The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
14-747
SHERRY DEBARGE
VERSUS
LFI OF LAKE CHARLES and
ACE AMERICAN INSURANCE COMPNAY
[(LFI OF FORT PIERCE, INC.]
**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION
DISTRICT 4, PARISH OF CALCASIEU
HONORABLE SAM LOWERY, WORKERS’ COMPENSATION JUDGE
**********
SYLVIA R. COOKS
JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
J. David Painter, Judges.
AFFIRMED AS AMENDED.
Mark Zimmerman
4216 Lake Street
Lake Charles, LA 70605
(337) 474-1644
Attorney for Plaintiff/Appellee
Sherry Debarge
Kirk L. Landry
701 Main Street
P.O. Box 1151
Baton Rouge, LA 70821
(225) 383-3796
Attorney for Defendant Appellant
LFI Fort Pierce, Inc. and ACE Insurance Company
COOKS, Judge.
FACTS AND PROCEDURAL HISTORY
DeBarge, age 53, went to work for LFI shortly after Hurricane Rita on
October 5, 2005, as a laundry assistant making beds, vacuuming, taking care of
soiled laundry, and doing general cleaning inside and outside of tents set up to
house workers stationed in Lake Charles, Louisiana. She was injured on November
1, 2005, when her foot became entangled on some plastic attached to a bed causing
her to strike her neck on a bed as she fell to the floor. LFI denied the occurrence
of the injury and denied the compensability of the work injury up to the date of
trial on March 2, 2011. The employer stipulated to the occurrence of the work
accident at trial; but, to date, no indemnity benefits have been paid. Certain
medical expenses have been paid by the employer while other related medicals
have still not been paid. The employer asserts that claimant forfeited benefits
because of dishonest answers to a work questionnaire when applying for the job.
A panel of this court previously addressed this case in DeBarge v. LFI Lake
Charles, 2011-1208 p. 1 (La.App. 3 Cir. 3/7/12), 87 So.3d 930, 931, wherein the
court stated:
On October 30, 2006, Sherry De Barge, in proper person, filed a
Disputed Claim for Compensation (Office of Workers’ Compensation
Form 1008, hereafter “1008”) in which she alleged that she was
injured on November 1, 2005, when she became entangled in some
plastic and fell, hitting her head. On December 1, 2006, counsel
formally enrolled for “Employer, LFI OF LAKE CHARLES.” That
day, the WCJ signed an order enrolling counsel for “Employer, LFI
OF LAKE CHARLES.” On February 15, 2007, an answer was filed
on behalf of “the Employer, Labor Finders, named as LFI of Lake
Charles.” Later pleadings were filed in the name of “Employer, LFI
of Lake Charles.” The identity of DeBarge’s employer was never
otherwise raised as an issue.
2
The Workers’ Compensation Judge (WCJ) found there was “virtually no
support for LFI’s claim that DeBarge had forfeited her benefits under La.R.S.
23:1208.1, by denying the existence of previous neck problems dating back to
1996 on her pre-employment medical questionnaire.” Id. at 932. The WCJ further
found that: “An untrue or inaccurate statement does not equate to fraud,” Id., and
“in the nine years between DeBarge’s neck complaints in 1996 and the subject
accident in 2005, she had been employed performing strenuous labor.” Id. The
WCJ awarded DeBarge indemnity benefits as a result of her November 2005 on-
the-job accident, and found she was entitled to “all reasonable medical treatment
including all medical bills and out of pocket expenses related to the accident.” Id.
He also assessed a penalty against the employer in the amount of $8,000.00, and
awarded $14,000.00 in attorney fees. The employer first appealed asserting that
the judgment rendered was so lacking in decretal language as to not constitute a
valid judgment, and asserted the WCJ erred in awarding recovery to DeBarge. The
employer also alleged DeBarge should have been denied benefits under La.R.S.
23:1208.1, and that the WCJ erred in awarding attorney’s fees and penalties. A
panel of this court found the party cast in judgment was “clearly identified,” Id. at
934, but then dismissed the appeal, and remanded it to the WCJ finding:
The WCJ awarded temporary total disability benefits. The amount of
those benefits is not specified. The judgment also failed to specify the
amount of medical benefits awarded, which is a fact the court finds
particularly troubling in light of LFI’s second assignment of error
regarding whether any party is liable for Dr. Gunderson’s charges.
The judgment fails to specify what amounts other than clerk’s charges
are being taxed as costs of court. An observer could not determine
LFI’s liability to DeBarge by looking at the judgment.
