Andre P. Guidry VS Shaw Maintenance, Inc. (2011CA0611 Rehearing Application)
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CA 0611 ANDRE P GUIDRY VERSUS SHAW MAINTENANCE INC Judgment Rendered December 21 2011 Appealed from the Office of Workers Compensation District 5 Parish of St Tammany State of Louisiana Case No 0909140 The Honorable Pamela A Moses Laramore Judge Presiding Covington Louisiana Counsel for DefendantAppellant The Shaw Group Inc Robert L Campbell Baton Rouge Louisiana Counsel for PlaintiffAppellee Andre P Guidry John J Rabalais BEFORE GAIDRY McDONALD AND HUGHES JJ GAIDRY J In this workers compensation suit the defendant employer appeals a trial court judgment in favor of the injured former employee For the following reasons we amend the amount of indemnity benefits awarded affirm the judgment as amended and remand for reconsideration and articulation of the basis of the attorney fee award FACTS AND PROCEDURAL HISTORY On June 7 2009 Andre Guidry was working in the course and scope of his employment as a pipefitter for the Shaw Group Shaw when he fell off of a scaffold and swung by his harness striking the left side of his body on the scaffolding After climbing down he talked to Shaw safety s coordinator Don Jannise and told him that he was fine but a little sore and wanted to go home and try to shake it off Mr Jannise gave Mr Guidry his card with his cell phone number and told him to call him if he had any problems Mr Guidry went back to work the next morning and told Mr Jannise that he had been unable to sleep the night before due to the pain and that he wanted to see a doctor Mr Jannise took him to the MedAid walk in medical clinic where he was examined by a doctor x rayed and released to return to work with the doctor suggestion that he should work indoors s Although Shaw offered him a position working inside in the fabrication shop Mr Guidry told Mr Jannise that he wanted to go home and try to rest because he had been unable to sleep the night before Mr Guidry wrote down his account of the accident at Mr Jannise request but Mr Jannise s told him that he would handle the rest of the paperwork a Mr Guidry reported to work the next morning June 9 2009 but after working for a few hours in the fabrication shop he left because wearing a hard hat hurt his head On June 10 Mr Guidry told Mr Jannise that he needed to get prescription medication for pain so Mr Jannise brought him back to the Med Aid clinic After waiting more than an hour to see the doctor Mr Guidry became combative when the doctor told him he wanted to do a CT I scan before writing a prescription and he left without being examined When Mr Guidry did not return to work after leaving MedAid Mr Jannise called him and offered to bring him to have a CT scan Mr Guidry agreed and Mr Jannise brought him to Bluebonnet Imaging Center on June 12 2009 for a CT scan Mr Jannise spoke to Mr Guidry later that same day to inform him that his CT scan was normal At this time Mr Guidry told Mr Jannise that he was going to go see his own doctor but did not tell Mr Jannise the name of the doctor he planned to see Mr Jannise told Mr Guidry that he had a right to see his own doctor but did not offer to provide him with a choice of physician form Mr Guidry went to see his choice of physician Dr L Boulet Jr H on June 1 2009 Mr Guidry paid outof pocket for his treatment with Dr 3 Boulet Dr Boulet sent Mr Guidry to have another CT scan to rule out an orbital fracture this scan was also negative Dr Boulet diagnosed Mr Guidry with post concussion headaches and contusions Dr Boulet took Mr Guidry off of work at his first visit on June 13 2009 although Mr Guidry did not give this work slip to Shaw I Mr Guidry is a recovering alcoholic and drug addict 3 Mr Guidry attorney sent a letter to Shaw on June 25 2009 s notifying them that Dr Boulet had declared Mr Guidry unable to return to work and requesting reimbursement for the medical expenses incurred in his treatment with Dr Boulet Upon notification that Dr Boulet found Mr Guidry to be disabled from working which conflicted with the opinion of the first doctor who saw Mr Guidry after the accident Shaw arranged for Mr Guidry to see a neurologist Dr Neal Smith Dr Smith examined Mr Guidry on July 28 2009 and diagnosed him with a mild concussion and possible post concussive syndrome with headaches memory difficulty change in personality and dizziness Dr Smith prescribed Inderal for Mr Guidry s headaches but could not give him anything for pain because he is a recovering alcoholic and drug addict Mr Guidry returned on his own to see Dr Smith on August 11 2009 At that visit he reported that he was getting no relief