PATRICIA MATTHEWS * NO. 2022-CA-0164
VERSUS * COURT OF APPEAL BIG EASY JANITORIAL, * L.L.C., AND LOUISIANA FOURTH CIRCUIT CONSTRUCTION AND * INDUSTRY SELF INSURERS STATE OF LOUISIANA FUND *******
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 19-08479, DISTRICT “08” HONORABLE Catrice Johnson-Reid, The Office of Workers’ Compensation ****** Chief Judge Terri F. Love ****** (Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase)
Jean-Marc V. Bonin BONIN LAW FIRM 4224 Canal Street New Orleans, LA 70119
Alexandre E. Bonin BONIN LAW FIRM 4224 Canal Street New Orleans, LA 70119
R. Christian Bonin BONIN LAW FIRM 4224 Canal Street New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLEE
Nathan L. Schrantz Nathan Schrantz LLC 830 Union St Suite 302 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED AUGUST 10, 2022 TFL In this Workers’ Compensation case, the claimant, Patricia Matthews, SCJ alleges that she suffered a work-related accident. Ms. Matthews’ employer, Big TGC Easy Janitorial, LLC (“Big Easy”), and its insurance carrier, Louisiana
Construction and Industry Self Insurers Fund (“LCI”), refused to initiate benefits
for the alleged accident. Ms. Matthews then filed a disputed claim for
compensation. Following a trial on the matter, the Workers’ Compensation Judge
rendered a judgment in Ms. Matthews’ favor.
Big Easy and LCI filed this timely appeal, arguing that the trial court erred
in finding that a compensable work accident occurred and in awarding Ms.
Matthews indemnity benefits. They also argue that the trial court erred in
awarding Ms. Matthews medical expenses incurred before February 26, 2019, and
in awarding Ms. Matthews penalties and attorney fees.
Upon review, we find that the medical records and testimony provided by
Ms. Matthews were sufficient to establish, by a preponderance of the evidence, that
she suffered a compensable work accident. We hold that the weight of the medical
1 reports, Ms. Matthews’ unsuccessful attempts to work, and her testimony provided
a reasonable factual basis for the trial court’s finding of temporary total disability.
We further hold that the trial court did not err in finding that the severity and
unexpectedness of Ms. Matthews’ injury constituted an emergency and in holding
Big Easy and LCI liable for related emergency medical expenses. We conclude
that Big Easy and LCI did not investigate factual and/or medical information to
properly controvert Ms. Matthews’ claim, and, thus, the trial court did not err in
awarding penalties and attorney fees to Ms. Matthews. Consequently, we affirm
the judgment of the trial court and award additional attorney fees to Ms. Matthews
for the effort undertaken in opposing this appeal.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Ms. Matthews was employed by Big Easy as a housekeeper in a Homewood
Suites hotel in New Orleans. On December 28, 2018, the hotel experienced a
flood, causing the elevators to malfunction. Ms. Matthews was working the
evening shift and responded to service calls in the twelve-story building for over
eight hours. The volume of calls was high due to the impact of the flood and
elevator malfunctions upon hotel guests. Without the use of elevators, Ms.
Matthews was required to walk up and down the steps carrying heavy loads of
laundry and toiletries for guests. At one point, she alleges that her shoulder struck
the handrail of the staircase. Ms. Matthews states that she informed the only other
staff member present at the time, Karly, that she was experiencing pain in her
shoulder and arm due to the collision. Karly was employed by Homewood Suites
2 itself, not Big Easy. The next day, Ms. Matthews reported to work for her morning
shift. Ms. Matthews alleges that, during her morning shift, she advised the head of
housekeeping, Danielle, of her injury. Danielle was also an employee of
Homewood Suites. Ms. Matthews alleges that she also alerted her supervisor,
Patricia Wells, of the injury and that Ms. Wells offered her a shoulder ointment.
Over the next few days, Ms. Matthews states that she sought bed rest to
ameliorate her pain. However, she claims that her pain worsened and on January
2, 2019, she reported to the Emergency Department of Ochsner-Baptist Medical
Center complaining of shortness of breath, back pain, chest pain, and arm pain.