DeBarge, 87 So.3d at 934.
3
This, reasoned the panel, “renders the judgment defective and deprives us of
jurisdiction, without regard to the other elements of the award.” Id. The case was
remanded on March 12, 2012. On June 4, 2012, the parties filed a Motion to
Continue Remand Trial as they had agreed to mediate their dispute. The record
contains a settlement dated August 3, 2012, signed by all of the parties which is
made contingent “upon final approval and authorization necessary pursuant to
La.R.S. 23:1271-1272.” Although it appears the parties reached an out-of-court-
agreement as of August 3, 2012, counsel for claimant filed notice on September 7
2012, instructing the WCJ to place the case back on the docket for hearing.1
On February 3, 2014, the remand was addressed by the WCJ in open court
and, thereafter, on February 17, 2014, the WCJ signed a judgment. The employer,
identifying itself as “Labor Finders,” filed a motion for new trial asking only for
re-argument. On March 31, 2014, the WCJ granted the Motion for New Trial,
heard re-argument, and rendered a final judgment signed on April 15, 2014. The
trial judge specifically found that defendant “is the ‘undisputed’ employer LFI Fort
Pierce, Inc., which does business under the registered trade name of Labor Finders,
and its workers’ compensation insurer, ACE American Insurance Company.” The
WCJ then rendered a detailed written judgment which reads:
IT IS ADJUDGED, ORDERED, AND DECREED as follows:
1. Claimant Sherry DeBarge is entitled to and defendant LFI is
responsible for paying Temporary Total Disability benefits from
the date of the work-accident November 1, 2005, at the rate of
$240.00 a week (based on two-thirds of the stipulated average
weekly wage of $360.00), up through the date of trial and
continuing in accordance with the Louisiana Compensation Act.
1
A late letter arrived at this court professing to relay a compromise of this matter on earlier remand. Defendant has
never filed an exception of res judicata nor has it argued compromise in the lower court or as an assignment of error
on appeal. We decline to entertain this assertion of a compromise any further. This court also elects not to delay its
opinion beyond its scheduled release. We further note Defendant’s request for a stay was denied.
4
2. Claimant Sherry DeBarge is entitled to and defendant LFI is
responsible for all reasonable medical benefits and treatment as a
result of the November 1, 2005 work accident, including payment
of all surgical expenses related to the surgery performed by Dr.
Clark Gunderson, out-of-pocket medical expenses and all related
medical expenses.
3. In relation to which, in regard to the specific amount of medical
expenses referenced in the previous paragraph, claimant Sherry De
Barge is entitled to and the defendant LFI is responsible for the
following: 1. $317.96 for reimbursement of claimant’s out-of-
pocket expenses, per P-4 and as clarified at the hearing on
February 3, 2014 without objection; 2. $381.00 regarding the
outstanding bill to Emergency Medicine Specialist, APMC, per P-
6; and 3. $12,300.00 for reimbursement of claimant’s out-of-
pocket expenses in reference to her cervical surgery (by Dr.
Gunderson) and treatment at Lake Charles Memorial Hospital on
January 15 and 16, 2009, per P-10, and see P-9.
3.(sic) Defendant LFI’s defense under La.R.S. 23:1208 is denied.
4. Defendant LFI’s defense under La.R.S. 23:1042 is denied.
5. The termination of medical benefits was arbitrary and capricious
and done without probable cause, thus entitling claimant to an award
of $8,000.00 in penalties and an award of $14,000.00 in attorney fees.
Based on fault, the penalties and attorney fees award is assessed
against ACE American Insurance Company, the workers’
compensation insurer of the employer, LFI Fort Pierce, Inc. which
does business under the register(ed) trade name Labor Finders.
6. Defendant LFI is liable for the filing cost of $30.00, and the
appropriate legal/judicial interest on the award made in claimant’s
favor herein.
7. Accordingly, the judgment signed on February 17, 2014 is
revoked.
LFI appeals the judgment of the WCJ asserting he erred in finding the
provisions of La.R.S. 23:1208.1 inapplicable and asserts, alternatively, that
claimant’s recovery for medical expenses is limited to a maximum of $750.00
under the provisions of La.R.S. 23:1142. LFI also assigns as error the award of
attorney fees and penalties.
5
ANALYSIS
LFI again asserts in this appeal, though not by means of an assignment of
error, that “the defendants now named in this judgment, who now appeal it, were
not even the defendants in the earlier judgments,” referring to LFI Fort Pierce, Inc.