from the headaches with the Inderal Dr Smith took him off of Inderal but explained to him that there was nothing else he could do to manage his headache pain because of his drug problem Dr Smith did not believe Mr Guidry was in severe pain and saw nothing on examination which would prevent him from working ifhe was motivated to do so On August 17 2009 Mr Guidry went back to work as a pipefitter for a different employer doing the same work he did for Shaw Up until the day he returned to work Dr Boulet found him to be unable to work However Dr Boulet released Mr Guidry to work at his request because Mr Guidry needed the money Mr Guidry filed a disputed claim for compensation on October 28 2009 requesting wage benefits medical treatment his choice of orthopedist 2 and neurologist and attorney fees and penalties for arbitrary and capricious behavior Mr Guidry did not receive medical treatment again until he was involved in an automobile accident on January 22 2010 After that accident he complained of neck and back pain After a trial on the merits judgment was rendered in favor of Mr Guidry and against Shaw found The workers compensation judge WCJ Mr Guidry head and left side injuries sustained in the workplace s accident resulted in a disabling condition by June 9 2009 Mr Guidry s subsequent motor vehicle accident did not aggravate the head injuries sustained in his workplace accident Mr Guidry head injury is the only s injury sustained in the workplace accident that requires further medical treatment and Mr Guidry did not violate La R 23 S 1208 The WCJ awarded temporary total disability TTD benefits to Mr Guidry from June 9 2009 until August 14 2009 at 546 per week totaling 5 plus 00 00 187 interest The WCJ also found that Mr Guidry received approval from Shaw to treat with his choice of physician Dr Boulet and awarded 2 for 54 457 all of Mr Guidry treatment with Dr Boulet including prescriptions plus s interest Mr Guidry was also awarded his choice of neurologist and pain management physician for the treatment of his head injury Three penalties in the amount of 2 each plus interest were awarded for Shaw 00 000 s refusal to recognize Mr Guidry right to choose his own neurologist for s s Shaw failure to reasonably controvert the claim for indemnity benefits and for Shaw arbitrary and capricious denial of medical treatment for Mr s s Guidry head injury Mr Guidry was also awarded attorney fees in the amount of 15 and costs of 61 plus interest 00 000 39 6 Shaw has appealed assigning the following errors 5 1 The WCJ erred in awarding TTD benefits from June 9 2009 until August 14 2009 at 546 per week 00 2 The WCJ erred in ruling that Mr Guidry received approval from Shaw to treat with Dr Boulet 3 The WCJ erred in ruling that Mr Guidry is entitled to payment of medical expenses from his treatment with Dr Boulet 4 The WCJ erred in ruling that Mr Guidry is entitled to his choice of neurologist and pain management physician 5 The WCJ erred in awarding penalties for Shaw refusal to recognize s Mr Guidry schoice of neurologist 6 The WCJ erred in awarding penalties for Shaw failure to reasonably s controvert the claim for indemnity benefits 7 The WCJ erred in awarding penalties for Shaw arbitrary and s capricious denial of medical treatment for his head injuries 8 The WCJ erred in awarding 15 in attorney fees 00 000 9 The WCJ erred in ruling that Mr Guidry subsequent motor vehicle s accident did not aggravate his head injury sustained in the workplace accident DISCUSSION In a workers compensation case the appellate court review of s factual findings is governed by the manifest error clearly wrong standard A s WCJ determinations as to whether a claimant testimony is credible and s whether the claimant has discharged his burden of proof are factual determinations which will not be disturbed upon review in the absence of A manifest error or unless clearly wrong Clausen v DG Construction 01 0077 p 3 4 La 1 Cir 2 807 So 1199 1202 writ App 02 15 2d denied 020824 La 5816 So 851 02 24 2d Temporary Total Disability Shaw argues on appeal that Mr Guidry did not prove by clear and convincing evidence as required by La R S 2 c 1 1221 23 that he was temporarily and totally disabled and therefore he is not entitled to TTD benefits Louisiana Revised Statutes 23 1221 provides as follows for c 1 payment of compensation for TTD henever W the employee employment or self employment is not engaged in any compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence unaided by any presumption of disability that the employee is physically unable to engage in any employment or self employment regardless of the nature or character of the employment or