Gaylord Chemical Corporation v. Short

81 So. 3d 34, 2011 La.App. 1 Cir. 0321, 2011 La. App. LEXIS 1335, 2011 WL 5402685
Louisiana Court of Appeal·Decided November 9, 2011·No. No. 2011 CA 0321·Published·Cited by 1 cases

Opinion

GAIDRY, J.

l2The former employer of an injured employee and the employer’s workers’ compensation insurer appeal a judgment denying their request for the appointment of an independent medical examiner and imposing sanctions, in the form of an award of attorney fees, upon the insurer. We reverse the judgment and remand this matter for further proceedings, with instructions.

FACTUAL AND PROCEDURAL HISTORY

Jerome Milton Short was injured in October 1995 from exposure to nitrogen tetroxide in the course and scope of his employment with Gaylord Chemical Corporation (Gaylord). He was awarded workers’ compensation benefits for temporary total disability due to pulmonary and psychological conditions. Short v. Gaylord Chem. Corp., 98-0606 (La.App. 1st Cir.4/1/99), 731 So.2d 493. He has received continuing workers’ compensation benefits, including payment of psychiatric and pharmaceutical expenses, since that time.

On October 5, 2009, Mr. Short was examined by a psychiatrist, Rennie Culver, M.D., at the request of Gaylord and its workers’ compensation insurer, Continental Casualty Company (Continental). On January 13, 2010, Dr. Culver wrote a detailed report regarding his examination, diagnoses, opinion, and recommendations.

On July 20, 2010, Gaylord and Continental filed a completed Form LWC-WC-1015 (“Request for Independent Medical [36] Examination”) with the District 6 office of the Office of Workers’ Compensation, the tribunal in which Mr. Short’s prior disputed claim originally was determined. The form was accompanied by a formal motion for appointment of an independent medical examiner pursuant to La. R.S. 23:1123. In their motion, Gaylord 13and Continental alleged that Dr. Culver’s opinion established a dispute as to Mr. Short’s current medical treatment (including the prescription of pain medication by his psychiatrist) and capacity to work. Both the Form LWC-WC-1015 and the motion bore the docket number of the prior disputed claim (96-05300). An order for the appointment of the examiner was included with the motion.

Rather than signing the order, the workers’ compensation judge (WCJ) made a signed notation on it: “Form 1015 — Forwarded to B.R. [Baton Rouge] Medical Services for processing.” At some point, the notation was crossed out, and the local district office returned the form, motion, and attachments to counsel for Gaylord and Continental and instructed him by telephone to submit a completed Form LWC-WC-1008 (“Disputed Claim for Compensation”). Counsel complied by filing that form and the original motion on August 11, 2010, and the request was assigned a new docket number (10-07170).

On August 25, 2010, Mr. Short filed an answer through counsel, characterizing the “dispute” as “whether res judicata is applicable in this case based upon prior rulings of this court [in the prior disputed claim]” and “an issue of whether the petition[er]/employer is physician shopping and being arbitrary and capricious and disrespectful of previous rulings in this case which have confirmed the employee’s permanent disability.” On the same date, Mr. Short filed a peremptory exception of res judicata and no cause of action and a motion for sanctions. The WCJ signed an order fixing the hearing on the exceptions and motion for September 13, 2010.

On August 27, 2010, Mr. Short filed a memorandum in opposition to the motion for appointment of an independent medical examiner.

|4On motion of Gaylord and Continental, the hearing on Mr. Short’s exceptions and motion was continued to October 8, 2010.

At the conclusion of the hearing on October 8, 2010, the WCJ denied the request for the independent medical examination (IME) on jurisdictional grounds, ruling that she had no authority to order the IME until after a Form LWC-WC-1015 was submitted to the director of the Office of Workers’ Compensation, objection was made by the employee, and the dispute then referred to her under a Form LWC-WC-1008. In light of her decision to deny the request for the IME, the WCJ ruled that Mr. Short’s exceptions were moot. She took his motion for sanctions under advisement and requested post-hearing memoranda on that issue.

On October 29, 2010, the WCJ signed a judgment, denying the motion for the IME, granting Mr. Short’s motion for sanctions, and awarding Mr. Short $500.00 in attorney fees against Continental “for the defense of this motion [for the IME].” The judgment was accompanied by written reasons for judgment issued the same day. In those reasons, the WCJ characterized the request and motion of Gaylord and Continental as predicated upon La. R.S. 23:1124.1, rather than upon La. R.S. 23:1123. She found that they unnecessarily and inappropriately used “the provisions of La. R.S. 23:1124.1 as the vehicle to get into court,” and that they thereby “forced [Mr. Short] to hire an attorney to respond to the litigation” and caused him “undue hardship and stress.” This appeal followed.

[37] ASSIGNMENTS OF ERROR

Gaylord and Continental contend that the WCJ erred in the following respects:

1. The [WCJ] committed legal error in refusing, on jurisdictional grounds, to appoint an [IME] pursuant to La. R.S. |,¡¡23:1123, particularly by substituting a separate statute not cited or urged by appellants or appellee.
2. The [WCJ] committed legal error in awarding attorney’s fees “for the defense of (a) motion” for the appointment of an [IME], where the [WCJ] failed to acknowledge or consider the jurisdictional and statutory] basis cited by the appellants and where [Mr. Short] failed to introduce any evidence whatsoever to support such an award against the party cast in judgment.

DISCUSSION

Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. State v. Campbell, 03-3035, p. 7 (La.7/6/04), 877 So.2d 112, 117. It is presumed that the legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject. Id., 03-3035 at p. 8, 877 So.2d at 117. Thus, legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. It is further presumed that the legislature intends to achieve a consistent body of law. Id.

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Gaylord Chemical Corporation v. Short, 81 So. 3d 34, 2011 La.App. 1 Cir. 0321, 2011 La. App. LEXIS 1335, 2011 WL 5402685 (La. Ct. App. 2011).

81 So. 3d 34 (Gaylord Chemical Corporation v. Short) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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