A panel of this court previously disposed of this issue. It is frivolous for defendant
to make the assertion in this appeal that “the defendants now named in this
judgment” were not the defendants named throughout this much protracted
litigation. The judgment appealed from names LFI Fort Pierce, Inc. d/b/a Labor
Finders, a/k/a Labor Finders of Lake Charles, and its insurer ACE American
Insurance Company as parties cast in judgment. LFI’s trade name has been the
same since the inception of this litigation. The WCJ went to great lengths in his
judgment to identify claimant’s employer as he spells out in his judgment “the
defendant is the “undisputed” employer LFI Fort Pierce, Inc., which does business
under the registered trade name of Labor Finders . . .” He no doubt emphasized
“undisputed” because there is no cogent dispute as to the identity of the claimant’s
employer responsible for compensation to her for the injury sustained while in its
employ. The record contains an express waiver of citation and an acceptance of
service by Labor Finders, the registered trade name of LFI Fort Pierce, Inc. It also
contains an answer filed by Labor Finders/Labor Finders of Lake Charles. The
answer did not contain a declinatory exception concerning the employer’s identity.
Louisiana Code of Civil Procedure Article 736 expressly provides “A person who
does business under a trade name is the proper defendant in an action to enforce an
obligation created by or arising out of the doing of such business.” Additionally,
6
the Louisiana Code of Civil Procedure Article 6(A) (1) and (3) (emphasis added)
provide in pertinent part:
A. Jurisdiction over the person is the legal power and authority
of a court to render a personal judgment against a party to an
action or proceeding. The exercise of this jurisdiction
requires:
(1) The service of process on the defendant, or on his agent
for service of process, or the express waiver of citation
and service under Article 1201.
(2) . . .
(3) The submission of the party to the jurisdiction of the
court by commencing an action or by the waiver of
objection to jurisdiction by failure to timely file the
declinatory exception.
The Louisiana Code of Civil Procedure provides in Article 928 (emphasis added):
The declinatory exceptions and the dilatory exceptions shall be
pleaded prior to or in the answer and, prior to or along with the filing
of any pleading seeking relief other than entry or removal of the name
of an attorney as counsel of record, extension of time within which to
plead, security for costs, or dissolution of an attachment issued on the
ground of the nonresidence of the defendant, and in any event, prior
to the confirmation of a default judgment.
LFI long ago in this proceeding submitted to the jurisdiction of the workers’
compensation tribunal in this matter using its trade name and failing to timely raise
a declinatory exception. At all stages of this proceeding, and in numerous filings,
defendant LFI is referred to as “LFI of Lake Charles” and “Labor Finders.” In the
appeal bond posted on August 9, 2011, the defendants are identified as
“Defendants, LFI of Lake Charles, Labor Finders and/or ACE American Insurance
Company.” Given the prior ruling of this court on this issue there is no reasonable
basis for defendant to again assert that “the defendant now named in this
7
judgment” and who now appeals that judgment was “not even the [defendant] in
the earlier judgments.” We shall endeavor to make clear in this decision the party
responsible to claimant and reiterate the previous finding of this court that “the
party cast in judgment is clearly identified”, i.e. claimant’s “employer, LFI of Lake
Charles” DeBarge, 87 So.3d at 931, a/k/a LFI Fort Pierce, Inc. and its insurer ACE
Insurance Company.
LFI does not dispute that DeBarge is temporarily disabled as a result of her
work-related injury. LFI bases the legitimacy of its actions on the assertion that
DeBarge failed to inform her employer, in a medical history questionnaire
completed when she applied for work with LFI in 2005, about alleged neck
problems dating back to 1996-1997. This, says LFI, was a violation of the fraud
provisions of La.R.S. 23:1208.1which disqualifies DeBarge from receiving
benefits. Louisiana Revised Statute 23: 1208.1 provides:
Nothing in this Title shall prohibit an employer from inquiring
about the previous injuries, disabilities, or other medical conditions
and the employee shall answer truthfully; failure to answer truthfully
shall result in the employee’s forfeiture of benefits under this Chapter,
provided said failure to answer directly relates to the medical
condition for which a claim for benefits is made or affects the
employer’s ability to receive reimbursement from the second injury
fund. This Section shall not be enforceable unless the written form on
which the inquiries about previous medical conditions are made
contains a notice advising the employee that his failure to answer
truthfully may result in his forfeiture of workers’ compensation
benefits under R.S. 23:1208.1. Such notice shall be prominently
displayed in bold faced block lettering of no less than ten point type.
