The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-0447
CENTRAL LOUISIANA AMBULATORY
SURGICAL CENTER, INC. (SHEDRICK CARR)
VERSUS
RAPIDES PARISH SCHOOL BOARD
************
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DIST 02
PARISH OF RAPIDES, NO. 08-04004
HONORABLE JAMES BRADDOCK
WORKERS’ COMPENSATION JUDGE
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JIMMIE C. PETERS
JUDGE
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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.
AFFIRMED IN PART AND REVERSED IN PART.
R. Bray Williams
Joseph Payne Williams, Sr.
Williams Family Law Firm, LLC
Post Office Box 15
Natchitoches, LA 71458-0015
(318) 352-6695
COUNSEL FOR PLAINTIFF/APPELLEE:
Central Louisiana Ambulatory Surgical Center, Inc.
Roger A. Javier
Amanda H. Baxter
The Javier Law Firm
800 Energy Centre
1100 Poydras Street
New Orleans, LA 70163
(504) 599-8570
COUNSEL FOR DEFENDANT/APPELLANT:
Rapides Parish School Board
PETERS, J.
The Rapides Parish School Board (School Board) appeals a judgment rendered
by the workers’ compensation judge (WCJ) in favor of the Central Louisiana
Ambulatory Surgical Center, Inc. (CLASC), awarding CLASC recovery of $201.60
for medical services rendered to one of the School Board’s injured employees,
$2,000.00 in statutory penalties, and $4,500.00 in attorney fees. We reverse the WCJ
award of statutory penalties, but affirm the judgment in all other respects.
DISCUSSION OF THE RECORD
This appeal is one of eleven cases now before this panel involving the same
litigants and raising the same legal issue. In each case, an employee of the School
Board sustained a injury compensable under the Louisiana Workers’ Compensation
Act and received medical treatment through CLASC. In each case, the School Board,
through its workers’ compensation administrator, Gallagher Bassett Services, Inc.
(Gallagher Bassett), initially applied La.R.S. 23:1034.2 and La.Admin.Code tit. 40,
part I, § 2507 to reduce CLASC’s medical charges by ten percent. However, the
School Board further reduced the charges by an additional twenty percent before
tendering payment to CLASC. The correctness of the twenty percent reduction is the
single issue in all eleven cases.
All of the disputes now before us have the same undisputed factual background
and arise from a series of contracts involving a preferred provider organization (PPO)
which discounts its payments to CLASC by twenty percent. They begin with a 1996
contract between CLASC and Affordable Health Care Concepts (Affordable) which
had as its purpose CLASC’s participation in a Preferred Provider Panel by which
Affordable would offer discounted medical services to those insured under the
Civilian Health and Medical Program of the Uniformed Services (CHAMPUS).
Section 1 of Article 4 of the CHAMPUS contract addressed provider billing
and payment and provided, in pertinent part, that “[f]or claims covered under
Workers’ Compensation, contract rate shall not exceed the amount otherwise allowed
for a workers [sic] compensation claim.” Section D of Appendix A, entitled
“AFFORDABLE OUTPATIENT CARE NETWORK REIMBURSEMENT,” and
attached to the contract, provided:
Reimbursement from Workers’ Compensation Payors for services
rendered to occupationally ill/injured employees shall be as follows:
(1) If any state law or regulation establishes rules or guidelines for
the payment of health care services, reimbursement shall not
exceed 80% of the maximum amount payable under such rules or
guidelines. Any procedure code which is unvalued shall be
reimbursed pursuant to Section A, Paragraph (3), of this
Appendix. This rate of reimbursement shall apply whether such
rules or guidelines are in existence at the time of execution of this
agreement or established at a later time.
(2) In the absence of any state law or regulation set forth in Section
D, Paragraph (1), reimbursement shall be the method set forth in
Section A, Paragraph (1), (2) and (3) of this Appendix, but in no
event shall reimbursement exceed the usual and customary charge
for the services, as determined by AFFORDABLE or Payor.
Sometime after CLASC entered into the contract, Affordable evolved into what is
now the defendant in this case, First Health.
In 2001, the School Board contracted with Gallagher Bassett to provide it with,
among other things, services relating to the administration of its workers’
compensation claims. At the time, Gallagher Bassett had contracts with various other
entities, including First Health. Gallagher Bassett’s relationship with First Health
gave it access to First Health’s network and the advantages of First Health’s bill
review and front-end processing services. In other words, there was no direct
contract between CLASC and the School Board. Rather, the basis of this suit and the
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remaining ten suits is the School Board’s underpayment of medical services that
CLASC provided to its employees based on contracts emanating from First Health.
In the matter now before us, the School Board’s injured worker is Shedrick
Carr, and it is not disputed that Mr. Carr sustained an injury compensable under the
Louisiana Workers’ Compensation Act, that CLASC provided medical care to Mr.
