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
Arthur Flournoy Flournoy Law Firm COUNSEL FOR:
Plaintiff/Appellant - James Crawford Bailey
composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J.
Gremillion, and John E. Conery, Judges.
ULYSSES GENE THIBODEAUX, CHIEF JUDGE
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.
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.
AND PROCEDURAL HISTORY
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
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.
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.
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
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 ...