Debra S. Lenox v. Central Louisiana Spokes, LLC D/B/A Renegade

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-134 consolidated with 22-160

DEBRA S. LENOX

VERSUS

CENTRAL LOUISIANA SPOKES,

LLC D/B/A RENEGADE AND ZURICH AMERICAN

INSURANCE COMPANY

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION DISTRICT 02
PARISH OF RAPIDES, NO. 17-01470
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, D. Kent Savoie, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Matthew D. Crumhorn
Rabalais, Unland, LLP
70779 S. Ochsner Boulevard
Covington, LA 70433
(985) 893-9900
COUNSEL FOR DEFENDANTS/APPELLANTS/APPELLEES:
Central Louisiana Spokes, LLC
Zurich American Insurance Company

George C. Gaiennie, III
Attorney at Law
201 Johnston Street, Suite 101-B
Alexandria, LA 71309
(318) 704-5784
COUNSEL FOR PLAINTIFF/APPELLEE:
Debra S. Lenox

Christopher J. Roy, Sr.
Attorney at Law
400 C. Ansley Boulevard
Alexandria, LA 71303
(318) 446-4242
COUNSEL FOR PLAINTIFF/APPELLEE:
Debra S. Lenox

GREMILLION, Judge.

The employer and its workers’ compensation carrier, Central Louisiana

Spokes, LLC, and Zurich American Insurance Company (“Spokes”), appeal the

judgment of the Workers’ Compensation Judge (WCJ) that awarded the employee,

Debra S. Lenox, temporary total disability (TTD) benefits, supplemental earnings

benefits (SEB), and medical expenses. That judgment rejected Ms. Lenox’s

demands for penalties and attorney fees. In the consolidated matter, Ms. Lenox

appeals the credit against her medical expenses for the portion paid by her health

insurer, the order that Spokes pay those expenses directly to the various healthcare

providers, and the rejection of her demand for penalties and attorney fees. Ms.

Lenox also answered Spokes’ appeal. For the reasons that follow, we affirm the

WCJ’s judgment.

FACTS AND PROCEDURAL POSTURE

Ms. Lenox was employed by Spokes at Renegade Harley-Davidson in

Alexandria, Louisiana, as its merchandise manager. Her responsibilities included

ensuring shelves were stocked, preparing the payroll for merchandising employees,

assisting customers, and acting as a cashier. On November 22, 2016, Ms. Lenox

testified, she was retrieving some boots from a shelf when she felt “a weird pinch”

in her lumbar spine. As the day progressed, Ms. Lenox’s pain increased. Her

husband advised her to notify Spokes’ human resources manager, Ms. Gayle Stolzer,

of the incident. Ms. Stolzer directed Ms. Lenox to be seen at Kisatchie Medical

Center. Ms. Lenox was diagnosed with lumbar strain and given a cortisone injection.

She was discharged home.

That night, her pain became unbearable, and an ambulance took her to

Christus St. Francis Cabrini Hospital (Cabrini). Ms. Lenox was initially treated by

Dr. Gerald Foret, who referred her case to Dr. Gregory Dowd, a neurosurgeon. Ms.

Lenox gave Dr. Dowd a history consistent with her previous accounts of the incident.

She principally complained of lumbar pain radiating into her right leg. While Ms.

Lenox did not deny previous low back pain, she denied having pain similar to what

she was suffering.

Dr. Dowd initially suspected that Ms. Lenox had a compressed nerve. He

ordered an MRI, which was conducted on November 26, 2016. The MRI

demonstrated that Ms. Lenox had degenerative changes and facet disease at the L5-

S1 level. The following day, Ms. Lenox received an epidural steroid injection at that

level, which was performed by a radiologist.

Dr. Dowd intended to discharge Ms. Lenox on November 29, but she began

to complain of shoulder pain and pain in other areas of her body. He requested that

she be seen by Dr. Hidalgo, a neurologist, who examined Ms. Lenox and thought

she needed to be seen by a rheumatologist. There is no indication, though, that a

rheumatologist was consulted. Ms. Lenox was discharged from Cabrini on

December 1, 2016.

On December 3, 2016, Ms. Lenox was admitted to Rapides Regional Medical

Center. She was initially seen by Dr. Dowd’s partner, Dr. Lawrence Drerup. Dr.

Drerup diagnosed her with right shoulder strain, hyponatremia1, sepsis, acute kidney

injury, pneumonia, urinary tract infection, and lumbar pain with radiculopathy on

the left side. An MRI taken that day demonstrated no signs of an infection in Ms.

