MELODY P. SMITH
CIRCLE K STORES, INC. AND ACE AMERICAN INS. CO.
FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 4
PARISH OF ST. LANDRY, NO. 14-6309 ANTHONY PAUL PALERMO,
WORKERS' COMPENSATION JUDGE
A. Angus Angus Law Firm, L.L.C. COUNSEL FOR
PLAINTIFF/APPELLANT: Melody P. Smith
J. Eppling Lance Edward Harwell Staines & Eppling COUNSEL
FOR DEFENDANTS/APPELLEES: Circle K Stores, Inc. Ace American
composed of John E. Conery, D. Kent Savoie, and Candyce G.
E. CONERY JUDGE.
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.
AND PROCEDURAL HISTORY
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.
defendants have paid Ms. Smith workers' compensation
benefits since the incident. 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. 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."
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
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.
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.
heard Ms. Smith's motion for new trial on August 4, 2017.
After hearing argument of counsel, the WCJ stated in
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.
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.
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 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
to Strike Attachments to Appellant's Brief
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 ...