Marvin Ray Scott v. Packaging Corporation of America

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-338

MARVIN RAY SCOTT

VERSUS

PACKAGING CORPORATION OF AMERICA

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SUPERVISORY WRIT FROM THE
OFFICE OF WORKERS‟ COMPENSATION - DISTRICT 3
PARISH OF CALCASIEU, NO. 17-05256
DIANNE MAYO, WORKERS‟ COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Candyce G. Perret,
Judges.

WRIT DENIED.

Philip E. Roberts
Ungarino & Maldonado, LLC
600 Jefferson Street, Suite 850
Lafayette, LA 70501
(337) 235-5656
COUNSEL FOR DEFENDANT/APPLICANT:
Packaging Corporation of America

Thomas A. Filo
Cox, Cox, Filo, Camel & Wilson, L.L.C.
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/RESPONDENT:
Marvin Ray Scott

J. Michael Nash
Ungarino & Maldonado, LLC
910 Pierremont Road, Suite 103
Shreveport, LA 71106
(318) 866-9598
COUNSEL FOR DEFENDANT/APPLICANT:
Packaging Corporation of America

SAUNDERS, Judge

STATEMENT OF THE CASE

The issues presented in this writ application arise out of a claim for workers‟

compensation brought by Marvin Ray Scott against his employer, PCA, alleging

that his hearing loss was caused by his employment at the Boise Paper Mill in

DeRidder.1 Scott retired on July 17, 2017, after being employed at the paper mill

since 1969. The 1008 was filed on August 23, 2017.

On January 23, 2018, Scott filed a motion for expedited hearing pursuant to

La.R.S. 23:1121. Scott alleged that PCA failed to authorize an initial visit with his

choice of treating physician, Dr. Brad LeBert, an otolaryngologist. Scott sought an

order from the WCJ directing PCA to authorize the initial visit with Dr. LeBert, to

reimburse Scott for the cost of an audiogram, and to pay two penalties and

attorney‟s fees for PCA‟s arbitrary and capricious behavior.

PCA responded by filing an exception of improper use of summary

proceedings alleging that while Scott could utilize summary proceedings to have

his choice of physician approved, he could not utilize summary proceedings for the

imposition of penalties and attorney‟s fees. PCA also opposed Scott‟s motion and

alleged that Scott‟s claim was prescribed.

Scott‟s motion and PCA‟s exception came for hearing on February 23,

2018.2 At the hearing, the WCJ found that PCA did not have a “pliable” defense

not to pay for the audiogram and ordered that the medical bill be repaid at full cost,

that Scott‟s choice of treating physician be approved, and that PCA pay two

separate penalties of $2,000.00 each and attorney‟s fees of $3,000.00. Scott‟s

1
The mill was originally owned by Boise. At some point, PCA bought the mill.
2
The pertinent court minutes are not attached to the writ application as required by
Uniform Rules―Courts of Appeal, Rule 4‒5(C)(10). PCA asserts that the minutes were not
available at the time the writ was filed. The transcript of the hearing is attached; so, all the
necessary information is provided.

counsel was ordered to prepare a judgment. The judgment granting Scott‟s motion,

imposing the penalties and attorney‟s fees, and denying PCA‟s exception was

signed on March 21, 2018.

PCA timely filed its notice of intent to seek writs, and the WCJ set a return

date of April 25, 2018. PCA‟s request for a stay of the proceedings pending

review of the issue was denied. This writ application was timely filed and did not

include a request for a stay or for expedited consideration. Scott filed his

opposition on May 3, 2018. A supplement was filed by PCA on May 8, 2018.

This supplement included a complete copy of PCA‟s opposition to the motion for

expedited hearing. A second supplement was filed by PCA on May 25, 2018.

This supplement contained the transcript of the February 23, 2018 hearing.

This matter is presently set for trial on the merits on August 2, 2018

SUPERVISORY RELIEF

The denial of an exception of unauthorized use of summary proceedings is

an interlocutory ruling. MAPP Construction, LLC v. Amerisure Mutual Insurance

Company, 13-1074 (La.App. 1 Cir. 3/24/14), 143 So.3d 520. “The proper

procedural vehicle to contest an interlocutory judgment that does not cause

irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087

and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d

931, 933.

