Kevin Jones v. Craft Resource Solution & Accident Fund Ins. Company of America

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-554

KEVIN JONES

VERSUS

CRAFT RESOURCE SOLUTION AND
ACCIDENT FUND INSURANCE
COMPANY OF AMERICA

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NUMBER 22-01869
ANTHONY PALERMO, WORKERS’ COMPENSATION JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Sharon Darville Wilson, Gary J. Ortego, and Clayton Davis,
Judges.

AFFIRMED.

Lawrence Blake Jones
Rebecca M. Massa
BLAKE JONES LAW FIRM, LLC
701 Poydras Street, Suite 4100
New Orleans, Louisiana 70139
(504) 525-4361
COUNSEL FOR CLAIMANT/APPELLANT:
Kevin Jones

Eric J. Waltner
ALLEN & GOOCH, A Law Corporation
2000 Kaliste Saloom Road, Suite 400
Lafayette, Louisiana 70508
(337) 291-1400
COUNSEL FOR DEFENDANTS/APPELLEES:
Craft Resource Solutions, LLC
Accident Fund General Insurance Company

WILSON, Judge.

Claimant, Kevin Jones (Jones), appeals the judgment rendered in favor of his

employer, Craft Resource Solutions, LLC (Craft Resource), and its workers’

compensation insurer, Accident Fund General Insurance Company (Accident Fund).

For the following reasons, we affirm the judgment in its entirety.

I.

ISSUES

Jones alleges the following assignments of error:

1. The Trial Court committed legal error in finding that Claimant-
Appellant’s average weekly wage should be based on a forty-hour
presumption rather than the actual hours worked.

2. The Trial Court erred in finding indemnity benefits are not owed
from March 28, 2022.

3. The Trial Court erred in failing to award [C]laimant past temporary
total indemnity from date benefits were terminated, March 28, 2022,
until March 4, 2024.

4. The Trial Court erred in not finding supplemental earnings benefits
are due from March 4, 2024, until present.

5. The Trial Court was manifestly erroneous in finding that
Defendant[s]-Appellees reasonably controverted Claimant-
Appellant’s claims for improper termination of indemnity benefits.

6. The Trial Court committed manifest error in finding Dr. Michael
Duval is [C]laimant’s choice of physician and not Dr. Malcolm
Stubbs.

7. The Trial Court committed legal error in finding [C]laimant owes
reimbursement for an unauthorized settlement forfeiting all benefits
from December 15, 2019[,] until [C]laimant buys back the amount
of the settlement.

8. The Trial Court committed legal error in denying Claimant-
Appellant’s claims for penalties and attorney’s fee[s].

9. The Trial Court committed legal error in denying Claimant-
Appellant’s claims for costs and legal interest.

II.

STANDARD OF REVIEW

“Factual findings in workers’ compensation cases are subject to the manifest

error or clearly wrong standard of appellate review.” Banks v. Indus. Roofing &

Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556. “Even

though an appellate court may feel its own evaluations and inferences are more

reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable

inferences of fact should not be disturbed upon review where conflict exists in the

testimony.” Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880, 882

(La.1993). “[W]here two permissible views of the evidence exist, the factfinder’s

choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 883.

However, “[w]hen legal error interdicts the fact-finding process in a workers’

compensation proceeding, the de novo, rather than the manifest error, standard of

review applies.” Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp., 11-179, p.

3 (La.App. 4 Cir. 6/29/11), 70 So.3d 988, 990 (emphasis in original). In this case,

as discussed below, we do not find that the WCJ committed any legal errors and

review this matter under the manifest error standard of review.

III.

FACTS AND PROCEDURAL HISTORY

Craft Resource is a staffing company that provides general laborers and fitters

to its clients. Jones was hired by Craft Resource in August of 2018. Jones contends

that he attended a tank cleaning safety class from August 6–12, 2018, in Carencro,

Louisiana, in anticipation of a job as a tank cleaner. 1 Jones started work as a

1
Randy Martin (Martin), the owner of Craft Resource, testified that Jones did not attend a
tank cleaning safety class and instead was doing administrative work to get things ready for the
job at the paper mill.

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supervisor for a short-term project at a paper mill in Dodson, Louisiana, on

September 15, 2018. Just a few days later, on September 21, 2018, Jones was driving

a van to take a person whose employment had been terminated to the bus station.