Lenox’s lumbar spine.

Dr. Dowd resumed treatment of Ms. Lenox. A third MRI, taken on December

9, did demonstrate a lumbar-spine infection. Dr. Dowd performed surgery to drain

an abscess at the L5-S1 level and to decompress the nerves at that level. On

1
Low sodium
2

December 21, Ms. Lenox was transferred to Christus Dubuis Hospital of Alexandria

(Dubuis Hospital), an inpatient rehabilitation hospital, where she was treated until

February 3, 2017.

Dr. Dowd last saw Ms. Lenox on June 8, 2017. At that time, he released her

to sedentary duty. By then, though, Ms. Lenox had been terminated by Spokes. She

has not worked since the incident.

Ms. Lenox initiated the present demand for workers’ compensation benefits

when she filed a Form 1008 Disputed Claim for Compensation, seeking weekly

indemnity and medical benefits. Spokes asserted that it paid compensation but only

for the initial lumbar injury and asserted that the infection was not compensable. It

filed a motion for summary judgment asserting that the infection was not causally

related to the lumbar injury. The WCJ heard that motion and granted it. Ms. Lenox

appealed that decision, and this court reversed, finding “a genuine issue of material

fact as to whether Ms. Lenox’s infection was contracted during her course of

treatment for her workplace accident”. Lenox v. Central Louisiana Spokes, LLC,

18-556, p. 7 (La.App. 3 Cir. 2/13/19), 265 So.3d 834, 840.

The case was tried on remand. Ms. Lenox and her husband testified. She

introduced a plethora of medical and payroll records, two depositions of Dr. Dowd,

and the deposition of Dr. Benjamin Reaves Hogg, the radiologist who interpreted

the third MRI. Spokes presented an equally prodigious volume of medical and

payroll records, the deposition of Ms. Stolzer, and the report and deposition of Dr.

Brobson Lutz, an infectious disease specialist.

When he first saw Ms. Lenox, Dr. Dowd noted that she was experiencing

lumbar pain radiating into her right leg. He thought at the time that she had a

compressed nerve at L5-S1 caused by a disc protrusion. After the epidural injection,

Ms. Lenox experienced relief of her radiating pain. Then she began to complain of
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pain in other areas, such as her shoulder. By the time Ms. Lenox was seen by Dr.

Drerup at Rapides Regional, she was experiencing radiating pain in her left leg. The

surgery Dr. Dowd performed at Rapides Regional drained the abscess and

decompressed the nerve on the left side, where the infection was located.

Dr. Dowd testified that the progression of imaging studies and the complaints

of pain and changes in Ms. Lenox’s laboratory studies forced him to conclude that

the epidural injection she received at Cabrini “more likely than not” caused her

infection. Dr. Dowd was asked about whether a congenital defect in her lumbar

spine, an L4-5 pars defect, predisposed Ms. Lenox to an epidural abscess. Dr. Dowd

discounted this hypothesis because the infection was not present at the L4-5 level.

Dr. Hogg testified that he not only interpreted the December 9 MRI but

reviewed the December 3 study as well. In that six-day interval, the edema around

the L5 disc, abnormal signal outside the vertebra itself, and in the spinal canal

changed significantly. In particular, the abnormal signal around the spinal canal was

not demonstrated at all in the December 3 study. According to Dr. Hogg, it was a

“reasonable possibility” that the epidural injection caused the infection.

Dr. Lutz is a board-certified internal medicine doctor with an emphasis on

infectious diseases. Prior to entering private practice, Dr. Lutz served as the Chief

of Communicable Diseases for the City of New Orleans, then as the Director of the

City Health Department. During his career, Dr. Lutz has treated “a couple of dozen”

patients with epidural abscesses. Dr. Lutz opined that Ms. Lenox was already in the

throes of such an infection when the November 22 incident occurred and that the

infection had nothing to do with her on-the-job incident.

Epidural abscess symptoms usually progress in four stages, Dr. Lutz testified:

1) back pain, perhaps with localized fever; 2) radicular pain; 3) frank neurological

deficits; and 4) paralysis. In Dr. Lutz’s opinion, Ms. Lenox was already in stage 1
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or perhaps stage 2 when she reported her complaints. He opined that it was “very

clear that this was merely the first symptom of a smoldering infectious process.”