Scott contends that the ruling regarding his motion for expedited hearing

“appears to constitute a final judgment or order „not requiring further trial on the

merits.‟” La.R.S. 23:1201.1(K)(8)(a)(i).) Scott also cites Ewing v. Hilburn, 11-

1243 (La.App. 3 Cir. 3/7/12), 88 So.3d 640, wherein this court reviewed the denial

of penalties and attorney‟s fees based on the employer‟s refusal to approve

treatment by the claimant‟s orthopedic surgeon of choice. In Ewing, the request
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for expedited hearing appears to have been the only pleading filed. There is no

mention that a 1008 had been filed in Ewing as it has in the case sub judice. This

court has held that a ruling allowing a claimant to replace his choice of physician

was an interlocutory order. Dunlap v. Cajun Livestock, LLC, 15-357 (La.App. 3

Cir. 6/10/15), 166 So.3d 1264.

Furthermore, Scott‟s attorney has sought writs in our sister case, Kyle v.

Boise Cascade Co., 18-384. Scott goes on to suggest that this court should act on

the present writ application and affirm the ruling awarding Scott penalties and

attorney‟s fees and issue its own judgment ordering PCA to approve a visit with Dr.

LeBert.

ON THE MERITS

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

error or clearly wrong standard of appellate review. In applying the manifest error

standard, the appellate court must determine not whether the trier of fact was right

or wrong, but whether the factfinder‟s conclusion was a reasonable one.” Foster v.

Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160,

1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted).

Additionally, “the determination of whether an employer should be cast with

penalties and attorney fees in a workers‟ compensation case is essentially a

question of fact, and „subject to the manifest error/clearly wrong standard of

review.‟” Reed v. Abshire, 05-744 p.4 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224,

1226.

“[G]radual noise induced hearing loss caused by occupational exposure to

hazardous noise levels” has been recognized as an occupational disease such that

the employee‟s remedy was in workers‟ compensation rather than in tort. Arrant v.

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Graphic Packaging International, Inc., 13-2878, p. 2 (La. 5/5/15), 169 So.3d 296,

298.

Louisiana Revised Statutes 23:1121 provides that the employee is entitled to

select one treating physician in any field or specialty without the approval of the

employer and that if the employer denies that right, the employee “shall have a

right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8), when

denied his right to an initial physician of choice.” See also Smith v. Southern

Holding, Inc., 02-1071 (La. 1/28/03), 839 So.2d 5. Furthermore, pursuant to

La.R.S. 23:1201(F), penalties and attorney‟s fees may be imposed “for failure to

consent to the employee‟s request to select a treating physician or change

physicians when such consent is required by [La.]R.S. 23:1121.” Youngblood v.

Covenant Sec. SVC, LLC, 11-2382, p. 12 (La.App. 1 Cir. 12/21/12), 112 So.3d 233,

241, writ denied, 13-0200 (La. 3/8/13), 109 So.3d 363. Scott argues that “because

a workers‟ compensation claimant cannot establish entitlement to workers‟

compensation benefits (either medical or indemnity) without, at a minimum, an

opinion from a treating physician, refusing this initial step would allow an

employer to defeat a workers‟ compensation claim from the outset by simply

refusing to authorize an initial visit with claimant‟s choice of treating physician.”

In Ewing, 88 So.3d 640, this court noted that the burden of proof rests on the

employer to establish that the employee‟s request to see his choice of physician

was reasonably controverted. In that case, this court stated that causation was not

the issue and, therefore, found that the employer‟s conclusion that causation did

not exist was not enough to constitute reasonable controversy. Moreover, in

Nelson v. Windmill Nursery of Louisiana, LLC, 04-1941, p. 4 (La.App. 1 Cir.

9/23/05), 923 So.2d 709, 712, writ denied, 05-2294 (La. 3/10/06), 925 So.2d 516,

the court stated that “causation of the alleged accident is not an issue in
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determining whether an employee has been deprived of the right to see a treating

physician of her choice.”

In Deloach v. FARA Insurance Services, 14-408, p. 4 (La.App. 3 Cir.

12/10/14), 154 So.3d 737, 739, this court stated:

The law is clear that to determine if a claim has been reasonably
controverted, “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.” Brown v. Texas-LA
Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.

PCA alleges that Scott‟s claim is prescribed pursuant to La.R.S.

23:1031.1(E), which provides:

All claims for disability arising from an occupational disease
are barred unless the employee files a claim as provided in this
Chapter within one year of the date that:

(1) The disease manifested itself.

(2) The employee is disabled from working as a result of the
disease.

(3) The employee knows or has reasonable grounds to believe
that the disease is occupationally related.

The WCJ stated: “I think you can prove maybe one or three but two – I don‟t

believe you can prove that the employee is disabled from working as a result of the

disease because the last test that he [did] was [] in July of 2008[.]” Even though

that test showed some hearing loss, the recommendation was for annual retesting,

and there was no mention that the hearing loss prevented Scott from doing his

work. PCA recognizes that prescription does not begin to run until all three

conditions have been met. But, PCA argues that subpart (2) is met because Scott‟s

hearing loss was documented as early as 1990. This article ignores the wording of

that subsection that says: “from working.” It is not enough that hearing loss is a

disability, it must disable the claimant from working as noted by the WCJ.

