STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
03-1702
MARY SEMERE
VERSUS
OUR LADY OF LOURDES HOSPITAL
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF LAFAYETTE, NO. 01-08460 SHARON M. MORROW, WORKERS COMPENSATION JUDGE
MARC T. AMY JUDGE
Court composed of Sylvia R. Cooks, Billie Colombaro Woodard, and Marc T. Amy, Judges.
AFFIRMED.
Philip E. Roberts Roy, Bivins, Judice, Roberts & Wartelle Post Office Drawer Z Lafayette, LA 70502 (337) 233-7430 COUNSEL FOR DEFENDANT/APPELLANT: Our Lady of Lourdes Hospital
Robert Morlas Schoenfeld Schoenfeld, Schoenfeld & Schoenfeld Law Corp. 810 Union Street, Suite 324 New Orleans, LA 70112 (504) 586-0025 COUNSEL FOR PLAINTIFF/APPELLEE: Mary Semere AMY, Judge.
In this workers’ compensation matter, the employee-claimant filed a disputed
claim, seeking attorney’s fees and penalties on the grounds that her employer failed
to authorize a referral visit to an orthopedist, failed to timely provide copies of
accident and medical reports, and failed to timely authorize a wellness program
recommended by her physician. The claimant dismissed the portion of the suit
pertaining to the accident and medical reports, and, at the hearing in the matter, the
employer was granted an involuntary dismissal as to the referral. The workers’
compensation judge found that the employer failed to timely authorize the claimant’s
participation in the physician-recommended wellness program and awarded her
penalties and attorney’s fees accordingly. The employer appeals. For the following
reasons, we affirm.
Factual and Procedural Background
The record of the proceedings below indicates that on January 4, 1999, Mary
Semere, a nurse’s aide employed by Our Lady of Lourdes Hospital in Lafayette and
the claimant herein, injured her lower back in the course and scope of her employment
while lifting a patient. Ms. Semere testified that at the time of the accident, she and
a co-worker were trying to put a patient back in bed. Ms. Semere indicated that she
was on the “pulling side” of the patient; during the “pulling,” her back popped. The
record reflects that for treatment for her injuries, Ms. Semere first consulted Dr.
Joseph Schutte, who referred her to Dr. Leoni. Dr. Leoni, in turn, referred her to Dr.
DeAlvare; after consultation, Dr. DeAlvare referred her to Dr. Joseph T. Gillespie, an
anesthesiologist specializing in pain management. Ms. Semere underwent the first of
two surgeries, a discectomy conducted by Dr. Leoni, on May 9, 1999. In August
2002, Drs. Schutte and Leoni performed a second discectomy and a laminectomy and fusion. Ms. Semere testified that Drs. Gillespie and Leoni informed her that she could
not return to her prior duties, and Dr. Gillespie recommended that she receive
schooling and vocational rehabilitation that would enable and prepare her to take up
another trade.
According to Ms. Semere’s testimony, as of October 2001, she still had not
received approval for the wellness program, the vocational rehabilitation, and the
schooling. On October 25, 2001, she retained an attorney. Ms. Semere filed the
instant disputed claim for penalties and attorney’s fees on November 16, 2001, in
which she asserted that Our Lady of Lourdes would not authorize an appointment with
Dr. Blanda, pursuant to Dr. Gillespie’s referral; it did not timely provide medical and
accident records; and it did not timely authorize the wellness program recommended
by Dr. Gillespie.
At the hearing in the matter, conducted on September 9, 2003, Ms. Semere
asserted that Dr. Gillespie first recommended a wellness program for her on October
26, 2000. She explained that this wellness program was to include treadmill exercise,
light weight training, swimming and water aerobics, and hot tub/jacuzzi therapy. Ms.
Semere stated that at the time the program was recommended, she was ready to begin
therapy; however, months passed without its approval. She testified that during her
treatment with Dr. Gillespie, she expressed her frustration that the program had not
yet been approved. Ms. Semere indicated that she called Mr. George Jones, Our Lady
of Lourdes’ workers’ compensation manager, to inquire as to when the program would
be approved, explaining that she believed that she was required to get approval from
Mr. Jones before she could begin. She recalled that Mr. Jones advised her to call Ms.
