Thonn v. Slidell Memorial Hospital

930 So. 2d 991, 2006 La. App. LEXIS 1213, 2006 WL 1382183
CourtLouisiana Court of Appeal
DecidedApril 5, 2006
DocketNo. 2005-CA-0847
StatusPublished

This text of 930 So. 2d 991 (Thonn v. Slidell Memorial Hospital) 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
Thonn v. Slidell Memorial Hospital, 930 So. 2d 991, 2006 La. App. LEXIS 1213, 2006 WL 1382183 (La. Ct. App. 2006).

Opinion

PATRICIA RIVET MURRAY, Judge.

| plaintiff, Mary Thonn, appeals the judgment of the workers’ compensation court denying her Motion to Compel Medical Evaluation. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Ms. Thonn was injured in an employment-related accident on October 18, 2000, when she tripped and fell over a box while working as an x-ray technician at Slidell Memorial Hospital [“SMH”]. She was initially treated for her injuries by her orthopedist, Dr. James Butler. On September 7, 2001, the workers’ compensation court entered a consent judgment stipulating that the claimant’s injuries and resulting disability were causally related to her accident, entitling Ms. Thonn to compensation benefits as well as to payment by SMH of “reasonable and necessary medical treatment by Dr. Butler” for the injuries she sustained in the accident.

In May, 2003, counsel for Ms. Thonn sent a letter to SMH requesting that they pay for her to be evaluated by another physician, Dr. R. Vaclav Hamsa. Without receiving authorization, Ms. Thonn saw Dr. Hamsa in July. On August 7, 1⅞2003, Ms. Thonn’s attorney forwarded to SMH the report of Dr. Hamsa, of the Metairie Or-thopaedic Clinic, which report recommended that Ms. Thonn undergo a disco-gram CT study. SMH took the position that Dr. Butler, not Dr. Hamsa, was the claimant’s chosen orthopedist and that the testing recommended by Dr. Hamsa was [992]*992unnecessary and had not been established as being related to the claimant’s accident.

On April 28, 2004, Ms. Thonn filed a Disputed Claim for Compensation and a Motion to Compel Medical Evaluation and Treatment. In her motion, claimant sought to compel SMH to authorize the discogram CT recommended by Dr. Hamsa, to authorize an additional evaluation by a urologist, Dr. Neil Baum, and to be assessed penalties and attorney’s fees for its continuing refusal to pay for her treatment by Dr. Hamsa. Following a hearing on June 4, 2004, the workers’ compensation court rendered judgment on June 8, 2004, ordering that the claimant undergo an initial evaluation by Dr. Baum and a re-evaluation by Dr. Butler before the court would decide whether to authorize the discogram, and reserving ruling on all other issues until an evidentiary hearing could be held.

The evidentiary hearing was held on November 4, 2004. Prior to the hearing, Ms. Thonn indicated that she was no longer seeking authorization for the discogram. The workers’ compensation court framed the issues before it as follows:

(1) Did the claimant choose Dr. Butler as her orthopedist?
|s(2) Assuming the claimant chose Dr. Butler, should she be allowed to change her choice to Dr. Hamsa?
(3) Are the claimant’s urinary complaints related to her accident, and is she entitled to treatment by Dr. Baum for those complaints?
(4) Is the claimant entitled to penalties and attorney fees for her employer’s failure to pay medical benefits timely under La. R.S. 23:1201?

By judgment rendered January 26, 2005, the workers’ compensation court found that Ms. Thonn made an “informed” choice of Dr. Butler as her treating orthopedist and that she was not entitled to change to Dr. Hamsa because she failed to prove any medical reason that would necessitate such a change; that the claimant failed to prove that her urinary problems were related to the October 18, 2000, accident; and that the defendant, SMH, was not liable for its failure to timely authorize and pay medical benefits under La. R.S. 23:1201 because it had reasonably controverted the claim.

DISCUSSION

Ms. Thonn now appeals the January 26, 2005 judgment. On appeal, she assigns as errors only the lower court’s finding that SMH reasonably controverted her right to be treated by Dr. Hamsa and the court’s failure to award penalties and attorney fees based upon this conclusion; and secondly, the court’s finding that Ms. Thonn failed to show a reasonable basis for changing her choice of treating orthopedists from Dr. Butler to Dr. Hamsa.

14These are factual issues. It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164; Booker v. International Rivereenter, 04-1980 (La.App. 4 Cir. 6/22/05), 905 So.2d 498. Therefore, the issue to be resolved by this court is not whether the workers’ compensation court was right or wrong, but whether its conclusion was a reasonable one based on the entire record. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

Appellant first challenges the lower court’s finding that SMH is not liable for failing to timely authorize and pay for her initial visits to Dr. Hamsa because SMH reasonably controverted the claim. La. R.S. 23:1201 provides, in pertinent part:

E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
[993]*993F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians... shall result in the assessment of a penalty.. .together with reasonable attorney fees for each disputed claim....
⅜ ⅜ ⅜ ⅜ ⅜
(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.

The Louisiana Supreme Court has stated that in order to “reasonably controvert” a claim, the defendant must have some valid reason or evidence |supon which to base its denial of benefits. Brown v. Texas-La Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. The Court further stated:

Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S, 23:1201, a court must ascertain 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 benefits allegedly owed.... If an employer or insurer reasonably controverts a claim and then becomes aware of information that makes his controversion of that claim unreasonable, he must then pay the benefits owed or be subject to penalties and attorney fees from that point forward.

Brown v. Texas-LA Cartage, Inc., supra, at pp. 9-10, 721 So.2d at 890-891 (Emphasis added.).

In this appeal, Ms. Thonn does not argue that the workers’ compensation court erred by finding that Dr. Butler was her original choice of physicians. She in fact admitted at trial that she had signed the choice of physician form introduced as evidence, which form clearly states:

I understand that I have the choice of physician for treatment of my job-related illness or injury.
I also understand that I may not change physicians without the consent of the employer or the workers’ compensation insurer.

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Lemoine v. Hessmer Nursing Home
651 So. 2d 444 (Louisiana Court of Appeal, 1995)
Brown v. Texas-LA Cartage, Inc.
721 So. 2d 885 (Supreme Court of Louisiana, 1998)
Seal v. Gaylord Container Corp.
704 So. 2d 1161 (Supreme Court of Louisiana, 1997)
Booker v. International Rivercenter
905 So. 2d 498 (Louisiana Court of Appeal, 2005)
Pekinto v. Olsten Corp.
587 So. 2d 68 (Louisiana Court of Appeal, 1991)
Lang-Parker v. Unisys Corp.
809 So. 2d 441 (Louisiana Court of Appeal, 2001)
Jasper v. Memorial Medical Center
853 So. 2d 21 (Louisiana Court of Appeal, 2003)

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Bluebook (online)
930 So. 2d 991, 2006 La. App. LEXIS 1213, 2006 WL 1382183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thonn-v-slidell-memorial-hospital-lactapp-2006.