STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-871
MARLENA ALEXANDER
VERSUS
AUTOZONE, INC.
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 02 PARISH OF RAPIDES, NO. 02-00734 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Michael G. Sullivan, Judges.
AFFIRMED.
Edward J. Fonti JONES, TETE, NOLEN, FONTI & BELFOUR, L.L.P. P. O. Box 1930 Lake Charles, LA 70602-1930 Telephone: (337) 439-8315 COUNSEL FOR: Plaintiff/Appellee - Marlena Alexander
Robert Blaine Purser Purser Law Firm P. O. Box 1670 Opelousas, LA 70571-1670 Telephone: (337) 948-0815 COUNSEL FOR: Defendant/Appellant - Autozone, Inc. THIBODEAUX, Chief Judge.
Marlena Alexander Gainey received a favorable award of temporary total
disability benefits and penalties in this workers’ compensation proceeding. Her
employer, Autozone, contests the award, arguing that she did not demonstrate
temporary total disability. Autozone also questions the existence of a causal link
between her initial injury and her later diagnosis of carpal tunnel syndrome, which
now requires surgery to correct. We affirm the trial court’s award of benefits and
penalties.
I.
ISSUES
Autozone raises three issues on appeal. First, Autozone argues that Ms.
Alexander is not entitled to receive compensation for temporary total disability
because she did not show she was unable to engage in any type of occupation.
Second, Autozone denies responsibility for Ms. Alexander’s carpal tunnel surgery,
claiming she offered insufficient proof that this condition stemmed from the original
employment accident. Finally, Autozone challenges the trial court’s imposition of
penalties for its failure to pay Ms. Alexander’s medical bills.
II.
FACTS
Marlena Alexander Gainey worked for Autozone as a commercial driver,
delivering auto supplies to customers. On October 11, 1999, while making a delivery,
the starter she was lifting from her truck fell through the bottom of its box and injured
her wrist. She returned to Autozone, but went to the emergency room later that night.
Although the emergency room did not make a diagnosis, her family physician referred
1 her to an orthopedist, Dr. J. David DeLapp, who determined that her left wrist was
fractured. She was put in a cast, which was later removed and replaced to
accommodate swelling in her wrist. Dr. DeLapp placed her on light duty and
restricted her to lifting no more than ten pounds.
On January 4, 2000, the fracture appeared to have healed, and Dr.
DeLapp released Ms. Alexander to full duty. On June 27, 2000, however, Ms.
Alexander returned to Dr. DeLapp with wrist pain. She also had difficulty picking
up objects. Dr. DeLapp diagnosed de Quervain’s Syndrome in her wrist. According
to Dr. DeLapp’s deposition testimony, de Quervain’s Syndrome is a common and
well-documented complication in wrist fractures. Her condition did not improve, and
Ms. Alexander had surgery to treat her de Quervain’s Syndrome on July 31. Dr.
DeLapp placed her on limited duty after the surgery. On August 24, he set a six week
regimen of physical therapy to further improve her wrist. By the end of November,
Ms. Alexander exhibited early symptoms of carpal tunnel syndrome, including
numbness and tingling. Her symptoms were very mild, however, and her Tinel’s and
Phalen’s tests—examinations used to diagnose carpal tunnel syndrome—were both
negative.
On January 17, 2001, Ms. Alexander had surgery to remove a neuroma
that had developed from her injury. She also had diminished sensation and increased
numbness and tingling. Although her Tinel’s test remained negative, her Phalen’s
test was now positive. She recovered from the neuroma surgery, however, and on
January 31, Dr. DeLapp released her to normal activities as tolerated. On February
16, Ms. Alexander again returned to Dr. DeLapp with a painful mass in her wrist. Dr.
DeLapp diagnosed this as a ganglion cyst, also a common and well-documented
2 complication in wrist fractures, and scheduled her for surgery, as the cyst was painful
and impaired Ms. Alexander’s mobility.