He swerved to avoid a vehicle and hit a concrete column while travelling at

approximately fifteen to twenty miles per hour. Jones alleges that his knee hit the

dashboard and that the airbag struck his face, causing severe injuries. He reported

injuries to his mouth, teeth, forearm, right knee, neck, back, and right shoulder.

After working a few days of light duty, Jones was restricted to no-work status

by Dr. Michael Heard.2 Martin testified that Jones worked light duty for the rest of

the project and was laid off with everyone else when the project ended.

Jones underwent multiple surgeries over the next two years. Jones had two

surgeries on his right knee (arthroplasty performed by Dr. Duval in November of

2019, and arthroscopy performed by Dr. Malcolm Stubbs on September 17, 2021);

neck surgery, right shoulder surgery, right carpal tunnel and trigger thumb release,

and dental work.

On December 14, 2018, Jones was involved in another automobile accident

as a passenger in a car that was hit by a truck that fled the scene of the accident. He

was injured in this accident and settled his claims for $2,000.00, without filing a

lawsuit.

On April 14, 2020, Dr. Gregory Gidman performed an independent medical

examination (IME) at the Acadiana Center for Orthopedic and Occupational

Medicine. Dr. Gidman opined that Jones “most probably has reached MMI

[maximum medical improvement]” with respect to his cervical and lumbar spine but

was “still quite symptomatic to the right knee and to the right shoulder area, as well

2
Jones had treated with Dr. Heard for injuries received in a 2007 accident.
3

as to his lower back and to his cervical spine area.” Dr. Gidman indicated that Jones’

activity level would be sedentary to light.

On May 15, 2020, Jones participated in a functional capacity evaluation (FCE)

at the Fontana Center. Shortly thereafter, Jones participated in another FCE

performed at a facility chosen by his counsel.

Craft Resource and Accident Fund admitted that Jones was in the course and

scope of his employment on the day of the subject accident but disputed the extent,

scope, nature, and duration of Jones’ injuries. Craft Resource and Accident Fund

paid workers’ compensation benefits, indemnity benefits, and medical benefits.

Craft Resource and Accident Fund terminated indemnity benefits on March

28, 2022. They had been paying Jones $665.00 per week. Craft Resource and

Accident Fund contended that Jones was overpaid indemnity benefits by $265.00

per week as of February 1, 2022, with a total overpayment of $45,482.57. Jones

filed a disputed claim for compensation, form 1008, on March 20, 2022.

Dr. Thad Broussard performed an IME on November 29, 2022, and concluded

that Jones could not return to the type of work that he was doing at the time of the

subject accident but that an up-to-date FCE was necessary to determine whether

Jones was able to return to some type of gainful employment. Jones participated in

two FCEs in February and March of 2023. On February 1, 2023, David W. Hite

(Hite) conducted an FCE. Hite noted that he “did not observe any self-limiting,

guarded or exaggerated behavior” and that it was his “opinion that the results of this

evaluation represent a valid and reliable description of the patient’s current

functional capabilities and limitations.”

Trevor Bardarson (Bardarson) conducted an FCE on March 30, 2023, and

concluded that Jones could work at a demand level of sedentary to light. Bardarson

opined that Jones “likely has a greater ability due to the presence of submaximal
4

efforts” and “recommended that the results of this FCE be accepted as an indicator

of what [Jones] is willing to do at this time rather than as an indicator of true

maximum functional capacities.” (Emphasis in original.)

Jones obtained leave of court to file an amended form 1008 on August 24,

2023. Jones sought to have the court recognize Dr. Stubbs as Jones’ choice of

physician for treatment of Jones’ right knee. Craft Resource and Accident Fund

answered the amended form 1008 and alleged that Jones was doctor shopping.

On December 11, 2023, Dr. Thomas R. Butaud performed an IME and

concluded that Jones was at MMI and suggested that an FCE be done. Dr. Butaud

suggested that Jones do a work hardening program with significant stretching. Using

the Guides to the Evaluation of Permanent Impairment, Sixth Edition, Dr. Butaud

assigned Jones a fourteen percent (14%) whole person impairment.

In early 2024, two doctors opined that Jones could perform light/sedentary

work. In his deposition taken on February 5, 2024, Dr. Butaud opined that Jones

could do sedentary to light-duty work. On March 4, 2024, Dr. Stubbs released

claimant to light/sedentary work pending a right knee replacement.

At the time of trial, March 14, 2024, Jones remained under the care of Dr.

