STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2024 CA 0460
VERSUS
SMITTY' S SUPPLY, INC.
DEC 2 0 2024 Judgment Rendered:
On Appeal from the Office of Workers' Compensation, District 6 In and for the Parish of St. Tammany State of Louisiana No. 22- 03078
The Honorable Diane Lundeen, Workers' Compensation Judge Presiding
Brad O. Price Attorney for Plaintiff A - ppellee, Denham Springs, Louisiana Andre Lee
Frank R. Whiteley Attorneys for Defendant -Appellant, Robert J. May Smitty' s Supply, Inc. New Orleans, Louisiana
BEFORE: WOLFE, MILLER, AND GREENE, JJ.
I WOLFE, J.
In this workers' compensation case, the employer, Smitty' s Supply, Inc.
Smitty' s"), appeals a judgment which found that the claimant/employee, Andre
Lee (" Lee"), was injured during the course and scope of his employment with
Smitty' s, and further awarded Lee total temporary disability benefits, medical
expenses, penalties, and attorney' s fees as a result thereof. Lee answered the appeal,
seeking additional attorney' s fees. For the following reasons, we vacate the
judgment in part, amend the judgment in part, and as amended, affirm. Further, we
deny the answer to the appeal.
On April 21, 2022, Lee was hired by Smitty' s as a full-time employee.
Although Lee was trained as a forklift operator, he never actually performed this
task, but was instead assigned to the yard, where he drove trucks, connected them to
oil tanks, and assisted with unloading oil. As part of his training, Lee was issued a
pair of rubber boots, which were regularly covered in oil due to his job requirements
and duties. Although Smitty' s would occasionally place cloth towels over the
acceleration and brake pedals in the yard trucks, Lee' s feet would nevertheless slip
off the pedals.
During a night shift on May 11, 2022, Lee was operating a yard truck,
attempting to back into a location, but as he did, his foot slipped off the brake pedal,
resulting in him hitting another truck parked immediately in front of him. Lee
operated a different vehicle each day, but as to this particular vehicle, Lee noted it
was " kinda hard to shift." Lee stated he did not intend to hit the truck, that he was
nervous when he did, and that once he was able to back the truck into an appropriate
location, he went to look for his supervisor, Rodney Baye (" Baye"). Before Lee
was able to locate Baye, Lee found a co- worker, Jessie Hughes (" Hughes"), and
proceeded to describe the accident. According to Lee, he was limping, his legs and
W back were " bothering" him, and his " foot was hurtin[ g]." Hughes noticed that, as
Lee described the accident to him, a dent was present on the driver' s side of the
vehicle Lee was operating. Lee and Hughes then located Baye, Lee described to
Baye the circumstances of the accident, indicated to Baye he believed he was injured,
and stated that his foot " was hurtin[ g]." Hughes also confirmed that he informed
Raymond Smith (" Smith"), another supervisor, and " Tony," the " safety guy," about
the accident. After a phone call between Baye and Smith, Lee was instructed to stay
at Smitty' s and finish his shift, which he did. Hughes testified Baye provided Lee
an incident report form to complete. Hughes did not observe what took place
thereafter. Ultimately, the parties stipulated that Lee was involved in a work-related
accident, while employed with Smitty' s, on May 11, 2022.
On the night of the accident, Lee provided a written statement describing what
transpired. The following morning, Lee received a phone call from " somebody" at
Smitty' s, informing him he needed to come in and talk about the accident. Upon his
arrival, Lee was taken by the " safety man" for a drug test. Lee testified that he told
this individual " about [ his] foot." When asked what kind of issues he was having
with his foot, Lee explained that his foot hurt because it " really got stuck up under
the gas pedal because it slipped up off there." Lee further testified that his foot was
swollen and it was causing him to limp. Following the drug test, Lee was returned
to Smitty' s. Lee remained in his personal vehicle until the start of his next shift,
approximately four hours later. After beginning his shift, Lee again found and
reported to Smith his foot was hurt; Smith then told Lee to report the injury to Baye,
which Lee did. Lee worked his complete shift that night. However, the following
day - Friday, May 13, 2022 - when Lee reported to Smitty' s for work, he was met at
the gate by Baye and fired. The termination paperwork stated Lee did " not report
an incident resulting in damaging company property."