Ms. Alexander was now experiencing pain and difficulty with everyday
tasks, including work-related activities, despite extensive physical therapy and
continued use of a brace. Dr. DeLapp testified that her deteriorating condition
hampered her ability to perform her job. Where she once attracted management’s
attention for her outstanding job performance, she now experienced harassment for
her frequent visits to physician’s appointments and physical therapy. At different
intervals during the course of her treatment, her doctor advised her to limit the
amount of weight she lifted, as well as to curb repetitive motion, as that would
exacerbate her carpal tunnel symptoms. Although Autozone provided some
assistance with loading heavy equipment into her truck while at Autozone, she had
no help available when she unloaded the same equipment upon delivery to the
customer. The various equipment and parts weighed between twenty-five to sixty
pounds. Her job also required daily repetitive motion, including using the computer.
Because of the unrelenting pain, Ms. Alexander concluded that she was no longer
able to work and resigned from her position on February 19, 2001. Although she
made efforts to seek employment elsewhere, her continued pain and impairment led
her to believe that she would not be able to perform any kind of work, and she
discontinued her search.
Despite her hiatus from work, her wrist continued to worsen. Although
Dr. DeLapp removed the first ganglion cyst, another mass developed and he
diagnosed her as having a recurrent ganglion cyst. He also diagnosed her with carpal
tunnel syndrome on April 27, 2001. A nerve conduction study performed in May,
however, did not demonstrate carpal tunnel syndrome. Nevertheless, Ms. Alexander
3 continued to exhibit symptoms and returned to Dr. DeLapp in August complaining
of numbness and tingling. At deposition, Dr. DeLapp stated that, although the nerve
conduction test is fairly accurate, there is a recognized possibility of a false negative.
In that event, the study would indicate the patient did not have carpal tunnel, although
the patient suffered all the positive symptoms of the syndrome. Dr. DeLapp
determined that was the case here. Ms. Alexander had worn a brace for several
months, but continued to suffer numbness and tingling, particularly during any kind
of repetitive activity. He concluded that the nerve conduction study had yielded a
false negative and that Ms. Alexander did in fact have carpal tunnel syndrome. He
recommended surgery.
Autozone, however, did not approve the surgery. By December of 2001,
Ms. Alexander’s condition had significantly deteriorated. Her carpal tunnel
syndrome had not responded to extensive nonsurgical intervention and her wrist was
painful and swollen. A year went by before Dr. DeLapp saw Ms. Alexander again.
In December of 2002, he again examined her wrist and discovered that, as a result of
her untreated carpal tunnel syndrome, her wrist muscles had started to atrophy.
Atrophy is permanent and irreversible and will inevitably lead to progressive loss of
the use of her hand. Dr. DeLapp recommended immediate surgery to treat the carpal
tunnel syndrome. The sooner Ms. Alexander undergoes surgery, the sooner the
atrophy can be arrested; she may yet avoid accrual of a functional deficit in the use
of her thumb.
The trial court found that Ms. Alexander had suffered temporary total
disability, and ordered Autozone to pay indemnity benefits. The trial court also
ordered Autozone to authorize the carpal tunnel surgery. In addition, the judgment
4 included attorney fees and penalties for Autozone’s failure to pay indemnity benefits,
failure to pay certain medical bills, and refusal to authorize the surgery.
III.
LAW AND DISCUSSION
Temporary Total Disability
The trial court found that Ms. Alexander had proved she was temporarily
totally disabled, and ordered Autozone to pay indemnity benefits. Autozone, in turn,
argues that Ms. Alexander offered insufficient medical evidence to show she was
disabled to such an extent that she was unable to work at any kind of job.
Additionally, Autozone reasons that, since she left her position at Autozone
voluntarily, she was actually capable of working but simply chose not to. To the
contrary, the trial court determined that Ms. Alexander presented sufficient evidence
to show her condition rendered her unable to work.
Louisiana Revised Statutes 23:1221(1)(c) establishes the criteria for
awarding temporary total disability benefits. The employee must show “by clear and
convincing evidence . . . that the employee is physically unable to engage in any
employment or self-employment . . . .” The trial court’s determination that an
employee has or has not fulfilled her burden of proof under the statute requires a
finding of fact “governed by the manifest error or clearly wrong standard and will not
be disturbed absent such a finding.” Ratliff v. Brice Bldg. Co., 03-624, p. 6 (La.App.