Stubbs for right knee pain, Dr. Mark McDonnell for back pain, and Dr. Daniel

Hodges for pain management.

In ruling on this matter, the WCJ stated:

There were various misstatements of fact by Mr. Jones both [sic] about
the wages earned, the wage rate, the accident, the injuries, prior
accidents, prior injuries, prior claims with regards to accidents. The
claimant has a long history with regards to prior accidents and prior
claims, and throughout his testimony there were various times that there
were misstatements with regards to his prior treatment, injuries,
accidents, and claims.

On July 10, 2024, the WCJ signed a judgment in favor of Craft Resource and

Accident Fund. The judgment found as follows: (1) the average weekly wage is
5

$600.00 based on the forty-hour presumption with a corresponding workers’

compensation rate of $400.00; (2) Jones is capable of light-duty employment with

the ability to earn ninety percent (90%) of his average weekly wage; (3) indemnity

benefits are not owed from March 28, 2022; (4) Jones’ choice of physician is Dr.

Duval; (5) Jones is not entitled to indemnity benefits based on vocational

rehabilitation identifying jobs, which are within his physical limitations and enable

him to earn ninety percent (90%) of his pre-accident wages; (6) Jones entered into

an authorized settlement on December 15, 2019; (7) Jones owes reimbursement for

an unauthorized settlement and forfeits all benefits from December 15, 2019, until

he buys back the amount of the settlement; and (8) this claim is dismissed with

prejudice. Jones requested reasons for judgment and timely filed a devolutive

appeal. The trial court gave oral reasons for ruling on July 16, 2024.

IV.

LAW AND DISCUSSION

Calculation of Average Weekly Wage

“The calculation of a claimant’s average weekly wage is a factual finding

subject to the manifest error-clearly wrong standard of review.” Nitcher v.

Northshore Reg’l Med. Ctr., 11-1761, p. 17 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001,

1013, writ denied, 12-1230 (La. 9/21/12), 98 So.3d 342. Louisiana Revised Statutes

23:1021(13)(a)(i) (emphasis added) provides for the determination of the average

weekly wage as follows: “If the employee is paid on an hourly basis and the

employee is employed for forty hours or more, his hourly wage multiplied by the

average actual hours worked in the four full weeks preceding the date of the accident

or forty hours, whichever is greater[.]”

“It is well settled that overtime and bonuses are to be considered in the

calculation of a claimant’s average weekly wage.” Henry v. Bolivar Energy Corp.,

6

95-1691, p. 3 (La.App. 3 Cir. 6/5/96), 676 So.2d 681, 683, writ denied, 96-1749 (La.

10/11/96), 680 So.2d 644. However, the courts differ in determining how to apply

La.R.S. 23:1021(13)(a) when the employee worked less than four full weeks prior

to the accident.

Jones was paid $7.25 per hour for working thirty-two hours for the pay period

of August 6–12, 2018. Jones worked only four days. This hourly rate cannot be

used in determining Jones’ average weekly wage because it is not encompassed in

the four weeks preceding the day of the accident. Jones states in brief that “it would

be improper, unfair, and incorrect to use the August dates in calculation of the

average weekly wage in this claim.” We note that the WCJ did not consider those

dates in the calculation of the average weekly wage.

For the pay period of September 10–16, 2018, Jones was paid $15.00 per hour

for nineteen hours and $15.00 per hour for ten hours of driving time. From

September 17–23, 2018, the week of the accident, Jones was paid $15.00 per hour

for forty hours and $22.50 per hour for forty-five overtime hours at $22.50.

It is clear that Jones did not work for a full four weeks prior to the date of the

accident. The WJC found that the forty-hour presumption based on the rate of

$15.00 per hour should be utilized and found that Jones’ average weekly wage was

$600.00, with a compensation rate of $400.00.

Jones contends that the WCJ committed legal error in improperly calculating

his average weekly wage by applying the forty-hour presumption. He contends that

his work schedule was twelve hours per day, seven days per week for the duration

of the project, which was expected to be ninety days. Jones contends that his average

weekly wage was the maximum of $886.38,3 with a compensation rate of $665.00,

3
In his disputed claim for compensation, Jones alleged that his average weekly wage was
$1,612.50, which is based on his working eighty-five hours (forty hours at $15.00 per hour and
forty-five hours at $22.50 per hour) for the September 17–23, 2018 pay period.
7

based on his working sixty-six hours for a time period of six consecutive days until

the accident. He notes that “[d]espite working at least 66 hours in a 6 day period,

only 9 hours of overtime included because the earnings are reflected over two pay

periods. Claimant’s overtime started to accrue on the 4th shift of the weekly pay

period, September 20[.]”