She states that she informed the medical staff that her symptoms began when she
collided with the guardrail on December 28, 2018. Ms. Matthews was treated with
an anti-inflammatory injection and told she could return to work in three days. She
was also advised that if her symptoms did not resolve within three weeks, to seek
further emergency care.
A week later, Ms. Matthews returned to the Emergency Department with
complaints of chest pain and pain radiating into her back with any movement. She
was diagnosed with non-cardiac chest pain and given a note instructing that she
could return to work in two days, on January 10, 2019. However, she was
informed that if her pain continued, she should seek emergency care again.
A Big Easy supervisor, Leticia Arzou, was provided with the hospital note
dated January 8, 2019. Ms. Arzou testified that Ms. Matthews gave the hospital
note to Big Easy, but that Ms. Matthews never directly told Ms. Arzou of her
3 injury. Ms. Arzou was aware of the flood conditions requiring Ms. Matthews to
undertake manual deliveries via the stairs. On January 10, 2019, Big Easy
terminated Ms. Matthews’ employment. On January 15, 2019, she appeared at Big
Easy’s offices in pursuit of a letter confirming her termination. Ms. Matthews
states that she verbally informed Big Easy personnel of the accident at that time.
Big Easy alleges that on that same day, Ms. Matthews filled out an application to
reapply for work with the company. Ms. Matthews denies this allegation.
After her termination, Ms. Matthews states that, despite her pain, she sought
employment in order to retain public benefits she relied upon for her family. On
January 30, 2019, approximately one month after the accident, Ms. Matthews
returned to Ochsner-Baptist reporting symptoms of shortness of breath, chest pain,
neck pain, back pain, and tingling sensations. She had difficulty walking and had
been experiencing numbness in her lower body for one week. An MRI was
ordered and exposed a disc herniation and severe spinal cord compression. She
was transferred to another Ochsner campus at once for a consultation. Two days
later, an emergency surgery was performed on Ms. Matthews to prevent further
loss of mobility. She was referred to physical therapy, but reported that despite
undergoing multiple physical therapy treatments and continuing physical therapy
exercises at home, she was unable to care for herself, for her children, or return to
work.
Approximately three weeks after her surgery, on February 26, 2019, Ms.
Matthews’ counsel sent a Letter of Amicable Demand and Notice of
4 Representation to Big Easy to formally advise them of her injury at work and
inform them of the medical care she had received. Big Easy and LCI denied that
Ms. Matthews had suffered a work-related accident and declined to initiate
benefits. A trial was held on the demand with a Workers’ Compensation Judge.
The court concluded that Ms. Matthews had suffered a work-related accident and
held Big Easy and LCI liable for her medical treatments, as well as penalties and
attorney fees. Big Easy and LCI now appeal this judgment.
DISCUSSION
Standard of Review
In workers’ compensation cases, appellate courts apply the manifest error, or
clearly wrong, standard of review to factual findings by the Office of Workers’
Compensation. Dean v. Southmark Construction, 03-1051, p. 7 (La. 7/6/04), 879
So. 2d 112, 117. To reverse a trial court’s factual findings under the manifest error
standard, an appellate court must find that “a reasonable factual basis does not
exist for the finding of the trial court” and that the record establishes that the
finding is clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617
So. 2d 880, 882 (La. 1993) (citing Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987)).
An appellate court must evaluate “whether the factfinder’s conclusion was a
reasonable one.” Stobart, 617 So. 2d at 882 (internal citations omitted). “Even
though an appellate court may feel its own evaluations and inferences are more
reasonable than the factfinder’s, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon review where conflict
5 exists in the testimony.” Id. (citing Rosell v. ESCO, 549 So. 2d 840, 844 (La.
1989); Arceneaux v. Domingue, 365 So. 2d 1330, 1333 (La. 1978)). This standard
of review acknowledges that the trial courts are more appropriately equipped to
weigh the credibility of live witnesses and upholds the unique functions of the trial
and appellate courts. Stobart, 617 So. 2d at 883 (citing Canter v. Koehring Co.,
283 So. 2d 716, 724 (La. 1973)).
Legal errors in a workers’ compensation proceeding are reviewed de novo.