5 Cir. 11/12/2003), 861 So.2d 613, 617. The appellate court must determine “not
whether the trier of fact was right or wrong, but whether the factfinder’s conclusion
was a reasonable one.” Newson v. Richard Spurgeon Masonry, 03-1367, p. 2
(La.App. 3 Cir. 3/3/04), 867 So.2d 78, 81, writ denied, 04-839 (La. 5/14/04), 872
So.2d 523.
5 In order to receive benefits for a temporary total disability, the employee-
claimant must show, by clear and convincing evidence, that she is physically unable
to engage in any kind of employment. Veazie v. Gilchrist Const. Co., 04-118
(La.App. 3 Cir. 6/2/04), 878 So.2d 742. Clear and convincing proof has been defined
as an “‘intermediate’ standard falling somewhere between the ordinary preponderance
of the evidence civil standard, and beyond the reasonable doubt criminal standard.”
Sarrio v. Stalling Const. Co., 04-34, p. 7-8 (La.App. 5 Cir. 5/26/04), 876 So.2d 157,
162, writ denied, 04-1593 (La. 10/15/04), ___ So.2d ___. To prove a matter by clear
and convincing evidence requires the employee “demonstrate that the existence of a
disputed fact is highly probable [or] much more probable than its nonexistence.”
Carrier v. Debarge’s College Junction, 95-18, p. 5 (La.App. 3 Cir. 9/27/95), 673
So.2d 1043, 1047, writ denied, 96-472 (La. 4/8/96), 671 So.2d 337. In Jackson v.
Domtar Industries, Inc., 98-1335, p. 6-7, (La.App. 3 Cir. 4/7/99), 732 So.2d 733, 738,
writ denied, 99-1369 (La. 7/2/99), 747 So.2d 21, the third circuit determined that
“clear and convincing” proof required “objective medical evidence of [the] disabling
condition” causing his “inability to engage in any employment.” Thus, the claimant
must provide objective, expert testimony as to their medical condition, symptoms,
pain, and treatment, in addition to personal testimony, in order to fulfill this standard.
Hurst v. Sanderson Farms, Inc., 02-1334 (La.App. 1 Cir. 5/9/03), 846 So.2d 954.
Dr. DeLapp testified at trial that Ms. Alexander’s various complications,
including the de Quervain’s syndrome, the neuroma, the recurrent ganglion cyst, and
the carpal tunnel syndrome, all resulted from her original injury. He also
corroborated her complaints of pain, swelling, decreased sensation, and impaired
mobility, testifying that her injuries caused pain “for activities of daily living and
affect[ed] her work performance.” Dr. DeLapp agreed that these injuries would
6 interfere with work and physical chores, such as light housework or lifting as little as
ten pounds. Dr. DeLapp confirmed Ms. Alexander’s complaints, stating that “[i]t’s
not uncommon to have pain . . . causing a great deal of disability” and that “[h]er
complaints are not out of the ordinary.” Finally, Dr. DeLapp agreed that Ms.
Alexander’s pain was extensive enough to prevent her from performing the tasks her
job required of her, including using the wrist all day long, lifting objects of ten to
fifteen pounds, loading and unloading a truck, waiting on customers, using heavy
books to look up parts, and using a computer.
Deciding whether a claimant’s pain is adequate to merit an award of
benefits involves a question of fact “to be determined by the totality of
circumstances.” Hilts v. Wal-Mart Stores, Inc., 02-1440, p. 5 (La.App. 3 Cir. 4/2/03),
842 So.2d 465, 469, writ denied, 03-1258 (La. 9/5/03), 852 So.2d 1036. Testimony
showing the “presence of pain without proof that this pain is substantial enough to
make the pursuit of employment an impossibility” is insufficient evidence under
La.R.S. 23:1221(1). Id. In Carrier, 673 So.2d 1043, the third circuit reasoned that
the workers’ compensation claimant was entitled to benefits. He established by clear
and convincing evidence he was unable to work because of disabling pain in his head,
neck, shoulders and arms. His testimony was corroborated by objective medical
evidence, including testimony of his treating physicians and medical reports. Id.
