Elgrie Lewis VS Temple Inland (2011CA0729 Consolidated With 2011CA0730)
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 0729 consolidated with NUMBER 2011 CA 0730 ELGRIE LEWIS VERSUS TEMPLE INLAND Judgment Rendered November 9 2011 Appealed from the Office of Workers Compensation District 6 Parish of Washington Docket Number 1002434 c 10093722 w Honorable Elizabeth Warren Workers Compensation Judge Presiding Jennifer Cortes Poirier Counsel for PlaintiffAppellee Covington LA Elgrie Lewis Leslie E Hodge Lindsay F Louapre Temple Island Counsel for DefendantAppellant New Orleans LA BEFORE WHIPPLE KUHN AND GUIDRY JJ WHIPPLE J In this workers compensation case the employer appeals a judgment awarding the injured employee supplemental earnings benefits vocational rehabilitation services and mileage reimbursement and assessing various penalties and attorney fees For the following reasons we reverse in part s amend in part and affirm as amended FACTS AND PROCEDURAL HISTORY Elgrie Lewis was employed by Temple Inland as a process operator and had been employed by Temple Inland for thirtythree years at the time of the accident at issue On July S 2009 Elgrie Lewis tripped over a hose while working for Temple Inland and fractured his right ankle Lewis was treated by Dr H Reiss Plauche an orthopedic surgeon and he ultimately underwent two surgeries an open reduction with internal fixation on July 8 2009 and open hardware removal on January 13 2010 Dr Plauche restricted Lewis from work through the date of the second surgery on January 13 2010 Meanwhile functional Dr Plauche recommended capacity evaluation FCE that Lewis undergo a The evaluation performed on December 10 2009 indicated that Lewis could return to light to medium duty work for six to eight hours a day with various restrictions The restrictions included working a sixto eighthour workday occasional lifting of up to thirtyfour pounds occasional modified squatting I occasional climbing and use of stairs and standing for up to six hours a day On February 9 2010 a rehabilitation conference was held with the Temple Inland case manager Lewis and Dr Plauche in attendance According to the FCE Lewis was able to accomplish only a partial squat due to pain 2 Despite the fact that the physical requirements of Lewis job at Temple s Inland exceeded the restrictions set forth in the FCE the parties agreed that Lewis would attempt to go back to work although Temple Inland would not make a job within his restrictions available to him Dr Plauche considered this to be a conditional release to return to work to determine if Lewis could tolerate the job Thereafter on February 15 2010 Lewis attempted to return to work with a walking cane which he had been using since the surgery and the use of which had been approved by Dr Plauche for pain relief However taking the position that the release to return to work did not indicate that Lewis was cane dependent and that Temple Inland only allows employees to return to work when they can work at fullduty capacity the safety manager informed Lewis that he would not be allowed to enter the mill with the Lewis was not allowed to return to his job that day cane Thus Temple Inland subsequently terminated Lewis weekly indemnity benefits as of that date s taking the position that he had been released to full duty by Dr Plauche Lewis then returned to Dr Plauche on February 22 2010 At that visit Lewis related to Dr Plauche that his boss would not allow him to use the cane at work and that there was no diminished work schedule and no adjustments at work While Dr Plauche believed that Lewis could perform work within the FCE restrictions because nothing within those restrictions The 2 job description for Lewis job at Temple Inland indicated that in a typical s work day which required a 12 hour shift Lewis was required to stand for 8 hours walk for 3 hours occasionally lift up to 100 pounds occasionally carry up to 50 pounds and frequently squat and climb Cynthia 3 Lee Temple Inland occupational health nurse testified that Temple s Inland had a fulldutyonly returntowork policy meaning that it does not offer transitional duty or partial return to work Thus while there are light and mediumduty job positions at Temple inland Lewis would only be allowed to return to his job position at the time of the accident which Lee stated was heavy duty K was available to Lewis at Temple Inland he again restricted Lewis from work on that date Despite the fact that Dr Plauche again restricted Lewis from work Temple Inland refused to reinstate his weekly indemnity benefits Accordingly on March 12 2010 Lewis filed a Disputed Claim for Compensation seeking among other things reinstatement of weekly indemnity benefits and vocational rehabilitation services Lewis later amended his claim to request reimbursement for mileage expenses and penalties and s attorney fees for failure to timely pay mileage reimbursement failure to pay indemnity benefits