3 Lee filed a workers' compensation claim against Smitty' s on June 9, 2022,
seeking to recover medical benefits, indemnity benefits, and penalties and attorney' s
fees due to the denial of his claims for indemnity and medical benefits. Smitty' s
answered Lee' s claim on July 6, 2022, admitting Lee worked at Smitty' s at the time
of the accident, but denying all of his other claims. The trial was held on October 4,
2023. The workers' compensation judge (" WCJ") issued written reasons for
judgment and signed a judgment in accordance with those reasons on January 19,
2024. The WCJ found Lee sustained an accident in the course and scope of his
employment and that his injuries from the accident required medical care. The WCJ
ordered Smitty' s to pay for outstanding medical expenses totaling $ 11, 079. 82 to
Elite Chiropractic. The WCJ also determined Lee was entitled to total temporary
disability benefits from May 26, 2022 to November 10, 2022, for a total of
13, 121. 64. Additionally, the WCJ assessed penalties of $2, 000. 00 for Smitty' s
failure to timely pay necessary medical expenses, as well as another penalty of
2, 000. 00 for Smitty' s failure to timely pay indemnity benefits. Further, the WCJ
awarded Lee' s counsel $ 4,000. 00 in attorney' s fees against Smitty' s for its failure to
timely authorize and pay for necessary medical expenses, as well as a second award
of $ 4, 000. 00 in attorney' s fees against Smitty' s for its failure to timely pay
indemnity benefits. The WCJ found that Smitty' s failed to establish it reasonably
controverted these requests. The WCJ taxed costs of $1, 695. 85 against Smitty' s.
Smitty' s now appeals this judgment.
STANDARD OF REVIEW
Factual findings in a workers' compensation case are subject to the manifest
error or clearly wrong standard of appellate review. Shelton v. Smitty' s Supply,
Inc., 2017- 1419 ( La. App. 1st Cir. 6/ 12/ 18), 253 So. 3d 157, 163, writ denied, 2018-
1195 ( La. 11/ 14/ 18), 256 So. 3d 258, and writ denied, 2018- 1199 ( La. 11/ 14/ 18), 256
So. 3d 291. An appellate court cannot set aside the factual findings of the WCJ unless
4 it determines there is no reasonable basis for the findings and the findings are clearly
wrong ( manifestly erroneous). Id. If the WCJ' s findings are reasonable in light of
the record reviewed in its entirety, an appellate court may not reverse even though
convinced that had it been sitting as the trier -of f-act, it would have weighed the
evidence differently. Id. Furthennore, when factual findings are based on the
credibility of witnesses, the factfinder' s decision to credit a witness' s testimony must
be given " great deference" by the appellate court. Id. Thus, when there is a conflict
in the testimony, reasonable evaluations of credibility and reasonable inferences of
fact should not be disturbed upon review, although the appellate court may feel its
own evaluations and inferences are as reasonable. Id. Determinations as to whether
the employee has discharged his burden of proof are factual determinations that
should not be disturbed on appellate review unless clearly wrong or manifestly
erroneous. Young v. Smitty' s Supply, Inc., 2023 -0092 ( La. App. I st Cir. 9/ 29/ 23),
376 So. 3d 903, 907- 08, writ denied, 2023- 01570 ( La. 1/ 24/ 24), 378 So. 3d 68.
DISCUSSION
Assi,anments ofError Nos. I & 2 —Lee' s IniurV and Disability Benefits
Initially, Smitty' s argues Lee failed to successfully carry his burden of
proving he was injured during the course and scope of his employment. Specifically,
Smitty' s claims, " the circumstances immediately following [ Lee' s] accident do not
corroborate his story that he was injured when his truck bumped into another vehicle.
Furthermore, the discrepancies between plaintiffs testimony and the video of the
accident, the medical records and the testimony of other witnesses, cast serious doubt
on [ Lee' s] story that his ' fender bender' caused him to be injured." This, Smitty' s
further argues, demonstrates that Lee " did not provide clear and convincing evidence
that he was physically unable to engage in any employment, and, therefore, the
WCJ] erred in awarding temporary total disability benefits."
Wi It is a well- settled principle that the provisions of the workers' compensation
scheme should be liberally interpreted in favor of the worker. Scott v. Wal-Mart
Stores, Inc., 2003- 0858 ( La. App. 1st Cir. 2/ 23/ 04), 873 So. 2d 664, 668. In order
for a claimant to be entitled to recover workers' compensation benefits, he must
prove, by a preponderance of the evidence, that a work-related accident occurred
and that an injury was sustained. A claimant' 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. Williams v. Wal-Mart Stores, Inc., 2000- 1347 ( La. App. 1st Cir.