Dr. Lutz also testified that certain conditions predispose one to developing an

epidural abscess. “[I]f somebody has, say, a back abnormality or disc disease or

something, that puts them at more risk for staphylococci that are transient[,]

circulating in the blood, say, from a little skin cut or — or inapparent boil or

something. They go to places like that like a magnet.” Ms. Lenox was predisposed

to developing an epidural abscess because she had abnormalities in her lumbar spine

from an early age, the aforementioned pars defect, as well as disc disease and

stenosis. Dr. Lutz had “no doubt” that Ms. Lenox’s infection had begun before

November 22, 2016.

Dr. Lutz buttressed his opinions with scholarly articles from The New England

Journal of Medicine and The Neuroradiology Journal, which were attached to his

deposition as exhibits.

At the close of trial, the WCJ took the matter under advisement. The hearing

reconvened when the WCJ delivered oral reasons for ruling. The WCJ recounted

the testimonies of all the witnesses. The seventeen-day lapse between the epidural

and the diagnosis of an abscess was particularly noted. The WCJ stated that he found

it:

too amazing to the Court to accept the view of Dr. Lutz that after all
these years that the staph could have been accumulating in Ms. Lenox’s
lumbar spine and just somehow by happenstance began to manifest
itself and smolder itself the very same day, but not only the very same
day, the very same time she picks up a box of boots from the shelf at
her place of employment.

The WCJ found that Ms. Lenox proved that the infection was caused by the

steroid injection. Ms. Lenox was awarded temporary total disability indemnity of

$507.54 per week from November 23, 2016, through June 7, 2017; supplemental

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earnings benefits based on a zero earning capacity from June 8, 2017; medical

expenses of $189,959.79 paid directly to Rapides Regional; medical expenses of

$26,366.06 paid directly to Cabrini; medical expenses of $32,814.15 paid directly to

Christus Cabrini Rehab; medical expenses of $139,961.47 paid directly to Dubuis

Hospital; and medical expenses totaling $3,868.79 paid directly to “Dr. Robert

Dowd.” The WCJ also awarded costs, including expert fees. The WCJ rejected Ms.

Lenox’s prayer for penalties and attorney fees.

ASSIGNMENTS OF ERROR

Spokes asserts that the WCJ committed the following errors:

1. The Workers’ Compensation Judge committed manifest error
in finding that Appellee injured her lumbar spine while in the course
and scope of her employment.

2. The Workers’ Compensation Judge committed an error of law,
warranting a de novo review, in finding that Appellee’s spinal infection
is a compensable injury in accordance with the Louisiana Workers’
Compensation Act.

3. The Workers’ Compensation Judge committed manifest error
in finding that Appellee is entitled to indemnity benefits.

4. The Workers’ Compensation Judge committed an error of law,
warranting a de novo review, in finding Appellants are responsible for
medical bills from Rapides Regional Medical Center, Christus St.
Francis Cabrini Hospital, Christus Cabrini Rehab, [Dubuis] Hospital,
Dr. [Gregory] Dowd.

In the consolidated appeal, Ms. Lenox asserts the following errors:

No. 1: The court erred in granting defendants a medical expense
offset.

No. 2: The court erred in failing to order payment of medical
expenses directly to plaintiff and instead ordering
payment directly to persons not parties to the proceeding.

No. 3: The court erred in failing to award penalties and attorney
fees.

Because Ms. Lenox’s assignments of error substantively overlap Spokes’

assignments, we will address her assignments of error in this opinion.
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ANALYSIS

De Novo Review

While Spokes assigns a legal error warranting de novo review as its second

assignment of error, we address this contention first; if de novo review is warranted,

a manifest error review is obviated. Of the application of de novo review, the

supreme court has held:

where legal error interdicts the fact finding process, the manifest error
standard no longer applies and, if the record is complete, an appellate
court should make its own de novo review of the record. However,
when the erroneous admission affects only one of several jury findings,
each jury finding pertinent to liability must be evaluated to determine
the applicability of the manifest error rule to each.

Lam ex rel. Lam v. State Farm Mut. Auto. Ins. Co., 05-1139, p. 3 (La. 11/29/06), 946

So.2d 133, 135-36 (citations omitted). “A legal error occurs when a trial court

applies incorrect principles of law and such errors are prejudicial. Legal errors are

prejudicial when they materially affect the outcome and deprive a party of

substantial rights.” Evans v. Lungrin, 97-541, p. 7 (La. 2/6/98), 708 So.2d 731, 735

(citations omitted).

The legal error Spokes maintains the WCJ committed was in holding Ms.

