, 2012. In his deposition, Dr. Jolly explained that he

diagnosed the claimant with complex regional pain syndrome on that date and that

his opinion that she was totally disabled due to her condition. That opinion

continued until he felt that she was able to return to work in October 2012, due to

the success of an implanted spinal stimulator. Throughout his testimony, Dr. Jolly

confirmed that his diagnosis was supported by various objective findings of the

condition during exams. Given Dr. Jolly’s opinion regarding the claimant’s total

disability, we find no manifest error in the award of TTD benefits during the eight-

month period of 2012.

8

With regard to SEB benefits, the claimant testified at the January 2014

hearing in this matter that she could, in fact, return to work. She denied, however,

that she could perform at the level required of her previously as a charge nurse due

to weight and strength limitations associated with her condition. Indeed, Dr. Jolly

confirmed in his deposition that he would return the claimant to work, but would

do so at light duty. Dr. Jolly subsequently referred the claimant for a November

2013 FCE which indicated that the claimant’s ―present strength and functional

capacities meet guidelines for the SEDENTARY-LIGHT physical demand level

based on various ranges tested as evidenced by lifting and carrying between 10-20

lbs.‖ However, the claimant’s job description with the employer required that the

charge nurse ―[m]ust be able to push, pull, move, and/or lift a minimum of 50

pounds to a minimum height of 3 feet and be able to push, pull, move and/or carry

such weight a minimum distance of 4 feet.‖ No evidence was introduced regarding

the availability of a position that would fit within the specified light duty

parameters. While the Nurse Facility Administrator testified regarding the

possibility of modifying the charge nurse’s job description and suggested that some

responsibilities could be delegated, the workers’ compensation judge was not

manifestly erroneous in determining that this evidence did not satisfy the

employer’s burden of proof enunciated above. See Banks, 696 So.2d 551.

This assignment lacks merit.

La.R.S. 23:1201(F)

The ruling in this case included penalties ($2,000 for failure to reimburse

out-of-pocket expenses to the claimant and $2,000 for failure to provide indemnity

benefits), attorney fees ($18,000), and litigation expenses ($2,716.00). The

employer, however, argues that the award was inappropriate under La.R.S.

9

23:1201(F). This provision provides for the payment of penalties and attorney fees

for failure to provide payment for compensation benefits unless the claim is

reasonably controverted or the failure to provide such benefits results from

conditions over which the employer had no control. On review, we note that a

workers’ compensation judge’s decision as to whether the employer is to be cast

with penalties and attorney fees is subject to the manifest error/clearly wrong

standard of review. See Sinegal v. Lafayette Par. Sheriff’s Office, 13-1437

(La.App. 3 Cir. 5/7/14), 139 So.3d 630.

After review, we maintain the workers’ compensation judge’s award under

La.R.S. 23:1201(F). In ruling, the workers’ compensation judge determined that:

In the case at hand, the subsequent evidence of Dr. Jolly, a
physician who has been treating the claimant for some time,
overwhelmingly supports the claimant’s position. This medical
evidence was ignored by the defendants. The defendant had an option
to send the claimant back to their doctors and did not.

This finding of failure to further investigate is supported by the record. In addition

to Dr. Jolly’s opinion, various physicians also considered and/or investigated the

possibility of complex regional pain syndrome, including Dr. LeBlanc. While Dr.

Morgan dismissed that claim, other physicians pursued that diagnosis in response

to the claimant’s ongoing complaints, including those identified as objective by Dr.

Jolly. We do not conclude that the workers’ compensation judge was manifestly

erroneous in finding that the employer was unreasonable in its failure to further

consider and investigate the ongoing complaints.

Neither do we find manifest error in the award of penalties associated with

the failure to reimburse out-of-pocket expenses paid by the claimant to Dr. Hale.

Above, we found no merit in the claimant’s contention that its payment for Dr.

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Hale’s treatment indicated that it had reimbursed her own expenses. That

reasoning extends to the instant penalty claim as well.

This assignment lacks merit.