self employment including but not limited to any and all odd lot employment sheltered employment or employment while working in any pain notwithstanding the location or availability of any such employment or self employment Clear and convincing evidence has been defined as an intermediate standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable in other words much more probable than not Riker v Popeye sFried Chicken 09 0527 p 5 La 1 Cir 10 29 So 516 521 writ denied 09 App 09 23 3d 2776 La 2 28 So 279 10 26 3d Also proof by clear and convincing evidence requires objective medical evidence of the disabling condition causing the claimant inability to engage in any employment s A trier of s fact belief in a claimant self testimony alone is insufficient s serving claimant must provide objective expert testimony as to his A medical condition symptoms pain and treatment in addition to personal testimony in order to meet this standard Riker 09 0527 at pp 5 6 29 So at 521 3d The finding of disability within the framework of the workers compensation law is a legal rather than a purely medical determination Therefore the question of disability must be determined by reference to the VA totality of the evidence including both lay and medical testimony The question of disability is ultimately a question of fact which cannot be reversed in the absence of manifest error Riker 09 0527 at p 6 29 So3d at 521 In applying the manifest error clearly wrong standard the appellate s court determination is not whether the trier of fact was right or wrong but whether the trier of fact conclusion was a reasonable one Banks v s Industrial Roofing Sheet Metal Works Inc 962840 p 7 La 7 97 1 696 So 551 556 Thus if the factfinder findings are reasonable in 2d s light of the record reviewed in its entirety the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Sistler v Liberty Mutual Insurance Co 558 So 1106 1112 La 1990 Consequently when there 2d are two permissible views of the evidence the factfinder choice between s them cannot be manifestly erroneous Bolton v B E K Construction 2001 0486 p 7 La 1 Cir 6 822 So 29 35 App 02 21 2d Mr Guidry testified that he did not resume working on the day of the accident because he wanted to go home and try to shake it off The doctor he saw at the MedAid clinic on June 8 2009 the day after the accident released him to return to work with the suggestion that he work inside however Mr Guidry did not report to work that day because he wanted to go home and rest He attempted to work in the tool room an indoor accommodation offered to him by Shaw on June 9 2009 but went home after about three hours because wearing a hard hat hurt his head He did not return to work again Dr Boulet restricted him from working effective June 13 2009 although Mr Guidry did not contact Shaw to inform them of this As of June 23 2009 correspondence between Shaw and their workers 8 compensation carrier stated that they had received no notice of a doctor restricting Mr Guidry from working Shaw first became aware that Dr Boulet had restricted Mr Guidry from working on June 25 2009 Dr Boulet testified that he disagreed with the decision of the doctor who saw Mr Guidry on the day after the accident to release Mr Guidry to work because Mr Guidry was still having headaches and he would have gotten a CT scan to rule out a subdural hematoma or epidural hematoma before allowing him to return to work Dr Boulet went on to say that he released Mr Guidry to return to work in August despite the fact that Mr Guidry claimed to have no improvement in his headaches because Mr Guidry told him he needed the money and Dr Boulet had no concerns in doing so Dr Smith the neurologist testified that he did not believe Mr Guidry was incapable of working when he saw him on July 28 2009 Mr Guidry testified at trial that he was unable to perform his job at Shaw after the accident even with the accommodations offered by Shaw due to his headaches He went on to explain that at the time of the accident he had some money saved and did not have to work However when he ran out of money he did not contact Shaw to see about going back to work for them because he assumed they would not rehire him because he had a lawyer so he took a position at a different employer doing the same job he had done for Shaw before the accident at a higher wage A representative from Mr s Guidry new employer testified that he had no knowledge of Mr Guidry having headaches needing ongoing medical treatment or being unable to perform any job duties when he was hired The WCJ found that as a result of the June 7 2009 workplace accident Mr Guidry was disabled from June 9 2009 through August 