Kevin Abshire v. Town of Gueydan

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-466

KEVIN ABSHIRE

VERSUS

TOWN OF GUEYDAN

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APPEAL FROM THE
OFFICE OF WORKERS’COMPENSATION - # 4
PARISH OF VERMILION, NO. 1404694
ANTHONY PALERMO, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese,
Judges.

APPEAL CONVERTED TO WRIT. WRIT DENIED.

Michael Benny Miller
William J. Casanova
Miller & Associates
Post Office Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Kevin Abshire

Christopher R. Philipp
Post Office Box 2369
Lafayette, LA 70502
(337) 235-9478
COUNSEL FOR DEFENDANT/APPELLEE:
Town of Gueydan

AMY, Judge.

The workers’ compensation claimant sought penalties and attorney fees from

his employer due to alleged underpayment for mileage reimbursement. The

employer defended the claim by noting that the claimant entered only one-way

mileage on the reimbursement form and asserting that it paid according to that

form. At a hearing wherein the parties resolved other issues by stipulation, the

workers’ compensation judge heard the mileage dispute before ultimately denying

the claim for penalties and attorney fees. The claimant appeals, questioning

whether the resulting judgment was final due to its lack of specificity regarding the

parties’ stipulations. He further challenges the denial of his claim for penalties and

attorney fees. For the following reasons, we convert the claimant’s appeal to an

application for supervisory writ and deny the writ.

Factual and Procedural Background

Kevin Abshire sustained injury while in the course and scope of his

employment with the Town of Gueydan in 2012. The record indicates that the

Town provided medical benefits. However, the present matter was instituted in

July 2014, when the claimant filed a disputed claim form, seeking penalties and

attorney fees upon his allegation that the employer, through its administrator,

Louisiana Municipal Risk Management Agency, “[f]ailed to properly pay

mileage[.]” As developed by the record, the dispute involved Risk Management’s

payment of mileage reported on a “Mileage Expense Report” signed by the

claimant on December 20, 2013. On that form, the claimant reported “ONE

WAY” mileage for medical appointments from September 3, 2013 to December

17, 2013. Risk Management paid the claim, doing so for the one-way travel listed.

In support of his argument, however, the claimant asserted that Risk

Management should have doubled the travel reported on the mileage claim form in

order to compensate him for round trip mileage. Upon receipt of the July 2014

disputed claim form, Risk Management provided him with an additional check for

$178.29 to reflect the round trip mileage sought. However, due to the claimant’s

contention that the mileage payment should have been initially provided by Risk

Management, he continued to pursue the claim for penalties and attorney fees.

Prior to the hearing, the claimant raised various additional claims.1

At the commencement of the May 2015 hearing, the parties informed the

workers’ compensation judge that all issues other than that of the penalties and

attorney fees for the mileage dispute were resolved by stipulation. The workers’

compensation judge allowed the reading of the stipulation by the claimant’s

attorney.2 Thereafter, the workers’ compensation judge heard the remaining issue,

ultimately denying the claim for penalties and attorney fees upon a finding that

mileage was timely paid as presented.

The claimant appeals, assigning the following as error:

1. The workers’ compensation judge manifestly and legally erred
in failing to award a penalty and reasonable attorney fee for the
Defendant’s failure to properly pay the mileage request of
December 20, 2013.
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The claimant’s Answer to Pretrial Questionnaire indicates that, at one time, he raised various
issues to be litigated at the hearing, including the occurrence of the work-related accident, the
payment of the employer’s payment of indemnity benefits, the reasonableness of the medical
treatment provided, and whether proper rehabilitation services were provided.
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Claimant’s counsel stated:

We agree that the accident on August 23, 2012 in the course and scope, that he has a - -
he’s entitled to TTD benefits based on [an] average weekly wage of Four Ninety-four
Sixteen with a corresponding comp rate of Three Twenty-nine Forty Six, as well as
entitled to reasonable and necessary treatment resulting from his accident.

Counsel for the employer and for Risk Management responded: “That’s fine. You can put it like
that.”

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2. The workers’ compensation judge committed legal error in
failing to include in the judgment the stipulations of contested
issues that were entered into in open court on the day of trial.

3. The workers’ compensation judge committed legal error in
determining that the language of the judgment was sufficiently
precise, certain, and definite to constitute a final judgment.

