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Bailey v. Veolia Environmental Services

Court of Appeals of Louisiana, Third Circuit

January 31, 2018

JAMES CRAWFORD BAILEY
v.
VEOLIA ENVIRONMENTAL SERVICES

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 03 PARISH OF CALCASIEU, NO. 16-01727 CHARLOTTE A. L. BUSHNELL, WORKERS' COMPENSATION JUDGE

          Maurice Blake Monrose Hurlburt, Monrose & Ernest COUNSEL FOR: Defendant/Appellee - Veolia Environmental Services

          George Arthur Flournoy Flournoy Law Firm COUNSEL FOR: Plaintiff/Appellant - James Crawford Bailey

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.

          ULYSSES GENE THIBODEAUX, CHIEF JUDGE

         Plaintiff James Crawford Bailey appeals a judgment in favor of Defendant, Veolia Environmental Services (hereafter "Veolia"), finding that Mr. Bailey failed to prove untimely payment of pharmacy bills and prescription medications for his workers' compensation claim. Mr. Bailey appeals the trial court's denial of penalties and attorney fees. Mr. Bailey also alleges that the Workers' Compensation Judge (WCJ) erred by injecting the issue of medical necessity for medical expenses post-trial. Veolia asserts that Mr. Bailey failed to prove medical necessity and that the WCJ erred in denying Veolia's objection that the documents were unreliable hearsay. Veolia requests frivolous appeal damages. We affirm the trial court's judgment in favor of Veolia, and we deny damages for a frivolous appeal.

         I.

         ISSUES

         This court must determine whether the WCJ erred in her determination that the employee failed to prove untimely payments of prescription medication. If we find that the WCJ was clearly wrong in her determination that the employee failed to establish untimely payment of prescription medication, we must determine whether the WCJ erred in her denial of penalties and attorney fees. Additionally, we must determine whether the employer is entitled to frivolous appeal damages as requested by the employer.

         II.

         FACTS AND PROCEDURAL HISTORY

         Mr. Bailey is alleged to have sustained a severe spinal injury on August 5, 2010, while employed by Veolia. Mr. Bailey filed a disputed claim for compensation on March 1, 2016, alleging nonpayment or untimely payment of medical expenses, penalties and attorney fees, legal interest and court costs. Veolia filed exceptions of prematurity, no cause of action, res judicata, and vagueness. Veolia filed an answer to Mr. Bailey's petition, specifically denying the allegations for lack of specific information. Trial was set for March 2, 2017, with untimely payment for medication, penalties, and attorney fees to be litigated at trial. No facts were stipulated to by Veolia prior to trial in its pre-trial statement, nor did it stipulate to any facts at trial. Mr. Bailey's pre-trial statement was submitted on March 13, 2017, after trial. However, Veolia did not object to evidence regarding entitlement. In Paragraph 2 of Veolia's pre-trial statement, Defense counsel agreed to the characterization of the issue as one of untimely payments. At trial, Mr. Bailey did not appear and his counsel did not call any witnesses.

         Veolia argued in a post-trial brief that Mr. Bailey did not offer evidence nor did he offer testimony to establish: (1) an employment relationship; (2) an accident while on the job; (3) that the employee sustained an injury while in the course and scope of employment; or (4) the medical necessity of treatment from an injury sustained during the course and scope of employment. In the post-trial brief, Veolia further asserted that under La.R.S. 23:1204, Veolia's payment of medical expenses did not constitute an admission of liability and that Mr. Bailey is still required to prove untimeliness of payments. Plaintiff's counsel wrote that he advised Veolia that all medical expenses should be reimbursed in accordance with La.R.S. 23:1201(A), and this was court-mandated. However, Veolia notes that the statute is inapplicable and there was no court mandate to Veolia's knowledge. Mr. Bailey contends in a reply brief that Veolia did not dispute the receipt of the demand for payment, nor did Veolia dispute the dates of untimely payments included in Mr. Bailey's exhibits.

         Mr. Bailey's exhibits, labeled "P-1" and "P-2, " include the affidavit of Darla Corley, a pharmacist employed by Professional Pharmacy, and an initial demand letter dated October 26, 2010. Exhibits "P-3" to "P-9" are demand letters with dates of service from Professional Pharmacy, spanning from June 1, 2015 to March 8, 2016. The exhibits are receipts which include handwritten notations regarding the payment dates, documenting whether the payment was made timely or untimely. However, no witnesses or secondary forms of documentation were included to verify or support these handwritten notations asserting the timeliness or untimeliness of the payments. Veolia did not stipulate to these dates at trial. Accordingly, the WCJ found that Mr. Bailey's exhibits did not sufficiently establish that Veolia made untimely payments of Mr. Bailey's prescription medication.

         At trial, Veolia objected to all of Mr. Bailey's exhibits as hearsay because there were no witnesses present to identify the exhibits. Additionally, Veolia objected to Exhibit "P-10, " a patient profile, and Exhibit "P-11, " an affidavit faxed from Plaintiff's counsel to Defense counsel because Plaintiff's counsel did not send the pre-trial exhibits until twenty hours prior to trial. The WCJ overruled Veolia's objections to Exhibits "P-2" to "P-9, " noting that, even though the evidence "may be hearsay [], hearsay is acceptable . . . . Although [the court] may not be able to rely on those documents, they are admissible." The WCJ sustained the objections to Exhibits "P-10" and "P-11" because Veolia did not have copies of those exhibits. Veolia moved to dismiss the case, noting that third circuit cases establish that the claimant must prove the demand was received and no evidence showed that the demands were received.

         After review of the post-trial briefs, the WCJ entered a judgment in favor of Veolia, finding that Mr. Bailey failed to prove untimely payments of prescription medication. The WCJ also denied Mr. Bailey's request for penalties and attorney fees. As an aside, the WCJ mentioned that the claimant offered little ...


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