Additionally, both his chiropractor and his orthopedic surgeon found that the
employee’s injuries were in fact capable of causing such pain, and that his complaints
were credible. Id. The court agreed that this constituted an objective finding that the
employee’s complaints were genuine. Id. Similarly, in Daigrepont v. Grand Casino
Avoyelles, 96-1170 (La.App. 3 Cir. 3/5/97), 692 So.2d 518, the trial court found that
the employee had provided objective medical evidence of her injury, including
7 medical reports from her treating physician. Additionally, the court found the
employee’s complaints of pain “to be consistent and credible.” Id. at 521. Finally,
in Gordon v. Sandersons Farms, 96-1587 (La.App. 1 Cir. 5/9/97), 693 So.2d 1279,
the appellate court affirmed the trial court’s finding that the employee had shown his
pain prevented him from working. The employee testified that his pain had been
“very constant,” and his medical records “reflected consistent complaints of . . . pain
since the accident.” Id. at 1285.
Ms. Alexander has provided extensive deposition testimony of her
treating physician. His testimony shows that Ms. Alexander suffered debilitating pain
that prevented her from working. Dr. DeLapp systematically examined each office
visit and testified as to her condition throughout the time following her injury. Ms.
Alexander’s complaints of pain are consistent, and Dr. DeLapp substantiated these
complaints. Her complaints are plausible and believable, and the trial court did not
err in determining that her constant pain resulted in her inability to engage in any kind
of employment, warranting an award of temporary total disability benefits.
Autozone argues that Ms. Alexander was capable of performing her
work, but quit her job, and it is thus because of her own actions that she is
unemployed. Ms. Alexander, however, proved that her condition caused sufficient
pain to prevent her from performing the functions of her job, including using the
computer and lifting heavy items. Her doctor confirmed that she was physically
unable to perform these tasks. In contrast to the conditions here, the supreme court
found a claimant ineligible for temporary total disability benefits when she admitted
she would still be working at her former job had she not been fired. Coats v.
American Tel. & Tel. Co., 95-2670 (La. 10/25/96), 681 So.2d 1243. Ms. Alexander
left her position because she could no longer physically tolerate the work, and felt
8 Autozone did not make an effort to accommodate her difficulties. In contrast to Dr.
DeLapp’s extensive testimony, Autozone’s medical witness, Dr. Gidman, stated in
his letter only that he would “encourage her to return to work with light lifting,” but
admitted that her regular job “is not acceptable due to the amount of lifting required.”
The third circuit agreed that an employee was not entitled to benefits when the
treating physician found her able to work and a vocational services counselor
specifically found available jobs the claimant would be capable of performing.
Benjamin v. Asplundh Tree Co., 03-913 (La.App. 3 Cir. 12/10/03), writ denied, 04-78
(La. 3/19/04), 869 So.2d 853. However, Autozone did not provide any evidence that
there might be other appropriate jobs available to Ms. Alexander. Ms. Alexander
testified she did not receive vocational counseling to help her explore positions she
might be capable of performing. In any event, her treating physician has testified, and
the trial court found, that Ms. Alexander was unable to work due to her painful
condition.
Autozone also alleges that her physician never placed her on no-work
status, but only imposed certain restrictions, such as limiting her to “light duty.” Dr.
DeLapp testified that it was not normally his practice to impose no-work status, but
would allow time off for healing after surgery. He advised Ms. Alexander to limit
activities that would exacerbate her condition, such as heavy lifting and repetitive
motion, but the nature of her job required these very activities. Although she was
never on no-work status, she was also never free of these limitations on her activities.
