RHONDA TIMBERLAKE VERSUS CHRISTUS HEALTH CENTRAL LOUISIANA D/B/A CHRISTUS ST. FRANCES CABRINI HOSPITAL

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-973

RHONDA TIMBERLAKE

VERSUS

CHRISTUS HEALTH CENTRAL LOUISIANA
D/B/A CHRISTUS ST. FRANCES CABRINI HOSPITAL

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 15-07478
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND RENDERED.

John C. Turnage
Mayer, Smith & Roberts, L.L.P.
1550 Creswell Avenue
Shreveport, LA 71101
(318) 222-2135
COUNSEL FOR DEFENDANT-APPELLANT:
Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital

Maria A. Losavio
Losavio Law Office, LLC
1821 MacArthur Drive
Alexandria, LA 71315
(318) 767-9033
COUNSEL FOR PLAINTIFF-APPELLEE:
Rhonda Timberlake

PICKETT, Judge.

An employer appeals a judgment granting its former employee’s requests for

surgery, penalties, and attorney fees for the employer’s failure to approve the

requested surgery and to timely pay one week of indemnity benefits. For the

following reasons, we affirm in part, reverse in part, and award additional attorney

fees for work performed by the employee’s attorney on appeal.

FACTS

On March 30, 2010, Rhonda Timberlake, a registered nurse employed at

Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital

(Cabrini) in the intensive care unit, claimed that she injured her left wrist and

forearm while repositioning a patient. Cabrini is self-insured; it contracts with F.

A. Richard & Associates, Inc. (FARA), a third-party administrator, to manage its

claims. Previously, the parties appeared before this court to address issues

pertaining to supplemental earnings benefits, temporary total disability benefits,

penalties, and attorney fees. See Timberlake v. Christus Health Cent. La., 13-166

(La. App. 3 Cir. 10/30/13), 124 So.3d 1201.

Rhonda continued seeking medical treatment for issues associated with her

injury, and on May 17, 2016, the parties tried the following issues to the workers’

compensation judge (WCJ) pursuant to an LDOL-WC-1008 filed by Rhonda:

1) did the Medical Director err in denying Rhonda’s request for surgery; 2) was

Cabrini’s late payment of indemnity benefits excusable; and 3) was Rhonda

entitled to awards for penalties and attorney fees? The WCJ granted Rhonda the

relief she sought, and Cabrini filed this appeal.

The following events led Rhonda to file her LDOL-WC-1008. Beginning in

March 2011, Rhonda was treated by Dr. Robert Morrow, an orthopedic surgeon,

who specializes in hands and upper extremities. See Timberlake, 124 So.3d 1201.

Dr. Morrow performed three surgeries on Rhonda’s left upper extremity. He

retired in 2015, and the record indicates that Rhonda’s last appointment with him

was in March 2015. Rhonda has also been treated by pain management doctors

and psychologists for pain-related issues.

On June 8, 2015, Rhonda underwent an independent medical examination

(IME) performed by Dr. Gary Porubsky, an orthopedic surgeon, who also

specializes in hands and upper extremities. Dr. Porubsky opined in his report that

Rhonda had reached maximum medical improvement and should be able to

perform light/sedentary work; however, he recommended that a functional capacity

examination be performed to determine exactly what work she could perform.

In October 2015, Rhonda began seeing Dr. Darrell Henderson, a plastic

surgeon. Like Drs. Morrow and Porubsky, Dr. Henderson specializes in treating

hands and upper extremities. After examining Rhonda, performing x-rays, and

reviewing her medical history, Dr. Henderson recommended that she undergo a left

radical carpal fusion, Watson distal ulnar re-contouring and insertion of EBI,

which is a partial fusion of the wrist. On October 16, 2015, Dr. Henderson

submitted a LDOL-WC-1010, seeking authorization for the partial fusion. Cabrini

then ordered a utilization review (UR).

On October 22, 2015, the physician who performed the UR recommended

certification of the surgery. In his report, the physician noted that the surgery was

not covered in Louisiana’s Medical Treatment Guidelines and then addressed the

surgery request by performing an extensive review of medical treatment guidelines

adopted by other states, as contemplated by La.R.S. 23:1203.1(D)(5), that apply to

the procedures recommended by Dr. Henderson. The physician also cited pertinent

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medical review articles that discussed the efficacy of the recommended procedures.

