Roderick O. Newman v. Concordia Electric Cooperative, Inc. and Lwcc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-630

RODERICK O. NEWMAN

VERSUS

CONCORDIA ELECTRIC COOPERATIVE, INC., AND LWCC

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ON APPLICATION FOR SUPERVISORY WRIT FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 1-E
PARISH OF CATAHOULA, NO. 24-03510
BRENZA IRVING JONES, WORKERS’ COMPENSATION JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Sharon Darville Wilson, and Wilbur L. Stiles,
Judges.

WRIT GRANTED AND MADE PEREMPTORY;
REVERSED; RENDERED; AND REMANDED.

Christopher J. Norris
Charles S. Norris
Norris Law Firm, LLC
8 N. Oak Street
Vidalia, LA 71373
(318) 336-1999
COUNSEL FOR PLAINTIFF/RELATOR:
Roderick O. Newman

Robert A. Dunkelman
C. Cavett Feazel
Pettiette, Armand, Dunkelman, Woodley & Cromwell, L.L.P.
P.O. Box 1786
Shreveport, LA 71166-1786
(318) 221-1800
COUNSEL FOR DEFENDANTS/RESPONDENTS:
Concordia Electric Cooperative, Inc.
Louisiana Workers’ Compensation Corporation

KYZAR, Judge.

Plaintiff-Relator, Roderick O. Newman, seeks supervisory writs from the

judgment of the workers’ compensation judge (WCJ), which granted Plaintiff’s

request for an initial choice of physician but denied an award of penalties and

attorney fees. For the reasons herein, we reverse the WCJ’s denial of penalties and

attorney fees and remand the matter for a determination of the amount of penalties

and attorney fees to be awarded.

FACTS AND HISTORY

On July 19, 2023, Plaintiff was electrocuted when he picked up a grounding

rod and accidentally struck an electrical line. The electrocution occurred while

Plaintiff was in the course and scope of his employment with Concordia Electric

Cooperative, Inc. (Concordia Electric). After seeking treatment from LaSalle

General Hospital’s emergency room, it was noted that Plaintiff had experienced

burns and blisters bilaterally to his hands and feet. Following his discharge to the

care of his primary treating physician, Plaintiff began wound-care treatment on July

25, 2023. The wound-care treatment center diagnosed Plaintiff as having second

degree burns to right and left shoulders, right and left upper limbs, right and left

wrist and hand, left and right toe, and third degree burns to his left toe during

electrocution.

On October 25, 2023, it was determined by Concordia Electric’s workers’

compensation insurer, Louisiana Workers’ Compensation Corporation (LWCC),

that the only compensable injuries for Plaintiff’s accident were the bilateral hand

and foot injuries. After a diagnosis of bilateral carpal tunnel syndrome and bilateral

ulnar neuropathy across the elbow by Plaintiff’s physical medicine physician, Dr.

Gerald Leglue, LWCC further determined that the instant accident did not cover

carpal tunnel syndrome as a compensable injury. Based on this determination,

Plaintiff filed a Notice of Disagreement with the Office of Workers’ Compensation

(OWC) on May 30, 2024, and a disputed claim for compensation regarding

Defendants’ denial of Dr. Leglue’s recommendation for wrist splints and elbow

pads. Plaintiff alleges that LWCC did not answer his disputed claim or provide a

reason for its denial.

After LWCC denied Dr. Leglue’s August 15, 2024 request for a surgical

evaluation of Plaintiff’s carpal tunnel syndrome, it scheduled a medical conference

with him to address his request for surgical evaluation and his diagnosis. During this

conference, Dr. Leglue informed Defendants’ nurse case manager that Plaintiff’s

carpal tunnel syndrome and bilateral ulnar neuropathy were acute and directly

related to his work-related injury. He opined that electricity running through the

nervous system can cause damage to nerves and that these two conditions were

confirmed by Plaintiff’s EMG/NCS testing. Despite being provided this information

by Dr. Leglue, Defendants maintained their denial of the requested authorization.

On September 2, 2024, Plaintiff filed a disputed claim for compensation and

a Choice of Physician (COP) Motion to see an orthopedic hand specialist of his

choice. At the hearing on this motion, Defendants, LWCC and Concordia Electric,

argued that Plaintiff was not entitled to an expedited summary hearing pursuant to

La.R.S. 23:1121(B)(1) because the instant request was not an initial request for COP

and that penalties and attorney fees under La.R.S. 23:1201(F) could not be awarded
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in an expedited hearing. The WCJ granted Plaintiff’s COP motion but denied his

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Defendants did not seek a review of whether the expedited summary hearing was
improper.

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request for penalties and attorney fees. Plaintiff now seeks supervisory review of the

judgment denying an award of penalties and attorney fees. He also seeks additional

attorney fees for the work performed by his counsel in relation to this writ

application in the event that he is granted the relief requested herein.

