STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 05-744
DAVID D. REED
VERSUS
WILLIS ABSHIRE
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 03-06429 CHARLOTTE L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Michael G. Sullivan, and Billy Howard Ezell, Judges.
REVERSED IN PART AND RENDERED.
Robert Thomas Jacques, Jr. Attorney at Law P. O. Box 1883 Lake Charles, LA 70602 (337) 433-4674 Counsel for Plaintiff/Appellant David D. Reed Christopher Richard Philipp Attorney at Law P. O. Box 2369 Lafayette, LA 70502-2369 (337) 235-9478 Counsel for Defendant/Appellee Willis Abshire EZELL, JUDGE.
The sole issue in this workers’ compensation appeal concerns the failure of the
workers’ compensation judge to award penalties and attorneys fees because approval
to see a pain management specialist was not timely. We agree and award penalties
and attorney fees.
FACTS
David Reed was working for Willis Abshire Painting, L.L.C., on January 14,
2003, when he was injured in the course and scope of his employment. At the time
of the accident, Reed was on stilts and was preparing some exterior brick for paint
when he fell. Reed injured his right knee during the fall.
Reed initially went to Christus St. Patrick Hospital and was eventually referred
to Dr. Daniel Yanicko, an orthopedic surgeon, who saw Reed on January 22, 2003.
An MRI of Reed’s right knee revealed a vertical tear in the posterior horn of the
lateral meniscus, possibly requiring surgery.
Thereafter, Reed advised Maggie Blanchard that he wanted to see Dr. Dale
Bernauer. Blanchard works for Risk Management Services who is the third-party
administrator for Louisiana United Business Association, Self-Insurer’s Fund
(LUBA). Although Dr. Bernauer is an orthopedist, he does not perform surgery, so
Reed saw Dr. Bernauer’s partner, Dr. Stephen Flood.
Dr. Flood first saw Reed on March 25, 2003. He initially started Reed with
physical therapy. The physical therapy was not successful, so right knee arthroscopy
was performed on June 16, 2003. After surgery, Dr. Flood continued following Reed.
Over the next few months, Reed continued to complain of pain. On October 31,
2003, Dr. Flood began to administer Hyalgan injections. Dr. Flood’s notes indicate
that Reed had relief from the first two injections.
1 Prior to receiving the injections, Reed had made a request to Blanchard, on
September 3, 2003, to see Dr. Frank Lopez, a pain management physician. Blanchard
informed Reed that he would need a letter of representation and a doctor referral to
see Dr. Lopez. On October 13, 2003, Blanchard received a letter of request from
Reed’s attorney to see Dr. Lopez.
On November 20, 2003, Reed’s attorney called Dr. Flood’s office requesting
a referral to Dr. Lopez for pain management. Dr. Flood agreed and issued a physician
referral form. However, Blanchard still refused to let Reed see Dr. Lopez because she
decided that she needed a second medical opinion. Blanchard requested that Reed
see Dr. Thomas Ford, another orthopedic surgeon, but Reed refused.
Meanwhile, on September 5, 2003, Reed filed a disputed claim for
compensation concerning his choice of Dr. Lopez as a specialist in rehabilitation and
pain. He also sought penalties and attorney fees. Abshire filed a motion to compel
a medical examination by Dr. Ford prior to authorizing treatment for pain
management, questioning whether pain management was reasonable and necessary.
Following Reed’s request for an expedited hearing, a hearing was held on
January 7, 2004, in which the workers’ compensation judge (WCJ) ruled that Reed
was entitled to be seen by Dr. Lopez as a referral from Dr. Flood. It was also ordered
that Reed appear for an evaluation with Dr. Ford. The issue of penalties and attorneys
fees was reserved for the trial on the merits.
Subsequently, Reed filed a second motion for expedited hearing on February
11, 2004, because Abshire only authorized an evaluation with Dr. Lopez. A hearing
was held on February 12, at which time the WCJ ruled that Reed was entitled to select
Dr. Lopez as his treating physician in the field of pain management. The issue of
penalties and attorney fees was once again deferred until the trial on the merits.