Lenox to an incorrect standard of proof, i.e., “coincidence.” Also, Spokes contends

that neither the WCJ nor this court should give any weight to the testimonies of Drs.

Dowd and Hogg. Considering those testimonies, Spokes maintains, also constitutes

legal error warranting de novo review.

We agree with Spokes that “coincidence” is not an accepted legal standard for

determining medical causation. The employee must prove the causal relationship

between a work-related accident and her disability by a preponderance of the

evidence in a workers’ compensation case. See White v. Fresenius Med. Care, 01-

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1023 (La.App. 3 Cir. 12/12/01), 801 So.2d 1239, writ denied, 02-138 (La. 3/28/02),

811 So.2d 945.

Taken in isolation, the quotation from WCJ’s reasons regarding whether it

was “too amazing” to accept Dr. Lutz’s opinion about the progression of Ms.

Lenox’s abscess could be taken as attributing causation of her difficulties to

coincidence. But that was certainly not all the WCJ said. He also noted that the

expert testimonies were “diametrically opposed one to the other.” The WCJ also

specifically referenced Ms. Lenox’s burden of proving causation by a preponderance

of the evidence. This court views the WCJ’s statement quoted above as merely

another fact that preponderated in Ms. Lenox’s favor.

Another error Spokes asserts was the admission of the testimonies of Drs.

Dowd and Hogg. At the commencement of trial, Spokes indicated that a motion in

limine had been filed to strike the portions of Drs. Dowd’s and Hogg’s testimonies

relating to causation. Such a motion is not found in the record. Nevertheless, the

WCJ entertained the motion and denied it.

As noted above, Dr. Dowd was deposed twice. The first deposition was

noticed and taken by Spokes. Dr. Dowd was not questioned about his qualifications

to render an opinion on causation during that deposition. The second deposition was

noticed by Ms. Lenox. As we noted above, Dr. Dowd testified that “more likely

than not,” the infection resulted from the epidural steroid injection.

The admissibility of expert testimony is governed by La.Code Evid. arts. 701-

06. The Code of Evidence begins with the proposition that opinion testimony should

be limited to those based upon rational perceptions and helpful to understanding the

witness’s testimony. La.Code Evid. art 701. However:

A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:
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(1) The expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert has reliably applied the principles and methods to the
facts of the case.

La.Code Evid. art. 702(A). In civil cases, an expert may give opinion testimony and

his reasons without disclosing the underlying facts. La.Code Evid. art. 705(A).

These can be elicited on cross-examination. Id. Whether an expert has satisfied the

requirements of Article 701(A) is within the sound discretion of the WCJ. Southern

Casing of La., Inc. v. Houma Avionics, Inc., 00-1930, 00-1931 (La.App. 1 Cir.

9/28/01), 809 So.2d 1040. “Failure of the witness to qualify as an expert pursuant

to the introductory paragraph of C.E. art. 702(A) or failure of the testimony to meet

any of the indicia of reliability or relevancy set forth in C.E. art. 702(A)(1) through

(A)(4) will render the testimony inadmissible.” Blair v. Coney, 19-795, p. 7 (La.

4/3/20), 340 So. 3d 775, 780.

We find that Dr. Dowd’s testimony was admissible on the issue of causation

of the infection. Dr. Dowd is an imminently qualified, board-certified neurosurgeon

with many years of experience. He has treated other patients who have suffered

spinal abscesses. His opinion was based on a number of facts: Ms. Lenox’s

radiculopathy initially presented as right sided, but after she presented to Rapides

Regional, those complaints had shifted to the left side, where the infection was found;

the injection brought Ms. Lenox relief from her radicular complaints; the pre-

existing pars defect in Ms. Lenox’s spine was at the L4-5 level, but the infection was

found at the L5-S1 level; while the earlier MRI studies were not performed with

contrast, which would have been optimal, they nonetheless did not demonstrate
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changes that would indicate the presence of an abscess; and, Ms. Lenox’s symptoms

and laboratory results demonstrated a progression of the infection that Dr. Dowd did

not feel was consistent with the infection being present when she first presented to

Cabrini. We find that Dr. Dowd’s testimony was properly admitted.

Dr. Hogg compared the December 3 and December 9 studies. He found a

significant change in the edema around the L5 disc and “abnormal signal outside of

the bone itself and with in front part, or anterior part, of the spinal canal that wasn’t

recognizable” in the December 3 study. Dr. Hogg opined that there was a

“reasonable possibility” that the infection was caused by the epidural.

