Janneck v. LWCC

102 So. 3d 239, 2012 La.App. 4 Cir. 0316, 2012 La. App. LEXIS 1315, 2012 WL 4955306
CourtLouisiana Court of Appeal
DecidedOctober 17, 2012
DocketNo. 2012-CA-0316
StatusPublished
Cited by1 cases

This text of 102 So. 3d 239 (Janneck v. LWCC) 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
Janneck v. LWCC, 102 So. 3d 239, 2012 La.App. 4 Cir. 0316, 2012 La. App. LEXIS 1315, 2012 WL 4955306 (La. Ct. App. 2012).

Opinion

JAMES F. McKAY III, Judge.

bln this workers’ compensation case, the claimant, Kirk Janneck, appeals the trial court’s denial of attorney fees pursuant to La. R.S. 23:1201. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On October 23, 2001, Kirk Janneck was injured while in the course and scope of his employment with Chalmette Electric Company, Inc. As a result of this accident, Mr. Janneck experienced the exacerbation of a pre-existing mental condition, which caused the onset of a delusional disorder. Mr. Janneck sought benefits from his employer and Louisiana Workers’ Compensation Corporation (LWCC). LWCC denied Mr. Janneck’s request for benefits.

After his wage benefits had been terminated and authorization of medical treatment had been denied, Mr. Janneck filed a disputed claim for compensation on July 5, 2007.1 His wage benefits were reinstated [241]*241six months later but LWCC refused to authorize and pay for psychological treatment. The matter proceeded to trial on March 8, 2010 but was continued until July 8, 2010. The only issue at trial |2was whether Mr. Janneck’s mental condition was causally related to the accident of October 28, 2001. On September 17, 2010, the trial court rendered its judgment and found that the evidence confirmed that the plaintiffs mental condition was exacerbated by the accident. The defendants appealed that judgment, but it was affirmed by this Court.2

On October 1, 2010, prior to the filing of the defendants’ appeal, the claimant’s counsel filed a motion to set attorney fees. A hearing on the motion was held on August 12, 2011. On October 10, 2011, the trial court rendered its judgment and found that the claimant’s attorney was entitled to attorney fees under La. R.S. 23:1143 but was not entitled to attorney fees under La. R.S. 23:1201. It is from this judgment that claimant now appeals. DISCUSSION

On appeal, Mr. Janneck raises the following assignment of error: the trial court erred in finding that the plaintiff is not entitled to attorney fees and/or penalties under La. R.S. 23:1201.

La. R.S. 23:1201 provides for penalties and attorney fees in workers’ compensation cases under certain circumstances. Section (F) of that statute, in pertinent part, reads as follows:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits Rremain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim.

Furthermore, in pertinent part, Section (I) of that same statute provides the following:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Chapter.

An employer or compensation insurer has a duty to investigate and make every reasonable effort to assemble and assess factual and medical information in order to ascertain whether the claim was compensable before denying benefits. Parfait v. Gulf Island Fabrication, Inc., 97-2104 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, 25. The Louisiana Supreme Court has held that in a workers’ compensation claim, the employer must adequately investigate the claim, and the crucial inquiry is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46. When an employer fails to authorize necessary medical treatment, it is deemed to be [242]*242a failure to furnish workers’ compensation benefits and the failure to authorize such treatments subjects the employer to sanctions. Authement v. Shappert Engineering, 2002-1631 (La.2/25/03), 840 So.2d 1181, 1186.

In the instant case, Mr. Janneck’s initial psychiatrist, Dr. Balminder Mangut, diagnosed him with major depression with an element of psychosis relating to fear, paranoia and delusion. Dr. Mangut treated claimant from January 2003 through |4November 2004 and opined that there was no doubt in his mind that Mr. Jan-neck’s condition was related to his on the job injury.

Dr. Rennie Culver, a psychologist who saw Mr. Janneck only one time, found it difficult to attribute Mr. Janneck’s mental illness to the vehicular accident, but conceded that the injury may have caused Mr. Janneck to direct the focus of an underlying delusion system onto the somatic sphere and the vehicular accident could bear a relationship to the patient’s mental illness.

On June 29, 2004, an independent medical examination was conducted by Dr. Harold Ginzburg, a psychiatrist who was retained by OWC. He reported that there was a temporal relationship between the accident and its “sequelae” and but for the accident, the resulting medical events would not have occurred. In spite of these reports, the defendants, without any further investigation, terminated Mr. Jan-neck’s wage benefits and refused to pay for his psychiatric treatment.

In April of 2007, Mr. Janneck began treating with another psychologist, Dr. Richard Wakeman. Initially, Dr. Wake-man did not relate Mr. Janneck’s psychological condition to the accident. However, once he received and reviewed Mr. Janneck’s records, he opined that “with the highest degree of psychological certainty that Mr. Janneck is suffering from Major Depressive Disorder, Single Episode, Severe Mood Congruent Psychotic Features, in addition to significant pain disorder.” He further opined that the claimant’s pain and psychiatric disorders did not pre-exist his accident on October 23, 2001, but were a direct result of that accident.

On August 18, 2008, Mr. Janneck was examined by yet another psychologist, Dr. Kevin Bianchini. In his report, Dr. Bian-chini simply stated that he agreed with Dr. Wakeman that it was not likely that Mr. Janneck’s condition |5was caused by the October 23, 2001 accident, but he did concede that Mr. Janneck may have some subtle psychological difficulties related to the accident. It is interesting to note that Dr. Bianchini makes no mention of Dr. Wakeman’s change of opinion regarding the causation of Mr. Janneck’s mental conditions.

On July 8, 2009, Dr. Paul Dammers, a psychologist and neuropsychologist appointed by the OWC, conducted an IME of Mr. Janneck. Dr. Dammers reported that Mr. Janneck’s disability was primarily psychiatric and not directly related to physical injuries sustained in the work accident. However, he believed that Mr. Janneck was predisposed to this type of disorder and that a traumatic event could have highlighted that predisposition.

In addition to all of the psychiatric and psychological opinions relating Mr.

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Bluebook (online)
102 So. 3d 239, 2012 La.App. 4 Cir. 0316, 2012 La. App. LEXIS 1315, 2012 WL 4955306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janneck-v-lwcc-lactapp-2012.