2 Trial was held on September 8, 2004. Among other rulings, the WCJ held that
Abshire reasonably controverted the manner in which the referral to Dr. Lopez was
handled, thereby declining to award penalties and attorney fees. It is from this ruling
that Reed appeals.
PENALTIES AND ATTORNEY FEES
Reed contends that the WCJ committed manifest error in ruling that penalties
and attorney fees were not appropriate in this case. Reed argues that he has a right
to a choice of a treating physician in a different field of specialty pursuant to La.R.S.
23:1121 and a referral from another doctor is not needed.
Reed made clear his desire to see Dr. Lopez as a pain management specialist.
However, Risk Management Services, on behalf of Abshire, wanted a referral from
a doctor to insure that the treatment was necessary. Dr. Flood’s records indicate that
Reed continued to experience pain in his right knee. Dr. Flood even tried Hyalgan
injections, which did provide some relief but did not alleviate the pain. While it is
true that Reed’s attorney requested that Dr. Flood refer Reed to Dr. Lopez, Dr. Flood
did so and there is no indication that Dr. Flood thought that it was not necessary
treatment. We assume that Dr. Flood would not have referred a patient for
unnecessary treatment. Furthermore, this referral was based on the requirement of
Risk Management Services that Reed have a doctor referral before it would authorize
payment of Dr. Lopez’s bills. Even after Risk Management Services received the
requested referral from Dr. Flood on November 23, 2003, it refused to pay for
treatment by Dr. Lopez until ordered by the court to do so on February 17, 2004,
almost three months later.
We find that once Dr. Flood referred Reed to Dr. Lopez for pain management
treatment, the situation then became one of failure to authorize treatment as opposed
3 to a choice of physician issue. Latigue v. Christus St. Patrick Hosp., 03-871 (La.App.
3 Cir. 12/17/03), 861 So.2d 898, writ denied, 04-193 (La. 3/26/04), 871 So.2d 349.
At that juncture, La.R.S. 23:1201 and 23:1203 became applicable to the case. Id.
This court, relying on Authement v. Shappert Eng’g, 02-1631 (La. 2/25/03), 840
So.2d 1181, held that failure to authorize treatment is a failure to furnish
compensation benefits warranting the imposition of penalties and attorney fees except
when the claim is reasonably controverted. Id.
The WCJ found that Risk Management Services reasonably controverted the
claim. In reasons for judgment she specifically ruled that “failure to authorize an
appointment with Dr. Lopez within a period of time between November 24, 2003 and
January 7, 2004 was prompt and reasonable.” We are mindful that a WCJ’s findings
of fact are subject to the manifest error/ clearly wrong standard of review and the
determination of whether an employer or insurer should be cast with penalties and
attorney fees in a workers’ compensation case is essentially a question of fact.
Authement, 840 So.2d 1181.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 05-744
DAVID D. REED
VERSUS
WILLIS ABSHIRE
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 03-06429 CHARLOTTE L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Michael G. Sullivan, and Billy Howard Ezell, Judges.
REVERSED IN PART AND RENDERED.
Robert Thomas Jacques, Jr. Attorney at Law P. O. Box 1883 Lake Charles, LA 70602 (337) 433-4674 Counsel for Plaintiff/Appellant David D. Reed Christopher Richard Philipp Attorney at Law P. O. Box 2369 Lafayette, LA 70502-2369 (337) 235-9478 Counsel for Defendant/Appellee Willis Abshire EZELL, JUDGE.
The sole issue in this workers’ compensation appeal concerns the failure of the
workers’ compensation judge to award penalties and attorneys fees because approval
to see a pain management specialist was not timely. We agree and award penalties
and attorney fees.
FACTS
David Reed was working for Willis Abshire Painting, L.L.C., on January 14,
2003, when he was injured in the course and scope of his employment. At the time
of the accident, Reed was on stilts and was preparing some exterior brick for paint
when he fell. Reed injured his right knee during the fall.
Reed initially went to Christus St. Patrick Hospital and was eventually referred
to Dr. Daniel Yanicko, an orthopedic surgeon, who saw Reed on January 22, 2003.
An MRI of Reed’s right knee revealed a vertical tear in the posterior horn of the
lateral meniscus, possibly requiring surgery.
