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Robinson v. Capital Staffing

Court of Appeals of Louisiana, Third Circuit

October 18, 2017

JUNIUS ROBINSON
v.
CAPITAL STAFFING, ET AL.

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 15-06229 CHARLOTTE L. BUSHNELL, WORKERS' COMPENSATION JUDGE

          Michael B. Miller Attorney at Law COUNSEL FOR PLAINTIFF-APPELLEE: Junius Robinson

          Eric E. Pope Pamela Noya Molnar Blue Williams, L.L.P. COUNSEL FOR INTERVENOR-APPELLANT: South East Personnel Leasing, Inc.

          Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.

          ELIZABETH A. PICKETT JUDGE.

         The employer in this workers' compensation suit appeals a judgment that awarded the employee penalties and attorney fees against it because the employer improperly suspended the employee's indemnity benefits after he failed to attend two medical examination appointments that it scheduled. For the following reasons, we reverse the judgment.

         FACTS

         On October 2, 2015, Junius Robinson filed an LDOL 1008 claim, alleging that he was injured while working in the course and scope of his employment with LA Rice Mill, Inc. and Capital Staffing. These two defendants denied employing Mr. Robinson. South East Personnel Leasing, Inc. (South East) filed a petition of intervention in which it averred that Mr. Robinson was its employee and that he was leased to its client, Capital Welding Fabrication, Inc. South East assumed the defense in this matter.

         Upon issuing indemnity benefits to Mr. Robinson, South East scheduled an appointment for him to be examined by Dr. Harold Granger on November 30, 2015. Mr. Robinson missed the appointment, and South East rescheduled the appointment for January 11, 2016. Mr. Robinson arrived at the appointment more than forty-five minutes late and was informed that Dr. Granger had left his office for the day.[1] South East suspended Mr. Robinson's indemnity benefits after he missed the second appointment with Dr. Granger but reinstated those benefits on approximately April 14, 2016, after he was examined by Dr. Granger.

         In June 2016, Mr. Robinson filed a motion seeking penalties and attorney fees for the suspension of his benefits. After a hearing, the workers' compensation judge (WCJ) determined that South East violated the workers' compensation law by suspending Mr. Robinson's benefits without first obtaining an order compelling his attendance at the medical examination and awarded Mr. Robinson $8, 000 in penalties and $6, 000 in attorney fees.

         South East filed a writ application with this court, seeking reversal of the judgment on the basis of four assigned errors. Upon review of the writ application, another panel of this court concluded that the WCJ's judgment at issue herein is a final appealable judgment and converted the writ application to an appeal. See Junius Robinson v. Capital Staffing, 16-829 (La.App. 3 Cir. 12/1/16) (unpublished writ decision).

         ASSIGNMENTS OF ERROR

         South East urges that the WCJ committed the following errors that warrant reversal of the judgment against it:

1. The lower Court erred in ruling that an Employer is required to obtain an order compelling a Claimant to attend a second medical opinion appointment prior to the suspension of benefits, in light of the amendments to La.R.S. 23:1124, and in awarding penalties and attorney[] fees as a result.
2. The lower Court erred in failing to allow Employer's claims adjuster to testify that the Claimant was served via certified mail when analyzing Employer's compliance with La.R.S. 23:1201.1(A)(4) and (5).
3. The lower Court improperly awarded attorney[] fees and penalties at this intermediate juncture of the proceeding, as litigation is ongoing and the Court's ruling has the potential to subject Employer to additional attorney[] fees and penalties in violation of the [Workers'] Compensation Act.
4. The lower Court erred in the amount of penalties and attorney[] fees it awarded given the amount of legal work involved [in] the filing and appearance at a hearing for one motion[] and [in its assessment of] the maximum ...

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