Catherine Cobb v. Lafayette Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-990

CATHERINE COBB

VERSUS

LAFAYETTE PARISH SCHOOL BOARD

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 0103123
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain 1 ,
Judges.

Chatelain, J., concurs in the result and assigns reasons.

REVERSED IN PART; AFFIRMED IN PART AS AMENDED.

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Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Michael B. Miller
Attorney at Law
P. O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLEE:
Catherine Cobb

L. Lane Roy
Brown Sims
600 Jefferson St., Suite 800
Lafayette, LA 70501
(337) 484-1240
COUNSEL FOR DEFENDANT/APPELLANT:
Lafayette Parish School Board

Catherine M. Landry
Mandy Simon
Preis PLC
102 Versailles Boulevard, Suite 400
P. O. Drawer 94-C
Lafayette, LA 70509
(337) 237-6062
COUNSEL FOR DEFENDANT/APPELLANT:
Lafayette Parish School Board

SAVOIE, Judge.

In this workers’ compensation matter, the employer appeals an award of

penalties and attorney fees in favor of the claimant for failing to pay claimant’s

medical bills. For the reasons that follow, we reverse in part, and affirm in part as

amended.

Procedural and Factual Background

On May 8, 2001, Catherine Cobb filed a disputed claim for compensation

alleging she was injured in September 2000, during the course and scope of her

employment with the Lafayette Parish School Board (LPSB). On July 20, 2005,

the parties stipulated that Ms. Cobb was entitled to temporary total disability

benefits. LPSB then terminated these benefits on August 30, 2006. However, it

did not file a motion seeking to modify Ms. Cobb’s benefits until May 30, 2008.

On August 31, 2009, the Office of Workers’ Compensation (OWC) rendered

judgment in favor of Ms. Cobb, awarding indemnity benefits in the amount of

$195.25 payable from September 12, 2000 through May 30, 2008, as well as

$3,000.00 in penalties, which was 24% of unpaid benefits from August 31, 2006

through May 30, 2008. Ms. Cobb was also awarded $10,000.00 in attorney fees,

$1,135.53 in costs, and legal interest. No other benefits were awarded.

Ms. Cobb appealed the August 31, 2009 judgment to the extent it failed to

award her with any other benefits, and LPSB appealed the award of penalties and

attorney fees. The August 31, 2009 judgment was affirmed in all respects by this

court on November 3, 2010. Cobb v. Lafayette Parish School Bd., 10-430 (La.App.

3 Cir. 11/3/10), 49 So.3d 597, writ denied, 10-2692 (La. 1/28/11), 56 So.3d 958.

On July 7, 2010, Ms. Cobb filed a motion seeking additional penalties and

attorney fees for LPSB’s failure to pay the August 31, 2009 judgment. The

workers’ compensation judge granted Ms. Cobb’s motion and awarded her $3,000

in penalties and $2,500 in attorney fees pursuant to a judgment dated March 27,

2012.

Ms. Cobb filed another motion seeking penalties and attorney fees on

October 12, 2012, alleging LPSB failed to pay the March 27, 2012 judgment. She

then filed an amended motion on December 14, 2012, additionally alleging that

LPSB failed to pay certain medical bills incurred by Ms. Cobb, and therefore, that

she was entitled to penalties and attorney fees. Ms. Cobb did not seek payment of

those bills from LPSB.

The bills at issue include $4,999 for services rendered by Michael Berard,

Ph.D. from October 17, 2005, through February 14, 2008; $4,730 for services

rendered by Michael Berard, Ph.D. from March 2008 through August 2010; three

separate bills totaling $80 each for services rendered by Dr. Pervez Mussarat on

December 1, 2009, February 24, 2010, and June 15, 2010; and receipts for

medication prescribed by Dr. Mussarat that Ms. Cobb purchased from CVS

pharmacy from January 2010 through July 2010.

A hearing was held on June 28, 2013. On April 23, 2015, the OWC

rendered judgment granting Ms. Cobb’s motions and awarding her $3,000 in

penalties in accordance with La.R.S. 23:1201(G) for LPSB’s failure to pay the

2012 judgment, $6,000 in penalties in accordance with La.R.S. 23:1201(F) for

LPSB’s failure to pay medical bills, $5,000 in attorney fees, together with costs

and legal interest.

LPSB filed a motion for new trial on May 4, 2015, asserting for the first time

that Ms. Cobb’s claims for penalties and attorney fees with respect to the unpaid

medical bills were barred by res judicata, given the finality of the August 31, 2009

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judgment. A hearing was held on June 9, 2015. Judgment was rendered on June 8,

2016, denying LPSB’s motion. LPSB has appealed. In addition, Ms. Cobb has

submitted a motion to this court to remove evidence from the record before us.