9/ 28/ 01), 809 So. 2d 294, 298. While the claimant must show that his employment
somehow caused or contributed to the disability, he need not establish the exact
cause. Elswick v. Highway Transport, 96-0014 ( La. App. 1 st Cir. 9/ 27/ 96), 680
So. 2d 1364, 1367.
In workers' compensation cases, a disability is presumed to be the result of
the work-related accident if the claimant was in good health before the accident, and
the symptoms of the disability appear after the accident and continue to manifest
themselves. This presumption is available when sufficient medical evidence is
introduced to show a reasonable possibility of a causal connection between the
disability and the work-related accident, or that the nature of the accident raises a
natural inference that such a causal connection exists. Williams, 809 So. 2d at 298.
Thus, in determining whether a worker has shown by a preponderance of the
evidence that an injury -causing accident occurred in the course and scope of
employment, the trier of fact is expected to focus on the issue of credibility because,
absent contradictory circumstances and evidence, a claimant' s testimony is accorded
great weight. Id. at 298.
Cc On May 16, 2022, Lee visited Lallie Kemp Regional Medical Center where he stated he was a " restrained driver in an 18 -wheeler on work property when he
bumped' into a similar vehicle" and sought an evaluation for back pain. Lee was
diagnosed with lumbar strain. On May 20, 2022, Lee returned to Lallie Kemp with
complaints of right foot pain. Though no swelling or external deformity of the ankle
was identified, an x-ray of Lee' s right foot revealed some irregularities.
Thereafter, Lee treated with Elite Chiropractic from May 26, 2022 through
November 10, 2022. On the initial visit, Lee reported he immediately felt " aching,
sharp, tingling and burning" in his right ankle after the accident and, since that time,
the use and function of his ankle declined. Lee also complained of thoracic and
lumbar strain, which he attributed to the May 11, 2022 accident. After an
examination, Dr. Pell with Elite Chiropractic placed Lee on temporary total
disability status for six weeks and did not release him to return to work. On
subsequent visits at Elite, Lee' s complaints remained consistent.
In written reasons for judgment rendered on January 19, 2024, the WCJ noted
Smitty' s " did not have any medical evidence to refute Elite Chiropractic' s records
demonstrating that the accident caused [ Lee' s] injuries. Based on the totality of the
evidence, [ Lee] carried his burden to demonstrate that his back, neck, and ankle
injuries were caused by and/ or aggravated by the accident at work." The WCJ
concluded, "[ Lee' s] injuries were related to the May 11, 2022, accident; therefore,
he was entitled to all reasonable and necessary treatment for that injury without
approval from Smitty' s."
As previously indicated, the determinations by the workers' compensation
judge as to whether Lee discharged his burden of proof are factual determinations
that will not be disturbed on review in the absence of manifest error. In this case,
implicit in the WCJ' s ruling is a finding that Lee was a credible witness and
concluded that the medical evidence showed a reasonable connection between the
VA work-related accident and Lee' s injuries. Based on a complete review of the record,
we cannot say that the WCJ was clearly wrong in finding that Lee proved, by a
preponderance of the evidence, that he was injured in the May 11, 2022 accident at
Smitty' s. See Williams, 809 So. 2d at 299.
Moreover, and for the same reasons, we cannot say the WCJ erred in awarding
Lee temporary total disability payments. Temporary total disability means the
inability to engage in any gainful occupation, whether or not it is the same or one
similar to that in which the employee was customarily engaged when injured. La.
R.S. 23: 1221( 1)( a). A workers' compensation claimant seeking temporary total
disability benefits bears the burden of proving, by clear and convincing evidence,
his inability to engage in any type of employment. Whether a claimant is entitled to
temporary total disability indemnity benefits is a factual finding and, hence, subject
to the manifest error or clearly wrong standard of appellate review. This factual
finding by the WCJ should be given great weight and should not be overturned
absent manifest error. Neal v. St. Tammany Parish Hospital, 2018- 0105, 2018-
0106 ( La. App. 1st Cir. 10/ 31/ 18), 267 So. 3d 158, 163. Again, we find no manifest
error in the WCJ' s decision to award temporary total disability payments to Lee,
especially in light of the medical records from Elite Chiropractic.
