Musson Patout Automotive Group v. Jimmy Maynard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-218

MUSSON PATOUT AUTOMOTIVE GROUP
VERSUS
JIMMY MAYNARD
Consolidated with
20-219
JIMMY MAYNARD
VERSUS

MUSSON PATOUT AUTOMOTIVE GROUP

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION — DISTRICT NO. 4
PARISH OF LAFAYETTE, NO. 18-08513 C/W 19-00336
ANTHONY PALERMO, WORKERS’ COMPENSATION JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Candyce G. Perret,
Judges.

AFFIRMED AS AMENDED.

Timothy E. Benedetto

Workers’ Compensation, L.L.C.

3045 Ridgelake Drive, Suite 203

Metairie, LA 70002

(504) 838-8883

COUNSEL FOR DEFENDANT/PLAINTIFF/APPELLANT:
Jimmy Maynard

Corey M. Meaux

Allen & Gooch, A Law Corporation

P. O. Box 81129

Lafayette, LA 70598-1129

(337) 291-1630

COUNSEL FOR PLAINTIFF/DEFENDANT/APPELLEE:
Musson Patout Automotive Group

KYZAR, Judge.

The employee, Jimmy Maynard, appeals from a workers’ compensation
judgment awarding him penalties and attorney fees based on the employer’s failure
to timely authorize surgery. For the reasons herein, we affirm as amended.

DISCUSSION OF THE RECORD

Mr. Maynard, an employee of Musson Patout Automotive Group, Inc.
(Musson Patout), was injured while in the course and scope of his employment as a
result of a June 12, 2018 motor vehicle accident. Musson Patout commenced paying
him indemnity benefits as a result of this accident. Mr. Maynard was diagnosed by
Dr. John B. Sledge, III, an orthopedic surgeon, with other spondylosis, other cervical
disc degeneration, spinal stenosis, and radiculopathy in the cervical region; other
spondylosis with radiculopathy, intervertebral disc disorders with radiculopathy, and
other intervertebral disc displacement in the lumbar region, as well as low back pain.

Based on Mr. Maynard’s failure to respond to conservative treatment, Dr.
Sledge submitted an LWC Form 1010 on October 4, 2018, requesting authorization
from Risk Management Services, LLC (Risk Management), Musson Patout’s third
party administrator, to perform a transforaminal lumbar interbody fusion, consisting
of a two-level lumbar decompression and fusion at L3-4 and L4-5. However, Risk
Management’s utilization reviewer, Novare Utilization Review (Novare), denied
authorization for the surgery on October 11, 2018, finding that it was not in
accordance with the Medical Treatment Schedule or La.R.S. 23:1203.1(D) because
Mr. Maynard had not undergone a pre-surgical psychological evaluation. In
response to this denial, Dr. Sledge requested authorization for Mr. Maynard to
undergo a psychological evaluation in accordance with the Medical Treatment

Guidelines, which was approved by Novare on October 25, 2018.

On October 24, 2018, Mr. Maynard underwent a second medical opinion
(SMO) evaluation by Dr. Thad S. Broussard, an orthopedic surgeon, at the request
of Risk Management. Dr. Broussard related Mr. Maynard’s symptoms to his June
12, 2018 accident and stated that the treatment received by him was “reasonable,
appropriate and necessary.” He stated that Mr. Maynard had not yet reached
maximum medical improvement, estimating that this would not occur until at least
six months post-accident. However, Dr. Broussard opined that Mr. Maynard was
not a candidate for surgery because his pain was controllable with medication and
because there was no documented objective evidence of radiculopathy. He further
stated that he felt that Mr. Maynard could return to work and that any question
regarding his ability to work could be addressed through a functional capacity
evaluation.

After Mr. Maynard was cleared psychologically for surgery by Dr. Jean
Boudreaux, a licensed psychologist, Dr. Sledge resubmitted the request for surgery
on December 10, 2018, which was approved with modifications by Novare on
December 13, 2018. However, that same day, Danielle Rogers, Risk Management’s
claims adjuster, denied authorization, stating that the “Previous approval is now
rescinded. Pending conference with treating physician.”

