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Arrant v. Wayne Acree PLS, Inc.

Court of Appeals of Louisiana, Second Circuit

May 2, 2017

CALVIN ARRANT Plaintiff-Appellee
v.
WAYNE ACREE PLS, INC., AND LOUISIANA WORKERS' COMPENSATION CORPORATION Defendant-Appellant

         Appealed from the Office of Workers' Compensation, District 1-E Parish of Ouachita, Louisiana Lower Court Case No. 13-03025 Brenza Irving Jones Workers' Compensation Judge

          JOHNSON, RAHMAN & THOMAS Jeffrey J. Warrens Counsel for Appellant

          STREET & STREET C. Daniel Street Counsel for Appellee

          Before BROWN, DREW, and LOLLEY, JJ.

          DREW, J.

         In this workers' compensation proceeding, the employer and its insurer appeal the award of attorney fees and the assessment of a penalty for its failure to approve a lumbar spine MRI recommended by the claimant's physician. The claimant has answered the appeal, contending that the attorney fee awarded was abusively low, as well as to seek additional attorney fees for this appeal.

         We amend the judgment to increase the attorney fee award to $7, 500, and affirm the judgment as amended. We also award an additional attorney fee of $2, 500 to claimant for work on this appeal.

         FACTS

         Calvin Arrant, who was employed by Wayne Acree PLS, Inc., as a surveyor, was injured on June 30, 2012, when his work vehicle was struck by an 18-wheeler. Arrant testified that when he told Wayne Acree after the accident that his back was hurting, Acree said they would discuss it when Arrant returned to work following the weekend. Acree denied that Arrant complained of injury after the accident. Arrant further testified that upon returning to work on Monday, he told Acree that he would like to see a doctor and have his back examined, but Acree replied that he did not have his insurance information. Acree testified that Arrant did not start complaining about his back until August 1, 2012, and even then, he did not ask to see a doctor.

         Arrant met with attorney Philip Deal on August 2, 2012. Arrant told Deal that his condition had worsened as he continued to work. Arrant reported that his lower back was hurting, he was beginning to have shooting pain down the back of his legs into his feet, and he had tingling all the way down to his toes. Based on Deal's experience handling personal injury cases, he felt that Arrant's complaints indicated a lumbar disc injury, and that Arrant needed to see a doctor and undergo a lumbar MRI to determine if he was experiencing nerve damage. Deal contacted the office of orthopedic surgeon Dr. Douglas Brown, and an appointment was scheduled for August 16.

         Deal instructed Arrant on August 2 to tell Acree that he had scheduled an appointment with Dr. Brown because his back was getting worse and he needed medical treatment, and that he needed the name of Acree's workers' comp insurer. Because Deal, Arrant, and Dr. Brown's office were unsuccessful in obtaining the name of Acree's workers' comp insurer, Deal had to provide a $600 check to Dr. Brown in order for Arrant to be examined as scheduled. Arrant received a couple of injections from Dr. Brown during the August 16 examination. Dr. Brown also recommended a lumbar MRI because he suspected that Arrant had a lumbar disc injury.

         LWCC, Acree's insurer, denied the request for the lumbar MRI. On September 17, 2012, the medical director of the Office of Workers' Compensation ("OWC") reviewed the request and also denied it. Dr. Brown continued to see Arrant, who underwent a few weeks of physical therapy. Dr. Brown again requested a lumbar MRI, which was again denied by LWCC. The OWC medical director denied the second request on October 18, 2012. Deal paid $800 for the MRI to be performed because he remained concerned about possible nerve damage.

         On May 1, 2013, Arrant filed a Form 1008 asserting that Acree and LWCC had refused to provide a lumbar MRI and a left S1 nerve block recommended by Dr. Brown. Arrant sought penalties and attorney fees. Arrant filed two amended 1008s concerning his initial examination by Dr. Brown, the recommended MRI for which Deal had to pay $800, and examination by his neurosurgeon of choice, Dr. Bernie McHugh.

         On July 2, 2013, LWCC and Acree filed an answer asserting that Arrant did not need its approval to see Dr. Brown since he had the right to choose his treating physician without prior approval, that LWCC was not required to pay the $600 deposit ...


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