and failure to timely provide Lewis with the FCE report Subsequently Lewis filed a second Disputed Claim for Compensation seeking penalties and attorney fees s pursuant to LSAR S 1208 23 based on misrepresentations of the employer Temple Inland certain fraudulent This claim was based on the statements of Robin Chapman and Timony Winstead the claims adjuster and supervisor of the nurse case manager handling the claim for Temple Inland This second claim was consolidated with his prior claim and both matters proceeded to trial together Following a trial on October 7 2010 and November 19 2010 the workers compensation judge rendered judgment dated January 11 2010 in favor of Lewis as follows 1 ordering Temple Inland to pay Lewis 1 in mileage 25 070 reimbursement together with interest a penalty of 2 and attorney 00 000 s fees of 5 for failure to reasonably controvert the claim for mileage 00 000 reimbursement Although 4 the judgment is dated January 11 2010 it is clear from the record that it was actually rendered on January 11 2011 2 ordering Temple Inland to pay Lewis supplemental earnings benefits SEBs in the amount of 2 per month retroactive to 00 366 February 15 2010 and continuing together with interest and a penalty of 00 000 2 and attorney fees of 5 for failure to reasonably s 00 000 controvert Lewis claim for SEBs s 3 ordering Temple Inland to provide vocational rehabilitation services to Lewis and assessing a 2 penalty and 5 in 00 000 00 000 s attorney fees for failure to provide prompt vocational rehabilitation services 4 ordering Temple Inland to pay Lewis a 250 penalty and 00 00 000 sfees for failure to timely provide Lewis with a copy 1 in attorney of the FCE report 5 ordering Timony Winstead and Robin Chapman to each pay a 00 000 1civil penalty to the Kids Chance Scholarship Fund Louisiana Bar Foundation for violating the provisions ofLSAR 23 and S 1208 6 ordering Temple Inland to pay costs From this judgment Temple Inland appeals contending that the workers compensation judge erred in 1 assessing a penalty and s attorney fee for the failure to provide prompt vocational rehabilitation services 2 assessing a penalty and attorney fee for failure to reasonably s controvert Lewis claim for SEBs 3 failing to address Temple Inland s s retirement argument and 4 finding that Robin Chapman and Timony Winstead violated the provisions of LSAR 23 Lewis answered the S 1208 appeal contending that the workers compensation judge erred in failing to award penalties and attorney fees pursuant to LSAR 23 s S 1201 Ifor Temple Inland improper termination of benefits and seeking an additional s award of attorney fees for the work performed on appeal s 5 PENALTIES AND ATTORNEY FEES S Regarding penalties and attorney fees for failure to commence s payment of benefits LSAR 23 provides in pertinent part S 1201 F Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid together with reasonable attorney fees for each disputed claim however the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim The maximum amount ofpenalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars Penalties shall be assessed in the following manner 2 This Subsection shall not apply if the claim is reasonably controverted Thus pursuant to LSAR 23 an employer or insurer may S 1201 F be assessed with penalties and attorney fees for failure to timely pay s weekly indemnity or medical benefits where the employer or insurer has failed to reasonably controvert the claim Clark v Godfrey Knight Farms Inc 2008 La App 1S Cir 2 6 So 3d 284 297 writ denied 1723 09 13 2009 0562 La 5 9 So 3d 163 A claim is reasonably controverted 09 29 when the employer has sufficient factual and medical information to or counter evidence presented by the employee Clark 6 So 3d at 297 With regard to the discontinuation of benefits on the other hand LSA RS 23 applies and provides in pertinent part I 1201 Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter when such discontinuance is found to be arbitrary capricious or without probable cause shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims Arbitrary and capricious behavior consists of willful and unreasoning action without consideration and regard for facts and circumstances presented or of G seemingly unfounded motivation The crucial inquiry is whether the employer has an articulated and objective reason for discontinuing benefits at the time it took that action Life Flight of New Orleans v Homri hausen 20052538 La App 1st Cir 12 952 So 2d 45 52 writ denied 06 28 2007 0558 La 5 956 So 2d 615 07 4 Penalties and Attorney Fees for Failure s to Initiate Vocational Rehabilitation Services Temple Inland Assignment of Error No 1 s In its first assignment of error Temple Inland contends that the workers compensation judge erred in assessing a penalty and attorney fees s for its failure to initiate vocational rehabilitation services where the Louisiana Workers Compensation Act does not provide