Even during the time in which Ms. Alexander did not see Dr. DeLapp, she was forced
to wear her brace. In determining whether the claimant has met her burden of
showing she is unable to engage in any kind of employment, the trial court must
weigh the totality of the evidence, both medical and lay. Ratliff, 861 So.2d 613. The
9 fact that Dr. DeLapp did not ever put Ms. Alexander on no-work status did not
persuade the trial court that Ms. Alexander otherwise failed to provide sufficient
objective medical evidence of her inability to work due to pain.
Carpal Tunnel Surgery
Autozone argues that Ms. Alexander did not show that her initial work-
related injury caused her carpal tunnel syndrome. Autozone argues that carpal tunnel
syndrome was not diagnosed until approximately two years after the accident; testing
performed on May 21, 2001 did not demonstrate carpal tunnel syndrome.
Additionally, Autozone maintains that the assessment by its own expert, Dr. Gregory
Gidman, establishes no relationship between her fracture and her carpal tunnel
syndrome.
Dr. Gidman asserts that the onset of carpal tunnel syndrome is
temporally removed from the original injury such that they are not causally related.
Dr. DeLapp’s depositions, however, indicate that Ms. Alexander showed signs of
carpal tunnel as early as November 30, 2000. Her physical examinations thereafter
consistently showed signs of carpal tunnel. On January 4, 2001, Ms. Alexander’s
Phalen’s test was positive, indicating carpal tunnel syndrome. On April 27, 2001, Dr.
DeLapp diagnosed carpal tunnel. On May 21, 2001, a nerve conduction study
showed mild carpal tunnel symptoms, but did not conclusively demonstrate carpal
tunnel syndrome. Dr. DeLapp concluded, however, from Ms. Alexander’s symptoms
and complaints of pain, numbness, and tingling, that the test had yielded a false
negative. On August 21, 2001, Dr. DeLapp diagnosed carpal tunnel syndrome and
recommended surgery. Over a year later, she still had not had the necessary surgery,
and now suffers from atrophy of her wrist muscles.
10 Ms. Alexander’s symptoms of carpal tunnel syndrome began as early as
November 30, 2000, approximately one year after her injury. Dr. DeLapp testified
that, while the nerve conduction study is normally reliable, there is an acknowledged
and known possibility of a false negative. He reasonably concluded that this was the
case, since Ms. Alexander’s symptoms contradicted the test results. Even if Dr.
Gidman’s calculation that her carpal tunnel did not arise until two years after the
accident is correct, however, Dr. DeLapp testified at his deposition that carpal tunnel
syndrome can appear anywhere from one to two years after a fracture.
In addition, Dr. DeLapp testified to the causal relationship between the
original fracture and the attendant carpal tunnel syndrome. He stated that carpal
tunnel syndrome is one of the “more common entities” that occur after a wrist
fracture. Carpal tunnel is normally caused by either repetitive motion or “a
complication from the fracture.” Although he could not say definitively which was
the cause, he stated that carpal tunnel is a “known related entity to a fracture” of the
type suffered by Ms. Alexander and it was “more probable than not” that her
condition was caused by the fractured wrist.
For a workers’ compensation claimant to satisfy his burden of proof, the
testimony in its entirety must show that it is more probable than not that the work-
related accident had a causal relation to the disability. Kelley v. Stone Container
Corp., 31,790 (La.App. 2 Cir. 5/5/99), 734 So.2d 848, writ denied, 99-1969 (La.
10/15/99), 748 So.2d 1150. The claimant’s case must fail when the evidence “leaves
the probabilities evenly balanced.” Id. at 851. The causal connection must be proved
by “a reasonable preponderance of the evidence.” Sarrio v. Stalling Const. Co., 876
So.2d 157, 160. Dr. DeLapp testified to more than even odds that the fracture caused
11 her carpal tunnel syndrome. The trial court found Ms. Alexander’s evidence more
than adequate to show causation.
Furthermore, Dr. Gidman based his assessment of Ms. Alexander’s
condition on one examination only. Dr. DeLapp, on the other hand, saw Ms.