On December 19, 2018, Musson Patout filed a disputed claim for
compensation (Docket Number 18-08513) in the Office of Workers’ Compensation,
District 09, which included a motion for a court-appointed independent medical
examination (IME). Because of Dr. Sledge’s and Dr. Broussard’s conflicting
medical opinions, Musson Patout asked that a physician be appointed to evaluate Mr.

Maynard in order to address the following questions:

Although Ms. Rogers was scheduled to meet with Dr. Sledge on January 28, 2019, that
meeting was canceled on January 22. 2019, after Musson Patout filed its IME request.

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e What is claimant’s current work status as it pertains to the alleged
work-related incident?

Specifically:
a) Can claimant return to work at this time?

b) If so, does claimant have any restrictions,
including daily hour limitations?

c) If any restrictions are applicable, please state
all restrictions?

d) What capacity or level of duty is claimant
able to work?

e What is claimant’s current medical condition?

e Isclaimant’s current medical condition indicative of the need for
additional medical treatment, including surgical intervention?

In addition to opposing Musson Patout’s motion on January 10, 2019, Mr.
Maynard filed a disputed claim for compensation (Docket Number 19-00336) in the
Office of Workers’ Compensation, District 04, alleging that the following bona fide
disputes with Musson Patout: incorrect workers’ compensation rate; failure to
authorize medical treatment recommended by Dr. Sledge; disability status,
temporary total disability; and all other equitable relief owed, including penalties
and attorney fees, reimbursement of costs, and judicial interest. That same day, Mr.
Maynard moved to transfer venue in Docket Number 18-08513 to District 04 in
Lafayette Parish, the parish of his domicile. An order granting the motion was
rendered by the WCJ on February 21, 2019.

On March 6, 2018, in Docket Number 19-00336, the parties entered into a
consent judgment, finding that Mr. Maynard’s accident occurred in the course and
scope of his employment with Musson Patout; that Musson Patout had miscalculated
Mr. Maynard’s average weekly wage (AWW) and workers’ compensation rate, that

the correct rates were $541.62 and $361.08, respectively, and that Musson Patout

owed Mr. Maynard $2,000.00 in penalties for the miscalculation; that all other issues
were reserved for trial; that Mr. Maynard’s entitlement to future indemnity benefits
would be governed by the Workers’ Compensation Act; and that Risk Management,
as Musson Patout’s third party administrator, was not a defendant in the litigation.

On March 8, 2019, in Docket Number 18-08516, Musson Patout filed a
motion to consolidate the two workers’ compensation claims under that docket
number, which was granted on March 11, 2019. On April 24, 2019, the WCJ issued
an order that Mr. Maynard submit to an IME by Dr. Thomas Butaud on June 5, 2019.
The Office of Workers’ Compensation Administration’s letter of that same date to
Dr. Butaud specified that he was to address Mr. Maynard’s ability to return to work.

Following the examination, Dr. Butaud issued a report, finding that Mr.
Maynard’s cervical issues had resolved but that he had significant degenerative
changes in his lumbar spine, especially at L3-4 and L4-5, “with disc pathology to
the right at L4-5[.]” However, Dr. Butaud felt that because Mr. Maynard also had
degenerative changes in his right hip, it was not clear whether his right leg pain
emanated from his lumbar spine or his right hip. Thus, he recommended delaying
surgery so that Mr. Maynard could undergo nerve testing and a right-hip injection.
Dr. Butaud stated that surgery on Mr. Maynard’s lumbar spine would be required if
the hip injection failed to provide significant relief. He further stated that Mr.
Maynard should not return to work pending further testing and evaluation and that
he had not yet reached maximum medical improvement.

On July 22, 2019, Mr. Maynard moved for summary judgment, requesting
judgment finding him entitled to the surgery recommended by Dr. Sledge; awarding
him temporary total disability benefits from the date of his accident; awarding him
$2,000.00 in penalties based on Musson Patout’s failure to timely authorize the

surgery; awarding him attorney fees based on Musson Patout’s miscalculation of his