That same day, FARA approved the surgery with modifications recommended by

the UR physician, and Dr. Henderson was notified of the approval. On October 27,

2015, the UR physician reversed his initial recommendation and recommended that

the surgery not be approved. FARA notified Dr. Henderson the surgery was

denied. No explanation was given at that time for the reversal.

After being asked for an explanation for his reversal, the UR physician

explained that he reversed his opinion and withdrew his initial recommendation for

certification of the surgery because he initially considered his review as presenting

a “tie” situation between the treating physician and the IME physician. He

reviewed the medical evidence again and concluded that he had not given enough

weight to the IME’s opinion. The physician then stated that the IME’s opinion

shifted his determination from a tie to the conclusion that the weight of the

evidence warranted non-certification.

Rhonda filed an LDOL-WC-1009, seeking the Medical Director’s approval

of the surgery. On February 26, 2016, the Medical Director denied the surgery,

stating that the requested surgery required a variance from Medical Treatment

Guidelines, but the variance was not addressed by Dr. Henderson’s request and

that no medical literature regarding the surgery was included with the request.

Rhonda filed an LDOL-WC-1008.

Following his review of the matter, the WCJ issued thorough Reasons for

Ruling in which he concluded that the Medical Director erred in denying

Dr. Henderson’s request for approval of his recommended surgery. The WCJ

specifically addressed the Medical Director’s finding that documentation required

for the requested variance was not included with Dr. Henderson’s request, noting

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that the cited documentation and medical literature was outlined and discussed in

the UR physician’s initial report. Furthermore, the WCJ observed that although

the UR physician stated he did not give proper weight to Dr. Porubsky’s opinion,

he did not explain why his previous assessment under the cited guidelines and

medical literature was incorrect or irrational. The WCJ also noted that

Dr. Porubsky’s IME of Rhonda occurred before Dr. Henderson recommended

surgery; therefore, his report did not address the recommended surgery.

Addressing Rhonda’s claim for penalties and attorney fees for Cabrini’s

failure to approve the recommended surgery, the WCJ observed that Cabrini made

no showing that the disability guidelines cited by the UR physician do not meet the

five criteria outlined in La.R.S. 23:1203.1(D) for the Louisiana Treatment

Schedule and concluded that Cabrini had no “reasonable basis” for denying the

surgery because it “failed in [its] duty to properly investigate” the request for

surgery and “discounted competent medical evidence from the UR [physician].”

He awarded a $2,000.00 penalty for Cabrini’s failure to approve the surgery and

$9,000.00 in attorney fees for Rhonda’s prosecution of her claim.

Rhonda also alleged that Cabrini failed to pay timely her indemnity benefits

owed for the week of September 30 through October 6, 2015, when it issued her

one check for the period September 30 through October 13, 2015, and that it

terminated her benefits. FARA’s claims representative handling this matter

countered Rhonda’s claim that her benefits were terminated, and a joint stipulation

resolved the issue.

Cabrini contends that Rhonda’s indemnity benefits were paid bi-weekly, that

the check representing the benefits in question was received three days after it was

due, that the maximum penalty due Rhonda was $150.00 which represents the

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$50.00 per day penalty provided in La.R.S. 23:1201(F), and that it included

payment of the penalty with the late check.

The WCJ reviewed the documentation submitted in conjunction with the

claim and determined that the payment at issue was six days late, not three days

late. He awarded a penalty of $50.00 per day for six days for the late payment and

$500.00 in attorney fees.

ASSIGNMENTS OF ERROR

Cabrini filed a suspensive appeal and assigns two errors with the WCJ’s

judgment:

1. The Trial Court erred in finding that there was clear and
convincing medical evidence to show that Rhonda [] was entitled
to the surgery recommended by Dr. Darrell Henderson;

2. The Trial Court erred in finding that [it] was arbitrary and
capricious and awarding [Rhonda] penalties, attorney[] fees[,] and
costs.

DISCUSSION

Appellate courts review workers’ compensation matters pursuant to the

manifest error or clearly wrong standard of review. Bruno v. Harbert Int’l Inc.,

593 So.2d 357 (La.1992). This standard of review precludes an appellate court

from setting aside a trial court’s finding of fact in the absence of a manifest error or

unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v.