Donna Hill, an insurance adjuster with Our Lady of Lourdes’ third-party
administrator, Frank Gates Service Company (hereinafter “Frank Gates”), noting that
2 direct communication with Ms. Hill might expedite the approval process. Ms. Semere
testified that she called Ms. Hill, whom she described as “ugly” and “rude” to her on
the phone. She stated that during their conversation, she asked Ms. Hill about the
wellness program but received no response. During her testimony, Ms. Semere
maintained that she never told Mr. Jones or Ms. Hill that she did not wish to
participate in the wellness program. The record indicates that the wellness program
was approved on December 14, 2001, and as of the date of hearing, Ms. Semere
continued to participate.
Ms. Donna Hill explained under cross-examination that Our Lady of Lourdes
supplies “ProComp” forms to attending physicians in workers’ compensation cases,
and the physicians indicate recommended courses of therapy on these forms.1 Ms.
Hill testified that Dr. Gillespie’s October 26, 2000 ProComp form did not mention
aqua therapy or a wellness program. Ms. Hill recalled that she first learned of the
wellness program recommendation on May 7, 2001, when Mr. Jones faxed her Dr.
Gillespie’s prescription for the program; after she received this prescription, another
insurance adjuster with Frank Gates sent Dr. Gillespie a letter asking him to elaborate
upon the types of wellness treatments recommended, but Dr. Gillespie did not
respond. Ms. Hill testified that another letter was sent on June 28, 2001. Ms. Hill
indicated that after they received Dr. Gillespie’s response, dated July 3, 2001, Mr.
Jones began to research therapy costs and brochures.
Ms. Hill explained at the hearing that Ms. Semere could have initiated the
wellness program herself by bringing her prescription to a wellness center. Ms. Hill
indicated that the wellness center would have called Frank Gates for approval, and
1 The record reflects that neither Ms. Hill nor Mr. Jones brought their respective claims files with them to the hearing.
3 Frank Gates would have consented. She further noted that the particular wellness
program that was eventually chosen for Ms. Semere required six months’ advance
payment.
Ms. Hill recalled speaking to Ms. Semere over the phone on July 24, 2001,
regarding the referral to Dr. Blanda.2 Ms. Hill testified that she told Ms. Semere that
she wanted her to go to the wellness program office; however, she stated, Ms. Semere,
who sounded “agitated,” insisted that she wanted to see Dr. Blanda. According to Ms.
Hill’s testimony, Ms. Semere said that she was not interested in the wellness program,
aqua therapy, or a dietician. However, Ms. Hill admitted that Frank Gates had
received nothing from Dr. Gillespie indicating that Ms. Semere did not wish to
participate. She recalled that the next recommendation for the wellness program came
from Dr. Gillespie on October 25, 2001, and at this time, she and Mr. Jones decided
to set up the program for Ms. Semere.
Our Lady of Lourdes moved for involuntary dismissal at the close of Ms.
Semere’s case. The workers’ compensation judge granted the motion as to the referral
to Dr. Blanda, noting that the claim was reasonably controverted. However, the
workers’ compensation judge denied the motion as to the wellness program, finding
that La.R.S. 23:1201(E)3 does not involve “demand;” instead, she observed, it
involves “notice.”
In its effort to defeat the remaining claim, Our Lady of Lourdes called Mr.
George Jones, manager of the hospital’s workers’ compensation program, to testify.
On examination, Mr. Jones stated that he did not receive a prescription from Dr.
2 During her testimony, Ms. Semere explained that after her second surgery, Dr. Gillespie suggested that she see Dr. Louis Blanda due to Dr. Blanda’s expertise in back surgery. 3 The text of this article will be reproduced in the discussion section that follows.
4 Gillespie for the wellness program after Ms. Semere’s appointment on October 26,
2000; instead, he recalled that the first prescription followed the May 7, 2001
appointment. He noted that he then forwarded the prescription to Frank Gates on
May 31, 2001. Mr. Jones recalled that an adjuster from Frank Gates called him on
July 2, 2001, to tell him that the wellness program had been approved; according to
his testimony, he then began to research various programs, sending some of the
brochures that he had collected to Ms. Hill.
Mr. Jones confirmed that Ms. Semere telephoned him on July 24, 2001;
however, he testified that she did not call him in order to make arrangements to begin
the wellness program. Mr. Jones recalled that Ms. Semere said that she had seen Dr.
Gillespie the day before, and she said that he expressed a desire for her to consult with
Dr. Blanda. According to Mr. Jones, Ms. Semere did not mention the wellness
program during this conversation or during a conversation the following day. He said
that when he later heard from Ms. Hill that Ms. Semere did not want to participate in
the wellness program, he stopped making plans for her to attend. However, Mr. Jones
conceded that Ms. Semere never told him that she did not want to go to the wellness
program.