Jones cites several cases in support of his position, but Craft Resource and

Accident Fund argue that all of them can be distinguished. In Vincent v. Justiss Oil

Co., Inc., 94-329 (La.App. 3 Cir. 11/2/94), 649 So.2d 508, writ denied, 94-2869 (La.

1/27/95), 650 So.2d 242, the claimant had only been employed ten days prior to his

injury. In those days, the employee worked 118 hours. The defendants argued that

the average weekly wage should be determined by dividing 118 by four weeks. This

court said:

The flaw in this argument is Toby worked only two weeks before he
was injured. The statute clearly instructs us to calculate an employee’s
weekly wage by using the hours worked in the four weeks before the
accident, i.e., it is assumed the employee has worked for the employer
for at least four weeks. If we were to divide the number of hours Toby
worked by four, we would include time when Toby was not employed
by Justiss. This calculation method is unjust. The result arrived thereby
is not supported by the statute and conflicts with our jurisprudential rule
to liberally construe worker’s compensation statutes in favor of the
injured worker. See Fusilier v. Slick Construction Co., 640 So.2d 788
(La.App. 3 Cir. 1994); Lester v. Southern Casualty Ins. Co., 466 So.2d
25 (La.1985).

Id., at 510. This court went on to affirm the calculation of the average weekly wage

by dividing 118 by two weeks to arrive at fifty-nine average hours. The hourly rate

was $9.00 multiplied by forty hours ($360.00) plus overtime wages of nineteen hours

at $13.50 per hour ($256.50) for a total of $616.50 as the average weekly wage.

However, using this method of calculation depends on the jurisprudential rule

of liberal construction in favor of the injured worker. See Upchurch v. Randall Well

Serv., 45,056 (La.App. 2 Cir. 4/14/10), 34 So.3d 500, and Fusilier, 640 So.2d 788.

8

As recognized in Juarez v. AJ Lazlo Construction, LLC, 22-575 (La.App. 5 Cir.

9/20/23), 370 So.3d 1280, this rule has been overruled by statue. In 2012, the

Louisiana Legislature enacted La.R.S. 23:1020.1(D)(2), which states, in part: “the

laws pertaining to workers’ compensation shall be construed in accordance with the

basic principles of statutory construction and not in favor of either employer or

employee.” All of the cases cited by Jones were decided before 2012, except Ceasar

v. Flexforce Employment Professionals, Inc., 23-586 (La.App. 3 Cir. 3/20/24), 381

So.3d 1072, wherein this court recently declined to follow Juarez. However, in

Ceasar, the claimant worked 130.75 hours in the three weeks prior to the accident,

and this court found that the WCJ committed manifest error by ignoring the

jurisprudence regarding overtime wages. This court calculated Ceasar’s average

weekly wage of $544.44 by dividing 130.75 by the three weeks he worked to arrive

at an average of 43.58 hours per week, then multiplying forty hours by his $12.00

per hour wage ($480.00) plus 3.58 hours of overtime at $18.00 per hour ($64.44).

Such is not the case here. The WCJ did not ignore Jones’ overtime wages,

and there were no full work weeks preceding the accident on which to base the

calculation. There is no legislative or jurisprudential authority for Jones’ suggestion

that we pick certain days out of two different work weeks or base his average weekly

wage on what he expected to make. Further, the cases cited by Jones suggest that

the proper calculation is to divide the regular and overtime hours worked by the

number of weeks worked to determine the average number of hours worked per

week, but this is not the calculation that Jones wants to use in his own case.

Here, the WCJ followed the basic rules of statutory construction and did not

commit legal error in using the forty-hour presumption because La.R.S.

23:1021(13)(a)(i) (emphasis added) provides that the court use “the average actual

hours worked in the four full weeks preceding the date of the accident or forty hours,
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whichever is greater[.]” Since there are not four full weeks, the forty-hour

presumption applies. Finding no legal or manifest error, we affirm the WCJ’s

finding as to Jones’ average weekly wage.