The medical history questionnaire submitted in evidence bears the caption
“Labor Finders” (nowhere does the document identify the employer by any other
name) and is signed by Sherry DeBarge. It is not dated, nor is it signed by anyone
on behalf of Labor Finders, but DeBarge admitted that this is the form she filled
8
out when applying for this job. The form bears the requisite notice in bold
lettering as required by La.R.S.23:1208.1. The applicant agrees by signing the
document to provide any and all medical records which may be requested by Labor
Finders. The applicant is further notified at the outset before answering any
questions that (emphasis added):
The purpose of this inquiry is to determine whether I currently
have the physical or mental qualification necessary to perform the
job that has been offered, and what accommodations, if any, may be
necessary, so that I can perform the job without posing a direct threat
to the health or safety of myself or others and for the purposes and
reasons stated on the attached questionnaire.
Thus, having been informed of the purpose of the questionnaire, applicants,
such as DeBarge, set forth to answer the questions put forth in the context stated by
Labor Finders. In response to the instruction to “list any conditions for which you
have been treated in the past 3 years” DeBarge wrote “breast cancer.” In response
to the inquiry “Have you ever been hospitalized? If so, for what condition?” she
responded “breast cancer.” In response to the question “Is there any health-related
reason you may not be able to perform any job function for which you are
applying?” she responded “No.” To the question “Have you had major illness that
required medical attention in the last 5 years?” DeBarge responded “No.” In
response to the question “How many days were you absent from work because of
illness last year?” she responded “None.” Answering the inquiry “Do you have
any physical defects which preclude you from performing certain kinds of work?’
DeBarge responded “No,” as she did to the next question “Do you have any
disabilities or impairments which may affect your performance in the position for
which you are applying?” On the page provided which lists a number of medical
conditions, diseases, and injuries DeBarge indicated with a check mark in response
9
to the inquiry “Have you ever had or been injured or been treated for any of the
following conditions or disease?” the following answers: “Back” – “No”; “Neck
injury” – “No”; “Any back injury or disease process of the back resulting in a
disability or restrictions?” – “No”; and “Surgical removal or repair of an
intervertebral disk or Spinal fusion (Back Surgery) – “No.” DeBarge disclosed
with added explanation that she was being treated with Diovan for high blood
pressure and Tomoxifen for the prevention of cancer.
DeBarge testified at trial, without contradiction, that after a four to six
month period of time in 1996/1997 she was returned to work with no restrictions
and worked consistently performing physical labor until 2005 when the subject
work accident occurred. She has not worked since the accident at issue. The
medical evidence supports her testimony in this regard and LFI offered no
challenge to this evidence and testimony. We find no error in the WCJ’s finding
that DeBarge’s answers to these questions cannot be construed as intentionally
misleading or intentionally untruthful. The WCJ expressed his findings and
rationale on the record and correctly applied the prior jurisprudence of this court on
the subject. He stated on the record:
Labor Finders’ position in this regard is based on Ms.
DeBarge’s answers to a pre-employment questionnaire she filled out
when she applied for the job as a laundry assistant after the hurricane
in 2005. It looks as if she did not tell Labor Finders that she had neck
pain back in 1996, some nine years before she applied for the job.
And, technically, that answer appears to be untrue.
However, it has been my experience that most laborers when
asked if they have a spinal condition translate the question into a
query as to whether they suffered from some disease or such severity
and magnitude that they are unable or restricted in some form or
fashion from doing the work for which they’re applying. An untrue or
inaccurate answer, standing strictly on its own, does not automatically
equate to the commission of fraud.
10
There is every indication that well before the November
accident, Ms. DeBarge had recovered sufficiently from her back
ailments to work in the shrimp business and she certainly appeared to
be able-bodied enough to perform the strenuous sort of work expected
of post-hurricane temporary laborers.
The medical records are utterly devoid of any statement by any
medical practitioner to the effect that Ms. DeBarge ever had a
permanent disability to her neck. Granted, the medical records show
that years before she went to work for Labor Finders, she was told by
a chiropractor that she had a disc problem in her back.
Dr. Bertuccini, on whom the defendant relies heavily, almost
totally, for its support of the fraud stance, testified that when he
reviewed a 1996 M.R.I., he saw little more than evidence of arthritic
changes. That scarcely qualifies as pre-existing permanent partial
disability within the meaning of the statute.
And, even if Ms. DeBarge was attempting to conceal her
previous condition, she certainly was not very conniving in going
about it. It’s hard to see who she was hiding the fact from. She told
her physicians about her medical history and none of them indicated it
was inevitable or even very likely that any previous condition would
injure her back or arm in the future.
