Johnson v. CONAGRA POULTRY CO.

26 So. 3d 982, 9 La.App. 3 Cir. 646, 2009 La. App. LEXIS 2064, 2009 WL 4725757
CourtLouisiana Court of Appeal
DecidedDecember 9, 2009
DocketWCA 09-646
StatusPublished
Cited by6 cases

This text of 26 So. 3d 982 (Johnson v. CONAGRA POULTRY CO.) 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
Johnson v. CONAGRA POULTRY CO., 26 So. 3d 982, 9 La.App. 3 Cir. 646, 2009 La. App. LEXIS 2064, 2009 WL 4725757 (La. Ct. App. 2009).

Opinions

EZELL, Judge.

b This is an appeal from a workers’ compensation judgment. Patrick Johnson appeals the trial court judgment asserting that he is entitled to an increase in the award of penalties and attorney fees. He also complains that there was no award for reimbursement of medical travel expenses. Finally, Mr. Johnson complains that the trial court erred in ordering that any unpaid medication expenses should be paid to the pharmacy as opposed to him directly.

FACTS

Mr. Johnson was an employee of Cona-gra Poultry Company, now known as Pilgrim’s Pride, Inc., in Natchitoches. On September 29, 1998, he injured his back and leg while lifting bags of cement. He was reinjured on March 17, 2000. As a result of the accident, Pilgrim’s Pride has been paying benefits to Mr. Johnson.

On February 8, 2008, Mr. Johnson filed a disputed claim for compensation alleging that Pilgrim’s Pride had failed to pay timely or refused to pay for prescribed medications. He also asked for penalties and attorney fees in addition to legal interest.

A trial on the matter was held on October 14, 2008. The workers’ compensation judge (WCJ) assessed a penalty of $2,000.00 for late payment of prescriptions prescribed by Mr. Johnson’s treating physician. The WCJ assessed only a single [984]*984penalty since the multiple prescriptions were prescribed by a single physician. Attorney fees in the amount of $2,500.00 were also awarded. The trial court also found that Mr. Johnson failed to submit any evidence of the miles he traveled to the doctor’s office or the pharmacy to pick up his medication, so it declined to make an award for travel expenses. The trial court further ordered Pilgrim’s Pride to pay all outstanding pharmacy bills directly to the pharmacy.

1 .PENALTIES

Mr. Johnson alleges that he is entitled to a penalty for each instance that a prescription was not paid. Mr. Johnson claims that he is entitled to the maximum penalty of $8,000.00 as opposed to the $2,000.00 awarded by the WCJ.

A trial court’s award of penalties and attorney fees in a workers’ compensation case is subject to the manifest error/clearly wrong standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir.4/2/08), 980 So.2d 843. “[I]t is well established that the underlying reason for the imposition of penalties and attorneys’ fees in the workers’ compensation arena is to combat the indifference by employers and insurers toward injured workers.” Fontenot v. Reddell Vidrine Water Dist, 02-439, p. 14 (La.1/14/03), 836 So.2d 14, 24, rehearing granted in part on other grounds, 02-442 (La.4/21/03), 851 So.2d 917. Therefore, La. R.S. 23:1201(F) provides for “multiple penalties for multiple violations of compensation and medical benefits claims.” Id. at 27.

In Erwin v. Town of Jena, 08-137 (La.App. 3 Cir. 6/5/08), 987 So.2d 281, this court held that the failure to timely pay a claimant’s pharmaceutical expenses warranted an award of penalties and attorney fees. In that case, one request was made by fax transmittal on November 16, 2006, for the payment of prescription medications in the amount of $1,471.92. Reimbursement was not made within the sixty-day period. A statutory penalty in the amount of $2,000.00 was awarded.

In the present case, Samantha Lewis, a bookkeeper with Causey’s Pharmacy in Natchitoches, where Mr. Johnson had his prescriptions filled, testified about the payment of Mr. Johnson’s prescriptions. The trial court found Ms. Lewis’ testimony concerning billing and payments to be credible. She testified that there were prescriptions in May and June of 2007 that still remained unpaid. On each date, two ^prescriptions had been filled, but the pharmacy only received payment for one prescription.