14 2 Mr Guidry had CT scans on June 12 and June 25 both of which were normal 21 2009 The WCJ noted that although the Med Aid clinic doctor who saw Mr Guidry on June S 2009 cleared him to return to work Dr Boulet restricted Mr Guidry from working at his first visit on June 9 2009 Although Dr Boulet did testify in his deposition that his first visit with Mr Guidry was on June 9 2009 it appears that this was an error The medical records and other testimony establish that Dr Boulet first saw Mr Guidry and restricted him from working on June 13 2009 While we may have weighed the evidence differently had we been the trier of fact the WCJ choice in accepting Dr Boulet opinion that Mr s s Guidry was unable to work due to the injuries he sustained in the accident as well as Mr Guidry own testimony that he was unable to work was not s manifestly erroneous However since the WCJ based the calculations of Mr Guidry sTTD benefits on Dr Boulet smistaken testimony that he took Mr Guidry off of work on June 9 we will recalculate the TTD benefits owed The correct starting date for Mr Guidry sTTD benefits was June 13 2009 the date Dr Boulet took him off of work June 13 2009 through August 14 2009 is nine weeks so the correct amount of TTD benefits is 00 914 4 Expenses of Treatment with Dr Boulet In the next assignment of error Shaw argues that it did not approve treatment with Dr Boulet and therefore is not responsible for the payment of the expenses of Mr Guidry treatment with Dr Boulet which exceed the s 00 750 it already paid Louisiana Revised Statutes 23 1203 provides that an employer A shall furnish all necessary drugs supplies hospital care and services medical and surgical treatment and any nonmedical treatment recognized by the laws of this state as legal However La R 23 limits an S 1142 B 0 s employer liability for non emergency medical treatment to 750 where 00 the employee did not first seek to have the treatment authorized by the employer The WO concluded that Mr Jannise did authorize treatment with Dr Boulet on behalf of Shaw when in response to Mr Guidry statement that s he was going to go see his own doctor he told Mr Guidry that he had a right to do so Mr Jannise did not instruct Mr Guidry that there were any additional steps he needed to take in order to have his treatment authorized A review of the record reveals that a reasonable factual basis for this finding by the WO exists and therefore we cannot say that the WCJ finding was s clearly wrong Shaw further argues that Mr Guidry offered no evidence or testimony to prove that the medical expenses listed in Plaintiffs Exhibit 2 were outstanding expenses related to the work accident This is incorrect Mr Guidry identified the receipts in the exhibit at trial and testified that those were expenses incurred as a result of his on accident at Shaw and job the that he had paid for those out of his pocket This assignment of error is without merit Choice of Physicians Shaw contends that the WO erred in awarding Mr Guidry his choice of neurologist because Mr Guidry consented to treatment with Shaw s choice of neurologist Dr Smith by returning to see him for a followup visit after the initial visit scheduled by Shaw Louisiana Revised Statutes 23 provides in pertinent part 1121 B 1 The employee shall have the right to select one treating physician in any field or specialty The employee shall have a right to the type of summary proceeding provided for in R S B 1124 23 when denied his right to an initial physician of choice After his initial choice the employee shall obtain prior 11 consent from the employer or his workers compensation carrier for a change of treating physician within that same field or specialty The employee however is not required to obtain approval for change to a treating physician in another field or specialty a 2 If the employee is treated by any physician to whom he is not specifically directed by the employer or insurer that physician shall be regarded as his choice oftreating physician b When the employee is specifically directed to a physician by the employer or insurer that physician may also be deemed as the employee choice of physician if the employee has s received written notice of his right to select one treating physician in any field or specialty and then chooses to select the employer sreferral as his treating specialist after the initial medical examination as signified by his signature on a choice of physician form The notice required by this Subparagraph shall be on a choice ofphysician form promulgated by the director of the office of workers compensation and shall contain the notice of the employee rights provided under R 23 s S 1121 