State, DOTD, 617 So.2d 880 (La.1993). In applying the manifest error-clearly

wrong standard, the appellate court must determine not whether the trier of fact

was right or wrong, but whether the fact finder’s conclusion was a reasonable one.

Id.

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Surgery

The Medical Director’s decision can only be overturned when clear and

convincing evidence shows that the decision was not in accordance with the

provisions of La.R.S. 23:1203.1. La.R.S. 23:1203.1(K). To prove a matter by

clear and convincing evidence requires a showing that “the existence of the

disputed fact is highly probable; that is, much more probable than its

nonexistence.” Johnson v. Temple-Inland, 95-948, p. 7 (La.App. 3 Cir. 1/31/96),

670 So.2d 388, 392, writ denied, 96-544 (La. 4/19/96), 671 So.2d 919.

The UR physician performed his review of the request for surgery based on

Rhonda’s complaints and her medical records. He noted that “Louisiana

Guidelines do not address this request[,]” then addressed the issue of a variance as

contemplated by La.R.S. 23:1203.1(I). The UR physician identified and discussed

other disability guidelines that address the procedures Dr. Henderson requested

approval to perform. He also cited and discussed current medical literature on the

procedures. The UR physician determined that the requested surgery fell within

the parameters of other treatment guidelines and current medical literature. He

made no indication in his review that he gave more weight to Dr. Henderson’s

opinion or Dr. Porubsky’s opinion.

The Medical Director denied Dr. Henderson’s request for approval of his

proposed surgery, stating the request “require[d] a variance” from the medical

treatment guidelines, but “current medical literature [did not] accompany the

request.” Based on the extensive findings set forth in the UR, the WCJ concluded

that the Medical Director’s reason for denying Dr. Henderson’s request did not

exist when he denied the request. Having carefully reviewed the record, we cannot

say the WCJ committed manifest error in concluding that Rhonda proved by clear

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and convincing evidence that the Medical Director’s denial of her request for

surgery was unsubstantiated.

Cabrini argues the WCJ erred because the UR physician reversed his initial

opinion to recommend denial of the surgery request after reconsidering the medical

evidence and because the IME opinion was court ordered; therefore, it must be

given more weight than Dr. Henderson’s opinion. The WCJ correctly noted that,

an IME is not ordered by the court but by the director of the Office of Workers’

Compensation. La.R.S. 23:1123. As argued by Cabrini, an IME’s medical

opinions and conclusions constitute “prima facie evidence of the facts therein,”

La.R.S. 23:1123, and jurisprudence has held that an IME’s opinion must be given

“significant weight.” Kinard v. New Iberia Wastewater Treatment Facility, 12-

1393, p. 3 (La.App. 3 Cir. 4/3/13), 116 So.3d 5, 8 (quoting Richardson v. Lil’ River

Harvesting, 09-1090, p. 2 (La.App. 3 Cir. 3/10/10), 33 So.3d 418, 419).

Nonetheless, an IME’s opinions are “not conclusive, and the [WCJ] must evaluate

all of the evidence presented in making a decision as to a claimant’s medical

condition.” Id. For these reasons, we find no error with the WCJ’s reversal of the

Medical Director’s denial of Rhonda’s surgery.

We do, however, find error with the WCJ’s assessment of a $2,000.00

penalty and award of $9,000.00 in attorney fees to Rhonda. Cabrini argues the

WCJ erred in awarding Rhonda a penalty and attorney fees for its failure to

approve the surgery. It contends that it’s denial of the surgery request was not

arbitrary and capricious because the UR physician ultimately recommended non-

certification of the request, the Medical Director denied the request, and the IME

physician had determined Rhonda did not need additional treatment.

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Rhonda counters that the WCJ did not err in awarding attorney fees, urging

that the UR physician is Cabrini’s agent and that Cabrini had him change his

opinion. The only evidence on this issue is the UR physician’s explanation letter

in which he states that he was asked to reconsider his recommendation and that

when he reviewed the evidence again, he concluded that he had not given

sufficient weight to the IME opinion which changed his opinion. There is no

evidence that the UR physician changed his opinion at the instruction of Cabrini as

suggested by Rhonda’s counsel.