Accordingly, these assignments of error lack merit.
Assignments ofError Nos. 3 cit 4 —Exclusion ofDeposition Testimony from Trial
Second, Smitty' s asserts the WCJ erred in prohibiting the deposition
transcripts of Baye and Smith, Lee' s supervisors on the night of the accident, from
being used at the hearing in lieu of their live testimony. Additionally, due to this
exclusion, Smitty' s argues the WCJ further erred by not applying the presumption
that such excluded testimony was inherently adverse to Lee' s claims.'
Jurisprudence refers to this presumption as the " uncalled witness" rule. See Roth v. New Hotel Monteleone, L.L.C., 2007- 0549 ( La. App. 4th Cir. 1/ 30/ 08), 978 So. 2d 1008, 1012. On October 4, 2022, Lee took the depositions of both Baye and Smith.
Further, in his pre-trial statement, Lee listed Baye and Smith as fact witnesses and
included, among his documentary evidence, "[ a] ny deposition testimony taken in
this case." However, on the morning of the hearing, Lee objected to Smitty' s use
and attempted introduction of the deposition transcripts, as both individuals were not
present at the hearing and Smitty' s did not provide an explanation regarding their
unavailability. Further, it is undisputed that Smitty' s issued a subpoena to both men
for their appearance at the hearing, but at the time the subpoenas were issued,
Smitty' s no longer employed Baye or Smith, a fact, Lee argues, " Smitty' s would
know." However, no subpoenas concerning the two men were actually offered or
introduced at the hearing. Smitty' s responded, generally noting Lee identified the
two men in his pre- trial statement, but that it does not " have control over the
witnesses [... and] [ t] his isn' t a surprise to [ Lee]." Smitty' s did not otherwise offer
any argument or documentation to show what efforts were made to notify the two
men of their appearance at the hearing. The WCJ took the matter under advisement,
but later excluded the deposition transcripts based on the lack of an adequate
showing of unavailability pursuant to Louisiana Code of Civil Procedure article
1450. The WCJ granted Smitty' s request to proffer the deposition transcripts.
Louisiana Code of Civil Procedure article 1450 provides, in pertinent part,
that the deposition of a witness may be used by any party for any purpose if the court
finds that " the witness is unavailable ... [ or] [ u] pon application and notice, that such
exceptional circumstances exist as to make it desirable, in the interest of justice and
with due regard to the importance of presenting the testimony of witnesses orally in
open court, to allow the deposition to be used." La. Code Civ. P. art. 1450( A)( 3)( a)
and ( c). The trial court has much discretion under Article 1450 in determining
whether to allow the use of deposition testimony at trial, and its decision will not be
I disturbed on review in the absence of an abuse of that discretion. Sullivan v. City
of Baton Rouge, 2014- 0964 ( La. App. 1st Cir. 1/ 27/ 15), 170 So. 3d 186, 193.
Although Article 1450 does not specify when a witness is " unavailable,"
Louisiana Code of Evidence article 804 provides, in pertinent part, that a declarant
is " unavailable as a witness" when he " cannot or will not appear in court and testify,"
including when he is " absent from the hearing and the proponent of his statement
has been unable to procure his attendance by process or other reasonable means."
La. Code Evid. art. 804( A)(5). The party asserting the admissibility of a deposition
under Article 1450 must show that the witness is unavailable for trial. See Sullivan,
170 So. 3d at 193- 94; see also Montgomery v. Breaux, 297 So. 2d 185, 189 ( La.
1974). The determination of whether a witness is unavailable is a preliminary
question for the trial court and such determinations are reviewed for manifest error
and will not be overturned, absent an abuse of the trial court' s discretion. See
Sullivan, 170 So. 3d at 194; see also Martin v. Francis, 600 So. 2d 1382, 1386 ( La.
App. 1st Cir.), writ denied, 606 So. 2d 541 ( La. 1992) ( recognizing that the trial court
is vested with broad discretion in determining whether a witness is unavailable
within the meaning of Article 1450).