Thereafter, Reed advised Maggie Blanchard that he wanted to see Dr. Dale
Bernauer. Blanchard works for Risk Management Services who is the third-party
administrator for Louisiana United Business Association, Self-Insurer’s Fund
(LUBA). Although Dr. Bernauer is an orthopedist, he does not perform surgery, so
Reed saw Dr. Bernauer’s partner, Dr. Stephen Flood.
Dr. Flood first saw Reed on March 25, 2003. He initially started Reed with
physical therapy. The physical therapy was not successful, so right knee arthroscopy
was performed on June 16, 2003. After surgery, Dr. Flood continued following Reed.
Over the next few months, Reed continued to complain of pain. On October 31,
2003, Dr. Flood began to administer Hyalgan injections. Dr. Flood’s notes indicate
that Reed had relief from the first two injections.
1 Prior to receiving the injections, Reed had made a request to Blanchard, on
September 3, 2003, to see Dr. Frank Lopez, a pain management physician. Blanchard
informed Reed that he would need a letter of representation and a doctor referral to
see Dr. Lopez. On October 13, 2003, Blanchard received a letter of request from
Reed’s attorney to see Dr. Lopez.
On November 20, 2003, Reed’s attorney called Dr. Flood’s office requesting
a referral to Dr. Lopez for pain management. Dr. Flood agreed and issued a physician
referral form. However, Blanchard still refused to let Reed see Dr. Lopez because she
decided that she needed a second medical opinion. Blanchard requested that Reed
see Dr. Thomas Ford, another orthopedic surgeon, but Reed refused.
Meanwhile, on September 5, 2003, Reed filed a disputed claim for
compensation concerning his choice of Dr. Lopez as a specialist in rehabilitation and
pain. He also sought penalties and attorney fees. Abshire filed a motion to compel
a medical examination by Dr. Ford prior to authorizing treatment for pain
management, questioning whether pain management was reasonable and necessary.
Following Reed’s request for an expedited hearing, a hearing was held on
January 7, 2004, in which the workers’ compensation judge (WCJ) ruled that Reed
was entitled to be seen by Dr. Lopez as a referral from Dr. Flood. It was also ordered
that Reed appear for an evaluation with Dr. Ford. The issue of penalties and attorneys
fees was reserved for the trial on the merits.
Subsequently, Reed filed a second motion for expedited hearing on February
11, 2004, because Abshire only authorized an evaluation with Dr. Lopez. A hearing
was held on February 12, at which time the WCJ ruled that Reed was entitled to select
Dr. Lopez as his treating physician in the field of pain management. The issue of
penalties and attorney fees was once again deferred until the trial on the merits.
2 Trial was held on September 8, 2004. Among other rulings, the WCJ held that
Abshire reasonably controverted the manner in which the referral to Dr. Lopez was
handled, thereby declining to award penalties and attorney fees. It is from this ruling
that Reed appeals.
PENALTIES AND ATTORNEY FEES
Reed contends that the WCJ committed manifest error in ruling that penalties
and attorney fees were not appropriate in this case. Reed argues that he has a right
to a choice of a treating physician in a different field of specialty pursuant to La.R.S.
23:1121 and a referral from another doctor is not needed.
Reed made clear his desire to see Dr. Lopez as a pain management specialist.
However, Risk Management Services, on behalf of Abshire, wanted a referral from
a doctor to insure that the treatment was necessary. Dr. Flood’s records indicate that
Reed continued to experience pain in his right knee. Dr. Flood even tried Hyalgan
injections, which did provide some relief but did not alleviate the pain. While it is
true that Reed’s attorney requested that Dr. Flood refer Reed to Dr. Lopez, Dr. Flood
did so and there is no indication that Dr. Flood thought that it was not necessary
treatment. We assume that Dr. Flood would not have referred a patient for
unnecessary treatment. Furthermore, this referral was based on the requirement of
Risk Management Services that Reed have a doctor referral before it would authorize
payment of Dr. Lopez’s bills. Even after Risk Management Services received the
requested referral from Dr. Flood on November 23, 2003, it refused to pay for
treatment by Dr. Lopez until ordered by the court to do so on February 17, 2004,
almost three months later.