Discussion

Finality of Judgment

We first address the claimant’s assertion that the judgment as rendered does

not constitute a final judgment as that question bears on whether it is amenable for

appeal. See La.Code Civ.P. art. 2083(A)(providing that “[a] final judgment is

appealable in all causes in which appeals are given by law[.]”). See also La.Code

Civ.P. art. 2083(C)(providing that an interlocutory judgment “is appealable only

when expressly provided by law.”). In particular, the claimant suggests that the

judgment lacks finality as it does not contain the specifics of the parties’

stipulations. Rather than dismiss his appeal as having been taken from an

interlocutory judgment, the claimant asks that this court amend the judgment as

rendered to specifically include the stipulation. While we do not amend the

judgment as suggested by the claimant, we find merit in his assertion that the

judgment was not properly appealable.

With regard to the form of a final judgment, La.Code Civ.P. art. 1918

provides that: “A final judgment shall be identified as such by appropriate

language.” Jurisprudence establishes that the final “judgment must be precise,

definite and certain.” See, e.g., Kimsey v. Nat’l Auto. Ins. Co., 13-856, p. 5

(La.App. 3 Cir. 2/12/14), 153 So.3d 1035, 1038 (citing Elston v. Montgomery,

46,262 (La.App. 2 Cir. 5/18/11), 70 So.3d 824, writ denied, 11-1292 (La. 9/23/11),

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69 So.3d 1165). See also La.Code Civ.P. art. 1918, Comment (a). Furthermore, a

final judgment must contain decretal language, name the party in favor of whom

the ruling is made, and include the relief either granted or denied. Goal Properties,

Inc. v. Prestridge, 14-422 (La.App. 3 Cir. 11/5/14), 150 So.3d 610 (quoting Frank

v. City of Eunice, 13-1118 (La.App. 3 Cir. 3/5/14), 134 So.3d 222). Significantly,

those requirements must “be evident without reference to other documents in the

record.” Id. at 613.

Upon review, it is clear that the judgment does not satisfy those

requirements as to the issues resolved as it provides only generally that:

Considering the stipulations, testimony, and evidence adduced at trial
and for the oral reasons stated on June 19, 2015, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED THAT:

1.
The defendants timely paid the plaintiff’s mileage claims; and,

2.
The plaintiff’s claims for penalties and attorney fees are denied.

While the mileage issue and the related claim for penalties and attorney fees are

resolved by reference to judgment, the resolution as to the issues resolved via

stipulation is not evident without further reference to the transcript. Thus, the

judgment does not constitute a final judgment for appeal purposes. See Goal, 150

So.3d 610.

However, notwithstanding the recognition that the judgment was not final

for the appeal taken by the claimant, we neither remand the judgment for further

modification nor do we amend the judgment. We instead convert this matter to an

application for supervisory writ and consider this matter under our supervisory

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authority. See La.Const. art. 5, § 10. See also Stelluto v. Stelluto, 05-0074 (La.

6/29/05), 914 So.2d 34.

Mileage – Penalties and Attorney Fees

The claimant concedes that he submitted one-way mileage to his medical

appointments to Risk Management. Neither does he appear to contest that Risk

Management provided payment following the submission of the mileage form. He

contends, however, that the resulting payment must be viewed as an underpayment

as Risk Management did not provide full, round trip mileage within sixty days of

the December 2013 claim form. The claimant points to past mileage submissions,

noting that he had previously been provided round trip mileage, despite having

reported only one-way travel.

Louisiana Revised Statutes 23:1201(E)(1) provides that: “Medical benefits

payable under this Chapter shall be paid within sixty days after the employer or

insurer receives written notice[.]” As far as the claimant’s request for mileage,

La.R.S. 23:1203(D) provides that “the employer shall be liable for the actual

expenses reasonably and necessarily incurred by the employee for mileage

reasonably and necessarily traveled by the employee in order to obtain the medical

services, medicines, and prosthetic devices, which the employer is required to

furnish under this Section[.]” In the event the employer fails to timely provide the

benefits as required, La.R.S. 23:1201(F) provides for the assessment of penalties

and a reasonable attorney fee. However, penalties and attorney fees may not be

awarded “if the claim is reasonably controverted or if such nonpayment results

from conditions over which the employer or insurer had no control.” La.R.S.

23:1201(F)(2).