The WCJ found no valid basis for the UR physician’s change of opinion

because the physician did not discuss Dr. Henderson’s findings or Dr. Porubsky’s

opinions and did not identify any substantive reasons for his change of opinion

with regard to the evidence-based guidelines and medical literature that he cited in

his initial report. The WCJ also found it important that Dr. Porubsky’s IME and

opinions pre-dated Rhonda’s appointment with Dr. Henderson; therefore,

Dr. Porubsky had not considered Dr. Henderson’s recommendation and reasons

when issuing his opinion.

When considering a claim for penalties and attorney fees, “a court must

ascertain whether the employer or his insurer engaged in a nonfrivolous legal

dispute or possessed factual and/or medical information to reasonably counter the

factual and medical information presented by the claimant throughout the time he

refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA

Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890. If the employer

presents a “serious defense” in “good faith,” penalties and attorney fees should not

be awarded. Savoy v. Cecil Perry Improvement, Co., 96-889, p. 17 (La.App. 3 Cir.

2/5/97), 691 So.2d 692, 702.

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Having considered the record, we find the WCJ committed manifest error in

awarding Rhonda penalties and attorney fees for Cabrini’s refusal to approve the

surgery. Cabrini’s refusal was based on the UR physician’s amended

recommendation, the Medical Director’s denial of Rhonda’s request to approve the

surgery, and Dr. Porubsky’s IME report. As noted above, there is no evidence the

UR physician changed his opinion at Cabrini’s direction. Furthermore, while Dr.

Porubsky’s opinion pre-dated Dr. Henderson’s examination of Rhonda and

recommendation for the requested surgery, it was not the sole basis for Cabrini’s

refusal. Accordingly, we reverse the WCJ’s awards of a $2,000.00 penalty and

$9,000.00 in attorney fees.

Indemnity Benefits

Cabrini next argues that the WCJ erred in finding that Rhonda’s indemnity

benefits for the period September 23 through 29, 2015, were paid late and that no

valid excuse existed for that delay. Cabrini argues that Rhonda’s indemnity

benefits were paid bi-weekly and that the check at issue was only three days late.

The WCJ reviewed FARA’s check register and found Rhonda’s indemnity

benefits were paid weekly, except for the week in question. His review shows that

on October 12, 2015, one check for the indemnity benefits owed for the week of

September 30 through October 6, 2015 and the week of October 7 through 13,

2015, was issued to Rhonda. The check register also shows that Rhonda’s benefits

were paid weekly, not bi-weekly. For these reasons, we find no manifest error

with the WCJ’s conclusion that Rhonda’s indemnity benefits for the week of

September 30 through October 6, 2015, were paid six days late, not three days late,

as Cabrini argues. Accordingly, the WCJ did not err in finding that the benefits

were paid late and that Cabrini’s payment of a $150.00 penalty to Rhonda with the

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late benefits was insufficient. For these reasons, the WCJ was also correct in

awarding Rhonda an additional penalty of $150.00 and $500.00 in attorney fees for

Cabrini’s failure to timely pay her indemnity benefits for the week of September

30 through October 6, 2015.

Attorney Fees on Appeal

Rhonda answered Cabrini’s appeal, seeking an award of additional attorney

fees for worked performed by her attorney defending the WCJ’s judgment on

appeal. We award $5,500.00 for the work performed by Rhonda’s attorney on

appeal with regard to the WCJ’s findings that Rhonda is entitled to have surgery

and Cabrini’s late payment of indemnity benefits.

DISPOSITION

The judgment in favor of Rhonda Timberlake against Christus Health

Central Louisiana d/b/a Christus St. Frances Cabrini Hospital is affirmed with

regard to the surgery request and the award of an additional $150.00 penalty and

$500.00 in attorney fees associated with the late payment of indemnity benefits.

The WCJ’s awards of a $2,000.00 penalty and $9,000.00 in attorney fees for

Cabrini’s refusal to approve the surgery request are reversed. Attorney fees in the

amount of $5,500.00 are awarded to Rhonda Timberlake for work performed on

appeal by her attorney. All costs totaling $1,030.25 are assessed against Christus

Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

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