[W]hen an employee proves that before the accident he had not
manifested disabling symptoms, but that commencing with the accident
the disabling symptoms appeared and manifested themselves thereafter,
and that there is either medical or circumstantial evidence indicating a
reasonable possibility of causal connection between the accident and
the activation of the disabling condition, the employee’s work injury is
presumed to have aggravated, accelerated or combined with his
preexisting disease or infirmity to produce his disability.

Walton v. Normandy Vill. Homes Ass’n, Inc., 475 So.2d 320, 324-25 (La.1985). This

court recently reaffirmed this principal in Johnson v. Lofton Staffing Servs., Inc., 21-

761 (La.App. 3 Cir. 5/4/22), 339 So.3d 663. Thus, the WCJ did not err in admitting

Dr. Hogg’s testimony, either. The probability he assigned to causation goes to the

weight that should be accorded his testimony and not its admissibility. We decline

to review the matter de novo.

Compensability of Ms. Lenox’s Condition

In its first assignment of error, Spokes asserts that the trial court manifestly

erred in finding that Ms. Lenox injured her lumbar spine in the course and scope of

her employment. Spokes argues that Ms. Lenox’s accident was unwitnessed, that

she was performing no action which should have caused injury, and that Dr. Lutz’s

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testimony establishes that her lumbar symptoms were caused by the infection that

she was experiencing before the incident.

“A worker’s testimony alone may be sufficient to discharge this burden of

proof, provided two elements are satisfied: (1) no other evidence discredits or casts

serious doubt upon the worker’s version of the incident; and (2) the worker’s

testimony is corroborated by the circumstances following the alleged incident.”

Bryan v. Allstate Timber Co., 98-840, p. 3 (La.App. 3 Cir. 12/16/98), 724 So.2d 853,

855. In the present matter, Ms. Lenox gave testimony that was consistent with the

accounts of the event she gave to the various healthcare providers. Ms. Stolzer’s

testimony about Ms. Lenox’s report of the incident was also consistent with these

accounts.

The only evidence that contradicts Ms. Lenox’s account is Dr. Lutz’s

testimony. This court recently reiterated an axiom of Louisiana law regarding the

trier of fact’s willingness to accept or discount the testimony of an expert witness:

The judge, being the trier of fact, is entitled “to assess the credibility
and accept the opinion of an expert just as with other witnesses” and is
“to hear and weigh expert testimony in the same manner as any other
evidence.” Head v. Head, 30,585, p. 5 (La.App. 2 Cir. 5/22/98), 714
So.2d 231, 234. As such, “[t]he effect and weight to be given the
expert’s testimony depends upon the validity of the underlying facts
relied upon by the expert, and rests within the broad discretion of the
trial judge.” Id. at 234.

M.B. v. T.B., 21-580, p. 12 (La.App. 3 Cir. 2/23/22)(unpublished opinion). This

axiom holds true in weighing the testimony of doctors. See Doucet v. Hornet Serv.

Co., 19-212 (La.App. 3 Cir. 11/20/19), 314 So.3d 23, writ denied, 19-2022 (La.

2/26/20), ___ So.3d ___.

The standard of review in this matter is manifest error. The Louisiana

Supreme Court has stated:

In Louisiana, appellate courts review both law and facts. La.
Const. art. 5, § 10(B). The applicable standard of review for a factual

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finding is the manifestly erroneous or clearly wrong standard. To
reverse a factfinder’s determination under this standard of review, an
appellate court must undertake a two-part inquiry: (1) the court must
find from the record that a reasonable factual basis does not exist for
the finding of the trier of fact; and (2) the court must further determine
the record establishes the finding is clearly wrong. Stobart v. State,
Dep’t of Transp. and Development, 617 So.2d 880, 882 (La.1993).
Ultimately, the issue to be resolved by the reviewing court is not
whether the trier of fact was right or wrong, but whether the factfinder’s
conclusion was a reasonable one. Id. If the factual findings are
reasonable in light of the record reviewed in its entirety, a reviewing
court may not reverse even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently. Id. at
882-883. Accordingly, where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be
manifestly erroneous. Id. at 883.

Nonetheless, where documents or objective evidence so
contradict a witness’s story, or the story itself is so internally
inconsistent or implausible on its face that a reasonable factfinder
would not credit the witness’s story, a reviewing court may well find
manifest error. Rosell v. ESCO, 549 So.2d 840, 844–45 (La.1989).
Where such factors are not present, however, and a factfinder’s
determination is based on its decision to credit the testimony of one
of two or more witnesses, that finding can virtually never be
manifestly erroneous or clearly wrong. Id.