Mr. Jones testified that after receiving a letter dated October 29, 2001, from Dr.
Gillespie, he resumed making arrangements for Ms. Semere to attend the wellness
program. He stated that he called Ms. Semere on December 11, 2001 to tell her that
he needed her signature on some paperwork before she could begin, but Ms. Semere
explained that her car had broken down, and she would try to come sign the
paperwork the following day. Mr. Jones noted that Ms. Semere left him a message
on December 17, saying that she had visited the wellness center office on the
afternoon of December 14 and that she was to perform her screening later that day.
5 Mr. Jones opined that nothing kept Ms. Semere from going to the wellness
program; he explained that it was like any other health club in that you merely go to
the front desk and express your interest in joining. However, he stated that he did not
know if Ms. Semere was aware that she could sign up for the wellness program in that
manner.
At the conclusion of the hearing, the workers’ compensation judge ruled that
Our Lady of Lourdes failed to timely approve the wellness program, finding that it
was first recommended in October 2000 and was approved in December 2001, some
fourteen months later. In her ruling, the workers’ compensation judge pointed out that
La.R.S. 23:1201(E) speaks in terms of sixty days; as such, even if the prescription was
first issued in May 2001, the program still was not approved within the statutory time
limit. The workers’ compensation judge noted the conflict in the respective
testimonies of Ms. Semere, who insisted that she never said that she did not want to
participate, and of Ms. Hill, who claimed the opposite. However, the workers’
compensation judge noted, Ms. Hill’s testimony was not sufficient to controvert the
necessity of the wellness program. At the conclusion of her ruling, the workers’
compensation judge remarked that Ms. Hill should have documented Ms. Semere’s
statement that she did not want the program; in the alternative, Ms. Hill should have
set up the program in a timely manner and waited to see whether Ms. Semere
participated. The workers’ compensation judge opined that either action would have
constituted reasonable controvertion, but neither was taken. Accordingly, the
workers’ compensation judge imposed a penalty of $2,000 and attorney’s fees of
$3,500.
The record indicates that at this time, Our Lady of Lourdes asked the workers’
compensation judge to reopen the evidence, claiming that a notation in Ms. Hill’s
6 claims file confirmed that during the July 24, 2001 conversation, Ms. Semere said that
she did not want to participate in the wellness program. The workers’ compensation
judge denied this request, sustaining opposing counsel’s objection. The record
reflects that as a proffer, Our Lady of Lourdes then called Ms. Hill to the witness
stand to discuss this particular notation.
Our Lady of Lourdes appeals the ruling of the workers’ compensation judge,
asserting the following assignments of error:
1. The workers’ compensation judge erred as a matter of law in determining that an employer may be liable for penalties and attorney’s fees pursuant to La.R.S. 23:1201(E) and (F) for failing to authorize medical benefits when neither the employee nor the employee’s health care provider made demand.
2. The workers’ compensation judge erred in determining, as a matter of fact, that the employer herein had not authorized medical benefits in accordance with La.R.S. 23:1201(E).
3. The workers’ compensation judge erred in awarding excessive attorney’s fees in that the employer never denied the medical benefits at issue, and the employee was notified of the benefit’s authorization prior to its being served with the disputed claim in this matter.
4. The workers’ compensation judge abused its discretion in refusing to reopen the evidence to introduce documentation from the third-party administrator’s file that confirmed a conversation mentioned during oral testimony after the workers’ compensation judge ruled that such documentation was important to a decision in this matter.
Discussion
In the context of workers’ compensation benefits, La.R.S. 23:1201(E) provides
that “[m]edical benefits payable under this Chapter shall be paid within sixty days
after the employer or insurer receives written notice thereof.” Penalties for
noncompliance with La.R.S. 23:1201(E) are outlined in La.R.S. 23:1201(F), the
pertinent sections of which are as follows:
Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent
7 of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner: (1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer. (2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
Imposition of Penalties and Attorney’s Fees in the Absence of Demand and Determination that the Employer Had Not Authorized Medical Benefits
Because Our Lady of Lourdes’ first two assignments of error are interrelated,
we address them together. Our Lady of Lourdes first contends that in order for a
claimant to be entitled to attorney’s fees and penalties as a result of an employer’s or
insurer’s failure to pay medical benefits pursuant to La.R.S. 23:1201(E), the claimant
must make demand. It asserts that in this matter, the workers’ compensation judge
determined that the claimant was entitled to penalties and attorney’s fees without
demand; as such, this ruling is at odds with the jurisprudence and constitutes an error
of law. Accordingly, we review the workers’ compensation judge’s ruling to ascertain
whether it was legally correct. Belaire v. Don Shetler Olds Buick Chevrolet, 02-1152
(La.App. 3 Cir. 6/4/03), 847 So.2d 723.