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AWW and its failure to timely authorize surgery; and awarding him court costs and
judicial interest. Musson Patout opposed the motion. Following a hearing, the WCJ
rendered an oral ruling, granting in part and denying in part the motion. The WCJ
held that Mr. Maynard was entitled to the requested surgery for the following reasons:
The portion of the summary judgment requesting surgery should be
granted due to the fact that while there is conflicting medical with
regards to the surgical recommendation, the medical that conflicts with
Medical Director’s!*! decision does not contain references to the
guidelines. Therefore, the Medical Director’s decision has not been
attacked in a competent manner, and there has been no showing by clear
and convincing evidence that the [M]edical [D]irector’s decision was
inappropriate.
However, the WCJ held that there were genuine issues of material fact on the issues
of Mr. Maynard’s entitlement to indemnity benefits and a penalty based on Musson
Patout’s failure to authorize the surgery. A formal judgment was rendered by the
WC] on September 17, 2019.
Thereafter, the matter proceeded to a trial on the merits. At the November 13,
2019 trial, the parties agreed that the only issues before the WCJ were the amount
of attorney fees associated with Musson Patout’s miscalculation of the AWW, the
award of penalties and attorney fees associated with Musson Patout’s failure to
timely authorize the surgery, and judicial interests and costs.
The only witness to testify at trial was Peggy Evans, a claims adjuster with
Risk Management, who testified that she took the claim over from Ms. Rogers in
February or March 2019. Ms. Evans admitted that Novare rendered a modified

approval to Dr. Sledge’s request for surgery on December 13, 2018, but that Ms.

Rogers rescinded the approval pending a rehabilitation conference with Dr. Sledge.

? Although the WCJ refers to a decision by the Medical Director, which determined that
the suggested surgery was medically necessary, the record does not contain such a decision, nor
do the appeal briefs reference such a decision. However, because the WCJ mentions a Medical
Director decision in his oral rulings on the motion for summary judgment and the trial on the merits,
we will presume that there was such a ruling, but that it was not introduced into the record by
either party.

She explained that Ms. Rogers rescinded the authorization because Dr. Broussard
determined that the surgery was not medically necessary. She further admitted that
Ms. Rogers cancelled the rehabilitation conference with Dr. Sledge after Musson
Patout filed its disputed claim requesting an IME.

Ms. Evans testified that she did not approve the surgery after she inherited the
claim because she had Dr. Broussard’s opinion and there was a pending request for
an IME. She stated that she did not approve it after she received Dr. Butuad’s IME
report because it specified that certain other treatment was required before surgery
should be approved.

Ms. Evans admitted that medically necessary treatment is determined based
on the Medical Treatment Guidelines and that Novare reviewed the requested
surgery pursuant to the Medical Treatment Guidelines. However, she agreed that a
utilization review company is usually missing medical records, such as an SMO
report, when it renders an opinion. In this instance, she testified that she did not
believe that Novare had the benefit of Dr. Broussard’s October 24, 2018 report when
it rendered its December 13, 2018 authorization for the surgery.” While she admitted
that Novare reviewed Dr. Sledge’s request in accordance with the Medical
Treatment Guidelines, she could not explain why Novare would need Dr.
Broussard’s report in order to render a decision. However, Ms. Evans opined that
Dr. Broussard also followed the Medical Treatment Guidelines in rendering his
opinion and, she would trust his opinion over Novare’s because he actually
examined Mr. Maynard, unlike Novare, which only reviewed his medical records.

In his December 11, 2019 oral ruling, the WCJ ruled, as follows:

The issues in this case are in what amount are attorney’s fees
owed for the miscalculation of the average weekly wage and whether

; However, Novare’s December 13, 2018 modified approval indicates that the medical
records it reviewed in reaching its conclusion included Dr. Broussard’s October 24, 2018 SMO.

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penalties and attorney’s fees are owed for the failure to approve the
surgery recommended by Dr. Sledge.

Dr. Sledge was selected as a choice of orthopedic surgeon for the
employee. Dr. Sledge has continued to treat Mr. Maynard since July
30, 2018. He has run numerous tests on the employee, and Dr. Sledge
has now submitted a request for authorization requesting surgery. He
first submitted this request on October 4, 2018.

The employer denied the surgery as not being medically
necessary in accordance with the Medical Treatment Guidelines on the
grounds that no presurgical psychological evaluation had been
completed. The injured employee then had the presurgical
psychological evaluation, after which Dr. Sledge again submitted a
1010 form requesting authorization for the surgery on December 10,
2018. Utilization Review determined the requested surgery was
medically necessary in accordance with the Medical Treatment
Guidelines.