S.J. v. Lafayette Par. Sch. Bd., 09-2195, pp. 12-13 (La. 7/6/10), 41 So.3d 1119,

1127-28(emphasis added).

The WCJ chose to credit Drs. Dowd’s and Hogg’s testimonies over that of

Dr. Lutz. That falls within the WCJ’s broad discretion, and we find no abuse of

that discretion. Finding no internal inconsistencies between Ms. Lenox’s account

and the circumstances of the case, we are constrained to find that the WCJ did not

manifestly err in its ruling. This assignment of error lacks merit.

Spokes also contends that the WCJ manifestly erred in finding that Ms. Lenox

is disabled and awarding her weekly indemnity benefits. It argues that no medical

evidence since June 2017 finds that Ms. Lenox cannot work. Further, it argues that

when Ms. Lenox was employed at Spokes—which had terminated her—she could

call upon the assistance of other employees to lift heavy objects and had access to

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an office from which she could perform her supervisory functions. As of June 2017,

Dr. Dowd had opined that Ms. Lenox could perform sedentary work.

The WCJ ruled:

I concluded Ms. Lenox has established by a preponderance of the
evidence ... a connection between her staph infection. So she is
awarded— I think she’s also shown by clear and convincing evidence
entitlement to temporary total disability from the date of the job
accident all the way through June 8th of [2017].

....

The reason June 8th of [2017] is because this is contained in the
medical records of Dr. Dowd. It’s contained in Dr. Dowd’s deposition
which is the deposition— the initial deposition taken May 15th; Dr.
Dowd stated— I don’t think he had seen Ms. Lenox since February of
2016. But anyway, in his deposition, he stated that Ms. Lenox was
released to work as of June 8, [2017], to sedentary duty. And by this
time, she had been terminated from Spokes Renegade Harley-
Davidson, and there’s no evidence showing that with a sedentary
restriction she could have performed her job duties completely and fully
in the soft goods section of the Harley- Davidson store.

The WCJ’s finding of disability is reviewed for manifest error. Arabie v. City

of Eunice, 629 So.2d 465 (La.App. 3 Cir. 1993). When the record demonstrates a

reasonable basis for the WCJ’s ruling, it cannot be reversed. Id.

In his testimony, Dr. Dowd did testify that he was ill-placed to opine as to Ms.

Lenox’s level of disability given the intervening years since he last saw her.

However, she did have dynamic instability in her lumbar spine. Assuming that there

was no change in her conditions, though, Dr. Dowd would still restrict Ms. Lenox’s

activities.

Ms. Lenox was discharged from Dubuis Hospital with a wheelchair; however,

she prefers to use a walker because she does not wish to be confined to a wheelchair.

She testified that “standing for any length of time” posed the foremost impediment

to performing simple activities of daily living. She is frequently unable to stand

erect.

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Spokes cites this court’s opinion in White v. WIS Int’l, 17-132 (La.App. 3 Cir.

10/25/17), 230 So.3d 246, for the proposition that Ms. Lenox has failed to carry her

burden of proof because she failed to introduce objective medical evidence of her

disability. Indeed, longstanding jurisprudence in this circuit holds that objective

expert testimony is required, as the cases cited in White illustrate. The WCJ found

that Dr. Dowd’s testimony satisfied this requirement, and we find no manifest error

in that finding. Dr. Dowd gave expert testimony that if her condition had not

changed, he would maintain the same restrictions on Ms. Lenox’s activities, and Ms.

Lenox testified that her condition had not improved. This assignment of error lacks

merit.

Medical Expenses and Offset

The WCJ awarded medical benefits for Ms. Lenox’s treatment by Cabrini,

Rapides Regional, Cabrini Rehab, Dubuis Hospital, and Dr. Dowd. Spokes

complains that these benefits were improperly awarded because Ms. Lenox’s health

insurer, United Healthcare, paid benefits on her behalf, and the providers accepted

those payments. Spokes also asserts that the WCJ erred in ordering that the benefits

be paid directly to the various providers. Spokes bases its argument on La.R.S.