1 B Such form shall be provided to the employee either in person or by certified mail Shaw has not cited any authority for its position that Mr Guidry act s of returning to see Dr Smith one time after the initial visit scheduled by Shaw results in Dr Smith being deemed Mr Guidry choice of neurologist s and no assertion has been made that Mr Guidry received written notice of his right to select a treating physician and subsequently chose Dr Smith Thus Shaw argument that Dr Smith was Mr Guidry choice of s s neurologist must fail Shaw also argues that any additional treatment by a neurologist would be unreasonable and unnecessary The WO made a finding of fact that Mr Guidry was still suffering headaches caused by the work accident at Shaw and that those headaches still required treatment Dr Boulet testified that he would recommend that Mr Guidry see a neurologist for his continuing symptoms We cannot say that the trial court erred in ordering that Mr Guidry be allowed to see his choice of neurologist 12 Shaw also argues that the WCJ erred in awarding Mr Guidry treatment with his choice ofpain management physician because Mr Guidry did not request treatment with a pain management physician and also because pain management is not reasonable or necessary since Mr Guidry is at maximum medical improvement and has not been referred to a pain management physician by either Dr Boulet or Dr Smith Although Shaw argues that Mr Guidry has reached maximum medical improvement and has not been referred to a pain management physician by Dr Boulet or Dr Smith the WCJ found that Mr Guidry still required treatment for his headaches and Dr Smith testified that he would recommend that Mr Guidry go to a pain management clinic for the treatment of his chronic pain because of his addiction issues Furthermore while it is true that Mr Guidry requested treatment with his choice of neurologist and orthopedist in his disputed claim for compensation it was not until after Mr Guidry made this request that Dr Smith the only neurologist who had seen Mr Guidry testified that he believed that a referral to a pain management clinic would be more appropriate due to Mr s s Guidry addiction issues Therefore we find no error in the WCJ ruling that Mr Guidry was entitled to seek treatment from a pain management physician for his chronic pain Penalties and Attorney Fees Shaw next argues that the WCJ erred in assessing penalties for its failure to recognize Mr Guidry choice of neurologist its failure to s reasonably controvert the claim for indemnity benefits and its arbitrary and capricious denial of medical treatment for his head injury Louisiana Revised Statutes 23 Fprovides for the award of 1201 penalties and attorney fees in workers compensation cases as follows 13 Failure to provide payment in accordance with this Section or failure to consent to the employee request to select s a treating physician or change physicians when such consent is required by R 23 shall result in the assessment of a S 1121 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 or such consent is withheld 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 of penalties 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 An award ofpenalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing Penalties shall be assessed in the following manner 1 Such penalty and attorney fees shall be assessed against either the employer or the insurer depending upon fault No workers compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer 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 A WCJ determination of whether an employer or insurer should be s cast with penalties and attorney fees is a question of fact subject to the manifest error clearly wrong standard of review Frith v Riverwood Inc 04 1086 p 12 La 1 Cir 1 892 So 7 15 App 05 19 2d s Shaw argument that it should not be assessed with any penalties is based upon its assertion that any failure to approve a physician or reasonably controvert the claim for indemnity benefits or any denial of medical treatment was the fault of the workers compensation carrier who was not a party to the suit and not Shaw As noted by the trial court Mr Guidry s only contact with regard to his injuries was with Mr Jannise at Shaw There was no testimony that Mr Jannise or anyone else ever supplied Mr Guidry 14 with any information to contact a workers compensation carrier Mr Guidry testified that when Mr Jannise asked him to write down his account of the accident he asked Mr Jannise what paperwork he needed to fill out and Mr Jannise responded that he would handle all of that Mr Jannise also testified that he told Mr Guidry that he needed to go