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In denying the claimant’s demand, the workers’ compensation judge

explained as follows in oral reasons for ruling:

The Court finds that the employer received written notice on
December 20, 2013, of the mileage reimbursement request. The
mileage was paid on February 5, 2014. This was within 60 days.
Therefore, the Court finds there are no penalties and attorney’s fees
owed for that payment.

The Court further notes that a 1008 was filed on July 16, 2014,
alleging an underpayment with regards to the mileage that was
originally submitted on December 20, 2013. An additional check was
issued on July 28, 2014, representing the alleged underpayment. That
payment was made again within 60 days. Therefore, there are no
penalties and attorney’s fees owed for the mileage reimbursement
request made on July 16, 2014.

Having reviewed the record, we find no manifest error in this determination. See

Brown v. Lafayette Ass’n of Retarded Citizens, Inc., 11-1595, p. 12 (La.App. 3 Cir.

6/20/12), 94 So.3d 950, 959 (explaining that a workers’ compensation judge’s

decision as to whether “to cast an employer with penalties and attorney fees is a

question of fact subject to the manifest error standard of review.”). Rather, we

find that the record reflects the workers’ compensation judge’s further observation

that: “[t]he issue in this case is where the burden really lies.”

Importantly, the burden of proving that the subject medical bill was not paid

within sixty days of receipt of written notice is upon the claimant seeking the

sanction of penalties and attorney fees. Day v. Superior Derrick Serv., 11-749

(La.App. 3 Cir. 12/7/11), 80 So.3d 654. Simply, the claimant’s claim for mileage,

which was reported on a one-way basis (reported as “Address traveling from” and

“Address traveling to”), was received on December 20, 2013, as evidenced by the

physical exhibit included in the record and as testified to by Risk Management

Claims Adjuster Tara Shelton. Ms. Shelton explained that the mileage represented

by that submission was paid by check dated February 5, 2014, in the amount of

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$139.29. Thus, and again as identified by the workers’ compensation judge, the

mileage reimbursement was provided within sixty days of receipt.

Similarly, Ms. Shelton explained that Risk Management did not receive

notice of the claim for the return leg of each medical appointment until the July 16,

2014 filing of the Disputed Claim for Compensation. It again paid that demand

within sixty days by check dated July 28, 2014. Thus, each payment was made

“within sixty days after the employer or insurer receives written notice” pursuant

to La.R.S. 23:1021(E)(1).

While the claimant suggests that he had previously been paid round trip

mileage without a particularized claim for the return travel in the past, we find no

manifest error in the workers’ compensation judge’s determination that such a

suggestion does not satisfy his burden of proving the present claim.3 Instead, Ms.

Shelton explained that she had been assigned to the claimant’s file at the time of

the instant submission. She testified that the objective of the reporting of

particularized, one-way travel is that: “Generally the claimant will write one way

to the doctor’s office, on the next line they write back home or if they went to PT,

whether they went from the doctor’s office or provider’s office to the next place.”

In this case, the claimant admittedly did not do so, instead reporting only one-way

travel for medical treatment on the dates included within the mileage form. We
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The workers’ compensation judge explained:

There’s been argument made that there was a different way of doing
things in prior situations. While I do think that has a bearing on what happened,
the simple fact of the matter is that what the statutes are aimed to do are to get the
adjusters to timely pay the benefits that are submitted to them.

In this case, the adjuster did that. Whether they should have done it a
different way or not, well, I don’t think I’m here to determine that. What I am
here to determine is what happened in this case, and in this case, the adjuster paid
the mileage in a timely manner based on what was submitted to them. Therefore,
I find that no penalties and attorney fees are owed in th[i]s matter.

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find no manifest error in a rejection of the claimant’s contention that Risk

Management was obligated to provide payment based upon an estimated or

assumed return trip mileage, notwithstanding its prior practice. Instead, the record

supports the workers’ compensation judge’s determination that Risk Management

made timely payment upon receipt of the claimant’s written notices per La.R.S.

23:1021(E)(1).

This assignment lacks merit.

DECREE

For the foregoing reasons, the appeal of the appellant, Kevin Abshire, is

converted into an application for supervisory writ, and the writ is denied. Costs of

this proceeding are assessed to Mr. Abshire as the appellant/relator.

APPEAL CONVERTED TO WRIT. WRIT DENIED.

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