Answer

In answer to the appeal, the claimant initially sought a determination that the

workers’ compensation judge erred in limiting her reimbursement for out-of-

pocket expenses. As the claimant did not pursue that aspect of her answer in her

brief to this court, we do not address the assertion here. See Uniform Rules—

Courts of Appeal, Rule 2-12.4(B)(4). However, the claimant does maintain her

plea for additional attorney fees incurred for work performed on appeal. Finding

such an award appropriate in light of the award of attorney fees affirmed above, we

award $2,000 in that regard.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is

affirmed. An additional $2,000 in attorney fees is awarded for work performed on

appeal. Costs of this proceeding are assessed to the appellant, The Care Center of

DeQuincy.

AFFIRMED. ADDITIONAL ATTORNEY FEES AWARDED FOR WORK
PERFORMED ON APPEAL.

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NUMBER 14-1107 WCA

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

LAURYN RUEBUSH

V.

OFFICE OF RISK MANAGEMENT &
THE CARE CENTER OF DEQUINCY

CONERY, J., concurs in part, dissents in part, and assigns reasons.

I concur with the majority’s decision to affirm the WCJ’s award of TTD and

SEB benefits, plus court costs in the trial court and on appeal. I respectfully

dissent from the majority’s decision to affirm the WCJ’s award of penalties and

attorney fees and its award of additional attorney’s fees on appeal.

First, the analysis for consideration of the merits of the WCJ’s decision to

award TTD and SEB benefits is different from that of the analysis of the WCJ’s

decision to award penalties and attorney fees. The decision to award disability

benefits is guided by the overriding principle that workers’ compensation

legislation is remedial in nature and should be liberally construed to benefit the

injured employee. See Lumpkin v. A.B.E.L. Trucking of La. LLC, 10-54 (La.App. 3

Cir. 6/2/10), 40 So.3d 422, writ denied, 10-1543 (La. 10/1/10), 45 So.3d 1104.

The award of penalties and attorney fees, on the other hand, is punitive in

nature and must be strictly construed. See Brown v. Texas-LA Cartage, Inc., 98-

1063 (La. 12/1/98), 721 So.2d 885. It may well be then, that in a given case, the

same evidence used to justify an award of benefits may not be sufficient to justify

an award of penalties and attorney fees.

Page 1 of 5

Under La.R.S. 23:1201(F), the employer, in my view, put forth sufficient

evidence in this case to “reasonably controvert” the claim for penalties and

attorney fees. See Brown, 721 So.2d 885; Williams v. Pilgrim’s Pride Corp., 11-59

(La.App. 3 Cir. 6/1/11), 68 So.3d 616, writs denied, 11-1793 and 11-1794 (La.

10/21/11), 73 So.3d 384; Dietz v. Lowe’s Home Centers, Inc., 14-401 (La.App. 3

Cir. 11/5/14), 151 So.3d 990; Sinegal v. Lafayette Parish Sherriff’s Office, 13-

1437 (La.App. 3 Cir. 5/7/14), 139 So.3d 630. The WCJ failed to make specific

factual findings or cite legal authority to support such an award. Indeed, the only

portion of the opinion discussing penalties and attorney fees was completely

conclusory in nature and stated:

The claimant is classified as a part-time employee. She is
entitled to reimbursement of out-of-pocket medical expenses. Based
on the evidence presented, the defendants failed to reasonably
controvert this claim; therefore, penalties are owed in the amount of
$2,000 for their failure to reimburse the claimant $125, that would
include five co-pays of $25 each for her visits to Dr. Steven Hale, and
the defendant is responsible for $2,000 for their failure to initiate
indemnity benefits. Further more, the claimant is entitled to attorney’s
fees in the amount of $18,000 for prosecution of the claim. She is
further entitled to reimbursement of litigation expenses in the amount
of $2,716. The defendant shall pay costs with interest. Thus done this
6th day of June 2014.

The analysis for the decision to award benefits is equally deficient, and

contains few specific factual findings or credibility determinations:

In the case at hand, the subsequent evidence of Dr. Jolly, a
physician who has been treating the claimant for some time,
overwhelmingly supports the claimant’s position. This medical
evidence was ignored by the defendants. The defendant had an option
to send the claimant back to their doctors and did not. Based on the
evidence, the Court finds for the claimant. Thus, after reviewing the
medical evidence, the Court finds that based on the medical evidence
the claimant has carried her burden of proof; therefore, she is entitled
to temporary total disability benefits from June 24, 2011, to
September 8, 2013. She is further entitled to supplemental earnings
benefits from September 8, 2012.

