Sims Rachal v. Good Neighbor Glass, Inc.
This text of Sims Rachal v. Good Neighbor Glass, Inc. (Sims Rachal v. Good Neighbor Glass, Inc.) 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.
Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
03-1288
SIMS RACHAL
VERSUS
GOOD NEIGHBOR GLASS, INC.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2 PARISH OF RAPIDES, NO. 02-07294 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Billie Colombaro Woodard, Oswald A. Decuir, and Billy Howard Ezell, Judges.
AFFIRMED AS AMENDED.
Robert D. Hoover Matthew W. Tierney 1737 Oakdale Drive Baton Rouge, LA 70810 (225) 767-4880 Counsel for Defendant/Appellant: Good Neighbor Glass, Inc.
Jay A. Pucheu Attorney at Law P. O. Box 310 Marksville, LA 71351 (318) 253-5080 Counsel for Plaintiff/Appellee: Sims Rachal DECUIR, Judge.
Defendant appeals a workers’ compensation judgment awarding claimant
penalties and attorney fees. Claimant answers seeking additional penalties and
attorney fees.
FACTS
It is undisputed that on or about October 23, 2001, Sims Rachal was injured in
the course and scope of his employment with Good Neighbor Glass, Inc. On
September 23, 2002, Rachal filed a disputed claim seeking penalties and attorney fees
for the defendant’s arbitrary and capricious denial of physical therapy, an EMG/NCV,
and a neurological exam by Dr. Domingue. The workers’ compensation judge
awarded $2,000.00 in penalties and $3,000.00 in attorney fees for the denial of
physical therapy. The workers’ compensation judge considered the EMG/NCV and
neurological exam by Dr. Domingue as one issue and awarded $2,000.00 in penalties
and $3,000.00 in attorney fees for denial of those services.
Appellant contends the workers’ compensation judge erred in awarding
penalties and attorney fees in both instances. In the alternative, Appellant argues that
the award of attorney fees is excessive. Claimant answered alleging the workers’
compensation judge erred in combining the neurological exam and EMG/NVC request
and should have awarded separate penalties and attorney fees for the denial of each.
In addition, claimant seeks additional attorney fees for this appeal.
DISCUSSION
When an employer refuses to authorize medical treatment, which is reasonable
and necessary, penalties and fees are warranted. Authement v. Shappert Engineering,
02-1631 (La. 2/25/03), 840 So.2d 1181. Dr. Blanda, Rachal’s treating orthopedist,
recommended that he undergo physical therapy and Rachal received that therapy from
May 13, 2002 until July 10, 2002, when the physical therapist discharged him pending further medical orders. Defendant claims that its utilization review group, Network
Synergy Inc., sought proof of medical necessity for continued physical therapy from
Dr. Blanda. They contend the denial of benefits was based on the lack of a response
from Dr. Blanda. There is no evidence of this request in the record nor any indication
that Dr. Blanda ordered the physical therapy discontinued.
On June 11, 2002, Dr. Blanda indicated that surgery was warranted and
requested the neurological exam by Dr. Domingue and a EMG/NCV. Defendant
contends that since claimant had previously seen Dr. Gidman and he had not requested
these tests, a dispute existed between the doctors and they properly requested a state
IME. Claimant went to Dr. Gidman again, and Dr. Gidman recommended surgery.
Subsequently, defendant approved the surgery. Defendant never asked Dr. Gidman
for an opinion as to the necessity of the EMG/NCV. Instead they assumed that
because Dr. Gidman recommended surgery that the test was not necessary. Defendant
made this assumption in spite of the fact that Dr. Blanda had made the same
recommendation when he ordered the tests. Defendant never authorized the tests and
belatedly approved additional physical therapy.
An employer may escape liability for its delays in providing medical benefits
if (1) its nonpayment stemmed from conditions over which the employer had no
control, or (2) the employer reasonably controverted the employee’s right to such
compensation or medical benefits. La.R.S. 23:1201(F)(2). Defendant offered no
reasonable explanation for its delay in providing the requested services. The adjuster,
Mike Caillet, testified at trial that he did not provide authorization because there was
a dispute between Drs. Gidman and Blanda on treatment in one case, and Dr. Blanda
failed to provide evidence of medical necessity in the other. As stated above, Caillet’s
testimony was not supported by the evidence in the record.
2 After a thorough review of the record, we find no information warranting
defendant’s denial of services. An employer who fails to properly investigate an
employee’s compensation claim subjects itself to statutory penalties and attorney fees.
Nelson v. Roadway Exp., Inc., 588 So.2d 350 (La.1991). There must be a real or
substantial issue to deny benefits to a disabled employee. Id. The only reason offered
by defendant to explain this is the testimony of Caillet that he did not authorize the
physical therapy because the doctor’s office or healthcare provider did not call for
authorization. However, he produced no evidence that Dr. Blanda authorized
discontinuing the therapy. With regard to the other tests, Caillet indicated that he had
seen Dr. Blanda’s written report stating the need for tests, but he presumed there was
a conflict between the doctors and, therefore, denied the services.
The purpose of workers’ compensation penalty statutes is to discourage
employers from assuming attitudes of indifference toward injured employees. Eaton
v. General Accident Group, 292 So.2d 773 (La.App. 4 Cir. 1974). Defendant’s
behavior is a prime example of the behavior that workers’ compensation penalties are
designed to discourage.
The appropriate standard of review to be applied by the appellate courts in
determining whether a defendant should be cast with penalties and attorney fees is the
“manifest error--clearly wrong standard.” Authement, 840 So.2d 1181. Accordingly,
we find that the workers’ compensation judge was not manifestly erroneous or clearly
wrong in awarding penalties and attorney fees to Rachal. The workers’ compensation
judge was clearly correct and, therefore, we affirm the $4,000.00 penalty defendant
was ordered to pay Rachal and also affirm the award of attorney fees in the amount
of $6,000.00 to be paid to Rachal’s attorney.
3 REQUEST FOR ADDITIONAL PENALTIES AND ATTORNEY FEES
Rachal contends the workers’ compensation judge erred in combining the
requested exam by Domingue and the EMG/NCV for penalty purposes. The workers’
compensation judge indicated that he did so because Dr. Domingue would be
conducting the exam and tests. We find no manifest error in that determination. This
assignment lacks merit.
Rachal has also requested an additional award of attorney fees for work
performed on this appeal. A workers’ compensation claimant is entitled to an increase
in attorney fees to reflect additional time incurred in defending an employer/carrier’s
unsuccessful appeal. Hickman v. Allstate Timber Co., 94-1275 (La.App. 3 Cir.
4/5/95), 653 So.2d 154, writ denied, 95-1133 (La. 6/23/95), 656 So.2d 1017.
Accordingly, we award an additional $1,500.00 in attorney fees for the successful
handling of this appeal.
CONCLUSION
For the foregoing reasons, the judgment of the workers’ compensation judge
is affirmed.
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