Harrison v. Frank & Janie Seafood Rest.

718 So. 2d 1003, 1998 La. App. LEXIS 2437, 1998 WL 484059
CourtLouisiana Court of Appeal
DecidedAugust 19, 1998
Docket30845-WCA
StatusPublished
Cited by4 cases

This text of 718 So. 2d 1003 (Harrison v. Frank & Janie Seafood Rest.) 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
Harrison v. Frank & Janie Seafood Rest., 718 So. 2d 1003, 1998 La. App. LEXIS 2437, 1998 WL 484059 (La. Ct. App. 1998).

Opinion

718 So.2d 1003 (1998)

Lottie HARRISON, Plaintiff-Appellant,
v.
FRANK AND JANIE SEAFOOD RESTAURANT, Defendant-Appellee.

No. 30845-WCA.

Court of Appeal of Louisiana, Second Circuit.

August 19, 1998.

*1004 Tracy L. Short, James M. Wilkerson, Farmerville, for Plaintiff-Appellant.

Crawford & Anzelmo by Donald J. Anzelmo and Neal Johnson, Monroe, for Defendant-Appellee.

Before MARVIN, STEWART and CARAWAY, JJ.

STEWART, Judge.

This matter involves a claim for worker's compensation benefits, medical expenses, penalties and attorney fees. It is undisputed that the claimant, Ms. Lottie Harrison, injured her right shoulder while working as a waitress for the defendant, Frank and Janie's Seafood Restaurant. This matter was tried before the Honorable Brenza Irving, Hearing Officer for the Office of Worker's Compensation, State of Louisiana, on June 11, 1997. The Hearing officer entered a judgment in favor of the claimant and against the defendant, awarding the claimant statutory penalties in the amount of $500.00 and attorney fees in the amount of $500.00, finding that the defendant had acted unreasonably by delaying the authorization of Ms. Harrison's medical treatment on two separate occasions. The hearing officer determined that Ms. Harrison was not entitled to supplemental earnings benefits (SEB) because Ms. Harrison was able to work as a bartender. We amend in part and as amended affirm.

FACTS

It is undisputed that the claimant, Ms. Lottie Harrison, injured her right shoulder while working as a waitress for the defendant, Frank and Janie's Seafood Restaurant (defendant), on July 16, 1994. The following day Ms. Harrison was treated at North Monroe Hospital by emergency room physician, Dr. Clinton Guillroy. Ms. Harrison was ordered to wear an arm sling for several days and pain medication was prescribed. She was prevented from working for several days.

Furthermore, it is undisputed that after the incident, Ms. Harrison continued to work as a waitress for the defendant until mid-January 1995. When she returned to work Ms. Harrison required the help of other waitresses. *1005 Ms. Harrison also worked as a bartender at a local lounge during her days off, serving drinks and making change.

On August 11, 1994, Ms. Harrison went to the emergency room due to the extreme pain in her shoulder. Dr. Guillroy ordered Ms. Harrison to wear an arm sling for several days, prescribed pain medication and referred her to an orthopaedic surgeon at North Monroe Hospital. The following day, August 12, 1994, Ms. Harrison was examined by Dr. James Jeffrey at the Monroe Medical Clinic. Dr. Jeffrey diagnosed Ms. Harrison with a rotator cuff injury, referred her to Dr. Douglas Brown, an orthopaedic surgeon and ordered her not to work until released by Dr. Brown. On August 16, 1994, Dr. Brown began treating Ms. Harrison. Dr. Brown diagnosed Ms. Harrison with a rotator cuff injury, prescribed pain medication, anti-inflammatory medications, and physical therapy two times per week, for four weeks.

In January 1995 Ms. Harrison was terminated from Frank & Janie's. Ms. Harrison stopped seeing Dr. Brown because she did not know that her employer was responsible for her medical expenses after her termination. Unable to work as a waitress because of shoulder pain, Ms. Harrison began working as a bartender at the 2 Rules II Lounge in February 1995.