Carr totaling $1,120.00, and that medical care was for the treatment of his
compensable injuries. In handling CLASC’s claim for payment, Gallagher Bassett
first deducted $112.00 (the statutory ten percent) from the total submitted. It then
reduced that sum by an additional twenty percent, or $201.60. The additional twenty
percent was based on the provisions of First Health’s contract with CLASC. After
making both reductions, the School Board then tendered $806.40 to CLASC as
payment in full for the services rendered to Mr. Carr.
CLASC brought this claim to recover the twenty-percent underpayment from
the School Board, and the litigants submitted the issue to the WCJ based on
stipulations and briefs. The WCJ ultimately rendered judgment in this case as well
as the other ten now before us, awarding CLASC judgment for the twenty percent at
issue, penalties, and attorney fees. In doing so, the WCJ concluded that the School
Board could not rely on contracts with a PPO to reduce the amounts paid for medical
services provided by CLASC to its injured employee. This appeal followed.
In their appeal of this and the other ten cases now before us, the School Board
raised four assignments of error:
1. The trial court erred in ruling that, although parties may
contract for discounts from the maximum amount payable
under the Louisiana Workers’ Compensation
Reimbursement Schedule, the contracts utilized by the
medical provider and Rapides Parish School Board. [sic]
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(“RPSB”) for discounts are not authorized by the Louisiana
Workers’ Compensation Act.
2. The trial judge erred in ruling that the contract utilized by
the medical provider and RPSB for discounts from the
maximum amount payable under the Louisiana Workers’
Compensation Reimbursement Schedule must be
specifically and affirmatively authorized by the Louisiana
Workers’ Compensation Act.
3. The trial court erred in ruling that RPSB was arbitrary and
capricious in relying upon contracts voluntarily entered
into by the parties providing for discounts from the
maximum amount allowed under the Louisiana Workers’
Compensation Reimbursement Schedule and awarding
penalties and attorney fees against RPSB.
4. The trial court erred in assessing penalties and attorney’s
fees against RPSB under La. Rev. Stat. 23:1201.
CLASC did not appeal or answer the appeal.
OPINION
The School Board’s first two assignments of error can be reduced to one
question: Can an employer reimburse a health care provider at an amount below that
provided by the Louisiana Workers’ Compensation Act’s reimbursement schedule?
In a concurring opinion rendered in Beutler England Chiropractic Clinic v.
Mermentau Rice, Inc., 05-942, p. 4 (La.App. 3 Cir. 5/31/06), 931 So.2d 553, 561 (first
alteration ours), the writer of this opinion, joined by five of the twelve judges on this
court, recognized that the answer to this question is “no.”
As they did in Beutler England Clinic [v. Market Basket No. 27, 05-952
(La.App. 3 Cir. 12/30/05)], 919 So.2d 816, the defendants have
attempted to interpose the preferred provider organization (PPO)
contract as a defense to full payment, asserting that the attendant issues
remove the dispute from the jurisdiction of the OWCA. In doing so, the
employer and its insurer ignore the clear language of La.R.S. 23:1033,
which provides that “[n]o contract, rule, regulation or device whatsoever
shall operate to relieve the employer, in whole or in part, from any
liability created by this Chapter except as herein provided.” (Emphasis
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added.) As stated in my dissent in Beutler England Clinic, 919 So.2d at
821,
[T]o the extent that the PPO contract purports to further
limit the employer’s liability for medical care, it runs afoul
of La.R.S. 23:1033 and may not serve as a basis to reduce
the amount owed to Beutler England for the treatment of
[the injured employee]. Because the PPO contract may not
serve as a basis to reduce the amount owed for the
treatment of [the injured employee], Beutler England’s
claim is properly before the OWC pursuant to La.R.S.
23:1034.2(F)(1) as a garden-variety medical expense claim.
Whatever remaining rights the defendants have vis-à-vis
the PPO, in light of the Workers’ Compensation Act’s
express disallowal of contracts in contravention of its
provisions, is another issue for another forum.
This same issue has recently been addressed in Central Louisiana Ambulatory
Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86, 10-91, 10-92, 10-96, 10-97,
10-99, 10-100, 10-115, 10-117, 10-118, (La.App. 3 Cir. 7/28/10), So.3d ,
rehearing granted, (La.App. 3 Cir. 10/20/10), ___ So.3d ___, and Agilus Health v.
Accor Lodging North America, 09-1049 (La.App. 3 Cir. 3/10/10), 32 So.3d 1120, writ
granted, 10-800 (La. 6/18/10), 38 So.3d 312. We agree with the holdings in those
opinions and incorporate the analysis in both as though set out herein in full. That
being the case, we find no merit in the School Board’s first assignment of error.