MacFarlane v. Schneider Nat’l Bulk Carriers, Inc., 07-1386, p. 3 (La. App. 4 Cir.
4/30/08), 984 So. 2d 185,188 (citing Brantley v. Delta Ridge Implement, Inc.,
41,190, p. 8 (La. App. 2 Cir. 6/28/06), 935 So. 2d 308, 314). Questions of
statutory interpretation are also subject to de novo review by appellate courts. Id.
(internal citations omitted).
“The determination of whether injury occurred in the course and scope of
employment is a mixed question of law and fact.” Dean, 03-1051, p. 7, 879 So. 2d
at 117 (citing Winkler v. Wadleigh Offshore, Inc., 01-1833, p. 3 (La. App. 4 Cir.
4/24/02), 817 So. 2d 313, 316 (internal citation omitted)). A mixed question of
law and fact is subject to the manifestly erroneous standard of review. Wootan &
Saunders v. Diaz, 17-0820, p. 5 (La. App. 4 Cir. 3/28/18), 317 So. 3d 390, 395
(citing Chimneywood Homeowners Ass’n, Inc. v. Eagan Ins. Agency, Inc., 10-
0368, p. 5 (La. App. 4 Cir. 2/2/11), 57 So. 3d 1142, 1146).
Assignment of Error #1
6 In their first assignment of error, the appellants allege that the trial court
erred as a matter of law by finding the appellee suffered a work “accident” as the
term is defined in La. R.S. 23:1021.
Louisiana defines an accident, for the purposes of workers’ compensation, as
“an unexpected or unforeseen actual, identifiable, precipitous event happening
suddenly or violently, with or without human fault, and directly producing at the
time objective findings of an injury which is more than simply a gradual
deterioration or progressive degeneration.” La. R.S. 23:1021(1). The initial
burden of proof is upon the claimant to establish, by a preponderance of the
evidence, that an accident occurred on the job and that the claimant sustained an
injury. Holiday v. Borden Chem., 508 So. 2d 1381, 1383 (La. 1987) (citing Lucas
v. Ins. Co. of North America, 342 So. 2d 591, 595 (La.1977)). The claimant must
then establish, by a preponderance of the evidence, a causal connection between
the accident and their resulting disability. West v. Bayou Vista Manor, Inc., 371
So. 2d 1146, 1147 (La. 1979).
The appellants state that La. R.S. 23:1021(1) specifically “excludes from the
definition of ‘accident’ conditions that are caused by a progressive deterioration.”
The appellants point to medical records identifying the appellee’s pre-existing neck
and back problems, as a result of a degenerative cervical osteophyte complex, and
assert that her injury is not a covered accident under Louisiana law. The appellants
also identify a medical record from January 2, 2019, in which the appellee is noted
to “den[y] any recent trauma/injury.”
7 However, Louisiana law accepts that an accident has occurred even “when
‘heavy lifting or other strenuous efforts, although usual and customary, cause or
contribute to a physical breakdown or accelerate its occurrence because of a pre-
existing condition.’” Bruno v. Harbert Int’l Inc., 593 So. 2d 357 (La. 1992)
(quoting Cutno v. Neeb Kearney & Co., 237 La. 828, 838, 112 So. 2d 628, 631
(1959); citing Nelson v. Roadway Express, Inc., 588 So. 2d 350, 353-54 (La.
1991)). If a claimant is able to prove that the accident “aggravated, accelerated, or
combined with the disease or infirmity to produce death or disability for which
compensation is claimed,” the claimant may still prevail. Walton v. Normandy
Village Homes Ass’n, Inc., 475 So. 2d 320, 324 (La. 1985) (internal citations
omitted). “Moreover, Louisiana courts view the question of whether there was an
accident from the worker’s perspective.” Bruno, 593 So. 2d at 360 (citing
Williams v. Reg’l Transit Auth., 546 So. 2d 150, 156 (La. 1989).