Page 2 of 5

However, because of the liberal interpretation required as to the issue of the right

to receive benefits and the application of the manifest error rule, I am constrained

to agree that the decision to award TTD and SEB benefits must be affirmed.

Obviously, the WCJ was impressed with Dr. Jolly’s opinion and concluded,

without commenting upon the vast amount of medical and lay testimony to the

contrary, that Dr. Jolly’s opinion “overwhelming supports the claimant’s position.”

Further, that, “This medical evidence was ignored by the defendants.”

In my view, the defendant sufficiently explained, based on the facts of the

case and the many medical opinions of plaintiff’s original treating physicians, that

it had ample evidence upon which to base its decision to deny benefits. Dr. Jolly’s

opinion was not ignored.

The WCJ awarded an additional $2,000.00 penalty against defendants “for

their failure to initiate indemnity benefits” and a $2,000.00 penalty for failure to

timely reimburse plaintiff for medical expenses. Again, while the evidence based

on plaintiff’s and Dr. Jolly’s testimony and records may have been sufficient under

the manifest error rule to support the award of TTD and SEB benefits, there are no

factual findings, nor is there analysis of the evidence, to support the WCJ’s award

of penalties, $18,000.00 in attorney fees and $2,716.00 in litigation expenses for

failure to initiate benefits and reimburse medical bills.

As to the penalty claim for failure to pay medical expenses, likewise, under

the strict interpretation required of a penal statute, should the defendant be

penalized $2,000.00 plus attorney fees for a bill which it allegedly proved had

already been paid directly to Dr. Hale as required by law? The WCJ’s conclusory

statement that, “Based on the evidence presented, the defendants failed to

reasonably controvert this claim,” is belied by the evidence that Dr. Hale’s bill was

Page 3 of 5

paid directly to him and not the claimant, as required by statute.

A review of the WCJ’s opinion on the issue of penalties and attorney fees

clearly shows that the evidence and analysis put forth by the

employer/defendant/appellant as to whether the claim was “reasonably

controverted” was given short shrift by the WCJ. That evidence showed that Ms.

Ruebush, working as an LPN, timely reported an injury to her left hand that

occurred on December 4, 2010, while in defendant’s employ when she was struck

with an aluminum walker by one of the patients. She resigned the same day and

did not make a claim for workers’ compensation benefits until July 2011. In the

meantime, she worked for another company as a nurse, failed to note an injury on

her employment application for that job, completed almost all of her course

requirements to be a registered nurse, including extensive typing, reconciled with

her husband and moved out of state, all the while making no complaint for

disability benefits to defendant. The underlying facts and summary of her medical

treatment were thoroughly reviewed in defendant/appellant’s brief and support the

conclusion that the defendant reasonably controverted the claim and should not be

assessed with penalties and attorney’s fees.

In my view, defendant presented considerable evidence upon which to base

an opinion that this claim was reasonably controverted. Recognizing that the

manifest error rule applies to this issue, I would nevertheless find that because the

WCJ made no factual or credibility findings on the issue of penalties and attorney

fees, the defendant/appellant’s evidence supports the position that the claim was

reasonably controverted within the meaning of the La.R.S. 23:1201(F). The WCJ

was manifestly erroneous in concluding otherwise. An employer should not be

penalized for bringing a bona fide dispute on a close factual or legal issue to the

Page 4 of 5

court for resolution. Louisiana Constitution Article 1, § 22 states, “All courts shall

be open, and every person shall have an adequate remedy by due process of law

and justice, administered without denial, partiality, or unreasonable delay, for

injury to him in his person, property, reputation, or other rights.” See also

Williams, 68 So.3d 616; Dietz, 151 So.3d 990; Sinegal, 139 So.3d 630.

I would reverse the WCJ’s decision to award penalties and attorney fees and

dissent from the majority’s decision on that issue. I likewise dissent from the

majority’s decision to award attorney fees on appeal, but agree that defendant

should be cast with all court costs in the trial court and on appeal. I concur with

the majority’s decision in all other respects.

Page 5 of 5