As noted, on the morning of the hearing, Smitty' s offered no argument or
explanation regarding Baye and Smith' s absences. Further, during the testimony of
Jaye Collura (" Collura"), Smitty' s Human Resources manager, she admitted to
receiving subpoenas for Baye, Smith, and Hughes, and testified she made
arrangements for Hughes' appearance, but offered no explanation as to Baye or
Smith. Moreover, Collura indicated that the last known addresses for Baye and
Smith were in their respective personnel files, but that Smitty' s made no effort to
serve any subpoena to them at their last known address or otherwise call them. It is
clear subpoenas were issued to Smitty' s for Baye and Smith' s appearance, but
Smitty' s made no attempt to arrange their appearance for the hearing. Further,
10 although Lee noticed and took the two depositions, he claims he learned on the
morning of the hearing that both Baye and Smith were unavailable, effectively
depriving him of cross- examination. While we recognize that the rules of evidence
and procedure are relaxed in workers' compensation proceedings,2 such proceedings
are nonetheless lawsuits to be conducted in confonnity with the accepted standards
of practice and procedure. See Taylor v. Tommie' s Gaming, 2004- 2254 ( La.
5/ 24/ 05), 902 So. 2d 380, 383. Accordingly, we find no abuse of discretion in the
WC' s determination that Smitty' s failed to notify the parties of or otherwise explain
Baye and Smith' s unavailability at the hearing, and that their deposition transcripts
could not be offered into evidence in lieu of their live testimony.
Also, as Lee did not know until the morning of the hearing that Smitty' s
intended to introduce the deposition transcripts from Baye and Smith, the uncalled
witness rule is not applicable, despite Smitty' s argument to the contrary. The
uncalled witness" rule has been defined as an adverse presumption that arises when
a party has the power to produce witnesses whose testimony would elucidate the
transaction or occurrence and fails to call such witnesses. A party' s failure to call
such witnesses gives rise to the presumption that the witnesses' testimony would be
unfavorable to him. Roth v. New Hotel Monteleone, L.L.C., 2007- 0549 ( La. App.
4th Cir. 1/ 30/ 08), 978 So. 2d 1008, 1012, citing, Taylor v. Entergy Corp., 2001-
0805 ( La. App. 4th Cir. 4/ 17/ 02), 816 So.2d 933, 941. The application of an adverse
presumption against a party who does not produce a witness is discretionary on the
part of the court. It is well within the discretion of the trial court to decide not to
apply an adverse presumption. Roth, 978 So. 2d at 1012. As Smitty' s issued the
subpoenas for Baye and Smith, knew both men were no longer employed by
Smitty' s, knew of their last known mailing addresses yet made no attempt to contact
2 Louisiana Revised Statutes 23: 1317( A) provides, in pertinent part, that, "[ t] he workers' compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence[.]"
11 them, and was the party seeking the introduction of the deposition transcripts, we
find the WO did not err in failing to apply the " uncalled witness" rule. The rule is
intended to punish parties who are withholding witness testimony, not to penalize
parties who do not have the power to produce witnesses to testify. Id. If anything,
Smitty' s is the party against whom the " uncalled witness" rule should apply. As
such, under the facts and circumstances presented herein, this rule has no
application.
Accordingly, we find no merit to these assignments of error.
Assignments ofError Nos. S & 6 —Penalties and Attorney' s Fees
Lastly, Smitty' s submits the WO erred in awarding Lee penalties and
attorney' s fees pursuant to La. R.S. 23: 1201( F), arguing it " reasonably controverted
Lee' s] claim based [ on] the circumstances surrounding [ the] accident, the
discrepancies between [ Lee' s] story and the medical evidence, and the testimony
that directly contradicted [ his] testimony." In the January 19, 2024 judgment, the
WO levied penalties against Smitty' s in the amount of $2, 000.00 for its failure to
timely pay for necessary medical care and an additional $ 2, 000.00 in penalties for
Smitty' s failure to timely authorize indemnity benefits. Additionally, the WO levied
awards of attorney' s fees in the amount of $4, 000.00 for Smitty' s failure to timely
pay for necessary medical care and an additional $ 4, 000. 00 for Smitty' s failure to
timely authorize indemnity benefits.
Under La. R.S. 23: 1201( F), an employer or insurer may be assessed with
penalties and attorney' s fees for failure to timely pay indemnity or medical benefits
where the employer or insurer has failed to reasonably controvert the claim. See La.
R.S. 23: 1201( F)( 2). A claim is reasonably controverted when the employer has
sufficient factual and/or medical information to counter evidence presented by the
claimant. Clark v. Godfrey Knight Farms, Inc., 2008- 1723 ( La. App. 1st Cir.
2/ 13/ 09), 6 So. 3d 284, 297, writ denied, 2009- 0562 ( La. 5/ 29/ 09), 9 So. 3d 163.
