Robert Weingartner v. Louisiana Ice Gators

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

05-1211

ROBERT WEINGARTNER

VERSUS

LOUISIANA ICE GATORS

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APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4, NO. 01-06629 C/W 03-1966 HONORABLE SHARON MORROW, ADMINISTRATIVE HEARING OFFICER, PRESIDING

********** ON REHEARING **********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, Marc T. Amy, Elizabeth A. Pickett, and J. David Painter, Judges.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

Thibodeaux, Chief Judge, dissents for the reasons stated in the original opinion. Pickett, J., dissents.

John J. Rabalais Janice B. Unland Robert T. Lorio Thomas B. Delsa 5100 Village Walk, Ste. 300 Covington, LA 70433 Attorney for Plaintiff-Appellant: Louisiana Ice Gators

Robert L. Hackett 202 Lakes Drive Atlanta, GA 30339 Attorney for Defendant-Appellee: Robert Weingartner PAINTER, Judge.

This matter is before us on a rehearing after having granted a motion by the

Claimant to supplement the record. After reviewing that supplement and the original

record herein, this court finds nothing to change the result in this matter.

With regard to prescription, the supplemental record contains nothing which

would change our conclusion that the money paid to Weingartner after the end of the

season was earned during the season and that those payments cannot be considered

wages in lieu of compensation. Therefore, we do not change our findings that

prescription was not interrupted by these payments and that Weingartner’s claim for

indemnity benefits is prescribed.

However, because the supplemental record contains a judgment bearing the

docket numbers of both claims, we can consider Weingartner’s claim for penalties

and attorney’s fees for failure to pay for dental care pursuant to an earlier

compensation claim filed under Office of Workers’ Compensation docket number 03-

1966. Concerning the dental treatment claim, the hearing officer stated, in written

reasons for judgment: “The dental treatment sought was recommended prior to the

date of the accident in question. That dental treatment specifically relating to the

accident has already been approved and paid.” Given this statement and the fact that

the hearing officer referred only to the May 9, 2000 accident in her written reasons,

she evidently ruled only on the claims rising out of the May 9, 2000 claim, and not

the previous claim, in spite of the consolidated docket numbers now on the reasons

for judgement. The judgment itself does not mention the dental treatment claim.

However, the Claimant’s pretrial statement suggests that he was seeking relief for that

claim. It bears both docket numbers and states as an issue to be litigated: “Penalties

and attorney’s fees associated with arbitrary and capricious denial of payment for medical expenses resulting from the injuries suffered while employed by Employer

and pled in the two consolidated cases.” The jurisprudence allows us to consider the

workers’ compensation court’s failure to rule as a denial of the claim. Cagle v. Spade

Drilling Co., 325 So. 2d 354,(La.App. 3 Cir. 1975). Therefore, we have reviewed the

record to ascertain whether Weingartner proved his claim for failure to pay for the

previous dental treatment claim.

At trial on May 3, 2005, Weingartner testified that Dr. Soileau discontinued the

treatment of the February 2000 injury because he wasn’t paid. Weingartner further

testified that he paid out of his own pocket to have his front teeth replaced in January

2001. However, in his deposition of March 2002, Weingartner states that he believed

that all the medical bills were up to date. Additionally, Dr. Soileau in his deposition

never says whether he was paid or why he discontinued treatment. Further, the record

does not contain any bills or statements from Dr. Soileau, and Weingartner does not

refer to documentary evidence in the record which shows non-payment.

The claimant who seeks imposition of sanctions for failure to timely pay

medical bills has the burden of establishing that the medical bills were not paid within

sixty days of receipt. Brumley v. Nantachie Oil Co., 04-1404 (La.App. 3 Cir.

3/16/05), 900 So.2d 944. Given this record, and his contradictory evidence on

payment, Weingartner did not carry this burden.

Therefore, as we stated in the original opinion herein:

[T]he judgment of the trial court concerning indemnity benefits is reversed. Weingartner’s claim for workers’ compensation indemnity benefits arising out of his accident of May 9, 2000 is dismissed. That portion of the judgment concerning medical treatment is affirmed. Costs of this appeal are to be paid by the Appellee, Robert Weingartner.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART