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Sonic of Ambassador v. Richard

Court of Appeals of Louisiana, Third Circuit

April 24, 2019

SONIC OF AMBASSADOR
v.
DAMON RICHARD

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 04 PARISH OF LAFAYETTE, NO. 16-00152 HONORABLE ANTHONY PALERMO, WORKERS COMPENSATION JUDGE

          Dennis R. Stevens Gibbens & Stevens COUNSEL FOR PLAINTIFF/APPELLEE: Sonic of Ambassador

          Michael B. Miller P.O. Drawer COUNSEL FOR DEFENDANT/APPELLANT: Damon Richard

          Court composed of Sylvia R. Cooks, Billy H. Ezell, and Candyce G. Perret, Judges.

          SYLVIA R. COOKS JUDGE.

         FACTS AND PROCEDURAL HISTORY

         On 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 sedentary work.

         Sonic 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 this matter.

         On 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.

         On June 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.

         On 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 fifty percent.
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 come back.
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 ...

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