In support of its position that the workers’ compensation judge erred as a matter
of law and that demand is required before attorney’s fees and penalties may be
awarded pursuant to La.R.S. 23:1201(E) and (F), Our Lady of Lourdes cites Anderson
v. Biedenharn Bottling Group, 95-646, p. 11 (La.App. 3 Cir. 11/2/95), 664 So.2d 588,
594 (“a requisite for recovery under [La.R.S. 23:1201(E) and La.R.S. 23:1121(C)] is
8 a demand made upon the employer”); Garner v. Sheats & Frazier, 95-39, p. 8
(La.App. 3 Cir. 7/5/95), 663 So.2d 57, 62 (“at no time did Garner make demand upon
Sheats & Frazier or its insurer to authorize payment of the additional testing suggested
by Dr. Foret”); and Spencer v. Gaylord Container Corp., 96-1230, pp. 15-16 (La.App.
1 Cir. 3/27/97), 693 So.2d 818, 829 (the first circuit undertakes an inquiry as to
whether the employee’s actions constituted demand, citing the holdings of Garner and
Anderson, above). In addition, Our Lady of Lourdes claims that a formal demand is
required, reproducing a portion of the recent supreme court decision in Authement v.
Shappert Engineering, 02-1631, p. 2 (La. 2/25/03), 840 So.2d 1181, 1183, which
states that “[a]s early as January 25, 2000, plaintiff’s counsel communicated with St.
Paul asserting a formal demand to make appropriate financial arrangements for Mr.
Authement to be examined by Dr. Dehne as soon as possible.” Our Lady of Lourdes
contends that in the instant matter, neither Ms. Semere nor Dr. Gillespie made demand
upon it or upon its third-party administrator to approve the wellness program at issue.
Our Lady of Lourdes argues, in essence, that it should not have been required to
approve treatment before Ms. Semere sought to obtain it.
We observe that during the hearing in this matter, Our Lady of Lourdes
emphasized that on October 26, 2000, Dr. Gillespie did not make his recommendation
on the ProComp form supplied by the third-party administrator; instead, his
recommendation that Ms. Semere begin wellness program was written on an
accompanying form under the heading, “Plan,” which the record indicates was faxed
along with the ProComp form on October 27, 2000. It appears from the record that
Our Lady of Lourdes’ contention was that because Dr. Gillespie’s recommendation
was not on the ProComp form, even though it appeared on the accompanying form,
it did not constitute “demand.”
9 A plain reading of La.R.S. 1201(E) indicates that there is no requirement that
notice take a particular form; moreover, our review of the relevant case law reveals
no jurisprudential rule mandating any specific form. In this respect, we find
persuasive the first circuit’s opinion in Nuzum v. TCI Turner Corp., 02-1232, (La.App.
1 Cir. 3/28/03), 857 So.2d 520. In Nuzum, the employer appealed the decision of the
workers’ compensation judge in favor of the employee, claiming that the employee’s
health care provider was required to submit a particular form in order that a medical
expense might be paid. In its analysis on appeal, the first circuit provided the
following commentary as to the requirements of La.R.S. 23:1201(E):
In TCI’s first assignments of error, it asserts that the HCFA 1500 forms it required the physicians to send prior to paying the medical bills are required as a matter of law. TCI argues that the system set up by the Workers’ Compensation Act and the Louisiana Administrative Code requires submission of a HCFA 1500 form by healthcare providers and payment of their charges in amounts set forth in a fee schedule. It reasons that, under La. R.S. 23:1201(E), La. R.S. 23:1034.2, and LAC 40:I.5111, physicians are required to provide a HCFA form in order to be compensated. TCI cites as support for its argument Kaiser v. Western-Southern Ins. Co., 01-1393 (La.App. 5 Cir. 5/15/02), 821 So.2d 52, where it was found that claimant was not entitled to reimbursement for unsupported or improperly submitted medical bills. In its reasons for judgment, the WCJ stated that TCI untimely paid many bills because of the lack of HCFA forms. It recognized that the Workers’ Compensation Act does not state that the adjuster can wait for a HCFA form before paying a bill. The Act requires that, once a bill for the work-related injury is submitted, an employer has sixty days to pay that bill. The WCJ noted that most of the bills that were not submitted on HCFA forms had just about everything on the bill except that it was not on the form. .... Louisiana Revised Statute 23:1034.2(B) reads as follows: B. The director shall adopt, in accordance with the Administrative Procedure Act, [footnote omitted] rules and regulations necessary to establish and implement a reimbursement schedule for such care, services, treatment, drugs, and supplies. Louisiana Administrative Code 40:I5111(A) states the following: The HCFA 1500 form is to be used by health care providers except dentist, pharmacy, hospital (unless otherwise stated), and for home and vehicle modifications for billing services provided to workers’ compensation claimant. Do not use any other form. A sample HCFA 1500 claim form and detailed instruction for proper completion of the form follows.
