Simon v. Communications Corp. of America

113 So. 3d 350, 12 La.App. 3 Cir. 1086, 2013 WL 1136637, 2013 La. App. LEXIS 531
CourtLouisiana Court of Appeal
DecidedMarch 20, 2013
DocketNo. 12-1086
StatusPublished

This text of 113 So. 3d 350 (Simon v. Communications Corp. of America) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simon v. Communications Corp. of America, 113 So. 3d 350, 12 La.App. 3 Cir. 1086, 2013 WL 1136637, 2013 La. App. LEXIS 531 (La. Ct. App. 2013).

Opinion

SAUNDERS, J.

| ,This case involves the payment of penalties and attorney fees under La.R.S. 23:1201(F) after an employer allegedly failed to timely investigate or pay weekly medical benefits to its former employee. Plaintiff-employee appeals the lack of attorney fees awarded. We reverse and award attorney fees.

FACTS AND PROCEDURAL HISTORY

Mary O. Simon (“Simon”) developed an ulnar nerve entrapment as a result of her job duties as a receptionist while employed by Communications Corporation of America (“CCA”). Simon made a claim for benefits on April 27, 2010. No indemnity or medical benefits were paid to Simon. Subsequently, Simon obtained legal counsel in January 2011.

On January 3, 2011, a letter of representation was sent to both CCA and its insurer. In the correspondence, a request was made for the employer/insurer to guarantee medical treatment by a physician of Simon’s choice. CCA did not respond to this correspondence.

A motion to compel medical treatment was filed and, after a hearing with the workers’ compensation judge (“WCJ”), CCA was ordered to pay for an examination by Simon’s choice of physician, Dr. Robert Morrow (“Dr. Morrow”). Dr. Morrow issued a report on May 24, 2011, which indicated Simon should discontinue performing her job as a receptionist. This report was submitted to CCA by correspondence dated June 14, 2011. CCA did not request that Simon see a second physician during this period.

On August 4, 2011, CCA attempted to obtain medical evidence regarding causation and Simon’s ability to work. Another report by Dr. Morrow, where he again indicated Simon’s ulnar never condition resulted from her job and that she was unable to return to work as a receptionist, was sent to CCA on October 3, |⅞2011. CCA scheduled a deposition of Dr. Morrow for October 28, 2011. Dr. Morrow confirmed his previous findings that he felt Simon’s ulnar never damage resulted from her employment and that he felt Simon [352]*352was not capable of returning to her prior duties.

On November 9, 2011, CCÁ requested Simon appear for a Second Medical Examination (“SME”) to be performed by Dr. Stanley Foster (“Dr. Foster”). This examination was set for December 20, 2011; however, Dr. Foster refused to see Simon because she would not sign and fill out all documents presented to her by Dr. Foster. CCA filed a motion to compel a SME. The WCJ judge found that Simon was not required to sign all the documents provided to her by Dr. Foster. The SME was not completed until after the trial on the merits.

A trial on the merits was held on January 17, 2012. The WCJ found that Simon sustained an occupational disease in the course and scope of her employment with CCA. As such, Simon was entitled to indemnity benefits as well as medical treatment resulting from the ulnar nerve injury. Simon was also entitled to supplemental earning benefits and all necessary medical treatment and diagnostic testing for her ulnar nerve condition. The WCJ did not award penalties or attorney fees, instead the WCJ held that CCA reasonably controverted the claim and investigated the claim in a reasonable manner.

Simon appeals the denial of penalties and attorney fees.

ASSIGNMENTS OF ERROR

On appeal, Simon asserts the WCJ erred in failing to award penalties and attorney fees due to CCA’s lack of reasonable basis in denying indemnity and medical benefits.

| ?LAW AND ANALYSIS

Standard of Review

The decision of the WCJ to award penalties and attorney fees in a workers’ compensation case is entitled to great discretion and will not be reversed on appeal absent an abuse of that discretion. McClain v. Pinecrest Dev. Ctr., 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112. In the instant case, there are no factual disputes; rather, the present matter involves purely a question of law. Consequently, in deciding whether Simon is entitled to a separate penalty for each late payment of indemnity benefits, we must determine whether the WCJ was legally correct in her application of La.R.S. 23:1201(F).

Availability of Penalties & Attorney Fees under La.R.S. 23:1201(F)

It is undisputed that Simon has an occupational disease as a result of her employment with CCA. It is also undisputed that Simon is entitled to indemnity benefits and all necessary medical treatment for her injury. These facts were not appealed.

There are delays set forth in the Workers’ Compensation Act requiring that employers/insurers respond within a certain period of time for requests for weekly compensation benefits and medical benefits. An employer/insurer has fourteen days from the receipt of notice of the employee’s disability to pay indemnity benefits. Louisiana Revised Statutes 23:1201(B), in pertinent part, states,

The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death, on which date all such compensation then due shall be paid.

Louisiana Revised Statutes 23:1201(E) provides that “[mjedical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” The employer/insurer must guarantee and/or pay [353]*353Rail medical benefits within sixty days of notice. Furthermore, the employer/insurer has an obligation to timely investigate the claim and determine the compensability of the claim. Louisiana Revised Statutes 23:1122, in pertinent part, states, “[t]he employer shall cause the examination provided for in the proceeding section to be made immediately after knowledge or notice of the accident.” La.R.S. 23:1122.

An employer cannot refuse to investigate a claim in order to avoid payment of benefits. Simon worked for CCA for over three years and presented medical evidence that her injury was related to employment duties and that she was disabled. Simon first reported her injury to CCA on April 27, 2010. CCA failed to investigate the medical condition of Simon for over eighteen months despite their obligation to have an examination done immediately after knowledge of Simon’s claim. Thus, CCA failed to timely request an examination of Simon.

Dr. Morrow’s reports clearly indicated his opinion that Simon suffered a work-related injury and that she should not return to her duties as a receptionist. A report from University Medical Center (“UMC”), along with interrogatory answers, was also sent to CCA on August 2, 2011. The UMC report stated that Simon “has bilateral ulnar neuropathy that requires surgery probably due to repetitive work and subsequent nerve entrapment and the damage is likely permanent.” Even after receipt of Dr. Morrow’s report on June 14, 2011, and the responses to discovery in August 2011, CCA failed to further investigate the causation or disability issue or pay benefits. Furthermore, Dr. Morrow’s second report submitted on October 3, 2011, was also clear.

“The employer has a continuing duty to investigate, assemble, and assess factual information before it denies benefits.” Mitchell v. Alliance Compressors, 05-1186, p. 8 (La.App. 3 Cir. 4/5/06), 926 So.2d 127, 133. CCA failed to do a proper investigation and was unreasonable in its delays. CCA had fourteen days to 15respond to the multiple reports or pay disability benefits. See La.R.S. 23:1201(B). CCA failed to do so.

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Bluebook (online)
113 So. 3d 350, 12 La.App. 3 Cir. 1086, 2013 WL 1136637, 2013 La. App. LEXIS 531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-communications-corp-of-america-lactapp-2013.