Ms. Cobb’s Motion to Remove Evidence

Ms. Cobb seeks to remove from the record documentation attached as

Exhibits 1 and 2 to LPSB’s post-hearing memorandum in support of its motion for

new trial, arguing that no evidence was offered or accepted during the hearing on

LPSB’s motion. Specifically, LPSB attached as Exhibit 1 the OWC’s August 31,

2009 judgment and reasons for judgment, and it attached as Exhibit 2 an unsigned

copy of Ms. Cobb’s appellant brief to this court in connection with her appeal of

the August 2009 judgment.

“Evidence not properly and officially offered and introduced cannot be

considered, even if it is physically placed in the record. Documents attached to

memoranda do not constitute evidence and cannot be considered as such on

appeal.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983

So.2d 84, 88. Therefore, we do not consider the content of Exhibit 2 on appeal,

and Ms. Cobb’s motion is granted in that regard. However, we note that Exhibit 1

was merely a copy of the workers’ compensation judge’s prior judgment and

written reasons rendered in connection with the instant matter, and therefore, it is

already in the workers’ compensation court’s record. Thus, we deny Ms. Cobb’s

motion as to Exhibit 1.

LPSB’s Appeal

On appeal, LPSB contends that the workers’ compensation judge erred in

awarding penalties and attorney fees for its failure to pay Ms. Cobb’s medical bills

at issue. It argues that Ms. Cobb failed to present sufficient evidence, that concepts

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of res judicata and the law of case doctrine barred Ms. Cobb’s claims, and that it

was justified in not paying the bills at issue. In addition, LPSB asserts that the trial

court erred in not granting its motion for new trial. LPSB does not appeal the

award of penalties and attorney fees in connection with its failure to pay the prior

judgment; therefore, we do not address the propriety of that portion of the

judgment.

“The determination of whether an employer should be cast with penalties

and attorney fees is a question of fact which should not be reversed absent manifest

error.” Sigler v. Rand, 04-1138, pp. 10-11 (La.App. 3 Cir. 12/29/04), 896 So.2d

189, 196, writ denied, 05-278 (La. 4/1/05), 897 So.2d 611.

Ms. Cobb’s claim for penalties and attorney fees related to LPSB’s failure to

pay the medical bills at issue is necessarily dependent upon a finding that Ms.

Cobb was entitled to payment of medical benefits resulting from the September

2000 accident.

In order to establish a claim for medical benefits, a claimant must
show that the benefit is occasioned by the work-related accident to a
reasonable certainty and by a preponderance of the evidence.
Additionally, a claimant must prove, also by a preponderance of the
evidence, that a particular medical expense is necessary.

Alleman v. Fruit of the Loom-Crowley, 96-1246, pp. 5-6 (La.App. 3 Cir. 3/5/97),

692 So.2d 485, 488 (citations omitted).

At trial, invoices from Dr. Berard and Dr. Mussarat, showing only the dates

of services rendered and the costs of services, were submitted into evidence.

Receipts from CVS pharmacy showing medication purchased by Ms. Cobb and the

costs of those purchases were also submitted into evidence. In addition, Ms. Cobb

testified that she was treated by Dr. Berard and Dr. Mussarat on the dates

appearing on the invoices, and that Dr. Mussarat, who prescribed her the

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medication obtained from CVS pharmacy, was a neurologist. There was no

evidence whatsoever establishing the nature of the treatment received by Ms. Cobb,

that the treatment or prescriptions were necessitated by any injuries Ms. Cobb

allegedly sustained in the September 2000 accident, or that the particular medical

expenses were necessary. The fact that she may have incurred these bills is

insufficient to establish her entitlement to benefits, without showing some

connection between the bills and services received with the injuries related to the

workers’ compensation claim. Therefore, the OWC was manifestly erroneous in

concluding that Ms. Cobb was entitled to penalties and attorney fees due to

LPSB’s failure to pay the medical bills at issue. We reverse the award of $6,000 in

penalties for failure to pay the medical bills at issue, and the attorney fees awarded

in this matter are reduced to $2,500 so as to eliminate attorney fees incurred in

connection with Ms. Cobb’s claims concerning the medical bills at issue.

Because we find that the evidence was insufficient to award penalties and

attorney fees for LPSB’s failure to pay the medical bills at issue, we pretermit the

issues of whether Ms. Cobb’s claims were barred by res judicata, and whether the

workers’ compensation judge’s denial of LPSB’s motion for new trial asserting res

judicata was an abuse of discretion.

CONCLUSION

We grant in part Ms. Cobb’s Motion to Remove Evidence with respect to

Exhibit 2 attached to LPSB’s memorandum in support of its motion for new trial.

Otherwise, Ms. Cobb’s motion is denied.

We further reverse the award of $6,000 in penalties for failing to pay the

medical bills at issue, and reduce the attorney fee award to $2,500. Costs of this

appeal are assessed to Appellee, Catherine Cobb.

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REVERSED IN PART; AFFIRMED IN PART AS AMENDED.

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