Lee Ann Broussard v. Acadian Ambulance Service, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-469

LEE ANN BROUSSARD

VERSUS

ACADIAN AMBULANCE SERVICE, INC., ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF LAFAYETTE, NO. 14-03170
ANTHONY P. PALERMO, WORKERS’ COMPENSATION JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Marc T. Amy, D. Kent Savoie, and Van H. Kyzar, Judges.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

K. Wade Trahan
Ottinger Hebert, L.L.C.
P. O. Drawer 52606
Lafayette, LA 70505-2606
(337) 232-2606
COUNSEL FOR DEFENDANTS/APPELLANTS:
Acadian Ambulance Service, Inc.
SeaBright Insurance Company

Janice H. Barber
Jennifer B. Valois
Barber Law Firm
111 Mercury Street
Lafayette, LA 70503
(337) 232-9893
COUNSEL FOR PLAINTIFF/APPELLEE:
Lee Ann Broussard

SAVOIE, Judge.

Acadian Ambulance Service, Inc. and Seabright Insurance Company

(collectively “Acadian”) appeal the judgment of the Workers’ Compensation Judge

(WCJ) that found in favor of Lee Ann Broussard (Broussard). Broussard answered

the appeal, requesting additional attorney’s fees for work done on appeal. For the

following reasons, we affirm in part, reverse in part, and decline to award

additional attorney’s fees for work performed by Broussard’s attorney on appeal.

FACTS AND PROCEDURAL HISTORY

Broussard’s injury occurred when she tripped over two boxes at her place of

employment, the Acadian Ambulance office, on May 25, 2012. She used both of

her hands to break the fall and landed on her knees. Broussard saw Dr. Robby

LeBlanc, an orthopedic surgeon, for the injuries to her hands. After treating her

with splints and injections, Dr. LeBlanc ultimately performed two de Quervain’s

surgical releases on Broussard. The first surgical release was to her right hand on

March 7, 2013. The second release to her left hand occurred on August 8, 2013.

Acadian paid medical and wage benefits to Broussard until they were terminated

after the second surgery.

Broussard filed a Disputed Claim for Compensation on May 12, 2014,

requesting: (1) reinstatement of benefits; (2) treatment for pain management; (3)

her choice of physician, Dr. Joseph Bozelle, Jr.; and (4) penalties and attorney’s

fees. Acadian argued that Broussard reached maximum medical improvement and

was, therefore, released to full duty.

At trial, the parties stipulated to the following facts:

1. Broussard was employed by Acadian at the time of her accident on May
25, 2012.

2. Broussard sustained injuries in an accident on May 25, 2012, while in the
course and scope of her employment with Acadian.

3. Broussard’s average weekly wage was $645, which resulted in a
temporary total disability benefit (TTD) of $435 per week.

4. Dr. Robby LeBlanc was Broussard’s choice of orthopedic surgeon.

5. Dr. LeBlanc performed a right de Quervain’s release on Broussard on
March 7, 2013, and this surgery was causally related to the May 25, 2012
accident.

6. Dr. LeBlanc performed a left de Quervain’s release on Broussard on
August 8, 2013, and this surgery was causally related to the May 25,
2012 accident.

7. The last TTD check issued to Broussard covered the time period between
September 5, 2013 and October 2, 2013.

8. Broussard requested a referral from Dr. LeBlanc to pain management on
October 18, 2013.

9. On October 18, 2013, Dr. LeBlanc did not recommend chronic pain
management, and he felt Broussard was at maximum medical
improvement.

10.A demand letter was sent to SeaBright Insurance Company on November
4, 2013, requesting authorization for pain management treatment.

11.The pain management treatment was denied via letter dated November 7,
2013.

12.Broussard underwent a court-appointed independent medical examination
with Dr. Darrel Henderson on October 28, 2015.

13.Broussard requested a change of orthopedic surgeon to Dr. Darrel
Henderson by letter on December 1, 2015.

14.Broussard did not receive a response to the December 1, 2015 request for
change of orthopedic surgeon.

After hearing the evidence produced at trial, the WCJ made the following

findings in his oral reasons:

[T]he Court finds that Lee Ann Broussard was injured in an accident
in the course and scope of employment on May 25, 2012. In that
accident, she injured her wrist and her thumb.