DISCUSSION

We first consider whether it is appropriate to address the penalty and attorney

fee issue on an application for a supervisory writ of review. Appellate courts

generally will not exercise their supervisory jurisdiction when an adequate remedy

exists by appeal. Douglass v. Alton Ochsner Med. Found., 96-2825 (La. 6/13/97),

695 So.2d 953; Ferguson v. Progressive Acute Care Avoyelles, LLC, 17-563

(La.App. 3 Cir. 1/4/18), 237 So.3d 533. Defendants argue that Plaintiff has an

adequate remedy by ordinary appeal after a complete adjudication of the suit. On the

other hand, Plaintiff requests that this court exercise its supervisory jurisdiction to

review and reverse the WCJ’s failure to award the requested penalties and attorney

fees. Plaintiff supports his argument with La.Const. art. 5, § 10, which authorizes a

court of appeal to review an interlocutory judgment of a lower court and grant

supervisory writs. Plaintiff asserts that the WCJ’s judgment has caused injury to him

that, in the interest of judicial efficiency and fundamental fairness, should be

remedied before a trial on the merits of his workers’ compensation claim.

As Plaintiff’s request for penalties and attorney fees stems from Defendants’

refusal to allow him to see the orthopedic hand surgeon of his choice, which motion

the WCJ granted, we find that it is appropriate for consideration via supervisory

review. In Dunlap v. Cajun Livestock, LLC, 15-357 (La.App. 3 Cir. 6/10/15), 166

So.3d 1264, this court held that a judgment allowing a workers’ compensation

claimant to change his physician is an interlocutory judgment rather than a final

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appealable judgment. Thus, as an interlocutory judgment, it is appropriate for

supervisory review. Further, “[a]n award of attorney fees under LSA–R.S. 23:1201

F is allowed for a violation of LSA–R.S. 23:1121 B(1)[,]” which gives a workers’

compensation claimant the right to select a physician. Nelson v. Windmill Nursery

of La., L.L.C., 04-1941, p. 7 (La.App. 1 Cir. 9/23/05), 923 So.2d 709, 714, writ

denied, 05-2294 (La. 3/10/06), 925 So.2d 516. “The purpose of such an award is to

discourage indifference or undesirable conduct by employers.” Id. As the decision

to award or deny penalties and attorney fees for a violation of La.R.S. 23:1121(B)(1)

is ancillary to the COP decision, it, too, is appropriate for supervisory review.

During the hearing, Defendants presented no evidence to justify their denial

of Plaintiff’s COP. Although the WCJ granted Plaintiff’s COP, she denied the

request for penalties and attorney fees:

THE COURT:

Okay. So I find that he has not had his initial choice in the field
that is requested, and so the expedited hearing is appropriate. All right.

....

So if that’s the only argument, then as I said, he has not had his
initial choice in the requested field, and so I’m granting it for that
reason. And more importantly, I’m granting it because it has been
recommended by Dr. Leglue. All right?

So the motion for choice of physician is granted. . . .

....

MR. NORRIS:

Your Honor, again, I would ask that the Court make a ruling on
any penalties and attorney’s fees that we’ve requested, Your Honor, in
this matter.

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MR. DUNKELMAN:

And again, Your Honor, where there is a legal issue, penalties
and attorney’s fees are not typically appropriate.

THE COURT:

I agree. Denied.

Under the facts stated, the WCJ’s denial of penalties and attorney fees was

based solely on Defendants’ argument that, procedurally, Plaintiff was not entitled

to an expedited hearing on his COP request.

“The applicable standard of review in determining whether a defendant should

be cast with penalties and attorney fees is the manifest error-clearly wrong standard.”

Bennett v. Pilgrim’s Pride, 07-753, p. 10 (La.App. 3 Cir. 12/12/07), 972 So.2d 423,

429, writ denied, 08-103 (La. 3/7/08), 977 So.2d 907. “Awards of penalties and

attorney’s fees in workers’ compensation are essentially penal in nature, being

imposed to discourage indifference and undesirable conduct by employers and

insurers.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8–9 (La. 6/29/99), 737 So.2d

41, 46.

Initially, regarding whether penalties and attorney fees may be granted in an

expedited hearing, this court in Scott v. Packaging Corp. of Am., 18-338, pp. 7–8,

(La.App. 3 Cir. 7/5/18), 251 So.3d 466, 471 (alteration in original), affirmed the

WCJ’s award of penalties and attorney fees and rejected the employer’s argument

that the plaintiff could not utilize summary proceedings for the imposition of

penalties and attorney fees by stating:

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 [v. Windmill Nursery of Louisiana, L.L.C., 04-1941
(La.App. 1 Cir. 9/23/05)], 923 So.2d [709,] 713–14, the employer did

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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.
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.