The employer rescinded the authorization pending a medical
evaluation by a second medical opinion physician.!*! The injured
employee underwent a second medical opinion with the [employer’s]
choice of orthopedic surgeon, Dr. Thad Broussard. Dr. Thad Broussard
opined that the surgery was not recommended. The injured employee
then saw Dr. Butaud for an independent medical examination. Dr.
Butaud recommended further conservative treatment. He felt that the
injured employee was totally disabled from working but did not
recommend surgery at that time.

The issue was whether the employee is entitled to penalties and
attorney’s fees for the failure to approve the surgery. The Court finds
in favor of the employee and awards him a Two Thousand Dollar
penalty and Two Thousand Dollars in attorney’s fees for the failure to
approve the surgery.

The surgery was not approved because the employer was waiting
on a second medical opinion and then was waiting on an independent
medical examination. However, the parties had already received the
Medical Director’s opinion that the surgery that was requested fell
within the Medical Treatment Guidelines and was approved. Therefore,
the employer waiting for the medical opinions of a second medical
opinion and an independent medical examination are only relevant if
the second medical opinion and the independent medical examination
take the treatment guidelines into account when determining the
medical necessity for surgery.

* As previously stated, Novare’s December 13, 2018 modified approval indicated that Dr.
Broussard’s SMO was one of the medical records it reviewed in reaching its decision. Thus, it is
safe to assume that Risk Management did not rescind the December 13, 2018 modified approval
because it was waiting for Dr. Broussard’s opinion.

7

In this case, [t]he Court does not find that the Medical Treatment
Guidelines were referred to by either the second medical opinion or the
independent medical examination. Therefore, [t]he Court finds that
penalties and attorney’s fees in this situation are to be awarded for the
failure to approve the surgery.

The employer cannot rely on medical reports to deny the surgery
unless the situation is one that involves causation. There has been no
allegation that causation is at issue in this case. Therefore, the employer
should have approved the surgery based on the Medical Director’s
finding that the surgery was appropriate within the guidelines and/or
should have taken an appeal of the Medical Director’s decision. Trying
to rely on second medical opinions and independent medical
examinations to not approve the surgery is inappropriate in this case,
and therefore penalties and attorney’s fees are warranted.

A written judgment formalizing the WCJ’s oral ruling was rendered on January 9,
2020. The judgment states:

IT IS ORDERED, ADJUDGED, AND DECREED that the
Employer failed to reasonably controvert and timely authorize the
transforaminal lumbar interbody fusion L3-4 and L4-5 recommended
by Dr. John Sledge. As a result, the Employer is ordered to pay one
two[] thousand dollar ($2,000.00) penalty and one two thousand dollar
($2,000.00) attorney’s fee pursuant to La. R.S. 23:1201(F) as a result
of the non-authorization/late authorization of the requested surgery.

It is from this judgment that Mr. Maynard instituted this appeal, wherein he
assigns the following errors:

1. The Trial Court committed legal error in granting
Defendant/Appellee’s Motion for Court-Appointed Independent
Medical Examination before Claimant/Appellant had reached
maximum medical improvement and before undergoing a
medically necessary surgery.

2. The Trial Court committed legal error in partially dismissing
Claimant/Appellant’s Motion for Summary Judgment insofar as
the Court failed to award penalties and attorney’s fees arising
from the non-authorization of the medically necessary surgery.

3. The Trial Court abused its discretion i{n] awarding
Claimant/Appellant’s counsel only $2,000.00 in attorney’s fees
despite being successful on all issues.

4. The Trial Court committed legal error in failing to award
Claimant/Appellant cost reimbursement pursuant to La. R.S.
23:1310.9 and failing to award judicial interest on all penalties,
costs, and attorney’s fees awarded.