The courts have ruled consistently and repeatedly that a
claimant must do more than simply provide untruthful answers before
forfeiting benefits. The requirements for fraud are spelled out and are
explained in a host of cases and none, virtually none, are met in the
instant matter.
After a review of the record we agree with the WCJ. His reasons are amply
supported by the record and his finding is not manifestly erroneous. Based on the
record before us, we do not find that DeBarge’s answers were untruthful nor do
they exhibit any intent to deceive. Her answers appear to have been a forthright
attempt to fulfil the stated purpose of the questionnaire, i.e. “to determine
whether [she] currently has the physical or mental qualification necessary to
perform the job.” In Colonial Nursing Home v. Bradford, 02-588 p. 4,5 (La.App.
3 Cir. 12/30/02), 834 So.2d 1262, 1267 writ denied 03-364 (La. 4/21/03), 841
So.2d 802, we provided a thorough explanation of the application of the fraud
provisions of La.R.S. 23: 1208.1:
11
La.R.S. 23:1208.1 applies when an employee is dishonest on an
employer’s medical questionnaire before the accident or injury. In
Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660
So.2d 7, the supreme court concluded that the legislatively imposed
forfeiture under La.R.S.23:1208.1, applies only if the employer
suffers prejudice. An employer is prejudiced only when the false
statement “directly relates to the medical condition for which a claim
is made or affects the employer’s ability to receive reimbursement
from the second injury fund.” La.R.S. 23:1208.1. The claimant must
do more than simply provide untruthful answers before forfeiting
benefits. The employer must also prove that the untruthful statements
were prejudicial to it and that it provided the employee with statutory
notice of the forfeiture provision. Because statutory forfeiture is a
harsh remedy, its application must be strictly construed. Resweber,
660 So.2d 7.
....
This court has held “[w]hen there is any legitimate ambiguity
concerning the questionnaire or inquiries into an employee’s medical
history, a court should lean favorably toward the employee in
determining whether he knowingly [sic] failed to answer the
questionnaire truthfully.” Holmes v. J.E. Merit Contractors, Inc., 97-
553, p. 5 (La.App. 3 Cir. 10/29/97). 702 So.2d 1126, 1131, writ
denied, 97-2972 (La.2/6/98), 709 So.2d 741, quoting King v. Grand
Cove Nursing Home, 93-779, p. 5 (La.App. 3 Cir. 3/9/94), 640 So.2d
348, 351, writ denied, 94-0865 (La.5/13/94), 641 So.2d 204.
In Taylor v. G.W. Morgan Logging, Inc., 12-294, p. 2 (La.App. 3 Cir.
10/3/12), 100 So.3d 341, 343, Judge Painter writing for the court, addressed the
issue of false representations allegedly made in work questionnaires such as will
disqualify an employee from receiving benefits for a work-related injury:
Defendant first argues that the WCJ erred in finding that it did
not carry its burden of proof with regard to its LA.R.S. 23:1208.1
defense by failing to recognize that the triple level laminectomy being
recommended for Plaintiff would result in substantially greater
disability than it would have had the prior injury not been present.
The determination by a WCJ as to whether a claimant has made
a false statement, willfully, for the purpose of obtaining workers’
compensation benefits is a finding of fact [ ] and is, therefore, subject
to the manifest error standard of review. Phillips v. Diocese of
Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313.
However, we must keep in mind that La.R.S. 23: 1208(E) is penal in
nature. Any statute that is penal in nature must be construed in favor
of the one receiving benefits under that chapter of the law. Fontenot
12
v. Reddell Vidrine Water District., 02-439 (La.1/14/03), 836 So.2d 14;
Olander v. Schillilaegh’s, 04-725 (LA.App. 3 Cir. 3/23/05), 899 So.2d
97.
....
Concerning the standard of appellate review of a forfeiture
claim, the court in Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6
(La.App. 1 Cir. 7/2/03), 858 So.2d 676,680, writ denied, 03-2177
(La.11/14/03), 858 So.2d 425 (citations omitted), stated:
The determination of whether there is a false
statement or representation willfully made for the
purpose of obtaining any benefit or payment involves
inherently factual determinations an, thus, this court’s
review of those findings by the WCJ is governed by the
manifest error standard. Under that standard of review,
this court may only reverse the WCJ’s decision if we find
(1) there is no reasonable factual basis for the finding in
the record and (2) the finding is clearly wrong or
manifestly erroneous.