Claimants may rely on their own testimony that an unwitnessed accident
occurred in the course and scope of employment if the claimant can meet these two
elements: “(1) no other evidence discredits or casts serious doubt upon the
worker’s version of the incident; and (2) the worker’s testimony is corroborated by
the circumstances following the alleged incident.” Bruno, 593 So. 2d at 361
(internal citations omitted). Trial courts “should accept as true a witness’s un-
contradicted testimony, although the witness is a party, absent ‘circumstances
casting suspicion on the reliability of this testimony.’” Bruno, 593 So. 2d at 361
(citing West, 371 So. 2d at 1147; Holiday, 508 So. 2d at 1383).
8 In the instant matter, the appellee was alone at the time of the alleged
accident. She testified regarding the circumstances surrounding the alleged injury
and testified that she informed the hotel employee working that evening of the
accident. She also testified that she told the hotel supervisors of the accident. The
appellants argue that this is the only evidence to corroborate her claim. This is
inaccurate. The record also contains medical reports corroborating her version of
events, wherein notations from medical providers indicate that she informed them
of the onset of symptoms around the time of the alleged accident. Although the
appellants urge that the trial court committed legal error in finding that a
compensable accident occurred, this Court can find no indication of a legal error in
the trial court’s analysis. Giving proper deference to the fact-finder, who observed
the testimony of the appellee and the appellants’ witness, we find that the trial
court was reasonable in concluding that the appellee suffered a work “accident,” as
the term is defined by the Louisiana workers’ compensation statute. Therefore, the
trial court did not err in holding that the appellee suffered a work “accident.”
Assignment of Error #2
The appellees’ second assignment of error contends that the trial court erred
as a matter of law by awarding the appellee indemnity benefits, despite a physician
stating she is only restricted to light duty work.
The trial court found that the appellee was rendered temporarily totally
disabled from January 12, 2019 through October 11, 2019, and from January 23,
2020 to the present day. The trial court held that she was owed temporary total
9 disability for these time frames. Temporary total disability is paid to workers
injured in the course and scope of their employment “only if the employee proves
by clear and convincing evidence, unaided by any presumption of disability, that
the employee is physically unable to engage in any employment or self-
employment.” La. R.S. 23:1221(1)(c). This standard requires the claimant to
“prove the existence of a contested fact is highly probable, or much more probable
than its non-existence.” Iberia Med. Ctr. v. Ward, 09-2705, p. 16 (La. 11/30/10),
53 So. 3d 421, 432 (citing Talbot v. Talbot, 03-0814, pp. 9-10 (La. 12/12/03), 864
So. 2d 590, 598).
Additionally, to substantiate a claim for total temporary disability benefits,
the claimant “must introduce objective medical evidence.” Marti v. City of New
Orleans, 12-1514, p. 30 (La. App. 4 Cir. 4/10/13), 115 So. 3d 541, 560 (citing
Bilquist v. Custom Craft Homes, Inc., 12-0469, p. 14 (La. App. 4 Cir. 11/7/12), 105
So. 3d 194, 203). The judge reviewing the claim “must weigh both medical and
lay evidence.” Marti, 12-1514, pp. 30-31, 115 So. 3d at 560 (citing Bilquist, 12-
0469, p. 14, 105 So. 3d at 203). “[C]ompensation for temporary disability shall not
be awarded if the employee is engaged in any employment or self-employment
regardless of the nature or character of the employment or self-employment.” La.
R.S. 23:1221(1)(b).
To substantiate her claim for total temporary disability benefits, the appellee
introduced medical records documenting her attempts to seek care for her alleged
injury. These records include three visits to emergency departments, one
10 emergency surgery approximately a month after the alleged injury, physical
therapy, a post-operative report, and a final report a year after the injury. The
medical records contain similar descriptions of her injury and document the
progression of her symptoms.
The first medical provider visited by the appellee furnished her a letter
excusing her from work for three days, but advising that if her symptoms did not
resolve within three weeks, to return to the emergency department. A week later,
complaining of acute pain and difficulty walking, the appellee returned to the
emergency department and was excused from work for two days, but advised that
if her pain remained, she should again seek emergency care. During this visit, the
appellee informed medical personnel that her symptoms began roughly two weeks
earlier and that she occasionally was required to walk up and down twelve stories
at work.