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OPINION
Pursuant to La.R.S. 23:1203, an employer is required to furnish all necessary
medical care, services, and treatment to an employee injured in the course and scope
of employment. In Matthews v. Louisiana Home Builder's Association Self
Insurer's Fund, 13-260, pp. 4-5 (La.App. 3 Cir. 3/12/14), 133 So.3d 1280, 1283-84,
this court stated:

Louisiana Revised Statutes 23:1203.1 was enacted by the
legislature in 2009 to provide for the establishment of a medical
treatment schedule, and such a schedule was promulgated by the
Louisiana Workforce Commission, Office of Workers’ Compensation
Administration in June 2011. As a result, “medical care, services, and
treatment due, pursuant to R.S. 23:1203, et seq., by the employer to the
employee shall mean care, services, and treatment in accordance with
the medical treatment schedule.” La.R.S. 23:1203.1(I). Section 1203.1
establishes a procedure whereby an injured employee’s medical
provider can request authorization for medical services from a payor,
usually the employer or its insurer, who must act on that request within
five days. La.R.S. 23:1203.1(J)(1). Thereafter, any aggrieved party
has fifteen days within which to file an appeal with the Medical
Director who must render a decision within thirty days. /d. “After the
issuance of the decision by the medical director . . ., any party who
disagrees with the decision, may then appeal by filing a ‘Disputed
Claim for Compensation.’ ” La.R.S. 23:1203.1(K). A decision of the
Medical Director “may be overturned when it is shown, by clear and
convincing evidence, the decision . . . was not in accordance with the
provisions of this Section.” /d.; See also Usie v. Lafayette Parish Sch.
Sys., 13-294 (La.App. 3 Cir. 10/9/13), 123 So.3d 885

Accordingly, as pointed out by Matthews, medically necessary care, services,
and treatment are those which conform to the medical treatment schedule. La.R.S.
23:1203.1(I).

Assignment of Error Number One

In his first assignment of error, Mr. Maynard argues that the WCJ legally erred
by ordering an IME even though he was not at maximum medical improvement
(MMI) and had not yet undergone the medically necessary surgery. We disagree.

The April 24, 2019 order appointing Dr. Butaud to perform an IME does not

indicate whether the WCJ was relying on La.R.S. 23:1123 or La.R.S. 23:1124.1 in

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ordering the IME. In the April 24, 2019 letter to Dr. Butaud, Sharon B. Francis, the
Dispute Resolution Specialist for the Office of Workers’ Compensation
Administration, District 04, requested Dr. Butaud to examine Mr. Maynard in order
to determine whether he was capable of returning to work. Dr. Butaud answered
this question, finding that Mr. Maynard should not return to work pending further
testing and evaluation. He further advised delaying the surgery until nerve testing
pinpointed the exact location of his spine causing his pain. He also recommended a
steroid injection into Mr. Maynard’s right hip to ascertain if the shot afforded him
any pain relief.

The Louisiana Workers’ Compensation Law contains two statutes by which
an injured employee may be required to undergo examination by an impartial
physician. Louisiana Revised Statutes 23:1123 provides:

If any dispute arises as to the condition of the employee, or the
employee’s capacity to work, the assistant secretary, upon application

of any party, shall order an additional medical opinion regarding an

examination of the employee to be made by a medical practitioner

selected and appointed by the assistant secretary. The medical
examiner shall report his conclusions from the examination to the
assistant secretary and to the parties and such report shall be prima facie
evidence of the facts therein stated in any subsequent proceedings under

this Chapter.

Additionally, La.R.S. 23:1124.1 provides:

Neither the claimant nor the respondent in hearing before the
workers’ compensation judge shall be permitted to introduce the
testimony of more than two physicians where the evidence of any
additional physician would be cumulative testimony. However, the
workers’ compensation judge, on his own motion, may order that any
claimant appearing before it be examined by other physicians.

In Dietz v. Lowe’s Home Centers, Inc., 14-401 (La.App. 3 Cir. 11/5/14), 151
So.3d 990, writ denied, 15-130 (La. 4/10/15), 163 So.3d 812, the employer requested

the appointment of an IME based on conflicting treatment recommendations made

by its psychologist and the employee’s treating psychiatrist. Over the employee’s

10

objection, the WCJ appointed a psychiatrist to examine the employee. After the
matter proceeded to a trial on the merits, the employee appealed, arguing that the
WC] lacked the authority to appoint an IME pursuant to La.R.S. 23:1124.1 because
there was no dispute over his condition. In finding no merit to this argument, this
court stated:

The workers’ compensation judge specifically rejected this
argument, finding that: “I want to note that claimant’s counsel has
made a big issue of the fact that there was no dispute warranting the
appointment of an IME. I appoint under 1[1]24.1, which doesn’t have
any language requiring a conflict of opinion or a dispute for the
appointment. If] have questions, I am entitled to appoint the IME, and
I did so in this case.”

