Karessa L. Thibodeaux v. High Hope Care Center

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 23-94

KARESSA L. THIBODEAUX

VERSUS

HIGH HOPE CARE CENTER

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 22-02182
CHRISTOPHER T. LEE, WORKERS’ COMPENSATION JUDGE

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GUY E. BRADBERRY
JUDGE

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Court composed of Gary J. Ortego, Ledricka J. Thierry, and Guy E. Bradberry,
Judges.

REVERSED AND RENDERED.

Thomas E. Townsley
711 Pujo Street
Lake Charles, LA 70601
(337) 430-0994
COUNSEL FOR PLAINTIFF/APPELLANT:
Karessa L. Thibodeaux

Patrick A. Johnson
Parker and Landry
4023 Ambassador Caffery, #320
Lafayette, LA 70503
(337) 362-1602
COUNSEL FOR DEFENDANT/APPELLEE:
High Hope Care Center

BRADBERRY, Judge.

In this workers’ compensation matter, Karessa Thibodeaux appeals the

decision of the workers’ compensation judge (WCJ) below denying her penalties

and attorney fees for the denial of surgery to repair a shoulder injury sustained as a

result of a workplace accident. For the following reasons, we hereby reverse the

decision of the trial court and render judgment.

On June 15, 2017, Ms. Thibodeaux was working for High Hope Care Center

when she slipped and fell on a freshly mopped floor. She injured her back and

right knee directly in the accident. She was awarded workers’ compensation

benefits as a result of a trial on that matter. In June of 2019, Ms. Thibodeaux filed

a new suit alleging that due to her original injuries, her legs gave out, resulting in

another fall injuring her neck, left shoulder, arm, and wrist. Prior to trial, the

parties stipulated to the injuries and that they were causally related to the original

accident.

On March 15, 2022, Ms. Thibodeaux’s orthopedic surgeon, Dr. Brett Cascio,

sought approval from High Hope’s insurer for a laparoscopic labrum repair surgery

for her shoulder, along with physical therapy and other post-operative needs.

When no response was received from High Hope’s insurer, Dr. Cascio filed a form

1009 with the office of workers’ compensation medical director seeking

authorization for the surgery. That form 1009 was denied by the medical director,

who claimed that the submitted documents did not show Ms. Thibodeaux met the

Medical Treatment Guidelines, claiming there was no showing made of

conservative treatment prior to surgery. Ms. Thibodeaux then filed the current

form 1008 with the WCJ. After a trial on the matter, the WCJ found that Ms.

Thibodeaux had shown clear and convincing evidence that the medical director’s

decision should be reversed and that she was entitled to surgery. However, despite

awarding costs against High Hope, the WCJ found that “the record does not

support an award of penalties and attorney fees.” From that decision, Ms.

Thibodeaux appeals.

The sole assignment of error before this court is Ms. Thibodeaux’s assertion

that the WCJ erred in denying penalties and attorney fees. We agree.

Louisiana Revised Statutes 23:1203(A) requires an employer to furnish an

injured worker with “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.” “It is well settled that the failure to authorize or pay for

medical treatment equates to the failure to furnish benefits, which can subject an

employer to penalties and attorney fees.” Romero v. Garan’s, Inc., 13-482, p. 3

(La.App. 3 Cir. 8/6/14), 145 So.3d 1120, 1122. Louisiana Revised Statutes

23:1201(F) provides that a claimant is entitled to an award of penalties and

attorney fees for an employer’s failure to pay compensation or medical benefits

unless the employer has reasonably controverted the claim. An employer

reasonably controverts a claim when it provides sufficient factual and/or medical

information to present an articulable and objective reason to deny payment at the

time it took action. Calhoun v. Sanderson Farms, Inc., 22-478 (La.App. 1 Cir.

12/16/22), 357 So.3d 354. Whether an employer reasonably controverted a claim

is a question of fact that is subject to the manifest error standard of review. Id;

Ducote v. Louisiana Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

“To avoid penalties and attorney[’]s fees for the nonpayment of benefits, the

employer or insurer is under a continuing duty to investigate, to assemble, and to

assess factual information before denying benefits.” George v. Guillory, 00-591, p.

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13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209, overruled on other grounds,

Smith v. Quarles Co., 04-179 (La. 10/29/04), 885 So.2d 562.

Here, the medical director initially denied the surgery Dr. Cascio sought for

Ms. Thibodeaux, noting that the submitted documents did not support surgery

“without a trial of conservative therapy as per the guidelines.” However, the

record actually shows that in 2019, a full three years prior to the filing of the form

1010 at issue, Ms. Thibodeaux had received multiple steroid injections in her

shoulder from Dr. Cascio. Both shots included lidocaine. The first of these shots

gave roughly twenty-four hours of complete relief. In deposition, Dr. Cascio

testified that those injections would be considered conservative treatment. There is

nothing in the record to dispute that assertion. Moreover, Ms. Thibodeaux was

also seen multiple times in 2018 by Dr. Jerome Arimura. His medical records

indicate that Ms. Thibodeaux continued “to experience severe pain” in her

shoulder “[d]espite conservative therapy.” The record further indicates that Ms.

Thibodeaux received chiropractic therapy on her shoulder multiple times in 2018

and 2019 at Advanced Medical and Diagnostic Center. Dr. Cascio asserted that

chiropractic therapy along with the injections he administered were sufficient

conservative therapy to justify surgery. The WCJ below obviously agreed.

High Hope presented a second medical opinion from Dr. Matthew Williams

stating that he believed Ms. Thibodeaux should only receive surgery if an

intraarticular injection of lidocaine “demonstrate[d] near complete relief of her

shoulder symptoms.” His review of Dr. Cascio’s records indicated that the prior

steroid injections had provided no relief. However, Dr. Cascio’s records clearly

show that Ms. Thibodeaux did receive twenty four hours of complete relief, which

according to Dr. Cascio, was an indicator that surgery would be an effective

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treatment for her injury. While Dr. Cascio did not give the specific intraarticular

injection suggested by Dr. Williams, he believed the shots he had administered

were sufficient to meet the guidelines and testified that the shot recommended by

Dr. Williams was effectively indistinguishable from the ones he had already given.

The medical records in this case are clear that Ms. Thibodeaux had treatment

that should be considered conservative in the injections and chiropractic treatment

prior to the denial of the surgery by High Hope, who clearly had the information

before them at the time of their decision to deny the surgery. Had High Hope

performed its continuing duty to investigate, to assemble, and to assess factual

information before denying benefits, it would have known that conservative

treatment had indeed been performed on Ms. Thibodeaux. Accordingly, we find

that the trial court erred in denying her penalties and attorney fees for High Hope’s

denial of her surgery. We hereby award Ms. Thibodeaux $5,000 in attorney fees

for the denial of her surgery.

While Ms. Thibodeaux seeks multiple penalties for High Hope’s alleged

denial of multiple post-operative treatment and devices such as an ice machine or a

sling, we note that those items and treatments are part and parcel with the surgery

itself and are not separate items denied by High Hope, which would garner further

penalties. 1 Those requested benefits all require the surgery itself to be necessary.

Moreover, only one thing was sought in her form 1008, the arthroscopic surgery

itself, and only that one thing was denied by High Hope. Therefore, we only

award $2,000 in penalties for the denial of the surgery.

1
See Ducote, 980 So.2d 843; Wyble v. Acadiana Preparatory Sch., 07-91 (La.App. 3 Cir.
5/2/07), 956 So.2d 722, writ denied, 07-1178 (La. 9/14/07), 963 So.2d 1004.

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Ms. Thibodeaux also requests additional attorney fees for work done on

appeal. It is well-established that a workers’ compensation claimant who is

successful on appeal may be entitled to an award of additional attorney fees for

work done on the appeal. McCain v. Motel 6, 19-653 (La.App. 3 Cir. 3/4/20), 297

So.3d 136, writ denied, 20-764 (La. 10/6/20), 302 So.3d 535. Ms. Thibodeaux was

clearly successful in this appeal. As such, we award her an additional $5,000.00 in

attorney fees for work done on appeal.

For the above reasons, we hereby reverse the decision of the WCJ below.

We hereby render judgment awarding Ms. Thibodeaux $2,000 in penalties and

$5,000 in attorney fees for the denial of her shoulder surgery. We further award an

additional $5,000 in attorney fees for work done on this successful appeal. Costs

of this appeal are hereby assessed against High Hope.

REVERSED AND RENDERED.

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