12 Statutes providing for penalties and attorney fees are penal in nature and must be
strictly construed. Authement v. Wal-Mart, 2002- 2434 (La. App. 1 st Cir. 9/ 26/ 03), 857 So. 2d 564, 574. The claimant bears the burden of proving his entitlement to
statutory penalties and attorney fees due to the employer' s failure to timely pay
workers' compensation benefits. Davis v. Farm Fresh Food Supplier, 2003- 1381
La. App. 1 st Cir. 5/ 14/ 04), 879 So. 2d 215, 220. The crucial inquiry is whether the
employer has an articulated and objective reason for denying payment at the time it
took that action. See Lewis v. Temple Inland, 2011- 0729, 201.1- 0730 (La. App. 1 st
Cir. 11/ 9/ 11), 80 So. 3d 52, 58. A determination of whether an employer or insurer
has failed to reasonably controvert a claim is a question of fact subject to the manifest
error standard of review. Clark, 6 So. 3d at 297.
On May 19, 2022, Lee made written demand to Smitty' s, describing the
circumstances surrounding the accident and identifying the medical providers he
visited since the accident. Additionally, attached to this letter were discharge
instructions from Lee' s May 16, 2022 visit with Lallie Kemp Regional Medical
Center, which noted Lee was the "[ d] river of [a] heavy transport vehicle[, and was]
injured in [ a] collision with motor vehicle in nontraffic accident[.]" Although this
record documents Lee' s accident and injuries, it did not disable him. Later, however,
on June 7, 2022, Lee again made express written demand on Smitty' s for indemnity
benefits, and further attached twenty- seven pages of medical care notes from Elite
Chiropractic, as well as the patient billing statements totaling $1, 432. 82, concerning
Lee' s care from May 25, 2022 through June 3, 2022. In Lee' s initial visit to Elite
on May 25, 2022, which was provided to Smitty' s, the medical notes expressly state
he " is placed on T.T.D. (total temporary disability) status for [ six] weeks, as of his
initial visit to our clinic. His temporary total disability is based on [ his inability to]
perform job duties as required by employer[.] Therefore, he is not released to return
to work at this time. Work status will be re- evaluated when this status has terminated
13 or if the patient has a significant change in his condition." During the hearing, when
Collura was questioned over this particular document, she expressly stated she did
not take any action when she received it. Further, on each subsequent date Lee
visited Elite, as attached to his June 7, 2022 demand letter, it was noted Lee was
totally temporarily disabled and unable to return to work.
Medical benefits payable to a workers' compensation claimant must be paid
within sixty days after the employer or insurer receives written notice thereof. See
La. R.S. 23: 1201( E)( 1). Where an employer or insurer initially receives a favorable
medical report, but later receives information revealing the possibility of a
continuing disability, it may not blindly continue to rely on the initial medical report.
The employer or insurer has a continuing duty to investigate and make every
reasonable effort to assemble factual and medical information to ascertain whether
a claim is compensable before denying benefits. Shelton, 253 So. 3d at 170.
Herein, Lee' s first demand letter was dated May 19, 2022, and his second on
June 7, 2022. Further, Lee' s claim was filed on June 9, 2022, and Smitty' s answered
the claim on July 6, 2022, claiming Lee did not have any work-related disability, and
was not entitled to any type of indemnification benefits, supplemental earnings
benefits, or medical payments. However, the demand letters and the claim made
reveal the possibility of a continuing disability, and Smitty' s had a continuing duty
to investigate and make a reasonable effort to gather information to determine if the
claim was compensable before it denied benefits. Moreover, Smitty' s denial of
Lee' s claim came after it was in receipt of multiple records from Elite Chiropractic,
which expressly stated Lee was totally temporarily disabled and unable to return to
work for at least six weeks. Considering these facts, a thorough review of the record
supports the WCJ' s finding that Smitty' s did not reasonably controvert Lee' s claim
before denying benefits. Accordingly, the WCJ did not manifestly err in assessing
14 statutory penalties and attorney' s fees against Smitty' s for its failure to timely pay
necessary medical benefits.
Smitty' s further argues the WO violated La. R.S. 23: 1201( J) in rendering two
attorney' s fees awards in the amount of $4,000.00, each in favor of Lee. The WO
made one award for Smitty' s failure to timely pay for necessary medical care in
violation of La. R.S. 23: 1201( E), and the second award for Smitty' s failure to timely
pay indemnity benefits in violation of La. R.S. 23: 1201( B).
