Erwin v. Town of Jena

987 So. 2d 281, 2008 WL 2289699
CourtLouisiana Court of Appeal
DecidedJune 5, 2008
Docket2008-137
StatusPublished
Cited by4 cases

This text of 987 So. 2d 281 (Erwin v. Town of Jena) 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
Erwin v. Town of Jena, 987 So. 2d 281, 2008 WL 2289699 (La. Ct. App. 2008).

Opinion

987 So.2d 281 (2008)

Charles L. ERWIN, Jr.
v.
TOWN OF JENA.

No. 2008-137.

Court of Appeal of Louisiana, Third Circuit.

June 5, 2008.

Robert L. Beck, Jr., Rivers, Beck, Dalrymple & Ledet, Alexandria, LA, for Appellee: Charles L. Erwin, Jr.

Randall B. Keiser, D. Heath Trahan, Keiser Law Firm, P.L.C., Alexandria, LA, for Appellant: Town of Jena.

*282 Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.

COOKS, Judge.

STATEMENT OF THE FACTS

This workers' compensation case presents two issues for our review: (1) whether the Defendant is required to reimburse the claimant for travel expenses from Florida to Louisiana incurred for approved medical treatment; and (2) whether the Defendant is subject to penalties and attorney fees for failure to timely reimburse Claimant for pharmaceutical expenses incurred at Kirby's Family Pharmacy. The facts are as follows.

Charles L. Erwin, Jr. was a firefighter for the Town of Jena, Louisiana. He injured his neck, right shoulder and arm while fighting an early Christmas morning fire in 1999 when a staircase landing collapsed causing him to fall approximately fourteen feet in full firefighting gear. He underwent an anterior cervical diskectomy and decompression at C5-C6, with fusion and anterior plating. Mr. Erwin also had right shoulder surgery for an impingement syndrome with partial rotator cuff tear and a right ulnar nerve transposition surgery. The surgeries were performed in Alexandria, Louisiana by Dr. Mark Dodson, an orthopaedic surgeon.

Despite numerous surgeries, Mr. Erwin had persistent neck and shoulder pain and was referred for chronic pain management to Dr. Melanie Firman, an anesthesiologist specializing in pain management. Dr. Firman performed cervical facet injections which relieved some of the symptoms. After a series of cervical facet injections, Dr. Firman suggested a cervical radiofrequency (RF) procedure. Since Dr. Firman did not perform the RF procedure, she referred Mr. Erwin to Dr. Sanjiv Jindia in Lafayette, Louisiana. Mr. Erwin first saw Dr. Jindia on April 7, 2004. The RF procedure was approved by the employer and scheduled for June 16, 2004. During this time period, Mr. Erwin and his wife were living in Jena but making plans to move from Louisiana to Florida upon his wife's retirement. Mrs. Erwin had two brothers living in Florida at the time. In fact, on April 22, 2004, shortly after Mr. Erwin's first appointment with Dr. Jinda, the Erwins sold their home and moved into a retirement community in Florida.

In June 2004, Mr. Erwin, accompanied by his wife, flew from Florida to Louisiana for the procedure with Dr. Jindia. Mr. Erwin incurred travel expenses totaling $681.02, which were itemized by Mr. Erwin as follows:

Delta Airlines (round trip airfare to
New Orleans)......................... $265.90
Airport shuttle (transportation to and
from airport) ........................$ 80.00
Hertz rental car (transportation between
New Orleans/Lafayette)................$267.54
Hotel Acadian (hotel-night before
surgery) .............................$ 67.58

By letter dated July 19, 2004, Mr. Erwin's attorney presented documentation of his travel expenses to the risk manager for the Town of Jena. The Town declined to reimburse Mr. Erwin for his costs in traveling to Louisiana for the surgical procedure. Other than the single visit with Dr. Jindia for the RF procedure, Mr. Erwin did not travel between Florida and Louisiana for medical care. All post-operative care was conducted by Dr. Jindia over the telephone. Following the procedure, Mr. Erwin searched in Florida for another physician to take over his pain management protocol. Mr. Erwin was required to first see an orthopaedic specialist for a referral to a pain management specialist. Dr. Cesar Euribe ultimately assumed Mr. Erwin's pain management care. After approximately a year and one-half, the Erwins moved back to Louisiana because of *283 issues regarding Mrs. Erwin's health insurance.

Mr. Erwin returned to Dr. Firman, who advised him that she was unable to resume his pain management care and referred him to Dr. Michael Dole, another pain management specialist. Dr. Dole's prescriptions were authorized by Defendant's risk manager for direct pay to the pharmacy. However, on November 10, 2006, the pharmacist was unable to obtain authorization which required Mr. Erwin to pay for his prescription medications in the amount of $1,471.92. The prescriptions, a receipt from Kirby's Family Pharmacy in the amount of $1,471.92, and a copy of Mr. Erwin's personal check in that amount were forwarded to Risk Management, Inc. with a demand letter dated November 14, 2006. The letter was also faxed to Risk Management on that same day. Confirmation of the facsimile transmission was introduced into evidence at the hearing. Despite the requests, payment of the prescription medication was not forthcoming.

On February 12, 2007, Mr. Erwin filed a formal dispute for reimbursement of the pharmaceutical expenses, failure to pay travel expenses associated with medical treatment, statutory penalties, and attorney's fees. On March 21, 2007, after the claim was filed, Defendant forwarded reimbursement for the pharmaceutical expenses. However, Defendant denied responsibility for the travel expenses for medical treatment.

Following a hearing, the workers' compensation judge concluded Mr. Erwin's travel expenses in the amount of $681.02 were both reasonable and necessary and ordered the Defendant to pay the expenses. The workers' compensation judge found the Defendant failed to reasonably controvert the travel expenses associated with an approved medical procedure and assessed statutory penalties of $2,000.00 and attorney fees in the amount of $3,500.00. The workers' compensation judge denied Mr. Erwin's claims for statutory penalties and attorney fees for the failure to timely reimburse pharmaceutical expenses finding the letter and facsimile transmission were insufficient proof that demand for payment was made upon, and received by, Defendant. Defendant filed this appeal, asserting the workers' compensation judge erred in finding the travel expenses were reasonable and necessary and assessing penalties and attorney fees. Mr. Erwin answered the appeal asserting the worker's compensation judge erred in failing to award penalties and attorney fees for failure to timely reimburse pharmaceutical expenses. Mr. Erwin is also seeking attorney fees for work done on appeal. For the reasons assigned below, we affirm the decision of the workers' compensation judge awarding travel expenses and penalties and attorney fees. However, we find workers' compensation judge erred in failing to award penalties and attorney fees for failure of the Defendant to timely reimburse Mr. Erwin for pharmaceutical expenses. We also award an additional $2,500.00 in attorney fees for work done on appeal.

LAW AND DISCUSSION

Travel Expenses

The Defendant asserts the workers' compensation judge erred in awarding Mr. Erwin expenses incurred traveling from Louisiana to Florida for a medical procedure approved by the employer and performed by a Louisiana physician. An injured employee is entitled to payment of necessary medical expenses once the employee has established that he sustained a work-related accident causing personal injury. La.R.S. 23:1203(A); Tanner v. Int'l Maint. Corp., 602 So.2d 1133 (La.App. 1 Cir.1992). Additionally, the employer has *284 a duty to furnish actual travel expenses reasonably and necessarily incurred by the employee for required medical treatment. La.R.S. 23:1203(D);

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987 So. 2d 281, 2008 WL 2289699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erwin-v-town-of-jena-lactapp-2008.