for a sanction on the employer or insurer for failure to timely provide such services The Louisiana statutory scheme provides that when the employee has suffered a work injury which precludes him from earning wages equal to the wages earned prior to the injury the employee shall be entitled to prompt rehabilitation services LSAR 23 However while LSA R S 1226 A S 1226 23 provides for the reduction of the employee weekly indemnity s benefits for refusal to accept rehabilitation see LSAR 23 S 1226 c 3 B it does not specifically authorize or preclude an assessment of a penalty or sfees against the employer for failure to provide such services See attorney Dubois v Louisiana Forest Industries Inc 98895 La App 3 Cir rd 98 9 12 722 So 2d 409 417 writ denied 990049 La 2 738 So 99 26 2d 586 Thus the legal question presented in this assignment of error is whether the penalty and attorney fee provisions of LSAR 23 s S 1201 apply to an employer failure to initiate vocational rehabilitation services s The statutory provisions governing the assessment of penalties and s attorney fees were amended in 2003 VA Prior to amendment by La Acts 2003 No 1204 1 subsection F of LSA R 23 similarly provided S 1201 for penalties and attorney fees based upon the employer failure to pay s s compensation or medical benefits where the claim was not reasonably controverted On the other hand LSAR 23 S 1201 2prior to repeal by La Acts 2003 No 1204 2 provided only for attorney fees where the s employer arbitrarily or capriciously discontinued payment of claims due Poole v Guy Hopkins Construction 2007 0079 La App 1 Cir 11 St 07 2 984 So 2d 43 51 With the repeal of LSA R 23 S 1201 2the legislature also enacted subsection I of LSAR 23 as set forth above which S 1201 subjects the employer to both penalties and attorney sfees for the arbitrary and capricious discontinuance of claims due Thus one notable change effected by the 2003 amendments was the addition of a claim for penalties for the arbitrary and capricious discontinuance of claims due However as reflected in the jurisprudence both prior and subsequent to the 2003 amendment the courts have recognized a distinction between the failure to initiate payment as opposed to discontinuance of payment as well as a distinction between payment of compensation and medical benefits and payment of claims due As noted by the Louisiana Supreme Court in Chelette v Riverwood International USA Inc 2003 1483 La 10 858 So 2d 412 413 per 03 17 curiam subsection F of LSA R 23 addresses penalties and S 1201 s attorney fees where the employer fails to commence payment of certain benefits Specifically the penalties and attorney fees available pursuant to s LSA R 23 1201 S Fapply to the failure to commence payment of weekly indemnity benefits and medical benefits not to the failure to initiate vocational rehabilitation See Chelette 858 So 2d at 413 and Clark 6 So 3d at 297 M On the other hand while the term claims due as set forth in LSA S 1201 R 23 has been more broadly interpreted to include vocational I rehabilitation services the language of LSA R 23 is structured S 1201 1 such that it addresses only the arbitrary and capricious discontinuance of payment of claims due and not the failure to commence payment of claims such as vocational rehabilitation See Haynes v Williams Fence and Aluminum 2002 0442 La 4 851 So 2d 917 918 on rehearing 03 21 per curiam holding that the phrase claims due in prior LSAR S 2 1201 23 included claims for vocational rehabilitation and Life Flight of New Orleans 952 So 2d at 52 affirming a 2 penalty for the 00 000 arbitrary and capricious termination ofvocational rehabilitation services In the instant case Temple Inland failed to commence vocational rehabilitation services for Lewis Thus because this claim arose from the failure to commence rather than the discontinuance of payment of a claim due we are constrained to find that the penalty and attorney fee provisions s of LSAR 23 governing discontinuance of payment of a claim S 1201 I due are not applicable to this claim Moreover the provisions of LSAR S F 1201 23 governing failure to commence payment also do not apply 5 W note that in Scott v Autozone 0208 20051948 La App V Cir 9 06 20 943 So 2d 1177 another panel of this court summarily affirmed an OWC award which included an award of penalties for failure to order vocational rehabilitation However because the opinion is a summary opinion it is unclear whether the employer therein challenged the assessment of penalties or attorney sfees and more specifically whether it set forth a legal challenge as to whether such an assessment was allowable under the statutory scheme for penalties and attorney sfees Also in Lollis v Shaw Global Energy Services 2007395 La App 3 Cir rd 07 3 10 966 So 2d 1118 11261127 writ not considered 20072169 La 1 973 08 7 So 2d 742 the Third Circuit Court of Appeal affirmed an award of 2 in 00 000 penalties and 7 in attorney fees