FROM THE OFFICE OF WORKERS' COMPENSATION - District 3
PARISH OF CALCASIEU, NO. 17-2645 CHARLOTTE A. L. BUSHNELL,
WORKERS' COMPENSATION JUDGE
Joseph Landry Corey M. Meaux Allen & Gooch COUNSEL FOR
DEFENDANT-APPELLANT: Wal-Mart Stores, Inc.
E. Townsley Law Office of Thomas E. Townsley, L.L.C. COUNSEL
FOR PLAINTIFF-APPELLEE: Betty Citizen
composed of John E. Conery, D. Kent Savoie, and Candyce G.
CANDYCE G. PERRET JUDGE.
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.
AND PROCEDURAL HISTORY:
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
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.
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).
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
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