10 We agree with the WCJ’s determination that the Workers’ Compensation Act does not provide for a specific procedure for how employers receive bills. The Act does refer to the Louisiana Administrative Code regarding the reimbursement schedule, but the Louisiana Administrative Code does not control in terms of procedure. Whereas in Kaiser, the fifth circuit referred to the form as a required form, other Louisiana jurisprudence has allowed written notice, as required under La. R.S. 23:1201(E), to be any notice, such as receiving a medical bill from the worker himself or a written request from his counsel. As a result, we decline to find that under the Workers’ Compensation Act, an employer’s sixty day time period does not begin to run until it receives an HCFA form from the physician.
Nuzum, 857 So.2d at 525 (emphasis added).
Furthermore, the supreme court’s opinion in Authement, cited by Our Lady of
Lourdes, does not support the hospital’s argument that La.R.S. 23:1201(E) requires
formal demand. In this respect, it is helpful to note the context of the portion
reproduced above. In Authement, the court noted that the after the employee had filed
a disputed claim asserting that the insurer had failed to authorize certain medical
treatment, the employee’s orthopedist had recommended evaluation by another
specialist. In order to proceed with the evaluation, the employee needed authorization
from the insurer, which was not forthcoming. As a result, the employee’s attorney
issued a formal demand in an attempt to obtain authorization from the employer. In
Authement, the supreme court did not pinpoint the date of the formal demand as the
beginning of the sixty-day period of La.R.S. 23:1201(E); instead, the court referred
to the physician’s initial recommendation that pre-dated the formal demand as
triggering the sixty-day period. Authement, 840 So.2d at 1186.
Based upon our review of the statutory language and the relevant jurisprudence,
we find that valid notice pursuant to La.R.S. 23:1201(E) does not have to be on a
particular form issued by the employer or its insurer; instead, it is only required to be
written. In this case, the recommendation was in written form, it was received by Our
Lady of Lourdes, and it was therefore sufficient. We find that Dr. Gillespie’s
11 recommendation under “Plan” on the sheet accompanying the ProComp form was
sufficient “notice” pursuant to La.R.S. 23:1201(E) to trigger the sixty-day period for
imposition of penalties and attorney’s fees. We find that the workers’ compensation
judge’s ruling in this respect, that Dr. Gillespie’s recommendation of October 26,
2000, constituted notice, was legally correct.
We now turn to Our Lady of Lourdes’ second argument on appeal. It insists
that it did not deny Ms. Semere’s wellness program; instead, it argues, the only factual
issue before the workers’ compensation judge was whether Our Lady of Lourdes
failed to authorize the program. Our Lady of Lourdes maintains that it did not fail to
authorize the program because it was never presented the opportunity to make the
program available.
The workers’ compensation judge’s determination that Ms. Semere had given
notice to Our Lady of Lourdes was a question of fact. In Edwards v. Sawyer Indus.
Plastics, Inc., 99-2676, p. 9 (La. 6/30/00), 765 So.2d 328, 333, the Louisiana Supreme
Court, quoting its opinion in Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973),
discussed the province of an appellate court in reviewing the factual determinations
of a workers’ compensation judge, as follows:
When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.
12 Central to an inquiry as to whether an employer is subject to penalties and attorney’s
fees as a result of its failure to reasonably controvert its employee’s claims are the
facts of which the employer was cognizant at the time of its conduct. Romero v.
Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied,
01-1937 (La. 10/26/01), 799 So.2d 1144.
The record clearly reflects that both Our Lady of Lourdes and its third-party
administrator received Dr. Gillespie’s written notice, dated October 26, 2000, that he
wanted Ms. Semere to participate in a wellness program. The record also includes
Ms. Hill’s statements that she received the recommendation within thirty-five to forty
days of October 26, 2000. This notice provided the “opportunity” to Our Lady of
Lourdes to make the program available, within the time limits established by La.R.S.