On September 21, 1995, Ms. Harrison returned to Dr. Brown. Dr. Brown recommended surgery to correct her rotator cuff. Ms. Harrison's surgery was not approved by the defendant's insurer until July 26, 1996, ten months after the request was made. On July 26, 1996, Dr. Brown performed arthroscopic surgery on Ms. Harrison's shoulder. After the surgery, Ms. Harrison began receiving weekly benefits. Then on December 5, 1996, he performed a right shoulder manipulation under anesthesia, on an outpatient basis. On March 7, 1997, Ms. Harrison was released by Dr. Brown to return to work that did not require her to raise her arm above her head.

Ms. Harrison filed a disputed claim for Compensation with the Office of Worker's Compensation Administration, alleging entitlement to back-due compensation benefits in July 1995. By supplemental petition, filed on April 26, 1996, Ms. Harrison requested penalties and attorney fees pursuant to La. R.S. 23:1201, arising out of the defendant's arbitrary and capricious refusal to provide compensation payments and medical benefits.

This matter was tried before the Honorable Brenza Irving, Hearing Officer for the Office of Worker's Compensation, State of Louisiana, on June 11, 1997. The hearing officer found that the defendant had acted unreasonably by delaying the authorization of Ms. Harrison's medical treatment on two separate occasions, categorized all of Ms. Harrison's earnings as "other wages" and found that her average weekly wage (AWW) was $141.87, with a corresponding compensation rate of $94.58. The hearing officer determined that Ms. Harrison was not entitled to supplemental earnings benefits (SEB) because Ms. Harrison was able to work as a bartender. On August 14, 1997, a judgment was rendered in favor of the claimant, Ms. Harrison, awarding statutory penalties in the amount of $500.00 and attorney fees in the amount of $500.00 for an unreasonable delay in the approval of the shoulder surgery recommended by Dr. Brown. The claimant, Ms. Harrison, now appeals the judgment urging four assignments of error.

STATUTORY PENALTIES

In assignment of error number one, the claimant, Ms. Harrison urges that the hearing officer erred in failing to award her the proper amount of statutory penalties in view of the fact that the hearing officer found the defendant was arbitrary and capricious by unreasonably delaying authorization of medical treatment for Ms. Harrison.

Ms. Harrison further urges that the issue is whether the Hearing officer may disregard the statutory calculations of penalties, once it is determined that penalties are due, and award penalties inconsistent with the statute. La. R.S. 23:1201 provides for penalties of an amount equal to 12 percent of any unpaid compensation or medical benefits or $50 per calendar day for each day in which any medical benefits owed remained unpaid, whichever is greater, but not to exceed two thousand dollars in the aggregate. Once the *1006 hearing officer has exercised her discretion and determined that the employer has acted arbitrarily and capriciously by unreasonably delaying medical treatment, sufficient to warrant the imposition of penalties and attorney fees under the statute, then the hearing officer must award penalties in accordance with the statute; she has no discretion in that regard. Williams v. Hospital Service, Inc., 95-214 (La.App. 5 Cir. 9/20/95), 663 So.2d 749, 754, writ denied 96-0160 (La.3/15/96), 669 So.2d 422.

The defendant argues that the hearing officer found that at least some portion of the delay between recommendation of surgery and approval of surgery was reasonable and noted that several reasonable steps were made by the defendant before deciding to approve the surgery.

The defendant further argues that the penalties are justifiably below the maximum and actually reflect a reasonable penalty for the number of days which the court found to have been unreasonable and that the award dealt with only a small portion of the many issues involved in this litigation. Determinations concerning penalties and attorney's fees are essentially questions of fact, and the trial court's findings should not be disturbed on appeal absent manifest error. Bradley v. Justiss Oil Company, Inc.,

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718 So. 2d 1003, 1998 La. App. LEXIS 2437, 1998 WL 484059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-frank-janie-seafood-rest-lactapp-1998.