A month after the accident, the appellee reported to the hospital with pain,
shortness of breath, numbness in her lower extremities, and difficulty walking.
Emergency surgery was performed and she was placed on no-duty work status
until her next appointment. She was also prescribed physical therapy, which she
states she attended sporadically due to transportation issues. The appellee
informed her physical therapist that she was unable to care for herself or her
children, or return to work. She also reported numerous falls at home, but despite
her mobility challenges, she claims that she continued to practice her physical
therapy exercises at home. In a post-operative evaluation, six weeks after the
11 accident, the examining physician diagnosed her with gait difficulty, muscle
weakness of lower extremity, neck pain, and impairment of balance. The doctor
recommended that she use a rolling walker to improve safety with ambulation, due
to her frequent falls, and did not comment on her work status. The appellee’s final
medical report observes that “[b]ased on the patient’s account, subjective findings,
and my objective findings, the injuries diagnosed and treated herein are directly
and causally attributed to the accident which occurred on 12/28/2018.” This report
noted her work status as “light duty/sedentary.”
The appellee also introduced lay evidence, in the form of her own testimony,
regarding the evolution of her condition and difficulty managing her own care, as
well as the care of her children. She stated that she attempted to find alternate
work after being terminated by the appellants in order to retain public benefits.
She was employed at a thrift store from October 11, 2019 to January 23, 2020. She
was forced to resign when her duties changed and she was unable to physically
perform the new tasks assigned. She was also employed at a hotel as a
housekeeper for a few days, but was unable to continue working there due to the
physical demands of the job. During trial, the appellee testified that she has been
unable to retain employment because of her physical impairments. She described
how she is able to walk, but unable to sustain movement for long and is forced to
rest after brief movements.
The appellants argue that the evidence introduced by the appellee is not
objective evidence of a disability, and therefore is insufficient to support a finding
12 of disability. They submit that the appellee failed to satisfy her burden of proving
a disability by clear and convincing evidence and that the trial court committed
legal error in finding a disability. An examination of the evidence introduced by
the appellee belies this argument. The appellee introduced numerous medical
reports that corroborate the timing, nature, and extent of her injury. She sought
emergency medical care on three occasions with escalating symptoms of distress.
She underwent emergency surgery, as well as physical therapy, in order to mitigate
her condition. She attempted to work, not only in her original occupation, but also
in another field, and was incapable of performing the work required. The weight
of this evidence cannot merely be considered self-serving testimony regarding the
appellee’s ability to work. Thus, a reasonable factual basis exists for the trial
court’s finding of temporary total disability and the trial court did not err in
awarding temporary total disability.
Assignment of Error #3
The appellants’ third assignment of error asserts that the trial court erred as
matter of law by awarding the appellee medical expenses incurred prior to the
appellee’s February 26, 2019 demand letter.
La. R.S. 23:1142(B) Nonemergency care provides:
(1)(a) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer's workers' compensation insurer unless
13 the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
The appellants argue that, should this Court affirm the trial court’s judgment
finding a compensable accident, this statutory language excuses them from paying
over seven hundred and fifty dollars for any medical expenses incurred prior to the
appellee’s first official demand for payment. The appellants also argue that
evidence was introduced that these expenses should have been paid, and were paid,
by Medicaid.
The appellee counters that although treatments were, in fact, paid by
Medicaid, Medicaid has a right to reimbursement pursuant to La. R.S. 23:1212(B).
This statute provides that “[p]ayments by Medicaid or other state medical
assistance programs shall not extinguish these claims and any payments made by
such entities shall be subject to recovery by the state against the employer or
insurer.” La. R.S. 23:1212(B). The claims referred to are claims “against the
employer or insurer.” La. R.S. 23:1212(A). The appellee identified a lien letter
received from an agent of Medicaid seeking reimbursement.