23:1201(E). Our Lady of Lourdes’ argument in this respect is further refuted by Ms.
Semere’s testimony that she customarily waited for a call informing her that she had
been approved before she commenced treatment under the workers’ compensation
scheme at Our Lady of Lourdes, and she further testified that she called Ms. Hill and
Mr. Jones and asked about the program on July 24, 2001.
The workers’ compensation judge determined, based upon the testimony
adduced at the hearing and the evidence offered, that Dr. Gillespie first recommended
the wellness program on October 26, 2000, and that Our Lady of Lourdes failed to
authorize this program within sixty days. Based upon our examination of the record,
we do not find that the workers’ compensation judge committed manifest error as to
these factual determinations. These assignments are without merit.
Excessive Attorney’s Fees
A workers’ compensation judge is given great discretion in determining
whether to award attorney’s fees; accordingly, a ruling in this regard will be reversed
on appeal only if clearly wrong. Duhon v. Albertson’s, Inc., 02-494 (La.App. 3 Cir.
13 10/30/02), 829 So.2d 1190. Moreover, in Romero, 787 So.2d at 1157, a panel of this
court explained that:
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. See La.R.S. 23:1201. 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.” Naquin v. Uniroyal, Inc., 405 So.2d 525, 528 (La.1981).
We note that Ms. Semere’s attorney prepared pre-hearing statements and
prepared for and participated in both the pre-hearing mediation conference and the
hearing in this matter. We find that the sum of $3,500.00 is not unreasonable in light
of the volume of work done below; accordingly, we find that the award of attorney’s
fees was not clearly wrong in this respect. This assignment lacks merit.
Refusal to Reopen the Evidence
A trial judge is vested with discretion as to whether to reopen a case for the
admission of further evidence. Fowler v. Fowler, 98-953 (La.App. 3 Cir. 12/9/98),
772 So.2d 125 (quoting Tatum v. Old Republic Ins. Co., 94-157, p. 4 (La.App. 3 Cir.
10/5/94), 643 So.2d 419, 422, writ denied, 94-2722 (La. 1/6/95), 648 So.2d 929).
Accordingly, such decision shall not be disturbed in the absence of manifest error. Id.
The record reflects that at the hearing, when the employer moved to reopen the
evidence, both parties had already rested, and the workers’ compensation judge had
already issued a decision. Our Lady of Lourdes points out that in her ruling, the
workers’ compensation judge remarked that the employer would have reasonably
controverted Ms. Semere’s claims if, during the July 24, 2001 phone conversation,
Ms. Hill had documented Ms. Semere’s statement that she did not want to participate
in the wellness program. Our Lady of Lourdes argues that it would have presented
14 evidence of such documentation during its examination of Ms. Hill had it known that
the workers’ compensation judge considered it important.
The record reflects that, throughout the hearing, both sides gave considerable
attention to the question of whether Ms. Semere had told Ms. Hill and/or Mr. Jones
that she did not wish to participate in the wellness program. The record indicates that
after Ms. Semere’s attorney concluded his examination of Ms. Hill, Our Lady of
Lourdes’ attorney had the opportunity to ask her about the conversation and about any
documentation that might have supported her version of events; instead, he deferred,
reserving the right to question her. After the judge denied the motion for involuntary
dismissal as to the authorization of the wellness program, Our Lady of Lourdes’
attorney questioned Mr. Jones on direct examination and then rested without
exercising his right to question Ms. Hill. Accordingly, we find that the workers’
compensation judge did not commit manifest error in refusing to reopen the case so
that Our Lady of Lourdes might introduce evidence pertaining to Ms. Hill’s
conversation with Ms. Semere on July 24, 2001. This assignment is without merit.
Ms. Semere has requested additional attorney’s fees for work performed on
appeal. However, for a party to receive such an award, that party must have filed an
answer to the appeal. The record indicates that Ms. Semere did not answer the instant
appeal but merely filed a reply brief; accordingly, her request for additional fees is
denied. Dugas v. Aaron Rents, Inc., 02-1276 (La.App. 3 Cir. 3/5/03), 839 So.2d 1205.
DECREE
For the foregoing reasons, the ruling of the workers’ compensation judge is
affirmed. All costs of this proceeding are assigned to the employer, Our Lady of
Lourdes Regional Medical Center, Inc.