With regard to the penalty and attorney fee issues, the panel in Central
Louisiana Ambulatory Surgical Center, Inc. reversed the WCJ awards while the panel
in Agilus Health affirmed the WCJ awards and awarded additional attorney fees for
the work performed on appeal. The panel in Central Louisiana Ambulatory Surgical
Center, Inc. initially concluded that the defendant School Board had reasonably
controverted the claim. However, on rehearing, the panel reversed its position on the
penalty and attorney fee award based on the failure of the defendants to comply with
the notice requirements of La.R.S. 40:2203.1. With regard to the penalty issue, the
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plaintiff in the matter before us did not raise the notice issue and, therefore, we agree
with and choose to follow the holding in the original opinion of Central Louisiana
Ambulatory Surgical Center, Inc. However, with regard to the attorney fee issue, we
agree that the attorney fee award should be affirmed, but for different reasons from
those expressed in either Central Louisiana Ambulatory Surgical Center, Inc. or
Agilus Health. We conclude that the WCJ may impose an award of attorney fees as
an item of recovery separate from the penalty issue.
In reaching the conclusion that the attorney fee award should be upheld, we
first note that the time and place of payment of workers’ compensation benefits, as
well as medical expenses, is governed by La.R.S. 23:1201(A) through (E). The
penalties for failure to make timely payments of compensation and/or medical
expenses are set forth in La.R.S. 23:1201(F). That statute provides:
Failure to provide payment in accordance with this Section or
failure to consent to the employee’s request to select a treating physician
or change physicians when such consent is required by R.S. 23:1121
shall result in the assessment of a penalty in an amount up to the greater
of twelve percent of any unpaid compensation or medical benefits, or
fifty dollars per calendar day for each day in which any and all
compensation or medical benefits remain unpaid or such consent is
withheld, together with reasonable attorney fees for each disputed claim;
however, the fifty dollars per calendar day penalty shall not exceed a
maximum of two thousand dollars in the aggregate for any claim. The
maximum amount of penalties which may be imposed at a hearing on
the merits regardless of the number of penalties which might be imposed
under this Section is eight thousand dollars. An award of penalties and
attorney fees at any hearing on the merits shall be res judicata as to any
and all claims for which penalties may be imposed under this Section
which precedes the date of the hearing. Penalties shall be assessed in
the following manner:
(1) Such penalty and attorney fees shall be assessed against either
the employer or the insurer, depending upon fault. No workers’
compensation insurance policy shall provide that these sums shall be
paid by the insurer if the workers’ compensation judge determines that
the penalty and attorney fees are to be paid by the employer rather than
the insurer.
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(2) This 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.
(3) Except as provided in Paragraph (4) of this Subsection, any
additional compensation paid by the employer or insurer pursuant to this
Section shall be paid directly to the employee.
(4) 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 for recovery of more than one penalty
or attorney fee.
(5) No amount paid as a penalty or attorney fee under this
Subsection shall be included in any formula utilized to establish
premium rates for workers’ compensation insurance.
(Emphasis added.)
The initial paragraph of La.R.S. 23:1201(F) provides that the mandatory
penalty available to a claimant is comprised of two parts: (1) a percentage of the
unpaid compensation subject to a maximum amount, and (2) a reasonable attorney
fee. With regard to a health care provider’s claim, an award of anything but the
amount owed is subject to the WCJ’s discretion, although that discretion is limited
to some extent by the “reasonably controverted” requirement of La.R.S.
23:1201(F)(2). Additionally, while La.R.S. 23:1201(F)(4) refers to the award of
“penalties,” we interpret that to mean only the statutory penalty provided for in
La.R.S. 23:1201(F).1 That is to say, the WCJ is vested with discretion to impose the
twelve percent penalty as provided for by the statute and/or a separate “reasonable
attorney fee based upon actual hours worked.” La.R.S. 23:1201(F)(4). Thus, while
the WCJ’s discretion to award the twelve percent penalty is still subject to the
1
To conclude otherwise would be to give the WCJ authority to award two attorney fees for
the same collection efforts.
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“reasonably controverted” requirement of La.R.S. 23:1201(F)(2), the attorney fee
award is not as the obvious intent of the statutory scheme is to award an attorney fee
similar to that awarded in an open account collection action. Given the small nature
of the amount normally at issue, any other interpretation would make the attempted
collection by the health care provider a financially infeasible proposition. Thus, we
find no error in the WCJ’s award of attorney fees to CLASC.2
DISPOSITION
For the foregoing reasons, we reverse the WCJ’s $2,000.00 statutory penalty
award to Central Louisiana Ambulatory Surgical Center, Inc. We affirm the judgment
in all other respects. We assess all costs of this appeal equally between Central
Louisiana Ambulatory Surgical Center, Inc. and the Rapides Parish School Board.
AFFIRMED IN PART AND REVERSED IN PART.
2
Our holding affirming the WCJ’s award of attorney fees does not address the amount of
attorney fees awarded as this issue was not raised by the School Board on appeal.
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