for failure to provide vocational rehabilitation 00 s 500 services However it appears from the opinion that the employer challenged only the workers compensation judge determination that it had not reasonably controverted the s s employee entitlement to vocational rehabilitation services and not whether such an award was legally proper under the statutory framework of the Workers Compensation Act G because this claim involves a request for vocational rehabilitation services rather than weekly indemnity or medical benefits While we candidly recognize that a statutory framework where penalties and attorney sfees are recoverable for the arbitrary and capricious discontinuance of vocational rehabilitation services but are not recoverable for the failure to initiate or commence vocational rehabilitation appears to be patently inequitable and would seemingly encourage employers to simply refuse to initiate such services we are required to apply the statutes as enacted by the legislature Moreover statutes providing for penalties and sfees are penal in nature and must be strictly construed Life Flight attorney of New Orleans 952 So 2d at 52 Accordingly after strictly construing and applying the clear language of LSAR 23 S 1201 Fas we are required to do we are constrained to conclude that the workers compensation judge committed legal error in awarding penalties and attorney fees for Temple s s Inland failure to commence vocational rehabilitation services for Lewis Accordingly that portion ofthe judgment must be vacated This assignment of error has merit Penalties and Attorney sFeesfor Failure to Reasonably Controvert Claim for SEBs Temple Inland sAssignment of Error No 2 In this assignment of error Temple Inland challenges the workers compensation judge factual finding that it failed to reasonably controvert s s Lewis entitlement to SEBs Specifically Temple Inland contends that although Dr Plauche February 22 2010 report restricted Lewis to work s within the restrictions set forth in the FCE Dr Plauche also completed a to return work slip that same date in which he stated that Lewis could perform no work until further notice Thus Temple Inland argues that based on the February 22 2010 report only SEBs would be appropriate 10 However if it referred to the slip showing that Lewis could perform no work then temporary total disability benefits TTDs would have been appropriate Accordingly Temple Inland contends that its failure to pay was justified and excusable because it was unfair for the Workers Compensation Court to expect the d to have concluded that efendants Lewis was entitled to SEBs as tconfusion was such that it could he not have reasonably known the type of benefits if any that Lewis was owed Temple Inland argues that it was accordingly justified in paying nothing to Lewis and was reasonable in not initiating SEBs until clarification had been obtained regarding disability status and ability to work from Dr Plauche On review after considering the applicable legal precepts and the record before us we reject these arguments as meritless The workers compensation judge determination of whether an s employer or insurer should be cast with penalties and attorney fees is s essentially a question of fact subject to the manifest error or clearly wrong standard of review See Clark 6 So 3d at 297 and Life Flihgt of New Orleans 952 So 2d at 52 As set forth above Lewis underwent an FCE on December 10 2009 which documented that he could perform light to medium duty work for six to eight hours a day with various restrictions and that the requirements of Lewis pre accident job at Temple Inland exceeded s those restrictions Nonetheless at a February 9 2010 rehabilitation conference attended by Lewis the Temple Inland case manager and Dr Plauche the parties agreed that Lewis would be allowed to attempt to return to work despite the fact that the physical requirements of Lewis job at s Temple Inland exceeded the restrictions set forth in the FCE The record further reveals that Dr Plauche considered this to be a conditional release to 11 return to work to see ifLewis could tolerate the job and that he believed that Temple Inland would accommodate Lewis However Dr Plauche noted that Lewis attempted to return to work with a cane and that this became a big issue Thus although he stated in his February 22 2010 report that Lewis could work within the physical restrictions outlined in the December 10 2009 FCE Dr Plauche again restricted Lewis from work that date considering 1 the only type of work then available to Lewis with Temple Inland exceeded his physical restrictions and 2 that Lewis would probably need retraining to be able to perform some other type ofjob With regard to Temple Inland explanation that its conduct was s reasonable and that it justifiably discontinued weekly indemnity benefits because Dr s Plauche February 22 2010 report and returnto work restriction purportedly created confusion as to