The appellee also clarifies that although the seven-hundred and fifty dollar
cap applies to non-emergency care without prior consent of the payor, an exception
exists for emergency care. In furtherance of her argument, the appellee cites to:
Emergency care. (1) In no event shall prior consent be required for any emergency procedure or treatment deemed immediately necessary by the treating health care provider. Any health care provider who authorizes or orders emergency diagnostic testing or treatment, when said diagnostic testing or treatment is held not to have been of an emergency nature, shall be responsible for all of the charges incurred in such diagnostic testing or treatment. Said health care provider shall bear the burden of proving the emergency nature of the diagnostic testing or treatment.
14 La. R.S. 23:1142(C)(1).
The appellee maintains that all care she received prior to the demand letter
was emergency in nature. The statute itself does not define “emergency care,” but
the Louisiana Supreme Court has addressed this issue in Snearl v. Kelly’s Indus.
Services, Inc., 06-0218 (La. 3/17/06), 924 So. 2d 138.
In Snearl, the claimant was injured in the course and scope of his
employment when a tractor fell on him and crushed his ankle. Snearl, 06-0218, p.
1, 924 So. 2d at 139. The claimant was quickly transported to a hospital
emergency room and surgery was performed on him the next day by an orthopedist
on duty. Id. A second surgery was needed after the first surgery was unsuccessful.
Id. The claimant continued to see the orthopedist for eight months after the
surgeries. Id. At the end of the eight months, the orthopedist recommended he
return to work with a full work release, without any restrictions. Id. The claimant
complained of continued pain and demanded to see a doctor of his own choosing.
Id. His employer refused to authorize the new evaluation, arguing that the
claimant had already selected the surgical orthopedist by continuing treatment with
that doctor for eight months following the surgeries. Id. The claimant then filed a
disputed claim for compensation to select a new orthopedist. Id. The hearing
officer ordered that the claimant was authorized to select a new doctor, explaining
that the first orthopedist was treating the claimant on an emergency basis. Id., 06-
0218, pp. 1-2, 924 So. 2d at 139.
15 On review, the Supreme Court relied on the Webster’s College Dictionary
definition of “emergency” as “a sudden, urgent, usu. unexpected occurrence
requiring immediate action.” Id., 06-0218, p. 2, 924 So. 2d at 140. The Court
found that the initial treatment and surgeries constituted emergency treatment, the
subsequent eight months did not. Id., 06-0218, pp. 2-3, 924 So. 2d at 140. The
Court reversed the hearing officer’s ruling, remarking that while there is no exact
timeframe for the duration of “emergency treatment,” eight months was too long.
Id.
In the case sub judice, the claimant’s disputed medical care was provided
within two months of the accident. Initially, the appellee continued to work and
stated that she hoped her symptoms would dissipate with rest. However, after four
days, her symptoms had dramatically worsened and she reported to the emergency
room. Her next two medical treatments were also unplanned visits to the
emergency room, based on the appellee’s descriptions of acute pain and numb
sensations. During her first two visits, medical personnel advised her to return to
the emergency department if her symptoms did not resolve. Upon her third time in
the emergency department, she was immediately referred to a surgeon and
underwent surgery two days after reporting to the hospital. The fact that she was
referred to return to the emergency department by medical personnel reinforces the
appellee’s argument that her condition merited urgent and immediate care. The
rapidity with which surgery was administered further bolsters the categorization of
this treatment as emergency care.
16 Given the unexpected severity of the appellee’s injury and symptoms, the
threatened loss of mobility, and the swift administration of surgery, a reasonable
factual basis exists for the trial court’s judgment ordering reimbursement, without
limit, to Medicaid for all medical costs incurred, including those prior to the
issuance of the demand letter. Thus, the trial court did not err in ordering the
appellants to reimburse Medicaid for all medical services related to her injury.
Assignment of Error #4
In their fourth assignment of error, the appellants argue that the trial court
erred as a matter of law by awarding the appellee penalties and attorney fees.
The trial court ordered numerous penalties and attorney’s fees to be assessed
against the appellants. First, the court ordered penalties to be assessed against the
appellants in the amount of $2,000.00, pursuant to Louisiana Revised Statute
§23:1201(F), for failure to timely pay indemnity benefits. The trial court found
that the appellants failed to reasonably controvert the appellee’s claim and/or
establish that there were conditions over which it had no control when they failed
to pay this claim. Accordingly, the trial court assessed penalties of $2,000.00
against the appellants, pursuant to Louisiana Revised Statute §23:1201 (F), for
failure to pay medical benefits timely.