The Court finds that the problems with her thumb are causally
related to the accident. While she has received a diagnosis of basilar
thumb arthritis, Ms. Broussard did not have any significant issues with

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her thumbs until the accident occurred. There’s been no showing that
she had prior problems with her thumbs.

Therefore, the Court finds that there has, at the very least, been
an exacerbation of her pre-existing condition. The Court therefore
awards medical benefits to Lee Ann Broussard for the basilar thumb
arthritis.

Ms. Broussard has requested reinstatement of the indemnity
benefits. Pursuant to the medical records received by the Court, the
Court awards temporary total disability benefits from October 2, 2013,
through August 1, 2014. In August of 2014, Ms. Broussard began to
do work. At that point in time, because she was able to do some work
in her field of expertise, she would then be owed supplemental
earnings benefits. The Court finds that Ms. Broussard is entitled to
supplemental earnings benefits from August 1, 2014, through the date
of trial.

The Court further finds that claimant is entitled to the medical
expenses with Dr. Bozelle. The issue in this case was whether pain
management was needed. After a review of the entire medical records,
it is clear that even though Dr. Robby LeBlanc did not recommend
pain management to Ms. Broussard, he continued to prescribe pain
medication to her after he released her to return to work and basically
released her from his care. Therefore, it’s obvious that her treating
physician at the time was aware of the fact that further pain
medication was needed; and therefore, it was logical to conclude that
pain management also would have been necessary.

Therefore, the Court finds that the medical expenses incurred
by Lee Ann Broussard from Dr. Bozelle are to be paid for by the
defendant.

The Court further finds that Ms. Broussard is entitled to her
choice of pain management doctor. The Court awards the outstanding
medical expenses to Lee Ann Broussard.

The other question that arose was whether Ms. Broussard was
entitled to a change of physician. After reviewing Dr. LeBlanc’s
records, it’s important to note that Dr. LeBlanc was the first physician
to identify the basilar thumb arthritis. Yet, a review of Dr. LeBlanc’s
records show[s] that Dr. LeBlanc did not do much to address the
complaints that were coming from Ms. Broussard with regards to her
thumbs. Dr. LeBlanc performed [de Quervain’s] releases, which were
very successful according to Ms. Broussard.

However, there was ongoing complaints with regards to the
basilar thumb symptoms. Dr. LeBlanc noted that surgery might by
necessary. However, outside of noting that, nothing much was done
to address the thumb complaints outside of prescribing medication,
and then Dr. LeBlanc released her.
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The Court therefore finds that because Dr. LeBlanc basically
released her from his care without addressing the basilar thumb
injuries, that Ms. Broussard is entitled to change her physician to Dr.
Darrel Henderson and to continue treatment with him.

Therefore, the Court awards indemnity benefits as specified
previously and medical benefits as specified previously to Ms.
Brousard.

The next question that arises is whether penalties and attorney’s
fees are appropriate in this case.

The Court finds that the medical evidence does not warrant the
termination of the claim by the defendant and therefore awards Two
Thousand Dollars for the termination of the benefits.

The Court further finds that reliance on the medical in their
possession and failing to approve medical treatment with Dr. Bozelle
was arbitrary and capricious and awards a Two Thousand Dollar
penalty.

The Court also finds that the defendants failed to reasonably
controvert the request for a choice of pain management physician and
awards a Two Thousand Dollar penalty.

The Court further finds that based on the attorneys’ skill and
experience and work in this case, that an attorneys’ fee of Six
Thousand Dollars is appropriate and therefore awarded.

Acadian now appeals this judgment, asserting the WCJ’s ruling was in error

and should be overturned. Broussard answered Acadian’s appeal, requesting

additional attorney’s fees for work done on appeal.

ASSIGNMENTS OF ERROR1

1
We note that, on page five of Appellants’ Original Brief, the second assignment of error
states “The OWC erred in concluding Appellants improperly terminated Appellee’s worker’s
compensation benefits and in reinstating said benefits.” This assignment was not addressed in
the original brief. Broussard noted this in her brief to the court, stating it was unclear whether
the Appellants intended to discuss this as a consolidated argument with the assignment of error
regarding pain management. Broussard, out of an abundance of caution and for completeness,
discusses them separately. In its Reply Brief, Appellants’ state “Appellee erroneously identifies
the reinstatement of benefits as Appellants’ second assignment of error.” However, as stated
previously, it is clearly identified as Appellants’ assignment of error number two on page 5 of its
original brief. Appellants’ go on to state that “in the event this court should conclude a reversal
as to the pain management issue is warranted, then, in that event, logically the reinstatement of
benefits by WCJ should be reversed as well.” Based on that statement, we will not discuss the
reinstatement of benefits by the WCJ as a separate assignment of error.
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1. The [WCJ] erred in finding that [Broussard] was entitled to pain
management treatment.

