DeBarge v. LFI Lake Charles

87 So. 3d 930, 11 La.App. 3 Cir. 1208, 2012 WL 716325, 2012 La. App. LEXIS 280
CourtLouisiana Court of Appeal
DecidedMarch 7, 2012
DocketNo. 11-1208
StatusPublished
Cited by1 cases

This text of 87 So. 3d 930 (DeBarge v. LFI Lake Charles) 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
DeBarge v. LFI Lake Charles, 87 So. 3d 930, 11 La.App. 3 Cir. 1208, 2012 WL 716325, 2012 La. App. LEXIS 280 (La. Ct. App. 2012).

Opinion

GREMILLION, Judge.

| ]In this workers’ compensation matter, judgment was rendered in favor of the employee on the issues of weekly indemnity benefits and medical expenses. However, the judgment did not specify against whom it was rendered, the amount of weekly indemnity awarded, the amount of medical benefits awarded, or what amounts were taxed as costs of court. “Labor Finders,” “LFI of Lake Charles,” and ACE Insurance Company (“LFI”) lodged this appeal, arguing that the judgment is defective in the above particulars and other aspects of the judgment, assuming it is a valid judgment. For the reasons that follow, we dismiss the appeal and remand the matter to the workers’ compensation judge (WCJ) with instructions to enter a definite judgment.

FACTS

On October 30, 2006, Sherry DeBarge, in proper person, filed a Disputed Claim for Compensation (Office of Workers’ Compensation Form 1008, hereafter “1008”) in which she alleged that she was injured on November 1, 2005, when she became entangled in some plastic and fell, hitting her head. On December 1, 2006, counsel formally enrolled for “Employer, LFI OF LAKE CHARLES.” That day, the WCJ signed an order enrolling counsel for “Employer, LFI OF LAKE CHARLES.” On February 15, 2007, an answer was filed on behalf of “the Employer, Labor Finders, named as LFI of Lake Charles.” Later pleadings were filed in the name of “Employer, LFI of Lake Charles.” The identity of DeBarge’s employer was never otherwise raised as an issue.

DeBarge was treated for problems with her neck for which her orthopedic surgeon, Dr. Clark Gunderson, recommended a sur[932]*932gery to remove disc fragments and fuse her vertebral end plates at the C5-6 level. LFI initially sent DeBarge to an orthopedic surgeon, Dr. James Perry, who recommended conservative treatment. |2The WCJ appointed a neurosurgeon, Dr. Thomas Bertuccini, to conduct an independent evaluation. He initially recommended conservative treatment and that a myelogram and post-myelogram CT scan be performed. These studies were performed on August 20, 2008.

Dr. Gunderson later opined that De-Barge needed surgery at the C5- and C4-5 levels and communicated his surgical recommendations to Ms. Karen Young of ACE Insurance on September 4, 2008.1 On January 15, 2009, DeBarge was operated on by Dr. Gunderson at both the C5-6 and the C4-5 levels despite LFI’s failure to authorize the surgery. On February 28, 2009, his review of the myelogram and CT scan of DeBarge’s neck convinced Dr. Ber-tuecini to concur with Dr. Gunderson’s surgical recommendation as to an anterior discectomy, but only at the C5-6 level. Dr. Bertuccini thought that the chance that DeBarge would need plating and fusion was small, “but that is a possibility depending on intraoperative findings.” On May 15, 2009, Ms. Young wrote Dr. Gun-derson to advise that she was unable to authorize the surgery he recommended because Dr. Bertuccini had only recommended surgery at the C5-6 level. It appears that Ms. Young was unaware that DeBarge’s surgery had been performed four months before.

On August 17, 2009, Ms. Young informed Dr. Gunderson that all further treatment of DeBarge was denied.

The salient issues for trial were De-Barge’s entitlement to weekly indemnity and medical benefits, penalties and attorney fees sought against LFI, and LFI’s contention that DeBarge was entitled to no benefits because she falsified answers to its pre-employment questionnaire by denying previous spinal impairments. The j^matter came for trial before the WCJ. The WCJ found that DeBarge had been injured in 2005. Dr. Gunderson recommended that she have surgery in September 2007, and that DeBarge arrived at the point where she could simply not tolerate her pain. So she shouldered the cost of the surgery herself.

The WCJ also found virtually no support for LFI’s claim that DeBarge had forfeited her benefits under La.R.S. 23:1208.1 by denying the existence of previous neck problems dating back to 1996 on her pre-employment medical questionnaire. That DeBarge had denied those problems was not questioned; that LFI had failed to demonstrate all elements necessary to warrant forfeiture of her benefits was. An untrue or inaccurate statement does not equate to fraud, the WCJ reasoned, and in the nine years between DeBarge’s neck complaints in 1996 and the subject accident in 2005, she had been employed performing strenuous labor.

The ruling of the trial court was:

For reasons why I have detailed in some detail, the court finds as follows: Sherry DeBarge is entitled to workers’ compensation indemnity benefits as a result of her November 1, 2005, work accident retroactive to the date of the accident. As a consequence of the accident, she is entitled to all reasonable medical treatment including all medical bills and out of pocket expenses related to the accident. [Bjecause the defen[933]*933dant unreasonably terminated benefits on August 17th, 2009, a penalty of $8,000.00 is assessed.
Given the overall conduct of the defendant in the handling, or mishandling of this matter, the request by claimant’s counsel for $14,000.00 in attorney’s fees is awarded.

DeBarge’s counsel was to prepare the judgment, which was signed on June 6, 2011. The judgment identified counsel present at the time of the ruling and the parties they represented, and provided in pertinent part:

IT IS ADJUDGED, ORDERED, AND DECREED as follows:
1.Claimant Sherry Debarge is entitled to and employer is responsible for, paying Temporary Total Disability benefits from the date of the work-accident November 1, 2005.
[42. Claimant Sherry Debarge is entitled to and employer is responsible for, all reasonable medical benefits and treatment as a result of the November 1, 2005 work accident, including payment of all surgical expenses related to the surgery performed by Dr. Clark Gunderson, out-of-pocket expenses and all related medical expenses.
3. The termination of medical benefits was arbitrary and capricious and done without probable cause, thus entitling claimant to an award of $8,000.00 in penalties and an award of $14,000.00 in attorney fees.

LFI then perfected this appeal.

ASSIGNMENTS OF ERROR

LFI asserts the following assignments of error:

1. The workers’ compensation judge committed legal error in rendering judgment in these proceedings, where the judgment is utterly lacking in decretal language and is not factually supportable.
2. The judgment of the Workers’ Compensation Court constitutes legal error to the extent that it awards more than $750.00 for the surgery performed by Dr. Gunderson.
3. The workers’ compensation judge committed legal error in failing to deny claimant’s entitlement to benefits as a result of her violation of La.R.S. 23:1208.1.
4. The workers’ compensation judge committed manifest error in awarding penalties and attorney’s fees where the claim was reasonably controverted.

DeBarge answered the appeal and seeks additional attorney fees for work done by her counsel on appeal.

ANALYSIS

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” La.Code Civ.P. art. 1841.

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Related

DeBarge v. LFI of Lake Charles
154 So. 3d 1279 (Louisiana Court of Appeal, 2014)
Sherry Debarge v. Lfi Lake Charles
Louisiana Court of Appeal, 2014

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Bluebook (online)
87 So. 3d 930, 11 La.App. 3 Cir. 1208, 2012 WL 716325, 2012 La. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debarge-v-lfi-lake-charles-lactapp-2012.