whether Lewis was entitled to TTDs or SEBs we again find no merit In rejecting the explanation offered by Temple Inland we note that the law is clear that where an employer fails to properly investigate a claim it subjects itself to penalties and attorney fees s Guillory v Bofin er Tree Service 2006 0086 La s App 1st Cir 11 950 So 2d 682 692 06 3 To simply choose to discontinue any form of weekly indemnity benefit based on alleged confusion was not warranted under the known facts herein Thus considering the foregoing and the record as a whole including the credibility determinations made by the factfinder below in weighing the testimony offered to support Temple Inland defense and to explain its action we not s only find no manifest error in the workers compensation judge finding s Dr 6 Plauche stated that use of the cane was beneficial in helping Lewis take pressure off of the ankle when he walked and he did not see any reason to tell Lewis that he should not use the cane anymore 12 that Temple Inland failed to reasonably controvert Lewis continued s entitlement to weekly indemnity benefits but we also conclude that its actions in discontinuing payment of weekly benefits were arbitrary and capricious This assignment of error lacks merit VOLUNTARY WITHDRAWAL FROM THE WORKFORCE Temple Inland sAssignment of Error No 3 In its third assignment of error Temple Inland contends that the workers compensation judge erred in failing to address its argument that Lewis had voluntarily withdrawn from the workforce and thus was retired At the outset we note that the mere fact that the workers compensation s judge reasons for judgment are silent as to the retirement argument raised by Temple Inland does not reflect or establish that the judge failed to consider the argument Rather we view the workers compensation judge s silence as to this argument presented by Temple Inland as a rejection of the argument See Anthony sAuto Sales Inc v She hard 600 So 2d 125 128 La App 2 d Cir 1992 and Reilly v Gene Ducote Volkswagen Inc 549 So 2d 428 433 La App 5 Cir 1989 Thus on appeal we consider the issue before us to be whether the workers compensation judge erred in rejecting the argument that Lewis had voluntarily retired from the workforce Louisiana Revised Statute 23 which addresses an iii d 3 1221 sentitlement to SEBs when the employee retires provides employee d The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks but shall terminate See 7 our discussion of Lewis sanswer to the appeal below 13 iii When the employee retires however the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks The retirement referred to in LSA R 23 is not the failure S 1221 iii d 3 to work because of disability Instead it refers to the worker who has no intention of returning to work regardless of disability See Allen v City of Shreveport 637 So 2d 123 126 La 1994 Peters v General Motors 127 Corporation 39 La App 2nd Cir 1 892 So 2d 717 723 279 05 26 Where a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by his disabilities then that worker is not deemed to have withdrawn from the workforce and is not considered to have retired under that statute Oestrin er v City of New Orleans 2003 2213 La App 4 Cir 6 04 2 876 So 2d 240 243 Whether a worker has retired within the meaning of LSAR 23 is a question of fact reviewable on appeal under S 1221 iii d 3 the manifest error standard of review Palisi v City of New Orleans Fire Department 951455 La App 4 Cir 3 690 So 2d 1018 1048 th 97 12 writs denied 970953 971293 La 6 695 So 2d 1352 1363 97 20 In support of its argument that Lewis has retired within the meaning of LSA R 23 Temple Inland contends that Lewis trial S 1221 iii d 3 s testimony that he would not accept any employment paying only ninety percent of his pre injury wage and additionally his decision to accept early retirement from Temple Inland in August 2010 demonstrate an intention to permanently withdraw from the workforce We disagree At trial Lewis testified that he does want to go back to work but that he cannot physically perform his pre injury job because of his ankle injury He further testified that he had requested that Temple Inland provide him 14 with vocational rehabilitation so that he could obtain a new job but that Temple Inland had not authorized those services When questioned on cross examination as to whether he would be willing to return to work at Temple Inland or another employer at a rate of ninety percent of his pre injury wages Lewis did respond no Lewis explained that his previous coworkers at Temple Inland had received a raise since he had been off of work and he indicated that he would accept a job at Temple Inland or elsewhere if the wage rate was ninety percent of what his pre injury job presently pays However as further reflected in Lewis s testimony Temple Inland had fired him and had made no offers to him to return to any job While Lewis belief that he should not have to accept s