2. The [WCJ] erred in enabling [Broussard] to change her choice of
physician in orthopedic surgery.

3. The [WCJ] erred in awarding penalties and attorney’s fees.

LAW AND DISCUSSION

I. Standard of Review

In workers’ compensation cases, we apply a manifest

error standard of review to the factual findings of the WCJ. Meche v. Gray Ins.

Co., 15-465 (La.App. 3 Cir. 11/12/15), 178 So.3d 640. “When reviewing a WCJ’s

findings of fact, appellate courts do not review the findings of fact to determine

whether they are right or wrong but whether they are reasonable based on the

record.” Simmons v. LUBA Workers’ Comp., 16-523, p. 3 (La.App. 3 Cir.

11/2/16), 206 So.3d 397, 401. The WCJ’s findings will not be disturbed “as long

as they are reasonable and supported by the record.” Gibson v. Resin Sys., Inc., 15-

299, p. 2 (La.App. 3 Cir. 10/7/15), 175 So.3d 1141, 1143. “Consequently, when

there are two permissible views of the evidence, the factfinder’s choice between

them cannot be manifestly erroneous.” Ardoin v. Firestone Polymers, L.L.C., 10-

245, p. 6 (La. 1/19/11), 56 So.3d 215, 219.

II. Assignment of Error Number One

Acadian argues that Broussard’s pain management treatment was not

medically necessary, and, as a result, its termination of benefits was proper.

Louisiana Revised Statutes 23:1203(A) provides, in pertinent part:

In every case coming under this Chapter, the employer shall
furnish all necessary drugs, supplies, hospital care and services,
medical and surgical treatment, and any nonmedical treatment
recognized by the laws of this state as legal, and shall utilize such
state, federal, public, or private facilities as will provide the injured
employee with such necessary services.

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After reporting her injury, Broussard selected Dr. LeBlanc as her physician

of choice. He diagnosed and treated Broussard for de Quervain’s tenosynovitis,

and he also diagnosed her with bilateral basilar arthritis in both wrists. Dr.

LeBlanc found that Broussard had reached maximum medical improvement on

October 18, 2013, and he released her from his care. However, Broussard

continued to complain of pain in her wrists. Even though Dr. LeBlanc had

released her from his care, he ordered additional pain medication for Broussard in

December 2013, due to her complaints. At this point, Broussard began to see Dr.

Bozelle, a local pain management physician. After consulting with Dr. LeBlanc,

who determined that pain management was not medically necessary, Acadian

denied Broussard’s request for these services.

Dr. Bozelle initially evaluated Broussard on November 20, 2013. He found

decreased range of motion in both wrists, finding the left wrist to be worse than the

right. He also found edema in the hand. Dr. Bozelle prescribed medication and

ordered occupational therapy. He treated Broussard a total of seventeen times over

the course of two years.

Prior to trial, the WCJ ordered an independent medical examination of

Broussard. Dr. Darrell Henderson, a plastic surgeon practicing in Lafayette,

Louisiana, was appointed to examine Broussard, and he determined that pain

management was medically necessary. His supplemental report of March 1, 2016,

states:

It is my opinion that Ms. Broussard needs to have continuation of this
pain management treatment and therapy until such time she can have
surgery to both of her hands as outlined in my report. Repair of the
torn intermetacarpal ligaments between the base of the thumb and the
base of the index finger should markedly reduce her pain, and once
she has achieved success by this surgery, her pain management should
be able to be stopped.

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In Timberlake v. Christus Health Central Louisiana, 16-973, p. 7 (La.App.

3 Cir. 5/24/17), 221 So.3d 284, 288 (alteration in original), this court explained

[A]n 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.

After evaluating all of the evidence presented, we cannot say that the WCJ

committed manifest error in finding that Broussard’s pain management treatment

was medically necessary. Although Dr. LeBlanc released Broussard from his care,

he continued to prescribe pain medication to her after the release. It is clear from

the records of Dr. Bozelle and the independent examination of Dr. Henderson that

pain management for Broussard is needed. As such, this assignment is without

merit.