Louisiana Revised Statutes 23: 1201( J) provides, in part:
Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section[.]
Under La. R.S. 23: 1201( J), only one award of attorney fees can be made in
connection with a hearing on the merits, even when multiple violations have
occurred. Shelton, 253 So. 3d at 171; see also Russell v. Regency Hospital of
Covington, LLC, 2008- 0538 ( La. App. 1st Cir. 11/ 14/ 08), 998 So. 2d 301, 306.
Because Lee is entitled to only one award of attorney fees, the WCJ' s second award
of attorney' s fees, in the amount of $4, 000.00, for Smitty' s failure to timely pay
indemnity benefits, must be vacated. See Shelton, 253 So. 3d at 171.
In his appellee brief, Lee concedes the WO erred in making two separate
awards of attorney' s fees, but argues the award for failure to timely pay necessary
medical care of $4, 000. 00 should be increased, as his counsel' s fee statement reflects
a total of more than $ 25, 000. 00. When attorney fees are awarded in a workers'
compensation case, they are deemed to be a penalty and the value of the attorney' s
fees need not be proven. The worker' s compensation court is allowed to call upon
its own experience and expertise in determining the amount of time and effort that a
lawyer has put into the preparation of a case. The amounts awarded in penalties and
attorney' s fees are entitled to great discretion and will not be disturbed absent an
15 abuse of discretion. Factors usually considered when fixing the amount of attorney' s
fees to be awarded in workers' compensation cases are ( 1) the degree of skill and
the amount of work involved in the case, ( 2) the amount of the claim, ( 3) the amount
recovered for the claimant, and ( 4) the amount of time the attorney devoted to the
case. Rayborn v. Continental Cement Company, LLC, 2023- 0403 ( La. App. 1 st
Cir. 1/ 10/ 24), 383 So. 3d 225, 238- 39, writ denied, 2024- 00190 ( La. 4/ 3/ 24), 382
So. 3d 110. After a thorough review of the record, it is apparent the WCJ considered
all relevant factors, but committed legal error in awarding two separate awards of
attorney' s fees in the amount of $4, 000.00 each for Smitty' s failure to timely pay
indemnity benefits and failure to timely pay for necessary medical care. As the
award for Smitty' s failure to timely pay indemnity benefits is now vacated, we
therefore amend the remaining $ 4, 000.00 award for Smitty' s failure to timely pay
for necessary medical care and increase it to $ 8, 000. 00. See Russell, 998 So. 3d 306-
07.
ANSWER TO APPEAL
In an answer to this appeal, Lee requests an award of additional attorney' s
fees. Additional attorney' s fees are usually awarded on appeal when a party appeals,
but obtains no relief, and the appeal has necessitated additional work on the opposing
party' s counsel, provided that the opposing party appropriately requests an increase.
Shelton, 253 So. 3d at 172. In this case, since Smitty' s has obtained partial relief on
appeal by the removal of the WCJ' s second award for attorney' s fees due to Smitty' s
failure to timely pay indemnity benefits, we do not believe an award of additional
attorney' s fees is appropriate and decline to make such an award to Lee.
CONCLUSION
For the foregoing reasons, we affirm, in part, the January 19, 2024 judgment,
rendered in favor of Andre Lee and against Smitty' s Supply, Inc., finding that Andre
Lee sustained an injury during the course and scope of his employment on May 11,
16 2022, and awarding him total temporary disability benefits and medical expenses.
However, pursuant to La. R.S. 23: 1201( J), we vacate, in part, the portion of the
judgment which awards $ 4, 000. 00 in attorney' s fees to Andre Lee for Smitty' s
Supply, Inc.' s failure to timely pay indemnity benefits. Nevertheless, we amend the
remaining award of $4, 000. 00 in attorney' s fees assessed by the WCJ against
Smitty' s Supply, Inc. for its failure to timely pay necessary medical benefits, by
increasing the award to $ 8, 000. 00. Costs of this appeal are assessed one half to the
plaintiff/appellee, Andre Lee, and one half to the defendant/ appellant, Smitty' s
Supply, Inc.
VACATED IN PART, AND RENDERED; AMENDED IN PART, AND AS AMENDED, AFFIRMED; ANSWER TO APPEAL DENIED.