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Additionally, it must be noted that while PCA argues that it has a valid

exception of prescription, it also acknowledges that discovery on the issue needs to

be completed before it brings the exception of prescription. PCA wanted the WCJ

to postpone its ruling on the motion for expedited hearing until it completed

discovery and could have its exception of prescription decided. But the WCJ cited

Nelson, 923 So.2d at 714: “The lack of opportunity to investigate or conduct

discovery is irrelevant to reaching a conclusion as to whether Windmill was remiss

in not authorizing Nelson to be examined by her choice of physician pursuant to

LSA-R.S. 23:1121 B(1). Brown [v. Texas-LA Cartage, Inc.,] 98-1063 at p. 9 [(La.

12/1/98)], 721 So.2d [885] at p. 9, 721.”

PCA is concerned that paying for Scott‟s hearing test and paying for him to

see his physician of choice would constitute an acknowledgment of the claim

resulting in the loss of its prescription defense. PCA cites Estate of Belaire v.

Crawfish Town USA, 15-180 (La.App. 3 Cir. 12/9/15), 182 So.3d 1093, and Reed v.

Mid-States Wood Preservers, Inc., 43,799 (La.App. 2 Cir. 12/3/08), 999 So.2d 189,

writ denied, 09-9 (La. 2/20/09), 1 So.3d 500. In Estate of Belaire, 182 So.3d 1093,

this court noted that under La.R.S. 23:1209(A), the employer‟s payment of benefits

would interrupt prescription where “the parties have agreed upon the payments to

be made under this Chapter.” But the issue in Estate of Belaire, 182 So.3d 1093,

was whether the employer‟s failure to file a WC-1003 to stop payment of benefits

was an acknowledgment of liability. This court found that it was not and that

plaintiffs had failed to establish that there was acknowledgment to interrupt

prescription. In Reed, 999 So.2d 189, this court held that the transmittal of

Medicare Set-Aside Analyses from the employer to the claimant was an explicit

acknowledgment of the claim that interrupted the three-year prescriptive period

provided in La.R.S. 23:1209(C).
6

However, in Gary v. Camden Fire Insurance Company, 96-55, p. 5 (La.

7/2/96), 676 So.2d 553, the court noted that La.R.S. 23:1204 provides: “Neither

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.” The court went on to state that:

Were it not for the existence of La.Rev.Stat. 23:1204, it would
seem evident that voluntary payment of compensation benefits
constitutes an acknowledgement of the employer‟s debt to the injured
employee. Section 1204, however, encourages voluntary payment of
compensation by assuring the employer that his voluntary payment
does not, and will not, constitute an admission of liability. Because of
Section 1204‟s statutory command, the voluntary payment of
compensation here is not an acknowledgement of debt or liability and
does not interrupt prescription under La.Civ.Code art. 3464.

Gary, 676 So.2d at 556.

Based on these established tenets, we find that the WCJ did not err in

ordering PCA to approve a visit with Scott‟s choice of physician, Dr. LeBert.

PCA acknowledges that there are cases where awards of penalties and

attorney‟s fees are made in connection with motions for expedited hearings but

argues that none of the employers in those cases asserted exceptions of improper

use of summary proceedings. However, in Nelson, 93 So.2d at 713-14, the

employer did argue “that the OWC erred in deciding an issue of penalties and

attorney fees under La. R.S. 23:1201(F) via a summary proceeding before

Windmill was served and before it had an opportunity to investigate Nelson's claim

of injury.” The court found that argument to be without merit:

Windmill had the opportunity to controvert whether it denied
Nelson her choice of a physician. Windmill was not denied the right.

....

An award of attorney fees under LSA-R.S. 23:1201 F [sic] is
allowed for a violation of LSA-R.S. 23:1121 B(1). The purpose of
such an award is to discourage indifference or undesirable conduct by
employers. Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.
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6/29/99), 737 So.2d 41, 46. Windmill‟s inaction appears to manifest
the sort of indifference to be discouraged by an award of attorney fees.
Therefore, the OWC‟s decision to award Nelson attorney fees was not
manifestly erroneous or clearly wrong.

Nelson, 923 So.2d at 714.

Accordingly, we find that the WCJ did not err in denying PCA‟s exception

of unauthorized use of summary proceedings.

WRIT DENIED.

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