The trial court also assessed penalties against the appellants for their failure
to reasonably controvert this claim and/or establish that there were conditions over
which it had no control when they failed to timely authorize necessary medical
treatment, in the amount of $2,000.00, pursuant to Louisiana Revised Statute
17 §23:1201 (F). Lastly, the trial court assessed penalties of $2,000.00 against the
appellants for their failure to reasonably controvert this claim and/or establish that
there were conditions over which it had no control when they failed to timely and
properly investigate the accident, pursuant to Louisiana Revised Statute
§23:1201(F). For each of these violations of La. R.S. §23:1201(F), the trial court
assessed attorney’s fees of $2,000.00. The total sum of penalties and attorney’s
fees assessed against the appellants is $16,000.00.
La. R.S. §23:1201(F) authorizes the imposition of penalties and attorney’s
fees against an employer or insurer who fails to pay workers’ compensation
benefits. However, if employers and insurers have reasonably controverted the
claim or if such nonpayment results from conditions over which the employer or
insurer had no control, penalties and attorney fees will not be assessed against the
employer or insurer. La. R.S. §23:1201(F)(2).
“The determination of whether an employer or insurer should be cast with
penalties and attorney fees in a workers’ compensation action is essentially a
question of fact” and subject to manifest error/clearly wrong standard of review.
Authement v. Shappert Eng’g, 02-1631, p. 12 (La. 2/25/03), 840 So. 2d 1181,
1188-89 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p.
7 (La. 7/1/97), 696 So. 2d 551, 556). Courts must evaluate “whether the employer
or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or
medical information to reasonably counter the factual and medical information
presented by the claimant throughout the time he refused to pay all or part of the
18 benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.
12/1/98), 721 So. 2d 885, 890. Employers must have “some valid reason or
evidence upon which to base his denial of benefits.” Id. Stated another way,
employers must possess an “articulable and objective reason to deny benefits at the
time it took action.” Authement, 02-1631, p. 11, 840 So. 2d at 1188 (citing
Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99), 737 So. 2d 41, 46).
In Johnson v. Sewerage & Water Bd. New Orleans, the claimant was injured
during the course and scope of her provisional employment. Johnson v. Sewerage
& Water Bd. New Orleans, 15-0950, p. 1 (La. App. 4 Cir. 3/30/16), 190 So. 3d
785, 788. The employee submitted a claim for arthroscopic surgery and her
employer submitted her request to an outside agency for evaluation. Id., 15-0950,
p. 30, 190 So. 3d at 804. A board-certified orthopedist at the outside agency
reviewed materials provided by the claimant’s treating orthopedist and did not
recommend surgery, finding “that there was limited evidence [in the plaintiff's
medical records] to suggest that physical therapy treatment has been tried and,
therefore, the ‘medical necessity’ for the requested surgery was ‘not established.’”
Id. The claimant received written notice of this finding, including language
advising her that she should submit any objection or disagreement with the
recommendation to the Workers’ Compensation Office within fifteen days. Id.
The record contained no indication that the claimant ever disputed or objected to
the recommendation. Id. This Court found that by fully examining the medical
records of the claimant, submitting them for objective review, and providing a
19 claimant with the opportunity to dispute the results of its review, the employer had
reasonably controverted the worker’s claim for surgery. Id., 15-0950, p. 31, 190
So. 3d at 804-05. The Court overturned an award of penalties and attorney fees.
Id., 15-0950, p. 31, 190 So. 3d at 805.
In the case at bar, the appellants do not claim that nonpayment occurred due
to circumstances beyond their control. Instead, the appellants contend that they
have reasonably controverted the appellee’s claim. They argue that the appellee’s
failure to inform them of the accident and the medical provider note releasing her
to return to work on January 10, 2019, provided a sufficient basis to initially deny
the appellee’s claim. However, the appellee states that she did inform the
appellants of the accident on January 15, 2020. The appellants do not claim to
have any other reason to deny benefits at that time.
