Bihm v. Unit Drilling Co.

102 So. 3d 1058, 12 La.App. 3 Cir. 569, 2012 La. App. LEXIS 1399, 2012 WL 5417365
CourtLouisiana Court of Appeal
DecidedNovember 7, 2012
DocketNo. 12-569
StatusPublished
Cited by1 cases

This text of 102 So. 3d 1058 (Bihm v. Unit Drilling Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bihm v. Unit Drilling Co., 102 So. 3d 1058, 12 La.App. 3 Cir. 569, 2012 La. App. LEXIS 1399, 2012 WL 5417365 (La. Ct. App. 2012).

Opinion

PETERS, J.

liThe plaintiff in this workers’ compensation case, Thomas Boyd Bihm, appeals the sufficiency of the attorney fee awarded in his favor. For the following reasons, we affirm the hourly rate used by the workers’ compensation judge (WCJ) to calculate the attorney fee award, but amend the award by adjusting upward the number of hours on which the award is based.

DISCUSSION OF THE RECORD

On November 8, 2000, Mr. Bihm sustained a knee injury while working as a [1059]*1059tool pusher for Unit Drilling Company. During the rehabilitation process, Mr. Bihm gained a significant amount of weight which precluded the necessary knee-replacement surgery recommended by his treating physician. To address this complication, his physician ordered baria-tric evaluation and surgery. When presented with this recommendation, Liberty Mutual Insurance Company (Liberty Mutual), the employer’s workers’ compensation insurer, refused to approve the recommendation.

In response, on April 14, 2011, Mr. Bihm filed a Disputed Claim for Compensation with the Office of Workers’ Compensation. In his claim, Mr. Bihm identified the dispute as being the insurer’s failure to authorize the medical treatment, and he requested a judgment authorizing the treatment and awarding penalties, attorney fees, and interest for Liberty Mutual’s actions. The WCJ ultimately scheduled the matter for trial on November 10, 2011, but approximately two weeks before the scheduled trial, Liberty Mutual agreed to approve the bariatric evaluation and subsequent surgery, if found to be necessary. This action by Liberty Mutual left only the issues of penalties and attorney fees to be determined by the WCJ.

12At the November 10th trial, the litigants entered into a stipulation concerning the agreement on the medical treatment. The WCJ then continued the remaining matters until a December 6, 2011 telephone conference hearing, to allow Mr. Bihm’s counsel the opportunity to prepare and submit an affidavit concerning his time spent in the prosecution of the claim.

On November 16, 2011, Mr. Bihm’s counsel submitted an affidavit reflecting that he had worked 108.8 hours on the litigation, that his hourly rate was $250.00, and that he was entitled to a $27,200.00 attorney fee. Both sides briefed the attorney fee issue after the affidavit was filed. The December 6, 2011 telephone conference resulted in the WCJ awarding attorney fees based on sixty hours of work at an hourly rate of $200.00. On January 24, 2012, the WCJ executed a written judgment awarding Mr. Bihm a $2,000.00 penalty, $2,998.98 in expenses, and a $12,000.00 attorney fee.

Thereafter, Mr. Bihm perfected this appeal, wherein he asserts as his sole assignment of error that the WCJ erred in not awarding him the $27,200.00 as evidenced by his attorney’s affidavit.

OPINION

The record before us establishes that Mr. Bihm sustained his injury on November 8, 2000. It does not seem to be disputed that he needs knee -replacement surgery, but is not a candidate because of his excess weight. The record also establishes that by fax correspondence dated February 10, 2011, Liberty Mutual denied Mr. Bihm’s request for approval of gastric sleeve surgery. This rejection resulted in Mr. Bihm filing his April 14, 2011 Disputed Claim for Compensation wherein the only issue raised was the insurer’s refusal to pay for this medical procedure.

^Liberty Mutual and Unit Drilling Company filed an answer to Mr. Bihm’s claim on May 16, 2011. Despite having paid benefits since 2000, the defendants pled numerous defenses not directly related to the medical care claim. The defendants first denied that Mr. Bihm sustained an on-the-job injury. Then, in the event the WCJ determined that Mr. Bihm did sustain a compensable injury, the defendants asserted that their failure to pay for the medical procedure was “based on competent medical opinion and the investigation of this complaint”; that Mr. Bihm was currently able to return to gainful em[1060]*1060ployment; that they were entitled to a reduction in benefit payments based on payments from other sources of disability payments; and that Mr, Bihm was only entitled to supplemental earnings benefits. In their answer, the defendants also entered an advance objection to Mr. Bihm attempting to introduce any of the medical reports attached to his Disputed Claim for Compensation as being hearsay and otherwise not properly verified by the Office of Workers’ Compensation Administration Rules and Regulations. Finally, the defendants attempted to affirmatively plead all defenses available to them pursuant to La.R.S. 23:1208 (for fraud in seeking workers’ compensation benefits) and La. R.S. 23:1208.1 (for failure to disclose prior injuries).

On August 2, 2011, the WCJ issued a Scheduling Conference Order which, among other matters, set September 20, 2011, as a cut-off date for discovery and set trial for November 10, 2011. However, because of outstanding discovery responses due from Mr. Bihm, the defendants sought and obtained an extension of the discovery cut-off date until October 21, 2011. The WCJ executed this order on September 20, 2011.

The August 2, 2011 Scheduling Conference Order also ordered that pre-trial statements be filed by October 20, 2011. On October 7, 2011, Mr. Bihm filed his | ¿pre-trial statement, and the defendants followed suit on October 20, 2007. In his pre-trial statement, Mr. Bihm set forth the particulars of his claim for payment of the medical procedure and attached a number of documents in support of his claim. The defendant’s pre-trial statement expanded Mr. Bihm’s claim by listing five issues and eight defense contentions to be addressed by the WCJ. The only claim not continued from the original answer filed by the defendants was that Mr. Bihm did not sustain an on-the-job injury. Both litigants suggested that the records to be introduced into evidence were voluminous and that there would be multiple witnesses called at trial.

Next came a pretrial dispute over an October 25, 2011 subpoena and subpoena duces tecum requested by Mr. Bihm and directed at obtaining the contents of Liberty Mutual’s case file. However, before the WCJ ruled on this dispute, Liberty Mutual agreed to authorize the medical procedure.

On November 10, 2011, the litigants appeared for trial, but announced to the WCJ that the underlying issue had been resolved and that the only remaining issue was that of penalties and attorney fees. Obviously, Liberty Mutual conceded without the necessity of evidence being adduced that it was arbitrary and capricious in failing to authorize the medical procedure because, while the January 24, 2012 judgment awarded Mr. Bihm a $2,000.00 penalty, the December 6, 2011 telephone conference mentions only the attorney fee issue. In fact, it appears from the record before us that the WCJ’s ruling on the attorney fee issue was based solely on the affidavit of Mr. Bihm’s counsel and the briefs submitted on that issue. In rendering its decision, the WCJ stated the following:

And I’m going to fix the attorney’s fees at Twelve Thousand Dollars ($12,-000.00). I think the issue was a narrow one. It was, as Mr. Pousson said in his brief, primarily a legal one. Facts were not in great dispute, and the gastric surgery was authorized two weeks | ¡¡before the trial. I think sixty hours is a reasonable amount of time, and I think Two Hundred Dollars ($200.00) is a reasonable fee, and I came out at Twelve Thousand Dollars.
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Bluebook (online)
102 So. 3d 1058, 12 La.App. 3 Cir. 569, 2012 La. App. LEXIS 1399, 2012 WL 5417365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bihm-v-unit-drilling-co-lactapp-2012.