III. Assignment of Error Number Two

Acadian next complains that the WCJ erred in allowing Broussard to change

her choice of physician in orthopedic surgery.

Louisiana Revised Statutes 23:1121(B)(1) provides:

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.

The parties stipulated that Broussard sent a letter to Acadian requesting a

change of orthopedic surgeon from Dr. LeBlanc to Dr. Henderson on December 1,

2015. It was further stipulated that Acadian did not respond to this request.

Acadian complains about the timing of the request and argues that it amounts to
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“doctor shopping.” Acadian again relies on the opinion of Dr. LeBlanc, who they

argue is more qualified than Dr. Henderson.

The WCJ found that it was “important to note that Dr. [LeBlanc] was the

first physician to identify the basilar thumb arthritis.” However, he did nothing to

address her complaints regarding Broussard’s thumbs. He did note that surgery

may be necessary, but, other than prescribing pain medication, the thumb

complaints were not addressed. The WCJ found that because Dr. LeBlanc released

Broussard without “addressing the basilar thumb injuries,” Broussard was entitled

to change her physician.

In Dawson v. Terrebonne General Medical Center, 10-2130 (La.App. 1 Cir.

5/19/11), 69 So.3d 622, the first circuit affirmed a change of orthopedists. In that

case, the claimant felt that his original doctor was no longer working in his best

interest and went to someone else. The appellate court found that the WCJ did not

err in concluding that the original doctor “basically refused to treat [claimant]

further and effectively ‘passed it off.’” Id. at 629.

In the instant case, we find no error in the WCJ’s allowing Broussard to

change her orthopedic surgeon. The WCJ found Broussard’s complaints regarding

her thumbs, specifically the basilar thumb arthritis, were not addressed by Dr.

LeBlanc. Dr. LeBlanc released Broussard, and her only option was to find another

doctor who would treat her. This assignment lacks merit.

IV. Assignment of Error Number Three

Acadian next argues that the WCJ erred in awarding Broussard penalties and

attorney’s fees. Broussard was awarded a $2,000 penalty for Acadian’s improper

termination of benefits, a $2,000 penalty for Acadian’s failure to approve medical

treatment with Dr. Bozelle, and another $2,000 penalty for Acadian’s failure to

reasonably controvert the request for a choice of pain management physician. The
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WCJ also awarded Broussard $6,000 in attorney’s fees. Acadian contends that its

actions were not arbitrary and capricious because it relied on the opinions of Dr.

LeBlanc.

In its oral ruling, the WCJ found that “the medical evidence [did] not

warrant the termination of the claim by the defendant.” The WCJ also determined

that based on the medical evidence in its possession, failure to approve pain

management treatment with Dr. Bozelle was arbitrary and capricious.

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.

Timberlake, 221 So.3d at 289.

After a review of the record, we find the WCJ committed manifest error in

awarding penalties and attorney’s fees to Broussard. Acadian’s refusal was based

on Dr. LeBlanc’s release of Broussard and his opinion that she reached maximum

medical improvement. Therefore, Acadian possessed medical information to

reasonably counter Broussard’s claims. The WCJ’s judgment awarding penalties

and attorney’s fees to Broussard is reversed.

V. Broussard’s Answer to Appeal

Broussard filed an answer to the instant appeal seeking attorney’s fees

incurred for work performed in connection with the defense of this appeal. Having

concluded above that the WCJ erred in awarding penalties and attorney’s fees,

there is neither a statutory or contractual basis for an award of attorney’s fees to

Broussard for this appeal nor are they necessary in order to be consistent with the
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judgment below. See Robinson v. Calcasieu Par. Sch. Bd., 11-615 (La.App. 3 Cir.

11/2/11), 77 So.3d 1059, 1064, writ denied, 11-2641 (La. 2/10/12), 80 So.3d 478.

Accordingly, we deny Broussard’s request for attorney’s fees for work done on

appeal.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ awarding $6,000 in

penalties and $6,000 in attorney’s fees to Lee Ann Broussard is reversed. The

WCJ’s judgment in favor of Lee Ann Broussard and against Acadian Ambulance

Service, Inc. and SeaBright Insurance Company is affirmed in all other respects.

Lee Ann Broussard’s Answer to Appeal requesting additional attorney’s fees for

work done on appeal is denied. All costs of these proceedings are assessed to

Acadian Ambulance Service, Inc. and SeaBright Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

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