FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 04
PARISH OF LAFAYETTE, NO. 16-00152 HONORABLE ANTHONY PALERMO,
WORKERS COMPENSATION JUDGE
R. Stevens Gibbens & Stevens COUNSEL FOR
PLAINTIFF/APPELLEE: Sonic of Ambassador
Michael B. Miller P.O. Drawer COUNSEL FOR
DEFENDANT/APPELLANT: Damon Richard
composed of Sylvia R. Cooks, Billy H. Ezell, and Candyce G.
R. COOKS JUDGE.
AND PROCEDURAL HISTORY
August 22, 2012, Damon Richard was injured while in the
course and scope of his employment with Sonic of Ambassador.
Mr. Richard was treated by Dr. John D. Sledge, III, an
orthopedist, following the accident. Dr. Sledge stated in a
report dated July 8, 2015, that Mr. Richard was capable of
then requested that Mr. Richard attend vocational
rehabilitation services with Ms. Jennifer Jones of GENEX. Mr.
Richard rejected the services of GENEX, noting that another
employee of GENEX had provided nurse case manager services in
January 8, 2016, Sonic filed a motion to compel vocational
services with the Office of Workers' Compensation (OWC).
In response, on May 18, 2016, Mr. Richard filed a motion to
dispute vocational services, penalties and attorney fees
under La.R.S. 23:1226.
30, 2016, Sonic filed another motion to allow vocational
rehabilitation. In that motion, noting the "Court's
ruling that Genex not be allowed to provide vocational
rehabilitation services due to the fact that it provided
medical management services," Sonic requested that
CoreCare Management be allowed to provide vocational
rehabilitation services to Mr. Richard. Sonic noted in its
motion that counsel for Mr. Richard had sent to the counselor
for CoreCare, Shelley Brantley, a letter proposing certain
conditions which Ms. Brantley was required to agree with or
disagree with before she could meet with Mr. Richard. Ms.
Brantley refused to comply, and Sonic also requested the
court make a determination as to whether the vocational
counselor needed to execute the contract in question.
A hearing was held on February 18, 2017, with evidence and
argument of counsel received. Subsequent to the hearing, a
judgment was signed on March 1, 2017, holding the
"Motion to Compel Vocational Rehabilitation filed by
Sonic of Ambassador is denied at this time." Sonic
maintained the motion was denied because the trial court felt
the testimony of Shelley Brantley, who was not present that
day to testify, would be helpful to resolution of the issue.
A scheduling order was issued setting October 2, 2017, for a
trial on the merits. A telephonic conference was held with
the parties and OWC wherein the merits trial scheduled for
October 2, 2017, was continued and another hearing on the
vocational rehabilitation issue was to be held on that date.
October 2, 2017, although Shelley Brantley was present and
available to testify, the OWC determined the testimony of Ms.
Brantley was not necessary. Sonic argued under Hargrave
v. State, 12-341 (La. 10/16/12), 100 So.3d 786, because
there was no dispute concerning the quality or nature of the
services in question of the vocational counselor, Ms.
Brantley could not be required to abide by the conditions set
forth in the contract presented to her by Mr. Richard.
Counsel for Mr. Richard argued it was not a requirement for
Ms. Brantley to agree or disagree with any of the conditions
that were set forth in the contract, "only that [she]
tell me which one [she was] going to follow and which one
[she] would not follow." No new evidence, witnesses or
documents were introduced at the hearing. The OWC ordered
that vocational rehabilitation services were to go forward.
The following discussion occurred in open court between the
OWC and counsel for Mr. Richard (Mr. Miller):
THE COURT: I'm ordering that the vocational
rehabilitation can go forward. Basically what I'm doing
today is I'm compelling [Mr. Richard] to meet with the
vocational rehabilitation counselor in order that there be an
exchange of information. If after that time, he decided not
to go forward, that's a different issue, in my mind.
MR. MILLER: Well, its because after an order if he does that
then they're going to - they're going to penalize him
THE COURT: Well -
MR. MILLER: That's why the order is so important. And the
fact of the matter is, Judge, is if she meets with him I can
tell you - I can't tell you how many voc rehab counselors
meet one time with my client. Once. That's it. You know
why? They get the information they need and they don't
THE COURT: Right.
MR. MILLER: So what I'm saying is he gets everything she
wanted in the first time she meets with him, and there's
not a thing I can do about it or my client.
THE COURT: No. What I'm saying, Mr. Miller, is that when
she meets with your client if she's not willing to
provide you with the answers to questions that comply with
the Code of Professional Ethics, that your client is free ...