Alexander regularly for two years, beginning with her original injury. The trial court
had the discretion to discount Dr. Gidman’s opinion. Normally, “[t]he general rule
is that the testimony of a treating physician should be accorded greater weight than
that of a physician who examines a patient only once or twice.” McKinney v.
Coleman, 36,958, p. 5 (La.App. 2 Cir. 3.14.03), 839 So.2d 1240, 1244. The treating
physician has the advantage of familiarity, since he or she “is more likely to know the
patient’s symptoms and complaints due to repeated examinations and sustained
observations.” Halker v. Am. Sheet Metal, 03-678, p. 7 (La.App. 3 Cir. 12/10/03),
861 So.2d 740, 746. Even in light of the presumption in favor of the treating
physician, however, the trial court weighed Autozone’s medical evidence and found
Dr. Gidman’s conclusions unpersuasive. The trial court discussed Dr. Gidman’s
findings extensively in its oral rulings, noting that Dr. Gidman had not read Dr.
DeLapp’s depositions. Thus, the trial court did not simply choose to accept Dr.
DeLapp’s analysis of Ms. Alexander’s condition, but impressively and carefully
assessed the evidence of both physicians. Longoria v. Brookshire Grocery Co.,
37,975, p. 10 (La.App. 2 Cir. 12/19/03), 862 So.2d 1172, 1179.
The trial court found Autozone’s refusal to approve Ms. Alexander’s
carpal tunnel surgery unreasonable. The evidence satisfied the trial court of the
connection between her original injury and the subsequent carpal tunnel condition,
and thus the court did not err when it assigned responsibility to Autozone for the
surgery to treat this condition. Once the surgery is completed, she will have a short
12 recovery period followed by physical therapy. Dr. DeLapp testified that Ms.
Alexander should be able to return to work once she has recovered from surgery. If
she does not have the surgery, she will suffer continued atrophy of the muscles in her
hand, and will eventually suffer disability in that hand, in essence extinguishing her
chances of returning to work. The procedure therefore is clearly necessary for her to
overcome her disability and return to work.
Penalties for Unpaid Medical Bills
The trial court awarded Ms. Alexander a total of $12,000.00 in penalties
and $17,000.00 in attorney fees. Louisiana Revised Statutes 23:1201 was amended
in 2003 to include a provision capping total penalties at $8,000.00. In workers’
compensation matters, however, we apply the law in existence at the time of the
injury. At the time of Ms. Alexander’s injury, there was no limit on the total amount
of penalties. Autozone argues that each of these awards represents manifest error on
the part of the trial court. The trial court imposed $6,000.00 in penalties for
Autozone’s failure to pay three medical bills totaling $928.65. In addition, the trial
court also awarded a $4,000.00 penalty and $10,000.00 in attorney fees for
Autozone’s failure to pay temporary total disability benefits. Finally, the trial court
awarded Ms. Alexander a $2,000.00 penalty and $7,000.00 in attorney fees for
Autozone’s failure to authorize the carpal tunnel surgery.
Louisiana Revised Statutes 23:1201 governs the procedure for payment
of workers’ compensation benefits. Subsection (E) requires payment of medical bills
“within sixty days after the employer or insurer receives written notice thereof.”
Subsection (F) describes the assessment of penalties for the failure to pay these
benefits, and sets the maximum payment per penalty at $2,000.00 per claim. The sole
exception to La.R.S. 23:1201(F) states “[t]his [s]ubsection shall not apply if the claim
13 is reasonably controverted or if such nonpayment results from conditions over which
the employer or insurer had no control.” La.R.S. 23:1201(F)(2).
The Louisiana supreme court has interpreted “reasonably controverted”
to require that “the defendant . . . have some valid reason or evidence upon which to
base his denial of benefits.” Brown v. Texas-La Cartage, Inc., 98-1063 (La. 12/1/98),
721 So.2d 885. The third circuit adopted this explanation in Johnson v.
Transamerican Waste Co., 99-190 (La.App. 3 Cir. 6/2/99), 741 So.2d 764. The
claimant sought penalties for the failure of his employer to pay workers’
compensation benefits. The employer asserted that it reasonably controverted the
employee’s claim to benefits, and the claimant was therefore not entitled to penalties.