Unauthorized Settlement and Forfeiture of Benefits

In McCallon v. Energy Services, LLC, 18-880, p. 10 (La.App. 3 Cir. 4/24/19),

271 So.3d 249, 258, writ denied, 19-850 (La. 9/17/19), 279 So.3d 381, this court

explained: “If an employee settles a personal injury claim against a ‘third person’

without his employer’s consent, he forfeits ‘the right to future compensation,

including medical benefits.’ La.R.S. 23:1102(B).” The employer must prove: “(1)

an aggravation of the work-related injury, and (2) the payment of benefits as a result

of the aggravation.” Hatchell v. St. Michael PFU, LLC, 22-46, p. 5 (La.App. 3 Cir.

3/1/23), 358 So.3d 596, 600.

In an amended answer filed on October 3, 2022, Craft Resource and Accident

Fund claimed that the December 14, 2018 accident caused an aggravation of Jones’

injuries and that Jones’ unauthorized settlement of that claim should result in a

forfeiture of the right to prosecute his workers’ compensation case against them until

he buys back pursuant to La.R.S. 23:1101, et seq. Following the trial, the WCJ found

that the settlement was unauthorized and resulted in a forfeiture of benefits.

At trial, both his own counsel and defense counsel questioned Jones about the

December 14, 2018 accident. He testified that a day or two after the hit-and-run

accident, he went to University Medical Center for complaints of left hip and back

pain. His hip was not injured in the work-related accident, but his back was. Jones

testified that the back pain from the hit-and-run accident “was a little different” and

lasted about four days. Jones admitted that he did not reach out to Craft Resource

of Accident Fund for permission to settle his claim:

10

Q. All right. So just to clarify, you settled a motor vehicle accident
that occurred after our accident where among your injuries was your
lower back, and you settled that without getting permission for either
the employer or the workers’ comp carrier to do that?

A. That is correct.

Martin testified that he did not know anything about the December 14, 2018

accident and settlement and did not consent to the settlement.

Jones contends that Craft Resource and Accident Fund failed to prove that the

December 14, 2018 accident resulted in an aggravation to his work-related injuries.

Jones points to his deposition testimony that his pain was not worsened by the impact

of the hit-and-run accident. But, Jones did testify at trial that the December accident

cause pain in his back and that he told the doctor that the left side of his back was

hurting immediately after the December accident. We find no manifest error in the

WCJ’s finding that the December accident aggravated his back injury, that benefits

were paid as a result of the aggravation, that Jones settled his claim with regard to

the December accident without the approval of Craft Resource and/or Accident

Fund, and that this unauthorized settlement resulted in the forfeiture of benefits.

Benefits

Jones asserts that if this court agrees that his average weekly wage should

include overtime hours, his correct compensation rate is $665.00, and he is owed

past temporary total disability (TTD) benefits in the amount of $67,168.00 (101

weeks at $665.00 per week). Jones argues that he was entitled to past temporary

total indemnity benefits from the date benefits were terminated, March 28, 2022,

until he was released to return to work on March 4, 2024. He asserts that he is

entitled to supplemental earnings benefits (SEB) for the period from March 4, 2024,

to present in the amount of $223.18 per week (based on an average weekly wage of

$886.38 and his ability to work at a light/sedentary job at $13.79 per hour).

11

Craft Resource and Accident Fund assert that all benefits paid after the date

of the unauthorized settlement, December 15, 2019, were forfeited such that Jones

received monies that he was not owed and that all benefits paid after December 15,

2019, are credited towards future benefits, if any are owed. Evidence introduced at

trial established that Craft Resource and Accident Fund paid a total of $118,600.50

to Jones. They argue that based on an average weekly wage of $600.00 and the

corresponding compensation rate of $400.00, that total payment covers 296.5 weeks,

which would cover payments through June 13, 2024, three months after the trial of

this matter, such that no further benefits are owed.

Louisiana Revised Statutes 23:1221(1) provides that an employee who suffers

a work-related injury is entitled to TTD when he cannot engage in any self-

employment or occupation for wages, and such benefits “shall cease when the

physical condition of the employee has resolved itself to the point that a reasonably

reliable determination of the extent of disability of the employee may be made and

the employee’s physical condition has improved to the point that continued, regular

treatment by a physician is not required.”

Louisiana Revised Statutes 23:1221(3) provides that an injured employee who

is entitled to SEB when the work-related injury results in an inability to earn at least

ninety percent (90%) or more of his pre-injury wage. “The employee bears the initial

burden of proof to show that the injury resulted in an inability to earn that amount.”

