The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-86 (consolidated with) 10-91, 10-92, 10-96, 10-97, 10-99,
10-100, 10-115, 10-117, and 10-118
CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC.
(BRIDGET HUIE)
VERSUS
PAYLESS SHOESOURCE, INC.
**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 08-02882
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
**********
ON REHEARING
ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and David E. Chatelain,* Judges.
Gremillion, J., concurs in part and dissents in part and assigns written reasons.
AFFIRMED.
Roger Anthony Javier
The Javier Law Firm
800 Energy Centre
1100 Poydras Street
New Orleans, LA 70163
Telephone: (504) 599-8570
COUNSEL FOR:
Defendant/Appellant - Payless Shoesource, Inc.
*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.
Richard Bray Williams
Williams Family Law Firm, LLC
P. O. Box 15
Natchitoches, LA 71458-0015
Telephone: (318) 352-6695
COUNSEL FOR:
Plaintiff/Appellee - Central Louisiana Ambulatory Surgical Center,
Inc. (Bridget Huie)
THIBODEAUX, Chief Judge.
ON REHEARING
Defendants in these consolidated cases applied for rehearing on the issue
of notice. We deny these applications. Plaintiffs have filed applications for rehearing
on the issues of attorney fees and penalties. They have requested rehearing en banc.
We deny the request for en banc consideration but grant Plaintiffs’ rehearing
applications.
We reverse our original decision to deny penalties and attorney fees and
now affirm the awards of $1,500.00 in attorney fees and $2,000.00 in penalties in
each of the consolidated cases. We additionally award $1,500.00 for work done on
appeal to the prevailing Plaintiffs.
Louisiana Revised Statutes 23:1201(F)(4) states:
In the event that the health care provider prevails on
a claim for payment of his fee, penalties as provided in this
Section and reasonable attorney fees based upon actual
hours worked may be awarded and paid directly to the
health care provider. This Subsection shall not be
construed to provide recovery of more than one penalty or
attorney fee.
La.R.S. 23:1201(F)(2) states that “[t]his Subsection shall not apply if the claim is
reasonably controverted or if such nonpayment results from conditions over which
the employer or insurer had no control.” The phrase “as provided in this Section” of
La.R.S. 23:1201(F)(4) encompasses the “reasonably controverted” standard of
La.R.S. 23:1201(F)(2) as it applies to an award of penalties. The award of reasonable
attorney fees has no such restriction. That is, once a health care provider prevails on
an underpayment claim, the award of attorney fees is discretionary and is not subject
to the “reasonably controverted” limitation.
The determination by the Office of Workers’ Compensation that an
employer or insurer should be cast with penalties and attorney fees is a question of
fact subject to the manifest error or clearly wrong standard of review. Authement v.
Shappert Eng’g, 02-1631 (La. 2/25/03), 840 So.2d 1181. The workers’ compensation
judge appropriately exercised his discretion and was not clearly wrong in awarding
attorney fees pursuant to La.R.S. 23:1201(F)(4).
While Defendants may have a plausible argument on the impropriety of
awarding penalties under La.R.S. 23:1201(F)(4) based on the validity of the PPO
discount agreement, the argument is untenable with regard to the notice provisions
of La.R.S. 40:2203.1. Gunderson v. F.A. Richard & Associates, Inc., 09-1498
(La.App. 3 Cir. 6/30/10), __So.3d__, explained that La.R.S. 40:2203.1 was clear and
unambiguous. When a statute refers to “all preferred provider organization
agreements,” it means just that. Defendants in these consolidated cases were aware
of these clear provisions and cannot escape their applicability with protestations of
ambiguity.
For the foregoing reasons, we vacate our original opinion on the denial
of penalties and attorney fees and reinstate the judgments of the Office of Workers’
Compensation. Additionally, we award attorney fees of $1,500.00 for work done on
appeal in each of the consolidated cases.
AFFIRMED.
2
STATE OF LOUISIANA
COURT OF APPEAL
THIRD CIRCUIT
10-86 (Consolidated with) 10-91, 10-92, 10-96, 10-97, 10-99, 10-100, 10-115,
10-117, and 10-118
CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC.
VERSUS
PAYLESS SHOE SOURCE, INC.
GREMILLION, Judge, concurs in part and dissents in part.
I agree with the majority on the issue of the awards of penalties, given that the
defendants failed to comply with the dictates of La.R.S. 40:2203.1.
I dissent on the issue of attorney fees. Louisiana Revised Statute 23:1201(F)(4)
provides that “[i]n the event that the health care provider prevails on a claim for
payment of his fee, penalties as provided in the Section and reasonable attorney fees
based upon actual hours worked may be awarded. . . .” [Emphasis added]. In the
present matters, counsel for the provider submitted affidavits attesting to the actual
hours worked as of the date of trial on each, which are summarized below.
Docket Actual hours worked
10-86 2.4
10-91 3.7
10-92 3.9
10-96 2.4
10-97 2.3
10-99 2.2
10-100 2.4
10.115 2.3
10-117 2.1
10-118 2.9
Thus, counsel worked a total of 26.6 hours, for which the WCJ and this court
have determined the health care provider is entitled to receive attorney fees awards
totaling $30,000. An hourly rate of $1,127.82 is unreasonable and unwarranted. I
would reduce the attorney fee awards to reflect an hourly rate of $175.00 per hour.