As noted by the workers’ compensation judge, La.R.S. 23:1124.1
does not contain language regarding a dispute. But see La.R.S. 23:1123
(which discusses an IME appointment following a dispute as to an
employee’s condition). However, in this case, the nature of, scope of,
and appropriate treatment of Mr. Dietz’s medical condition was in
dispute. For instance, by the time the IME order was requested and
entered, Dr. Blackburn had recommended psychiatric/psychological
treatment whereas Dr. Frey recommended a more rehabilitative
cognitive-based treatment to cope with pain. Accordingly, we find no
error in the appointment of Dr. Ginzburg pursuant to La.R.S. 23:1124.1.

Dietz, 151 So.3d at 999 (alteration in original).

Therefore, we find that the WCJ did not legally err by ordering Mr. Maynard
to submit to an examination by Dr. Butaud before he had either reached MMI or had
undergone the surgery recommended by Dr. Sledge. Moreover, as pointed out in
Vanderberg v. Atlantic Southeast Airlines, 02-383 (La.App. 3 Cir. 11/13/02), 831
So.2d 1067, La.R.S. 23:1317.1(F) lays out the procedure by which an employee may
object to the WC]J’s order that he or she submit to an IME within thirty days of
receiving the order. Mr. Maynard failed to follow this procedure and, instead,
submitted to Dr. Butaud’s examination. Thus, we find that Mr. Maynard’s objection

at this late date is irrelevant. Accordingly, we find no merit in this assignment of

error.

1]

Assignment of Error Number Two

In his second assignment of error, Mr. Maynard argues that the WCJ legally
erred in denying, in part, his motion for summary judgment on the issue of penalties
and attorney fees despite the determination by Musson Patout’s utilization review
company that the requested surgery was medically necessary in accordance with the
Medical! Treatment Guidelines. However, we find that this issue has been rendered
moot because the WCJ subsequently rendered judgment awarding penalties and
attorney fees on this issue following the trial on the merits.

“A moot case is one which seeks a judgment or decree which, when

rendered, can give no practical relief.” United Cos. Lending Corp. v.
Hall, 97-2525, p. 4 (La.App. 1 Cir. 11/6/98), 722 So.2d 48, 50.

It is well established that appellate courts will not
render advisory opinions from which no practical results
can follow. United Teachers of New Orleans v. Orleans
Parish School Board, 355 So.2d 899 (La.1978). As a
result, Courts have established the rule that moot questions
will not be considered on appeal. State ex rel Guste v.
Louisiana Commission, 297 So.2d 750 (La.App. Ist
Cir.1974). So strong is this prohibition that an appellate
Court [sic], as a matter of judicial economy, has a right to
consider the possibility of mootness on its own motion and
to dismiss the appeal if the matter has become moot.
Aucoin v. Evangeline Parish Police Jury, 338 So.2d 789
(La.App. 3rd Cir.1976); Cain v. Board of Supervisors,
Ouachita Parish, 335 So.2d 711 (La.App. 2nd Cir.1976).

Wood v. Fontenot, 04-1174, pp. 3-4 (La.App. 3 Cir. 3/2/05), 896 So.2d 323, 325-26,
writ denied sub nom. City of New Iberia v. New Iberia Fire & Police Civil Serv. Bd.,
05-801 (La. 5/13/05), 902 So.2d 1023.

Accordingly, we find that this assignment of error is moot.
Assignment of Error Number Three

In his third assignment of error, Mr. Maynard argues that the WCJ abused its

discretion by only awarding him $2,000.00 in attorney fees despite him being

successful on all issues before the WCJ. We agree.

At the start of his oral reasons, the WCJ noted that the issues before him were
the amount of attorney fees owed to Mr. Maynard based on Musson Patout’s
miscalculation of his AWW and whether he was owed penalties and attorney fees
based on its failure to approve the surgery recommended by Dr. Sledge. However,
when the WCJ awarded Mr. Maynard $2,000.00 in attorney fees, he specifically
stated that this amount only applied to Musson Patout’s failure to approve the
recommended surgery.