Ms. Lewis testified that oi'iginally she would send the bills to Mr. Johnson’s attorney who would forward them along with demand letters to Sedgwick, the third-party administrator for Pilgrim’s Pride. These demand letters from the attorney are in evidence along with a bill from the pharmacy indicating the previous balance, the month’s charges, any payment, and the payment due. We note that there are no demand letters or bills in evidence for the months of October 2007 to April 2008.

Mr. Johnson’s attorney sent a demand letter on May 2, 2007, requesting payment of the attached Causey’s Pharmacy bill in the amount of $1,370.15. Continued requests for payment of the bill were submitted, with the bill finally totaling $1,529.05 before a payment was received. It appears that a payment towards the pharmacy bill was made sometime in the end of June or July 2007 in the amount of $1,376.68. The June 26, 2007 billing date indicates that this bill was ninety days past due. Continued monthly requests were made. A payment of $73.85 was received [985]*985in September 2007, when the bill totaled $522.98.

In April 2008, Ms. Lewis started faxing bills to the Sedgwick adjuster. By May 1, 2008, the bill at Causey’s Pharmacy totaled $1,421.68. On June 24, 2008, a payment of $22.03 was made on the bill. In July 2008, Ms. Lewis testified that she received a payment of $1,270.88 which encompassed payment for medications prescribed from July 30, 2007 through June 24, 2008.

In Ducote, 980 So.2d 843, this court reviewed the jurisprudence concerning multiple penalties. This court noted that certain actions by an employer constituted a “single violation” because it was an ongoing violation. This court in Ducote found that the award of a single penalty for failure to pay six weeks of indemnity benefits |4was proper. See also Maricle v. Sunbelt Builders, Inc., 05-398 (La.App. 3 Cir. 11/2/05), 916 So.2d 1226, writ denied, 05-2506 (La.3/31/06), 925 So.2d 1261(a single $2,000.00 penalty was affirmed for the nonpayment of several weeks of compensation); Wyble v. Acadiana Preparatory Sch., 07-91 (La.App. 3 Cir. 5/2/07), 956 So.2d 722, writ denied, 07-1178 (La.9/14/07), 963 So.2d 1004 (more than one incidence of nonpayment of medical benefits was an ongoing violation subject to the imposition of one penalty).

The first circuit in Juracovich v. St. Anne General Hospital, 04-1323, p. 4 (La.App. 1 Cir. 6/10/05), 916 So.2d 264, 266, writ denied, 05-1819 (La.1/27/06), 922 So.2d 552, observed that:

From these cases, we can glean the following guidelines: bills from different medical providers can be considered as separate claims; failure to authorize a surgery by a particular doctor can be considered a separate claim from other treatment costs by the same doctor; the mileage expense associated with treatment by a particular provider is part of the claim for payment of that provider’s treatment; incorrect calculation of a benefit amount is a separate claim from the failure to actually pay benefits; and that reduction of a benefit amount constitutes yet another separate claim on which penalties may be imposed.

We find no error in the WCJ’s decision that the employer’s failure to timely pay bills Causey’s Pharmacy submitted was a single, ongoing violation. Sedgwick continued to make late, single, lump-sum payments toward the payment of the bill at Causey’s. Thus, we affirm the single penalty of $2,000.00.

UNPAID MEDICATION EXPENSES

Mr. Johnson argues that the WCJ erred in ordering payment of the unpaid medication expenses directly to Causey’s Pharmacy as opposed to ordering payment to him. Mr.

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Johnson v. CONAGRA POULTRY CO.
26 So. 3d 982 (Louisiana Court of Appeal, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
26 So. 3d 982, 9 La.App. 3 Cir. 646, 2009 La. App. LEXIS 2064, 2009 WL 4725757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-conagra-poultry-co-lactapp-2009.