The third circuit stated that “[i]n order to avoid the imposition of penalties, an
employer must reasonably controvert the workers’ compensation claimant’s right to
benefits. The test to determine if the employer has fulfilled its duty is whether the
employer or his insurer had sufficient factual and medical information presented by
claimant.” Id. at 770. The court held that the employer offered no valid reason to
contradict the claimant’s account of his injury, and no medical evidence to suggest
the claimant’s injures were not disabling. Thus, the employer failed to present
sufficient information to controvert the employee’s claim for temporary total
disability benefits. Id.
Thus, the critical focus in deciding to allocate penalties or attorney fees
is whether the employer had an articulable, reasonable, and objective rationale for
denying benefits sufficient to overcome the employee’s claim to benefits. Authement
v. Shappert Eng’g, 02-1631 (La. 2/25/03), 840 So.2d 1181; Galeano v. Taco Bell
Corp., 02-904 (La.App. 5 Cir. 2/25/03), 839 So.2d 472. This issue requires an
analysis of facts explaining the denial of the employee’s claim. Therefore, the trial
14 court’s decision should not be disturbed on appeal absent manifest error, or unless
clearly wrong. Authement, 840 So.2d 1181; Frank v. Kent Guidry Farms, 01-727
(La.App. 3 Cir. 5/8/02), 816 So.2d 969, writ denied, 02-1608 (La. 6/27/03), 847
So.2d 1273; Johnson v. Johnson Controls, Inc., 38,495 (La.App. 2 Cir. 5/12/04), 873
So.2d 923.
Ms. Alexander testified that she called Autozone’s corporate office
several times regarding the unpaid bills, but continued to receive collection notices.
The manager at her store, Louis Clinkscales, testified that his only responsibility was
to forward information regarding any workers’ compensation claim he received from
an employee to Troy Calhoun, the regional manager. Ms. Alexander further testified
that she spoke to Mr. Calhoun about the unpaid bills several times, and he promised
to call the corporate office on her behalf. By the time the case reached trial, the bills
were seriously overdue. Autozone asserts that their failure to pay represents a mere
administrative oversight, particularly in light of the many other bills they had
successfully paid.
Administrative error, however, does not establish a reasonable
explanation for their failure to pay these bills. Autozone had no good reason for
overlooking these bills but paying others, since there is no doubt that the treatment
represented by each bill was related to Ms. Alexander’s injury. Autozone does not
argue it did not receive notice of the bills; in fact, Autozone admits that it received
paperwork regarding many bills, and only argues that these three specific bills were
inadvertently overlooked. Also, Autozone cannot argue that the mistake arose from
a situation beyond their control, since they successfully paid other bills. Additionally,
Louisiana jurisprudence has specifically rejected administrative error as sufficient to
overcome the claimant’s right to benefits. In Arnold v. Wal-Mart Stores, Inc., 03-609
15 (La.App. 3 Cir. 11/5/03), 858 So.2d 776, writ denied, 03-3347 (La. 3/19/04), 869
So.2d 850, the court found that Wal-Mart did not provide any evidence that the
clerical mistake that caused the claimant’s benefits to go unpaid resulted from
circumstances beyond the employer’s control. The third circuit found that Wal-
Mart’s excuse did not sufficiently controvert the employee’s right to benefits, and the
claimant was therefore entitled to penalties and attorney’s fees. Id. Autozone’s only
basis for its failure to pay these particular bills is clerical error, which does not
controvert Ms. Alexander’s right to have her medical bills paid. Thus, Autozone
violated the provision of La.R.S. 23:1201 requiring payment of medical bills within
sixty days of receiving notice, and is therefore subject to penalties under La.R.S.
23:1201(F).