Guillory v. St. Michael PFU, LLC, 23-674, p. 9 (La.App. 3 Cir. 4/17/24), 389 So.3d

140, 147. If the employee meets this burden, “the burden shifts to the employer who

must prove that the employee is physically able to perform a certain job and that

such a job was offered to the employee or available to the employee in her or the

employer’s reasonable geographic location.” Id. citing La.R.S. 23:1221(3)(c)(i).

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Ashley Barbier (Barbier) was accepted as an expert in the field of vocational

rehabilitation counseling. She first interviewed Jones on May 18, 2023. She

testified that Jones had transferable skills in the areas of customer service,

preventative maintenance, technical skills, safety procedures, active listening,

attention to detail, problem solving, and adaptability. She did a job search within a

thirty-mile area of Jones’ residence in New Iberia, Louisiana. Most of the jobs she

identified were in Lafayette, Louisiana. Barbier testified that Jones told her that he

had not thought about what kind of jobs he could do because he was still waiting on

treatment. Barbier identified several different jobs and notified Jones’ counsel of

their availability. The jobs were: (1) patient access representative at Ochsner Heath

Systems at $13.00 per hour for forty hours per week, approved by Dr. Duval, Dr.

Gidman, Dr. Williams, and Dr. McDonnell; (2) dispatcher at Acadian Ambulance at

$15.00 per hour, approved by Dr. Duval, Dr. Gidman, Dr. Williams, and Dr.

McDonnell; (3) customer service representative at State Farm at $14.00 per hour for

forty hours per week, approved by Dr. Duval, Dr. Gidman, Dr. Williams, Dr.

McDonnell, and Dr. Stubbs; (4) dispatcher at Halliburton at $12.50 per hour for forty

hours per week, approved by Dr. Duval, Dr. Gidman, Dr. Butaud, and Dr.

McDonnell; (5) patient access representative at CIS at $13.00 per hour for forty

hours per week, approved by Dr. Duval, Dr. Gidman, Dr. Butaud, Dr. Williams, and

Dr. McDonnell; (6) alarm dispatcher at Acadian Total Security at $14.00 per hour

for forty hours per week, approved by Dr. Butaud, Dr. Williams, and Dr. Stubbs;

and (7) non-emergency transport dispatcher at Medi-Trans at $14.00 per hour; (8)

customer service representative at CVS (work from home job) at $15.00 per hour

for forty hours per week; and (9) dispatcher at Acadiana Security Plus at $15.00 per

hour for forty hours per week. The average pay of all the jobs Barbier identified is

$13.79 per hour.
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Jones’ argument that he is entitled to SEB is predicated upon his average

weekly wage being $886.38 and his earning capacity being $551.60 per week (based

on the average pay of $13.79 per hour for the jobs identified by Barbier). We have

already determined that the WCJ correctly determined that the average weekly wage

in this case is $600.00. Ninety percent of $600.00 is $540.00. Jones’ earning

capacity of $551.60 exceeds that amount. The WCJ noted that a functional capacity

evaluation was done and stated: “Jobs were identified. The Court does not believe

the excuses given by Mr. Jones with regards to these jobs. Therefore, the Court finds

that Mr. Jones is capable of earning 90 percent of his preaccident wages based on

the jobs identified and Dr. Duval’s release to return to work.” We find no manifest

error in the WCJ’s findings of fact and consequential denial of SEB.

Choice of Physician

Louisiana Revised Statutes 23:1121(B)(1) provides that an employee has “the

right to select one treating physician in any field or specialty.” If the employee

wishes to change his initial choice of treating physician within a certain specialty,

the employee must “obtain prior consent from the employer or his workers’

compensation carrier.” Id. “The statute does not permit ‘doctor shopping.’”

Southern v. Servpro D E Inv., 55,874, p. 8 (La.App. 2 Cir. 8/28/24), 400 So.3d 974,

980, writ denied, 24-1190 (La. 12/11/24), 396 So.3d 963. To prove entitlement to

change the choice of physician, the burden is on the claimant to prove the medical

necessity of the treatment by the new choice of physician. Lang-Parker v. Unisys

Corp., 00-800 (La.App. 1 Cir. 10/5/01), 809 So.2d 441.