23:1212, which reads:

A. Except as provided in Subsection B, payment by any person
or entity, other than a direct payment by the employee, a relative or
friend of the employee, or by Medicaid or other state medical assistance
programs of medical expenses that are owed under this Chapter, shall
extinguish the claim against the employer or insurer for those medical
expenses. This Section shall not be regarded as a violation of R.S.
23:1163. If the employee or the employee’s spouse actually pays
premiums for health insurance, either as direct payments or as itemized
deductions from their salaries, then this offset will only apply in the
same percentage, if any, that the employer of the employee or the
employer of his spouse paid the health insurance premiums.

B. Payments by Medicaid or other state medical assistance
programs shall not extinguish these claims and any payments made by

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such entities shall be subject to recovery by the state against the
employer or insurer.

“[T]he legislative history of Section 1212 indicates that it was enacted to prevent

windfall recovery by employees when an employer and a health insurer paid the

same medical expenses[.]” Olivier v. City of Eunice, 11-1054, pp. 11-12 (La.App.

3 Cir. 6/6/12), 92 So.3d 630, 638, writ denied, 12-1570 (La. 10/12/12), 98 So.3d

874. The legislation recognizes that when the employee has paid premiums for her

health insurance, her employer’s obligation to pay medical expenses is only

extinguished in the percentage the employer paid the health insurance premiums.

Spokes argues that United Healthcare paid medical expenses on Ms. Lenox’s

behalf and did not intervene in her action, and the providers accepted those payments

and have not asserted liens or otherwise demanded payment. Therefore, there is no

proof that Ms. Lenox owes any healthcare providers anything for the care she

received. Further, La.R.S. 23:1212 provides that this obligation was extinguished.

Ms. Lenox argues that no evidence was adduced demonstrating the percentage of

her health insurance premiums paid by Spokes.

Ms. Lenox counters that the award of medical expenses is a finding of fact

subject to the manifest error rule. Evidence was adduced of the amounts billed by

each healthcare provider for whose care Ms. Lenox was awarded expenses.

However, she, too, argues that the WCJ erred in awarding those directly to the

providers, who were not parties to her action.

Spokes has misconstrued Section 1212. Spokes maintains that to accept the

WCJ’s interpretation of the statute effectively eliminates the first sentence. On the

contrary, we find that Spokes’ interpretation effectively writes the remainder of the

statute out. Spokes’ obligation to reimburse medical expenses is not extinguished

when the employee’s health insurer, to which the employee has paid some or all of

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the premiums, pays her healthcare expenses; it is entitled to an offset of those

expenses in the same percentage that it paid Ms. Lenox’s health insurance premiums.

Thus, we reject Spokes’ assignment of error asserting that its obligation was

extinguished and Ms. Lenox’s assignment arguing that Spokes is not entitled to an

offset.

Similarly, Ms. Lenox’s argument fails. Ms. Stolzer testified to and presented

documentary evidence of the fact that Spokes paid 57% of the premiums to United

Healthcare. The WCJ properly applied the offset to the documented, related medical

expenses.

An employer is required to “furnish” necessary medical treatment for its

injured employee. La.R.S. 23:1203(A). “Furnish” is not defined in the Louisiana

Workers’ Compensation Law. See La.R.S. 23:1021. Elsewhere, the Louisiana

Workers’ Compensation Law refers to “payment” — a term also not defined.

References to “payment” arise in the context of weekly indemnity benefits and not

in the context of medical benefits. See, e.g., La.R.S. 23:1201.3(A).

The Louisiana Workers’ Compensation Law provides no guidance. Awarding

medical expenses to the plaintiff directly is neither mandated nor prohibited, and the

same holds true for ordering that the expenses be paid directly to the providers. The

jurisprudence is split. Spires v. Raymond Westbrook Logging, 43,690 (La.App. 2

Cir. 10/22/08), 997 So.2d 175, writ denied, 08-2771 (La. 2/20/09), 1 So.3d 495, and

Smith v. Roy O. Martin Lumber Co., 03-1441 (La.App. 3 Cir. 4/14/04), 871 So.2d

661, writ denied, 04-1311 (La. 9/24/04), 882 So.2d 1144, both stand for the

proposition that medical expenses must be awarded to the injured employee. We,

though, are persuaded by the reasoning in Moss v. Tommasi Const., Inc., 09-1419

(La.App. 3 Cir. 5/5/10), 37 So.3d 492, writs denied, 10-1243, 10-1306 (La. 9/17/10),

45 So.3d 1054, 1057.
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In Moss, a construction worker fell from a scaffold and sustained leg injuries.