We find that once Dr. Flood referred Reed to Dr. Lopez for pain management
treatment, the situation then became one of failure to authorize treatment as opposed
3 to a choice of physician issue. Latigue v. Christus St. Patrick Hosp., 03-871 (La.App.
3 Cir. 12/17/03), 861 So.2d 898, writ denied, 04-193 (La. 3/26/04), 871 So.2d 349.
At that juncture, La.R.S. 23:1201 and 23:1203 became applicable to the case. Id.
This court, relying on Authement v. Shappert Eng’g, 02-1631 (La. 2/25/03), 840
So.2d 1181, held that failure to authorize treatment is a failure to furnish
compensation benefits warranting the imposition of penalties and attorney fees except
when the claim is reasonably controverted. Id.
The WCJ found that Risk Management Services reasonably controverted the
claim. In reasons for judgment she specifically ruled that “failure to authorize an
appointment with Dr. Lopez within a period of time between November 24, 2003 and
January 7, 2004 was prompt and reasonable.” We are mindful that a WCJ’s findings
of fact are subject to the manifest error/ clearly wrong standard of review and the
determination of whether an employer or insurer should be cast with penalties and
attorney fees in a workers’ compensation case is essentially a question of fact.
Authement, 840 So.2d 1181.
The Louisiana Supreme Court discussed the meaning of “reasonably
controverting a claim” in Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.
12/1/98), 721 So.2d 885, 890, as follows:
In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. 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.
4 There is no evidence in the record that Risk Management Services reasonably
controverted the referral by Dr. Flood other than the fact that it wanted a second
opinion. Prior to that time, all evidence indicated that Reed continued to suffer with
pain and Dr. Flood had referred Reed to Dr. Lopez. In January 2004, when Dr. Ford
examined Reed, he concluded that Reed was still not able to return to work. Dr. Ford
noted that Reed had pain in his knee and also reviewed an October 2003 MRI which
indicated persistent pathology in the lateral meniscus and even recommended that the
area be evaluated arthroscopically to see if there was a re-tear. He did state that pain
management would not allow Reed to return to his pre-injury activity of painting
which required him to occasionally walk on stilts. However, Dr. Ford did not offer
an opinion as to whether pain management would help with Reed’s pain problems.
Even with Dr. Ford’s agreement that Reed continues to have problems and the
fact that Reed’s treating physician, Dr. Flood, referred Reed to Dr. Lopez, Risk
Management Services still refused to authorize treatment with Dr. Lopez until
ordered to do so by the WCJ in February. We find that the WCJ committed manifest
error in finding that Risk Management reasonably controverted this claim during this
three-month period.
Louisiana Revised Statutes 23:1201(F)1 provides for the:
assessment of a penalty in an amount up to the greater of twelve percent of any unpaid . . . medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid . . ., together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not
1 Louisiana Revised Statutes 23:1201 was amended by Acts 2003, No. 1204, § 1, which among other changes, rewrote the introductory paragraph of subsection F. Although Reed was injured prior to the effective date of these amendments, we note that the law in effect at the time that Reed was denied his request to see Dr. Lopez is the law that governs. Rivera v. M & R. Cable Contrs., Inc., 04-985 (La.App. 3 Cir. 12/14/04), 896 So.2d 90; see also Frith v. Riverwood, Inc. 04- 1086 (La. 1/19/05), 892 So.2d 7. Skipper v. Acadian Oaks Hosp., 00-67 (La.App. 3 Cir. 5/3/00), 762 So.2d 122;
5 exceed a maximum of two thousand dollars in the aggregate for any claim.
Risk Management refused to authorize treatment by Dr. Lopez for more than
forty days, therefore, Reed is entitled to the maximum penalty of $2,000. We further
find that Reed is entitled to attorney fees in the amount of $7,500, for work performed
at the trial and appellate levels. Reed’s attorney made several attempts to initially
secure treatment by Dr. Lopez in addition to attending two separate hearings on the
matter. He further had to appeal the matter to this court and was successful.
For these reasons we reverse the denial of penalties and attorney fees for the
failure to authorize treatment with Dr. Lopez. We award David Reed $2,000 in
penalties and $7,500 in attorney fees. Costs of this appeal are assessed to Willis
Abshire.