Lopez v. Marques Food Distributors

80 So. 3d 1248, 11 La.App. 5 Cir. 424, 2011 WL 6821507, 2011 La. App. LEXIS 1631
CourtLouisiana Court of Appeal
DecidedDecember 28, 2011
DocketNo. 11-CA-424
StatusPublished
Cited by5 cases

This text of 80 So. 3d 1248 (Lopez v. Marques Food Distributors) 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
Lopez v. Marques Food Distributors, 80 So. 3d 1248, 11 La.App. 5 Cir. 424, 2011 WL 6821507, 2011 La. App. LEXIS 1631 (La. Ct. App. 2011).

Opinion

WALTER J. ROTHSCHILD, Judge.

|2On April 13, 2007, claimant, Waylon Lopez, was injured in a motor vehicle accident while in the course and cope of his employment as a truck driver for Marques Food Distributors (“Marques”). Mr. Lopez began receiving worker’s compensation indemnity benefits after the accident. In April 2008, Mr. Lopez had surgery on his right shoulder and, in August 2008, he had surgery on his left shoulder.

According to Marques, while paying indemnity benefits, it attempted to determine Mr. Lopez’s medical status, but Mr. Lopez would not cooperate. On April 9, 2009, Marques filed a disputed claim with the Office of Worker’s Compensation, asserting that there was a dispute as to Mr. Lopez’s disability status and non-compliance with the employer, including the need for a second medical examination and his refusal to provide medical reports to Marques. Marques also asserted that non-emergency treatment was obtained without prior request or approval, so it was only liable for the fees set forth in LSA-R.S. 23:1142.

On June 4, 2009, Mr. Lopez filed a disputed claim contending that Marques and its insurer refused to pay for surgeries that were requested and subsequently | aperformed, and asserting that he is entitled to a lumbar discogram and surgery that were recommended by his physician, and seeking penalties and attorney fees.

[1251]*1251This case came for trial before the worker’s compensation judge on July 29, 2010. At trial, Marques voluntarily dismissed its disputed claim, indicating that the relief sought had been satisfied, and the matter proceeded on Mr. Lopez’s disputed claim. At the conclusion of trial, the case was left open for submission of post-trial briefs. On October 11, 2010, the worker’s compensation judge rendered a judgment. Thereafter, a Motion for New Trial was filed, and on November 22, 2010, an Amended Judgment was rendered by the worker’s compensation judge. In this judgment, the worker’s compensation judge found that:

1) Waylon Lopez was injured by accident during the course and scope of his employment with Marques Food Distributors on April 13, 2007;
2) Mr. Lopez is entitled to the payment of medical expenses, medication expenses, and transportation expenses, in accordance with law;
3) The two surgical procedures were reasonable and necessary and connected to the work-related injury of April 13, 2007;
4) Defendants have failed to authorize and reasonably controvert Mr. Lopez’s entitlement to the two surgical procedures, without good cause;
5) A penalty in the amount of $2,000.00 is assessed for failure to authorize the right shoulder surgery;
6) Another penalty in the amount of $2,000.00 is assessed for failure to authorize the left shoulder surgery;
7) Attorney fees are assessed in the amount of $4,000.00;
8) All costs and interest are to be paid by defendants, subject to a credit for any benefits paid by them, in accordance with law.

Marques has filed an appeal from the worker’s compensation judge’s Amended Judgment, and Mr. Lopez has filed an Answer to the Appeal.

LAW AND DISCUSSION

In its first assignment of error, Marques claims that the worker’s compensation judge erred in finding that Marques failed to authorize the right shoulder surgery without good cause, because the record does not contain any documentation from the treating physician or claimant requesting authorization for that surgery. In its second assignment of error, .Marques claims that the worker’s |,(Compensation judge erred in finding that Marques failed to authorize the left shoulder surgery without good cause, because the record does not contain any documentation from the treating physician or claimant requesting authorization for that surgery.

Marques claims that there is no documentation or other evidence that Dr. Fin-ney or Mr. Lopez requested authorization for either shoulder surgery and thus, he is limited to recovery of $750.00 for non-emergency treatment performed without the consent of the payor, pursuant to LSA-R.S. 23:1142(B)(1). Mr. Lopez responds that authorization for both surgeries was requested, but Marques failed to respond or authorize the surgeries. The parties stipulated that both shoulder surgeries were paid for by Mr. Lopez’s attorney.

The appellate court’s review of a workers’ compensation case is governed by the manifest error or clearly wrong standard. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). This standard precludes setting aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d [1252]*1252840, 844 (La.1989). In applying the manifest error standard, we need not determine whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882; Seidl v. Zatarain’s, Inc., 05-780, p. 3, (La.App. 5 Cir. 3/28/06), 927 So.2d 557, 558-59. As the Louisiana Supreme Court has stated, “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990); Prevost v. Interior Gardens, Inc., 04-0274 at 3—4, (La.App. 4 Cir. 10/6/04), 887 So.2d 522, 524.

[,In the present case, Marques contends that neither Mr. Lopez nor his physician made a request for authorization for the right shoulder surgery performed in April 2008. It asserts that Mr. Lopez was seen by Dr. Finney in November 2007, and surgery to repair his right rotator cuff was scheduled for December 2007, though it was later cancelled. Mr. Lopez saw Dr. Finney again on March 21, 2008, and the right shoulder surgery was performed on April 3, 2008. Marques argues that no one sought authorization at any time prior to this surgery and that even Mr. Lopez admitted that he did not contact the worker’s compensation adjuster to seek authorization or inform her that the surgery had been scheduled. Marques asserts that there is no documentation or evidence in Dr. Finney’s records suggesting that authorization for this surgery was requested.

At trial, Waylon Lopez testified that although the right shoulder surgery was scheduled for December 27 or 28, 2007, it was cancelled because the physician did not receive payment for the surgery from the worker’s compensation provider. Mr. Lopez testified that his attorney requested authorization for the surgery in writing and attached medical records to the request. He admitted, however, that he did not see the written request for authorization for the right shoulder surgery. Mr. Lopez assumed that his attorney contacted the worker’s compensation adjuster to let her know that the surgery was re-scheduled for April 2008. Mr. Lopez also testified that a request for the left shoulder surgery was made, but it was not paid for by the worker’s compensation provider, so his attorney paid for this surgery as well.

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Bluebook (online)
80 So. 3d 1248, 11 La.App. 5 Cir. 424, 2011 WL 6821507, 2011 La. App. LEXIS 1631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-marques-food-distributors-lactapp-2011.