His direct employer, Darson, who did not carry workers’ compensation insurance,

could not be located afterward and remained truant throughout the litigation. Shaw,

the owner of the project, had persuaded his friend, Tommasi, to assist him in the

construction job by procuring the necessary permits and supervising the work.

When Darson disappeared, Moss pursued the insurer of Shaw and Tommasi

for compensation benefits and medical expenses.2 Both Tommasi and Shaw argued

that they were not employers of Moss. While the defendants wrangled with the issue

of whom, if either, owed workers’ compensation benefits to him, Mr. Moss accrued

over $269,000 in medical expenses.

The WCJ found that Shaw, who was acting as his own general contractor in

the construction, was Moss’s statutory employer. Moss argued that the accrued

medical expenses should be paid directly to him, citing Smith, 871 So.2d 661. The

WCJ rejected this demand and ordered that the expenses be paid directly to the

providers. On appeal, this court distinguished Smith because Mr. Smith had funded

his medical expenses himself.

In the present matter, the WCJ found that Ms. Lenox personally paid no

medical expenses other than a $50.00 co-pay to Dr. Dowd for services rendered on

June 8, 2017. Spokes was ordered to pay that amount directly to Ms. Lenox. We

find no manifest error in that finding. We agree with the reasoning in Moss, 37 So.3d

492, that in such a scenario, the proper procedure places the burden of ensuring

payment of the medical expenses directly to the providers on the employer or its

insurer and not on the injured employee. Thus, we find no error in the WCJ’s ruling.

Attorney Fees and Penalties

2
Tommasi and Shaw were separately insured by the same carrier.
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Penalties and attorney fees are governed by La.R.S. 23:2101. “The

unambiguous language of La.R.S. 23:1201 clearly establishes that penalties and

attorney fees for failure to timely pay benefits shall be assessed unless the claim is

reasonably controverted or such nonpayment results from conditions over which the

employer or insurer had no control.” Brown v. Texas-LA Cartage, Inc., 98-1063, p.

8 (La. 12/1/98), 721 So.2d 885, 890.

[T]o determine whether the claimant’s right has been reasonably
controverted, thereby precluding the imposition of penalties and
attorney fees under La.R.S. 23:1201, 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.

Id. The WCJ’s decision to award penalties and attorney fees is reviewed under the

manifest error standard. Ryan v. Cajun Indus., L.L.C., 20-617 (La.App. 3 Cir.

11/3/21), 330 So.3d 324.

The WCJ found that Ms. Lenox’s case represented a “close” one. Competent

doctors disagreed on the issue of causation. The treating physicians, who had

actually examined and treated Ms. Lenox, felt that the steroid injection introduced

the staph into Ms. Lenox’s lumbar spine, while Dr. Lutz, the infectious disease

expert who possessed a more focused expertise, did not. The WCJ also noted that

summary judgment had been granted Spokes earlier on the issue of causation, which

was reversed by this court. Lenox, 265 So.3d 834.

We agree with the WCJ that Spokes did not engage “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, 721 So.2d at 890.

This assignment of error lacks merit.

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Answer to the Appeal

Ms. Lenox has answered Spokes’ appeal but requested no relief not sought in

her brief.

CONCLUSION

The WCJ credited the testimonies of Ms. Lenox, her husband, and Drs. Dowd

and Hogg. The WCJ’s determination in this case, with no internal inconsistencies

in their testimonies, cannot be manifestly erroneous. Similarly, the WCJ is free to

weigh the testimony of experts. The WCJ’s decision to credit the expert testimony

of the treating physicians over the testimony of Dr. Lutz does not constitute manifest

error.

When an employee’s health insurer has paid her medical expenses from a

compensable injury, the employer’s obligation for medical expenses is subject to an

offset in the same percentage as it contributed to the premiums for the health

insurance. In the present matter, the WCJ correctly applied Spokes’ offset against

the medical bills. The WCJ also properly placed the burden of ensuring proper

payment of those bills on the employer and its insurer, thus relieving the employee

of that task.

While Spokes’ efforts at trial and on appeal did not succeed, it did not engage

in a frivolous legal dispute. Spokes presented factual and medical information to

reasonably counter the factual and medical information presented by the claimant

throughout the time it refused to pay all or part of the benefits allegedly owed,

including the pendency of this appeal.

The judgment of the Workers’ Compensation Judge is affirmed. All costs of

this appeal are taxed to Central Louisiana Spokes, LLC, and Zurich American

Insurance Company.
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AFFIRMED.

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