less than ninety percent of the current wage rate of his former job upon his return to work perhaps reveals a misunderstanding of the workers compensation scheme his misunderstanding does not establish or equate to proof of an intent to permanently withdraw from the workforce Thus we find no manifest error in the workers compensation judge rejection of this s argument by Temple Inland Moreover regarding Lewis decision to accept early retirement from s Temple Inland we note that an employee decision to accept early s retirement does not necessarily equate to retirement as contemplated by LSA R 23 See T nes v Gaylord Container Co oration S 1221 iii d 3 20020519 La App 1S Cir 2 844 So 2d 80 8889 writ denied 03 14 2003 0769 La 5 843 So 2d 404 03 9 Clearly Lewis was unable to return to his previous job due to his work related injury Nonetheless Temple Inland terminated all weekly indemnity benefits effective February 5 1 2010 and then subsequently terminated Lewis employment effective s July 15 2010 Moreover Temple Inland refused to authorize vocational 15 rehabilitation for Lewis to assist him in finding employment within his physical limitations leaving Lewis in a position where he was receiving no compensation payments or income Accordingly we find no manifest error in the workers compensation judge rejection of Temple Inland argument s s that Lewis decision to accept early retirement from Temple Inland in s August 2010 after thirtythree years of employment with Temple Inland was a truly voluntary decision or that this demonstrated a decision to permanently withdraw from the workforce Thus we also find no merit to this assignment oferror LSAR 23 FRAUDULENT MISREPRESENTATION S 1208 Temple Inland Assignment of Error No 4 s In its final assignment of error Temple Inland contends that the workers compensation judge manifestly erred in finding that Robin Chapman the claims adjuster handling Lewis claim for Temple Inland s and Timony Winstead the regional manager of the company providing case management services for Temple Inland who supervised nurse case manager Tara Bordelon violated the provisions of LSAR 23 with regard to S 1208 s Lewis claim for mileage reimbursement for travel to and from his medical appointments While acknowledging that Chapman and Winstead made untruthful and inaccurate statements in affidavits Temple Inland nonetheless argues that there was never a willful intent to defeat Lewis entitlement to s benefits The workers compensation statutory scheme provides for the imposition of civil penalties when a person for the purpose of defeating any workers compensation benefit or payment willfully makes a false statement Nor are we persuaded by Temple Inland argument that Lewis failed attempt s s to return to his pre injury job which exceeded his physical restrictions somehow demonstrated an intent to withdraw from the workforce 16 or representation LSAR 23 S 1208 A D Davis v Farm Fresh Food Supplier 2003 1381 La App 1S Cir 5 879 So 2d 215 221 04 14 Additionally LSA R 23 makes it sanctionable for any person S 1208 whether present or absent directly or indirectly to aid and abet an employer in willfully making B 1208 23 D a false statement or representation LSA R S The statute is broadly worded and encompasses any false statement or misrepresentation made to anyone when made willfully or deliberately for the purpose of obtaining or defeating benefits gee Ma v Abek Inc 2004 2554 La App 1St Cir 4934 So 2d 800 808 writ 06 28 denied 2006 1876 La 10 939 So 2d 1287 06 27 The relationship between the false is statement and the pending claim probative in determining whether the statement was made willfully for the purpose of defeating benefits Davis 879 So 2d at 221 In the instant case Lewis claim for penalties due under LSA R s S 1208 23 centered around his claim for mileage reimbursement and Temple s Inland assertion that he made no such request for mileage reimbursement prior to August of 2010 Lewis contended in his first amending and supplemental Disputed Claim for Compensation that Temple Inland had failed to timely pay his mileage reimbursement and accordingly that he was entitled to penalties and attorney fees pursuant to LSAR 23 s S 1201 F In response Temple Inland answered and denied the allegations of the amended claim Additionally in preparation of its defense against this claim by Lewis Temple Inland obtained affidavits from Chapman and Winstead affidavit Winstead attested that she had reviewed In her s Bordelon case management file for Lewis and that there were no mileage logs or mileage reimbursement requests for the period of July 7 2009 through February 9 17 2010 Similarly Chapman attested under oath that she had reviewed the complete claims file and notes for Elgrie Lewis and that there is no mileage reimbursement request or mileage log for the period ofJuly 7 2009 through February 9 2010 contained therein until on or about August 24 2010 when it was forwarded to her