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Smith v. Circle K Stores, Inc.

Court of Appeals of Louisiana, Third Circuit

June 6, 2018



          Gloria A. Angus Angus Law Firm, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT: Melody P. Smith

          Thomas J. Eppling Lance Edward Harwell Staines & Eppling COUNSEL FOR DEFENDANTS/APPELLEES: Circle K Stores, Inc. Ace American Insurance Company

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


         Plaintiff-Appellant, Melody P. Smith, appeals the judgment of the Workers' Compensation Judge (WCJ) denying penalties and attorney fees against her employer Circle K Stores, Inc. and its workers' compensation insurer, Ace American Insurance Company (Ace American) for failure to approve medical care for Ms. Smith's injury to her right knee. For the following reasons, we affirm.


         On September 21, 2013, while in the course and scope of her employment with Circle K Stores, Inc., Ms. Smith went to a Capital One Bank in Lafayette, Louisiana to make a night bank deposit. Before Ms. Smith could reach the bank, she was the victim of an armed robbery. The perpetrator crashed his truck into the rear of her car and shot twice at Ms. Smith's vehicle, almost striking Ms. Smith. He proceeded to smash the window of Ms. Smith's car and take the deposit bag from the front seat. Ms. Smith sustained injuries to her neck, back, and knee as a result of the incident.

         The defendants have paid Ms. Smith workers' compensation benefits since the incident.[1] However, a dispute arose over the issue of treatment for injury to Ms. Smith's right knee. As a result, on September 22, 2014, Ms. Smith filed a 1008 Disputed Claim for Compensation, commonly referred to as a Form 1008, pursuant to La.R.S. 23:1034.2(F)(1) against the defendants, claiming, "[Ms.] Smith requested evaluation related to her knee injury occurring during the course and scope of employment.[2] Insurer/Employer refused to [pre-authorize] evaluation for knee injury with Ms. Smith's choice of physician [(Dr. Louis Blanda, Jr.)]. [Ms.] Smith requests penalties and attorney fees as well as judicial interest from date of demand."

         On April 25, 2016, Ms. Smith's disputed claim was heard, and the WCJ took the matter under advisement. On September 1, 2016, the WCJ issued an oral ruling denying Ms. Smith's claim alleging the defendants failed to authorize treatment of her right knee by Dr. Blanda, her orthopedic surgeon of choice, and her claim for penalties and attorney fees. The WCJ found that the treating physician in question (Dr. Blanda) had failed to properly request the treatment of Ms. Smith's knee by sending the required LWC-WC-1010 ("1010 Form") pursuant to the Medical Treatment Guidelines, contained in La. Admin. Code tit. 40, pt. I, §2175 (2014). Because the WCJ found the defendants had reasonably controverted Ms. Smith's claim that they failed to authorize treatment with Dr. Blanda, Ms. Smith was not entitled to penalties and attorney fees, thus none were awarded.

         Oral reasons were read into the record in open court on September 1, 2016, and a judgment was signed by the WCJ on November 14, 2016. Notice of judgment was mailed to all parties on November 16, 2016. However, in October 2016, prior to the signing of the November 14, 2016 judgment, Ms. Smith filed a motion for new trial and later filed a motion for a devolutive appeal with this court on November 7, 2016. Ms. Smith's appeal was lodged in this court on March 6, 2017.

         In Smith v. Sam, 17-80 (La.App. 3 Cir 5/17/17) (unpublished opinion), a panel of this court dismissed Ms. Smith's previous appeal pursuant to La.Code Civ.P. art. 2087(D), which provides that "[a]n order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict." The panel found that when Ms. Smith filed her motion for devolutive appeal on November 7, 2016, her motion for new trial was still pending and pursuant to La.Code Civ.P. art. 2088, the workers' compensation court had not been divested of jurisdiction. See Egle v. Egle, 05-531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780. Accordingly, the order of appeal was granted prematurely, and this court lacked jurisdiction over Ms. Smith's first appeal. The first appeal was dismissed, and the case was remanded to the WCJ for a determination of the pending motion for new trial.

         The WCJ heard Ms. Smith's motion for new trial on August 4, 2017. After hearing argument of counsel, the WCJ stated in pertinent part:

With regards [sic] to the authorization of the knee and the request for a new trial and penalties and attorney fees, I don't believe there are grounds for a new trial in this case. The issue with the knee was always related to the failure of the doctor to request it in the correct manner. That's why I do not feel that there was arbitrary and capricious conduct and penalties and attorney fees were owed. I'm not going to change my mind about that.

         A judgment denying Ms. Smith's motion for new trial was signed on August 17, 2017. Therefore, this court now has the proper jurisdiction to hear Ms. Smith's timely appeal of the WCJ's November 14, 2016 judgment in which the WCJ denied her claim alleging the defendants improperly failed to authorize treatment and her request for attorney fees and penalties, as well as the judgment dated August 17, 2017, denying the motion for new trial.


         Ms. Smith asserts the following assignments of error on appeal:

1. The Lower Court committed manifest error in finding that the defendants did not act in an arbitrary and capricious [manner] in denying evaluation/treatment of Plaintiff's knee injuries with her choice of physician, [Dr. Louis Blanda, Jr.], when the request for evaluation/treatment for the shoulder was made at the same time [as] the [knee] and the defendants authorized evaluation /treatment for the shoulder but not the knee and failed to controvert the denial of the knee.
2. The [L]ower Court abused its discretion and committed manifest error in denying penalties and attorney fees, interest and costs.


         Standard of Review

         The standard of review in a workers' compensation claim is well established and was succinctly stated in Bracey v. City of Alexandria, 13-16, pp. 2-3 (La.App. 3 Cir. 6/5/13), 115 So.3d 1211, 1214-15, writ denied, 13-1934, (La. 11/8/13), 125 So.3d 455 (citations omitted):

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. Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Thus, "if the [factfinder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently."
"The determination of coverage is a subjective one in that each case must be decided from all of its particular facts." "[T]he manifest error standard of appellate review applies in workers compensation cases and great deference is accorded to the [workers' compensation judge's] factual findings and reasonable evaluations of credibility."

         Motion to Strike Attachments to Appellant's Brief

         The defendants filed a motion to strike the attachment to Ms. Smith's original brief filed in support of her appeal on the basis that the document was "completely washed out and illegible." The defendants' motion was referred to the merits. The defendants stated that the attachment was not identified in Ms. Smith's original briefing but appeared to be the transcript of the new trial hearing before the WCJ. As previously ...

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