“Under La. R.S. 23:1201(J), only one award of attorney fees can be made in
connection with a hearing on the merits, even when multiple violations have
occurred.” Shelton v. Smitty's Supply, Inc., 17-1419, p. 20 (La.App. | Cir. (6/12/18),
253 So.3d 157, 171, writs denied, 18-1195, 18-1199 (La. 11/14/18), 256 So.3d 258,
291. Thus, while we find that the WCJ correctly awarded only one attorney fee, we
find that the amount awarded, $2,000.00, was abusively low.

In Ortega v. Cantu Services, Inc., 19-202, p. 10 (La.App. 3 Cir. 10/23/19),
283 So.3d 1024, 1032-33 (alteration in original), this court stated:

“TA]ttorney’s fee awards and penalty awards are not intended to
‘compensate’ a plaintiff and thereby make him whole, but rather to
discourage certain behavior(s) on the part of the offending party. In
this case, the discouraged behavior is employers’, and employers’
insurers’, indifference toward injured employees.” Sharbono v. Steve
Lang & Son Loggers, 97-110, p. 10 (La. 7/1/97), 696 So.2d 1382, 1388,
(quoting Hood v. C.J. Rogers, Inc., 94-1162 (La.App.3 Cir. 3/8/95), 654
So.2d 371). It is equally clear “attorney’s fee awards depend for their
very existence upon a discretionary finding of the trier of fact[.]” /d.

In MeCarroil v. Airport Shuttle, Inc., 00-1123, p. 9 (La.
11/28/00), 773 So.2d 694, 700, the supreme court held:

In our determination of the respective rights of the
employee and the attorney to the statutory attorney fees, a
persuasive factor is the methodology used to calculate the
amount of the statutory attorney fees. The only limitation
on the amount is the reasonableness of the fee awarded by
the judge. Cain [v. Employers Cas. Co., 236 La. 1085,
110 So.2d 108 (1959)]. The amount awarded rests within
the discretion of the workers’ compensation judge, as long

13

as that amount is supported by the record. Some of the
factors taken into account by the judge in fixing the
amount of the fee are the degree of skill and ability
exercised by the attorney, the amount of the claim, the
amount recovered for the employee, and the amount of
time the attorney devoted to the case. H. Alston Johnson,
I], [Louisiana Civil Law _ Treatise: Workers’
Compensation Law and Practice] § 389 [ (3rd ed.1994) ].

At the close of the trial, the following colloquy took place between the WCJ
and both counsel on the attorney fee issue:

WCI: So do we have any testimony about the average
weekly wage calculation, or is it just going to
basically be argument?

Musson Patout: We handled that with the consent judgment.
WC): Right.

Musson Patout: So we have the calculation corrected, and we’ve
paid the penalty associated with that. The only issue
is the attorney’s fees.

However, Judge, very quickly, I mean, I'll just say
this very quickly. Once [Mr. Maynard’s counsel]
got on the file and we were reviewing it, we got
together very quickly and resolved the issue. So
there wasn’t a lot of ongoing litigation between the
parties with regards to the average weekly wage
issue. It was handled very relatively swiftly.

WC: Okay. So] can determine the attorney’s fees. Give
me atimeline. Two weeks? Three weeks?

Musson Patout: I would say two weeks to a month tops between —

Mr. Maynard: That would be —

Musson Patout: the 1008 and the actual consent judgment.

Mr. Maynard: The substantially greater amount of time, it’s fair to
say, has been spent arguing the surgery and

penalties and attorney’s fees associated with the
nonauthorization.

WC: Okay. All right. Anything else?

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Despite the absence of an affidavit by Mr. Maynard’s counsel itemizing the
work involved and the amount of time he spent prosecuting Mr. Maynard’s claims
pertaining to the miscalculation of his AWW and the failure to authorize the
recommended surgery, a review of the record reveals that he undertook the following
actions in this matter:

In Docket Number 18-085 13:

(1) Filed a memorandum in opposition to Musson Patout’s disputed
claim and motion to appoint an IME; (2) Filed a motion to transfer
venue to District 04, which was granted; (3) Filed a motion to set a
telephone conference; (4) Participated in the hearing on Musson
Patout’s motion to appoint an IME; (5) Filed a motion for summary
judgment; (6) Replied to Musson Patout’s opposition to the motion for
summary judgment; (7) Participated in the summary judgment hearing;
(8) Participated in the trial on the merits; and (9) Appeared at the WCJ’s
oral ruling following the trial on the merits.

