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Citizen v. Wal-Mart Stores, Inc.

Court of Appeals of Louisiana, Third Circuit

June 6, 2018

BETTY CITIZEN
v.
WAL-MART STORES, INC.

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - District 3 PARISH OF CALCASIEU, NO. 17-2645 CHARLOTTE A. L. BUSHNELL, WORKERS' COMPENSATION JUDGE

          Keith Joseph Landry Corey M. Meaux Allen & Gooch COUNSEL FOR DEFENDANT-APPELLANT: Wal-Mart Stores, Inc.

          Thomas E. Townsley Law Office of Thomas E. Townsley, L.L.C. COUNSEL FOR PLAINTIFF-APPELLEE: Betty Citizen

          Court composed of John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET JUDGE.

         In this workers' compensation case, Defendant/Employer, Wal-Mart Stores, Inc. (Wal-Mart), appeals the judgment of the Office of Workers' Compensation (OWC) in favor of Plaintiff/Claimant, Betty Citizen, finding that Wal-Mart was arbitrary and capricious in denying Ms. Citizen's claim for physical therapy, and awarding a $2, 000.00 penalty for Wal-Mart's failure to investigate the claim, $3, 000.00 in attorney fees, and court costs. Ms. Citizen answered the appeal seeking additional attorney fees for work done on appeal. For the following reasons, we affirm the OWC judgment, and we render an attorney fee award of $2, 500.00 in favor of Ms. Citizen for work done on this appeal.

         FACTS AND PROCEDURAL HISTORY:

         Ms. Citizen injured her lower back in the course and scope of her employment with Wal-Mart on November 30, 2011, while attempting to move a box that had a bicycle in it. The current dispute arose in January 2017, after Wal-Mart tacitly denied physical therapy that was recommended by Dr. Robert Abramson, Ms. Citizen's treating neurosurgeon. In April 2017, Ms. Citizen filed her first 1009 Form, which was denied by the Medical Director for being procedurally untimely. On May 2, 2017, Ms. Citizen filed a 1008 Form alleging that she was entitled to penalties and attorney fees for Wal-Mart's arbitrary and capricious handling of her claim. On June 5, 2017, Ms. Citizen filed a second 1009 Form after Wal-Mart formally denied the recommended physical therapy. On June 27, 2017, the Medical Director denied the requested physical therapy treatment as requested in the second 1009 Form upon finding that "[t]here is no documentation of the results of prior therapy as per the guidelines."

         On September 25, 2017, on the day of the hearing, Wal-Mart agreed to approve the physical therapy as requested by Dr. Abramson. Thereafter, the sole issue before the court was whether Wal-Mart was arbitrary and capricious in its denial of the physical therapy. After hearing the testimony and reviewing the record, the OWC found that Wal-Mart was arbitrary and capricious in failing to investigate the claim following the physical therapy request and awarded $2, 000.00 in penalties, $3, 000.00 in attorney fees, and $3, 455.00 in court costs. Wal-Mart now appeals this final judgment.

         STANDARD OF REVIEW:

         "The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers' compensation action is essentially a question of fact." Authement v. Shappert Eng'g, 02-1631, p. 12 (La. 2/25/03), 840 So.2d 1181, 1188. "Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted).

         DISCUSSION:

         In its sole assignment of error, Wal-Mart alleges that the trial court erred in awarding Ms. Citizen an award for penalties and attorney fees. Wal-Mart argues that it relied on medical records in its possession that showed that Ms. Citizen had previously gone through at least one bout of physical therapy with no improvements and that it was unaware, until the morning of the hearing, that Ms. Citizen was unable to complete the recommended physical therapy due to other health issues.

         Louisiana Revised Statutes 23:1201(F) governs the assessment of penalties and award of attorney fees for an employer's failure to authorize medical treatment. Louisiana Revised Statutes 23:1201(F)(2) provides that Subsection (F) is inapplicable if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer had no control. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Baker Hughes, Inc. v. Ardoin, 99-1217, 99-1218 (La.App. 3 Cir. 2/2/00), 758 So.2d 830, writ granted in part, denied in part, 00-681 (La. 4/20/00), 759 So.2d 771. "Thus, to determine whether the claimant's right has been reasonably controverted, . . . a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal ...


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