After the February 26, 2019 demand letter was sent, the appellants allege
that they undertook an investigation of the accident. The appellants produced two
emails from an employee stating that an investigation was undertaken and there
was no evidence of a work accident or injury. The investigating employee claims
she asked other employees about an accident and was informed that the appellee
had suffered a stroke. The only evidence of that investigation is one sentence with
the conclusory statement that an investigation occurred and no evidence of injury
was found. The nature and details of the investigation are unclear. The appellants
did not provide any information on the witnesses that were contacted for the
investigation. The appellants have not stated whether they questioned the specific
20 hotel employees that the appellee declared she informed of the accident. It does
not appear from the record that the appellee herself was contacted throughout the
investigation. During trial, the appellants did not furnish any further details on the
investigation. There is reference to this being a second investigation, but the
details, timing, and contents of a first investigation are, likewise, not provided.
The appellants also argue that nonpayment was warranted because the
appellee’s medical records indicate a gradual deteriorative condition and not an
accident. However, it has been established that claimants may be compensated
even in the case of an existing infirmity, if that infirmity is “aggravated,
accelerated, or combined with” to cause disability. Walton, 475 So. 2d 320, 324
(La. 1985). Furthermore, the appellee’s medical records are inconsistent with the
results of the appellants’ alleged investigatory finding of a stroke. Despite this
obvious contradiction, the appellants have not provided evidence of any other
investigatory action taken.
Overall, the appellants have provided scant, if any, information regarding
their investigation or investigations. Unlike in Johnson, where outside expert
medical review was engaged, the appellants appear to rely on their lay
interpretation of the appellee’s medical record and an erroneous interpretation of
the law regarding existing conditions. Moreover, the appellee provided
voluminous medical reports documenting the progression of her injury and in-
person testimony regarding the circumstances of the accident. In consideration of
the appellants’ lack of factual and/or medical information to counter the appellee’s
21 testimony and medical records and the corresponding lack of a valid reason upon
which to base the denial of benefits, we find that the appellants did not reasonably
controvert the appellee’s claim. Therefore, the trial court did not commit manifest
error in awarding penalties and attorney fees.
Appellate Attorney Fees
The appellee has filed an answer to this appeal seeking attorney fees and
costs in connection with the appeal. “When the defendant in a worker’s
compensation case appeals and obtains no relief, and when the appeal has
necessitated additional work on the part of plaintiff’s counsel, the appellate court
usually awards an increase in attorney fees, provided that the plaintiff has
requested the increase in accordance with proper appellate procedure.” Tillmon v.
Thrasher Waterproofing, 00-0395, p. 8 (La. App. 4 Cir. 3/28/01), 786 So. 2d 131,
137 (citing Miller v. City of New Orleans, 95-1005, p. 13 (La. App. 4 Cir.
12/14/95), 665 So. 2d 1293, 1300); Sam v. Jhane Home Health Care Services, Inc.,
95-0081, p. 3 (La. App. 4 Cir. 6/7/95), 657 So. 2d 559, 561; See Smith v. Kelly
Labor Serv., 239 So. 2d 685, 691; See Skinner v. Baggett Transp. Co., 391 So. 2d
555, 559-60 (quoting Conlay v. Houston General Ins. Co., 370 So. 2d 196, 201
(La. App. 3d Cir. 1979)).
We have determined that the appellants, the workers’ compensation
defendants, are not owed any relief. The appeal has necessitated additional work
by the appellee’s counsel and counsel requested the increase in keeping with
proper appellate procedure, through an answer to the appeal. We hold that the
22 appellants are condemned to pay additional reasonable attorney fees in the amount
of $2,000 for opposing this appeal.
CONCLUSION
In conclusion, we affirm the judgment of the trial court in finding that the
appellee suffered a work “accident,” awarding indemnity benefits, holding the
appellants liable for medical expenses incurred prior to the February 26, 2019
demand letter, and awarding penalties and attorney fees. We award additional
attorney fees to the appellee for the opposition of this appeal.
AFFIRMED