Dr. Heard first referred Jones to Dr. Duval in October 2019. Dr. Duval

performed a right knee arthroplasty on November 25, 2019. Jones last saw Dr. Duval

in June of 2020. Dr. Duval’s medical records, which were admitted into evidence

as Defense Exhibit 12, indicate that as of June 22, 2020, Dr. Duval noted “RTW per
14

FCE.” At trial, Jones testified that Dr. Duval did not make him aware of that and

that he did not remember Dr. Duval telling him anything about returning to work.

When shown his deposition testimony, Jones recalled saying that Dr. Duval did say

that he could return to work and that he was released by Dr. Duval to return to work

based on the FCE. Jones insisted that his right knee was still bothering him at that

point.

Jones explained the situation to Dr. Heard, who referred Jones to Dr. Stubbs

for a right knee evaluation. Accident Fund approved the referral, and Dr. Stubbs

saw Jones on September 9, 2021. Dr. Stubbs performed a right knee arthroscopy on

September 17, 2021, and recommended a right total knee replacement in July of

2022. Accident Fund approved the treatment and arthroscopy but has not approved

the total knee replacement. Jones notes that Accident Fund approved payments to

Dr. Stubbs for an MRI and office visits even after sending correspondence to Dr.

Stubbs and Jones’ attorney advising that all treatment with Dr. Stubbs was de-

authorized because Dr. Duval was Jones’ choice of orthopedist to treat his knee.4

Based on the medical records and Jones’ testimony, the WCJ determined that

Dr. Duval was Jones’ choice of physician. Jones testified that part of the reason he

went to Dr. Heard for a referral to Dr. Stubbs was that Dr. Duval released him to

return to work. Jones was questioned as follows:

Q. And you simply chose not to go back to Dr. Duval because
you disagreed with his opinions?

A. That is correct.

Q. Especially the opinion on you going back to work?

A. No, based on my knee.

Q. Going back to work based on your knee?

Craft Resource and Accident Fund argue that La.R.S. 23:1204 provides that “[n]either
4

the furnishing of medical services nor payments by the employer or his insurance carrier shall
constitute an admission of liability for compensation under this Chapter.”
15

A. If that’s what you want to put it, but I know, like I said,
based on my knee.

“The fact that the current physician released the claimant to return to work

does not create medical necessity for a new choice of physician.” Southern, 400

So.3d at 980. This court has recently stated: “Allowing a claimant to change

physicians merely because of his own displeasure with his initial choice of

physician, without any evidence concerning the medical necessity of the requested

change, would impermissibly ‘circumvent the requirement of medical necessity,

negate Section 1121’s ‘one treating physician’ rule, and authorize doctor shopping.’”

Moore v. Kellie’s Sitting Servs., Inc., 20-391, p. 17 (La.App. 3 Cir. 12/16/20), 310

So.3d 698, 710, quoting Reed v. St. Francis Med. Ctr., 44,211, p. 8 (La.App. 2 Cir.

4/8/09), 8 So.3d 824, 829.

In this case, we cannot say that the WCJ was manifestly erroneous in finding

that Dr. Duval is Jones’ choice of treating physician.

Penalties, Attorney’s Fees, Costs, and Legal Interest

Jones argues that Craft Solution and Accident Fund are guilty of several

violations of La.R.S. 23:1201, et seq., including failure to properly calculated his

average weekly wage resulting in an arbitrary termination of his indemnity benefits

and the denial of the right total knee replacement recommended by Dr. Stubbs. We

note, however, that “[t]he law is clear that ‘an employer should not be penalized for

bringing a close legal issue to court.’” Timberlake v. Christus Health Cent. La., 13-

166, p. 13 (La.App. 3 Cir. 10/30/13), 124 So.3d 1201, 1210, quoting Burruss v.

Centro Mgmt., Inc., 00-1274, p. 2 (La.App. 3 Cir. 2/28/01), 780 So.2d 630, 631.

Since we have found no error in the calculation of the average weekly wage and that

Dr. Duval is Jones’ choice of treating orthopedist for his right knee complaints, we

find no basis for the imposition of penalties and attorney’s fees. For the same

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reasons, costs and judicial interest will not be awarded to Jones in this case.

Therefore, we affirm the WCJ’s denial of penalties, attorney’s fees, costs, and

judicial interest.

V.

CONCLUSION

For the foregoing reasons, we affirm the ruling of the WCJ in its entirety.

Costs of this appeal are assessed to Kevin Jones.

AFFIRMED.

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