Autozone also contests the trial court’s award of penalties for its failure
to award benefits for Ms. Alexander’s temporary total disability. Autozone asserts
Ms. Alexander is not entitled to temporary total disability benefits, and therefore it
cannot be sanctioned for failing to pay her these benefits. Autozone argues that it was
not unreasonable for it to take the position that she had not sufficiently proven her
right to claim these benefits as required by La.R.S. 23:1221(1)(c). The trial court,
however, concluded at its oral rulings that Ms. Alexander had satisfied her burden of
proving her disability. The court reviewed the weight of medical evidence in favor
of Ms. Alexander, showing that her injury rendered her incapacitated, and found that
Autozone’s arguments did not controvert her claim.
Autozone also disputes the penalties assigned for its failure to authorize
carpal tunnel surgery. Louisiana courts have uniformly agreed that “failure to
authorize a medical procedure for an employee eligible to receive workers’
compensation is deemed to be a failure to furnish compensation benefits, thereby
16 triggering the penalty provisions of the Louisiana Workers’ Compensation Act.”
Frank, 816 So.2d at 972; Authement, 840 So.2d 1181. Therefore, “the period of time
in which the employer or insurer must act is sixty days, as provided in La.R.S.
23:1201(E),” and if the employer fails to comply, it is subject to penalties under
La.R.S. 23:1201(F), even though the language of the statute refers to the “[f]ailure to
provide payment” rather than necessary medical procedures. Harbor v. St. Frances
Cabrini Hosp., 01-1551 (La.App. 3 Cir. 5/15/02), 817 So.2d 1269, 1273. The
penalties and attorney fees are due unless the claim is reasonably controverted or such
nonpayment results from conditions over which the employer or insurer had no
control. Frank, 816 So.2d 969.
Autozone maintains that Ms. Alexander’s original work-related injury
did not cause the carpal tunnel syndrome, and it is therefore not obligated to fund her
surgery. The trial court, however, determined that the medical evidence established
beyond a preponderance of the evidence that her initial fracture ultimately resulted
in her carpal tunnel condition. Thus, Autozone did not reasonably controvert Ms.
Alexander’s claim and is subject to penalties for its failure to authorize and fund the
surgery.
Finally, Autozone challenges its obligation to pay Ms. Alexander’s
attorney fees. In addition to providing for penalties for the employer’s failure to pay
benefits, La.R.S. 23:1201(F) also permits an award of attorney fees. This component
of the statute also does not apply if the employer reasonably controverts the
employee’s claim. La.R.S. 23:1201(F)(2). Because “[a] workers’ compensation
judge is given great discretion in determining whether to award attorney’s fees,” his
or her ruling will be reversed on appeal only in case of manifest error. Semere v. Our
Lady of Lourdes Hosp., 03-1702, p. 14 (La.App. 3 Cir. 6/29/04), 875 So.2d 1048,
17 1057. The third circuit established different factors to consider when awarding
attorney fees: “While the legislature has set statutory limits on the amount of
penalties which may be awarded, the legislature has made no such limitation on the
amount of attorney fees which may be awarded. The legislature’s only mandate is
that such attorney fees be reasonable. In setting reasonable attorney fees, the supreme
court has advised us to consider ‘the degree of skill and ability exercised, the amount
of the claim, and the amount recovered for the plaintiff, and the amount of time
devoted to the case.” Id. (citation omitted).
Ms. Alexander’s attorney began work on this case in January of 2002,
when he first filed her disputed claim for worker’s compensation. He conducted
depositions and appeared in court. The case is factually dense and involved extensive
medical testimony. He achieved a good result for his client. The attorney fees
awarded to Ms. Alexander are not unreasonable and do not indicate manifest error.
The purpose of awarding penalties and attorney fees in workers’ compensation cases
is to punish noncompliance with the statute and “to discourage indifference and
undesirable conduct by employers and insurers.” Authement, 840 So.2d at 1188. The
trial court did not err in its decisions to award penalties and attorney fees for
Autozone’s unwarranted failure to provide Ms. Alexander with the benefits to which
she is entitled under law.
IV.
CONCLUSION
For the above reasons, the judgment of the trial court is affirmed. Costs
of appeal are assessed to appellant Autozone, Inc.