In Ewing v. Hilburn, 11-1243, pp. 4–5 (La.App. 3 Cir. 3/7/12), 88 So.3d 640,

643–44, this court stated:

As pointed out in Nelson v. Windmill Nursery of Louisiana,
L.L.C., 04-1941, pp. 3–4 (La.App. 1 Cir. 9/23/05), 923 So.2d 709, 712,
writ denied, 05-2294 (La.3/10/06), 925 So.2d 516:

LSA R.S. 23:1121 A provides that an injured employee
shall submit to examination by a physician provided and
paid for by the employer as soon after the accident as
demanded. LSA–R.S. 23:1121 B(1) provides that the
employer shall have the right to select one treating
physician in any field or specialty. An employer’s refusal
to authorize reasonable and necessary medical treatment
for an injured employee may justify an award of penalties
and attorney fees. LSA–23:1201 F. See also Authement v.
Shappert Engineering, 02-1631, p. 8 (La. 2/25/03), 840
So.2d 1181, where the court concluded in a similar contest
that failure to authorize medical treatment equates to
failure to provide benefits and shall result in the

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assessment of penalties and reasonable attorney fees under
LSA–R.S. 23:1201 F.

The first circuit went on to hold that the employer’s obligation to
authorize reasonable and necessary medical treatment for an injured
employee does not rise or fall based on proof of causation. Id. In
summarizing the issue before it, the first circuit stated the following:

Based upon the clear language of the statute, a penalty and
attorney fee can be imposed for this failure to authorize
treatment except where the claim is reasonably
controverted. LSA–R.S. 23:1201 F(2); Authement, 02-
1631 at p. 8, 840 So.2d at 1186. Windmill alleges that the
penalties were awarded before it had the opportunity to
controvert the claim. We disagree.

In Brown v. Texas–LA Cartage, Inc., 98-1063
(La.12/1/98), 721 So.2d 885, the Louisiana Supreme Court
discussed the meaning of reasonably controverting a
claim. The court stated that generally, “in order to
reasonably controvert a claim, the defendant must have
some valid reason or evidence upon which to base his
denial of benefits.” Id. 98-1063 at p. 9, 721 So.2d at 890.
It further discussed the issue as follows:

Thus, to 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. This
definition is in accord with that presently
used by the lower courts to determine
whether penalties and attorney fees are owed.
Id.

Id. at 713.

Considering the record before us, we find that Defendants had no legal basis

to refuse Plaintiff’s COP request. The Defendants were informed by Dr. Leglue that

Plaintiff’s carpal tunnel syndrome was related to his work accident and that a

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surgical evaluation was required for that condition. Defendants presented absolutely

no evidence to reasonably controvert Dr. Leglue’s diagnosis or in defense of their

denial of the COP. They simply asserted that Plaintiff was not entitled to an

expedited hearing. We, therefore, reverse the WCJ’s judgment denying Plaintiff’s

request for penalties and attorney fees. However, we note that there was no evidence

tendered, or argument made by Plaintiff as to a reasonable amount for an award of

attorney fees under the specific circumstances here, including the time spent on this

particular aspect of the claim. In providing guidance for the setting of attorney fees,

the supreme court in McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La. 11/28/00);

773 So.2d 694, 700, stated:

The amount of attorney fees rests within the discretion of the workers’
compensation judge, as long as that amount is supported by the record.
Some of the factors taken into account by the judge in fixing the amount
of the fee are the degree of skill and ability exercised by the attorney,
the amount of the claim, the amount recovered for the employee, and
the amount of time the attorney devoted to the case.

Thus, we remand to the WCJ for a determination as to the amount of penalties

and attorney fees that should be awarded.

Plaintiff has also requested an additional award of attorney fees for work

performed by his counsel in connection with this writ. “[A] workers’ compensation

claimant who is successful in defending an appeal may be entitled to an award of

additional attorney fees.” McCain v. Motel 6, 19-653, p. 11 (La.App. 3 Cir. 3/4/20),

297 So.3d 136, 143, writ denied, 20-764 (La. 10/6/20), 302 So.3d 535. We, thus,

award attorney fees for work associated with this writ in the amount of $2,000.00.

For the reasons set forth, the WCJ’s decision denying Plaintiff’s request for

penalties and attorney fees is reversed, and the matter is remanded for a

determination of the penalties and attorney fees to be awarded based on Defendants’

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refusal of Plaintiff’s COP request. Judgment is further rendered awarding Plaintiff

attorney fees in the amount of $2,000.00 for work his counsel performed associated

with this writ. All costs connected with this writ are assessed to Defendants,

Concordia Electric Cooperative, Inc., and Louisiana Workers’ Compensation

Corporation.

WRIT GRANTED AND MADE PEREMPTORY; REVERSED;
RENDERED; AND REMANDED.

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