In Docket Number 19-00336:

(1) Filed a disputed claim for compensation, which alleged Musson
Patout had incorrectly calculated Mr. Maynard’s_ workers’
compensation rate, failed to authorize the surgery recommended by Dr.
Sledge, and issues pertaining to Mr. Maynard’s disability status,
penalties, attorney fees, reimbursement costs, and judicial interest; and
(2) Negotiated a consent judgment, which found that Mr. Maynard was
injured in the course and scope of his employment, that Musson Patout
had miscalculated his workers’ compensation rate and owed, as a result,
a $2,000.00 penalty, and that future indemnity benefits would be
governed by the Workers’ Compensation Act.

Based on the foregoing, we find that the $2,000.00 in attorney fees awarded
by the WCJ is abusively low. Thus, we find that the lowest reasonable amount of
attorney fees that should be awarded in this matter is $5,000.00. Accordingly, the
judgment of the WCJ is amended to award $5,000.00 in attorney fees to Mr.

Maynard.

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Assignment of Error Number Four

In his fourth assignment of error, Mr. Maynard argues that the WCJ erred by
failing to award him cost reimbursement pursuant to La.R.S. 23:1310.9 and judicial
interest on all penalties, costs, and attorney fees awarded at trial. We agree.

Louisiana Revised Statutes 23:1310.9 provides that all costs shall be assessed
against the party whose denial of workers’ compensation benefits was based on an
unreasonable ground. In this instance, the WCJ found that Musson Patout acted
inappropriately by relying on the SMO and the IME to deny authorization for the
recommended surgery when the question of causation was not at issue and the
surgery had already been approved by the Medical Director. Accordingly, we find
that Musson Patout’s denial of the surgery was unreasonable, and the WCJ should
have assessed it with the total costs of this proceeding.

Further, the judgment failed to specifically provide for legal interest. A
different panel of this court in George v. Guillory, 00-591, pp. 16-17 (La.App. 3 Cir.
11/2/00), 776 So.2d 1200, 1211, noted that legal interest attaches automatically by
operation of law and stated as follows:

The fact that a workers’ compensation judge is silent as to legal
interest in his judgment does not constitute denial of such interest; legal
interest is mandatory under the workers’ compensation statute. Kortz
v. Colt Energy Servs., Inc., 97-159 (La.App. 5 Cir. 7/29/97); 698 So.2d
460. Legal interest is due on penalties and attorney fees from the date
of judgment in workers’ compensation cases. See McLaughlin v. Hill
City Oil Co./Jubilee Exxon, 97-577 (La.App. 3 Cir. 10/8/97); 702 So.2d
786, writ denied, 97-2797 (La. 2/13/98); 706 So.2d 994; Sharbono v.

Steve Lang & Son Loggers, 97-110 (La. 7/1/97); 696 So.2d 1382. This

interest automatically attaches until judgment is satisfied, whether

prayed for in petition or mentioned in judgment. See Crooks v. Town

of Ball, 94-466 (La.App. 3 Cir. 11/2/94); 649 So.2d 597.

Therefore, we amend the judgment to award legal interest to Mr. Maynard on

all sums due and all costs of the proceedings.

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Attorney Fees for Work Performed on Appeal
Finally, Mr. Maynard requests that we award him attorney fees for the work
necessitated by his appeal. Based on the fact that his counsel was successful in part
on appeal, we award Mr. Maynard an additional $2,500.00 in attorney fees for the
prosecution of this appeal.
DECREE
For the foregoing reasons, the judgment of the WC] is affirmed to amend the
award of attorney fees awarded to Jimmy Maynard from $2,000.00 to $5,000.00 and
to award him an additional $2,500.00 in attorney fees for work performed by his
counsel on appeal. We further amend the judgment to explicitly include an award
of legal interest on all penalties and attorney fees from the date of judgment until
paid, and to assess Musson Patout Automotive Group with all costs of the proceeding
betore the WCJ. Costs of this appeal are to be divided equally between the parties.

AFFIRMED AS AMENDED.

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