by defense counsel Chapman further attested that if such mileage reimbursement requests had been submitted by Lewis prior to that time these would have been placed in his claims file Temple Inland listed these affidavits in its Witness and Exhibit List filed in the proceedings below on October 7 2010 the day oftrial However at the commencement of trial counsel for Temple Inland sought to withdraw the two affidavits from its defense exhibits prompting Lewis counsel to move s for their introduction as plaintiffs exhibits Defense counsel objected to plaintiffs counsel request to be allowed to introduce the affidavits stating s that he had just been informed by plaintiffs counsel that there was a claim for mileage reimbursement in Lewis claims file and that the two affiants s would repudiate their statement s Ultimately however the workers compensation judge recognized that these affidavits were highly relevant and probative and allowed plaintiff counsel to introduce the affidavits In s further support of his LSAR 23 claim Lewis also introduced into S 1208 evidence the claims file maintained by Temple Inland agents which had s been produced by defense counsel and furnished to plaintiff counsel in s response to discovery requests and which clearly revealed therein that Lewis had submitted requests for mileage reimbursement as early as October 2 2009 the date on which nurse case manager Tara Bordelon had faxed the request to Chapman Considering the foregoing and especially considering the clear relationship between the blatently false statements made by Chapman and IV Winstead and the relevance of this information to the determination of s Lewis claim against Temple Inland for unwarranted failure to timely pay mileage reimbursement we find no error in the workers compensation s judge ultimate conclusion that these were false statements and were made willfully or deliberately for the purpose of defeating Lewis claim s See Davis 879 So 2d at 221 REFORMATION OF THE JUDGMENT Although not raised by the parties we note however that the portion of the judgment assessing LSAR 23 penalties was rendered only S 1208 against Chapman and Winstead who do not appear to have been named as defendants nor apparently were served with Lewis disputed claim wherein s he sought these penalties Pursuant to LSAC art 2002 if a judgment P C is rendered against a defendant who has not been served and has not entered a general appearance that judgment is an absolute nullity and can be collaterally attacked by an adversely affected party at any time 9 However given the record as it presently exists herein and because the parties have not been afforded the opportunity to brief this issue see generally Wooley v Lucksin er 20090571 20090584 20090585 20090586 La 4 61 11 1 So 3d 507 562 563 we decline to vacate the portion of the judgment rendered only against these individuals As noted above on appeal only Temple Inland has challenged this portion of the judgment Further its challenge is based solely on the merits When 9 the appellate court notices an absolute nullity the court is likewise empowered to vacate or correct the judgment on its own motion See Mack v Wiley 20072344 La App l Cir 5 991 So 2d 479 486 writ denied 2008 1181 La 08 2 08 19 9992 So 2d 932 see also Winder v George 20070314 p S 6 n La App lst Cir 12 2007 WL 4532139 unpublished Pursuant to LSAC art 2164 07 21 P C the appellate court is authorized to render a judgment which is just legal and proper upon the record on appeal Thus pursuant to that authority the court therein amended a judgment to vacate the absolutely null portion IM e i whether the factual finding of fraud on behalf of the defendants should be allowed to stand Herein Lewis sought penalties against defendant Temple Inland based on its acts including its reliance on the misrepresentations of its agents and representatives namely the adjuster and the supervisor of the nurse case manager who were handling Lewis s workers compensation claim for Temple Inland and who executed the untruthful affidavits to be used by Temple Inland in its defense However Lewis did not seek judgment against those individuals personally Thus given that the record before us reflects that these individuals were acting as agents for and on behalf ofTemple Inland in the interests of justice we amend the judgment to provide that the LSA R 23 S 1208 penalties are assessed against Temple Inland as well as the party at whose behest the affidavits were confected and on whose behalf the false statements were made See Davis 2003 1381 La App 1s Cir 5 04 14 879 So 2d 215 218219 wherein the false statement of the injured s employee boss Lionel Dufour resulted in the employer Farm Fresh Food Supplier Inc being held liable for the R 23 penalty S 1208 10 SANSWER TO THE APPEAL LEWIS In his answer to the appeal Lewis contends that the workers compensation judge erred in failing to award the maximum penalties allowed by LSA R 23 and