through him before talking to a doctor Finally Mr Guidry testified that some time after he saw Dr Boulet he contacted Mr Jannise about getting reimbursed for his treatment with Dr Boulet and Mr Jannise told him to send him the bills and he would think about paying them Although s Shaw workers compensation carrier did become involved with the denial of Mr Guidry s claims at some point given the control exercised by Shaw over Mr Guidry s claim we cannot say the WO was manifestly erroneous in concluding that s Shaw fault necessitated the assessment ofpenalties Regarding the 15 award of attorney fees Shaw argues that 00 000 any attorney fee award should be limited to twenty percent of the total award pursuant to La R 23 S 1141 However La R 23 S 1201 I provides that the provisions of La R 23 limiting the amount of S 1141 attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section Therefore the WO was not limited by the provisions of La R 23 but was merely required to S 1141 make an award of attorney fees which was reasonable In a workers compensation case the WO is allowed to call upon its own experience and expertise in determining the amount of time and effort that a lawyer has put into the preparation of a case Bacon v Transport Service Company 01 1913 p 6 La 1 Cir 10 836 So 158 App 02 2 2d 162 The factors to be considered in the imposition of an award for attorney fees in workers compensation cases include the degree of skill and work 15 involved in the case the amount of the claim the amount recovered and the amount of time devoted to the case Id However when the fee is based upon the work performed outside the presence of the WO and not clearly determinable from the record of the proceedings the WO should require evidence supporting these factors in determining a reasonable attorney fees Smith v Phillip Morris A S 0103 U 02 pp 10 11 App La 1 Cir 02 20 12 858 So 443 450 2d Shaw argues on appeal that the 15 attorney fee awarded in 00 000 this case was excessive because it greatly exceeds the degree of skill and work involved in the case the amount of the claim the amount recovered and the amount of time devoted to the case Shaw pointed out that only three depositions were taken only one set of discovery requests was propounded by Shaw Mr Guidry sattorney admitted only five exhibits at trial the trial lasted only three hours and Mr Guidry attorney called no s witnesses other than Mr Guidry Mr Guidry attorney responded in brief s that he spent a significant amount of hours prosecuting the case However Mr Guidry attorney did not offer any evidence as to how much time he s devoted to the handling of the claim and the WO did not articulate on what basis she made the award Because the WCJ did not articulate which of the Bacon factors set forth above were considered in awarding attorney fees and because Mr Guidry attorney did not offer evidence substantiating the s hours he worked on this case the facts in this case do not support an award of 15 and we cannot review the appropriateness of the award We 00 000 therefore remand for the basis and amount of award to be reconsidered and articulated without the taking of additional evidence See Smith v Phillip Morris U 02 0103 pp 10 11 La 1 Cir 12 858 So A S App 02 20 2d 443 450 16 Mr Guidry Subsequent Accident s s Shaw final assignment of error alleged that the WCJ erred in ruling that Mr Guidry subsequent motor vehicle accident did not aggravate his s workplace injury Mr Guidry testified that he did not stop seeking treatment for his headaches several months before the motor vehicle accident because he felt better rather he stopped treating because nothing was helping him and he could no longer afford to pay the doctors outofpocket Dr Boulet attributed Mr Guidry headaches to the post concussion syndrome caused s by his workplace accident Shaw offered no medical evidence proving that Mr Guidry chronic headache pain was caused by his subsequent motor s vehicle accident Based on the evidence we cannot say that the WCJ erred in finding that Mr Guidry headaches were the result of his workplace s accident rather than the subsequent motor vehicle accident This assignment of error is without merit CONCLUSION For the above reasons the judgment in this case is amended to correct the amount of indemnity benefits awarded from 5 to 4 00 187 00 914 The matter is remanded for the sole purpose of the WCJ reconsidering and articulating the basis and amount of attorney fee award without the taking of additional evidence In all other respects the judgment is affirmed AMENDED IN PART AFFIRMED REMANDED WITH INSTRUCTIONS 17 AS AMENDED AND
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