appropriate attorney fees for Temple S 1201 I s s Inland improper discontinuance of weekly indemnity benefits He also toIn doing so we further note that on the record before us although Temple Inland filed its brief and made its arguments on behalf of the defendants Chapman and Winstead do not appear to have been named as defendants nor does the record clearly reflect they were served with a copy of Lewis claim Thus by our opinion herein we s do not address the procedural or jurisdictional issues that would arise if enforcement of the civil penalties were attempted solely against individuals who were not made parties to the proceeding See Phillips v Lowe sHome Center Inc 2003 0660 La App 1 Cir st 04 28 4 879 So 2d 200 203 204 6 n 20 seeks an additional award of attorney fees for the work performed on s appeal With regard to penalties and attorney fees for Temple Inland s s discontinuance of weekly compensation benefits as reflected in reasons for judgment the workers compensation judge assessed 2 in penalties 00 000 and 5 in attorney fees for Temple Inland failure to reasonably 00 s 000 s controvert s Lewis claim for SEBs In doing so the workers compensation judge applied the standard set for in LSAR S 23 Ffor 1201 the imposition of penalties and attorney fees based on the employer s s failure to commence payment of weekly indemnity benefits ifailure to e reasonably controvert the claim See Chelette 858 So 2d at 413 However because Lewis was already receiving weekly indemnity benefits we agree with Lewis that LSAR 23 which governs the discontinuance of S 1201 I payment of benefits was the appropriate statute to be applied to this claim Subsection 1 of LSAR 23 provides for a penalty of up to S 1201 00 000 8 and a reasonable attorney fee when such discontinuance is s found to be arbitrary capricious or without probable cause Accordingly we agree that the workers compensation judge committed legal error by applying the wrong standard to determine Lewis entitlement to penalties s and attorney fees for the discontinuance of weekly compensation benefits s and thus in limiting the penalty assessment to the 2 cap provided 00 000 for therein As stated above in our discussion of Temple Inland s second assignment of error considering the facts known by Temple Inland at the time we conclude Temple Inland was arbitrary and capricious and acted without actual or legal cause in discontinuing all weekly compensation benefits under the pretext of purported confusion as to whether Lewis was 21 entitled to receive TTDs or SEBs Accordingly we amend the portion ofthe judgment assessing the 2 penalty against Temple Inland for its 00 000 arbitrary and capricious discontinuance of Lewis weekly compensation s benefit to increase the award to Lewis to 8 See Lanthier v Family 00 000 Dollar Store 2006 779 La App 3 Cir 11 942 So 2d 732 736737 rd 06 2 However we find that the attorney sfee award of 5 was appropriate 00 000 and thus decline to increase that amount Finally with regard to Lewis request for additional attorney fees s s for work performed on appeal this court has held that such an increase is appropriate when the employer appeals obtains no relief and the appeal necessitates additional work for the employee counsel provided that the s employee properly requests the increase Guillory 950 So 2d at 694 In the instant case Temple Inland has prevailed in part on appeal i with regard e to its claims that the assessment of penalties and attorney fees for Temple s s Inland failure to initiate vocational rehabilitation services is not provided for in the statute Accordingly an award of additional attorney fees to s Lewis for work performed on appeal is not appropriate herein CONCLUSION For the above and foregoing reasons the portion of the January 11 2010 judgment ordering Temple Inland to pay a 2 penalty and 0 000 00 000 s 5 in attorney fees for its failure to provide prompt rehabilitation services is hereby reversed The portion of the January 11 2010 judgment ordering Timony Winstead and Robin Chapman to each pay a 1 00 000 civil penalty to the Kids Chance Scholarship Fund Louisiana Bar Foundation for violating the provisions of LSA R 23 is amended to S 1208 provide that Temple Inland shall be jointly liable for the 2 civil 00 000 penalty due to the Kids Chance M Scholarship Fund Louisiana Bar Foundation for the LSAR 23 violation The portion ofthe January S 1208 11 2010 judgment ordering Temple Inland to pay a maximum penalty for its failure to reasonably controvert Lewis claim for supplemental earnings s benefits is hereby amended to provide that Temple Inland is ordered to pay a penalty of 8 for its arbitrary and capricious discontinuance of all 00 000 weekly compensation benefits to Lewis In all other respects the judgment is affirmed All costs are assessed against defendant Temple Inland REVERSED IN PART AMENDED IN PART AND AFFIRMED AS AMENDED 23
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