Phillips v. Diocese of Lafayette, 869 SO.2d at 316-
17, (quoting in part Flintroy v. Scott Cummin Salvage,
36,857, p. 12 (LaApp. 2 Cir. 3/10/03), 839 So.2d 1231,
1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093
(citations omitted))
Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App.
3 Cir. 6/21/06), 934 So.2d 239, 243-44.
In Holmes v. J.W. Merit Constructors, Inc., 97-553 (La. App. 3 Cir.
10/29/97), 702 So.2d 1126, writ denied, 97-2972 (La. 2/6/98), 709 So.2d 741, this
court addressed an employer’s claim that the claimant was not entitled to benefits
for his work-related injury because of false answers on his second injury fund
employment questionnaire. In Holmes, the employee signed a questionnaire which
asked if the applicant was “bothered with or have you ever had the following”
referring to a list of items to be marked “Yes” or “No.” In response, Mr. Holmes
indicated with a “No” concerning “arthritis and knee problems, despite being
aware that he had arthritis and knee problems before the accident.” Id. at 1131.
The WCJ found the questionnaire ambiguous and awarded recovery. This court
13
agreed with the WCJ’s finding and also found the medical record did not support
the employer’s claims. This court further held:
La.R.S. 23:1208.1 should be construed against the employer,
who is in a better position to prevent accidents in the workplace
through its hiring and firing decisions than is the worker, who seldom
has the luxury of opting out of the workplace. Pickett v. Stine Lumber
Co., 93-1534 (La.App. 3 Cir. 6/1/94), 640 So.2d 769. In King v.
Grand Cove Nursing Home, 93-779, p. 5-6 (La.App. 3 Cir. 3/9/94);
640 So.2d 348, 351-52, writ denied, 94-0865 (La.5/13/94), 641 So. 2d
204, adopting the workers’ compensation judge’s findings and
analysis, we quoted as follows:
“When there is any legitimate ambiguity
concerning the questionnaire or inquiries into an
employee’s medical history, a court should lean
favorable toward the employee in determining whether
he knowlingly [sic] failed to answer the questionnaire
truthfully. In other words, for the sanction of La.R.S.
23:1208.1 to apply, the employer should have the burden
to prove that the questionnaire or inquiries into an
employee’s medical history were clear and unambiguous,
and that conditions were such that an employee fully
understood that his answers had to be thorough and
complete.
....
“There are sound reasons to require an employer to
explain a medical history questionnaire to an employee,
who is ofter [sic] uneducated. Conceivably, it is to an
employer’s advantage that the claimant not answer a
medical history form correctly or completely because in
that case it would not owe an workers’ compensation at
all for a reinjury, regardless of the circumstances. The
potential for abuse would be great and the best safeguard
would be to require or to find that it is implicit within the
meaning of 1208.1 that the employer present the medical
history questionnaire to the prospective employee in a
thorough manner.”
Holmes, 702 So.2d at 1131.
The WCJ’s reliance on our long line of jurisprudence was well placed and
his ruling is clearly supported by the record.
14
We also find no merit in the employer’s assertion that claimant’s recovery
for medical costs incurred as a result of Dr. Gunderson’s surgery are limited to
$750.00 under the provisions of La.R.S. 23:1142. The statute provides in pertinent
part:
B. Nonemergency care. (1) (a) Except as provided herein,
each health care provider may not incur more than a total of
seven hundred fifty dollars in nonemergency diagnostic
testing or treatment without the mutual consent of the payor
and the employee as provided by regulation…
C. Emergency Care. (1) In no event shall prior consent be
required for any emergency procedure or treatment deemed
immediately necessary by the treating health care provider . .
.
....
E. In the event that the payor has denied that the
employee’s injury is compensable under this Chapter, then
no approval from the payor is required prior to the
provision of any diagnostic testing or treatment for that
injury. (emphasis added)
LFI denied compensability for DeBarge’s work-related injury for quite some
time and continued to do so prior to her surgery. In fact, for more than two years
after DeBarge’s injury at work LFI denied the occurrence of a work-related injury
as well as denying compensability. It was not until trial on March 2, 2011 that LFI
admitted DeBarge was injured on the job and since that time has continued to
assert that it does not have to pay DeBarge because she was untruthful on LFI’s
questionnaire. Dr. Gunderson and Dr. Bertuccini agreed that surgery was
necessary. The long period of conservative, palliative treatment failed to provide
relief to DeBarge who was living in constant pain which she could no longer
endure. Additionally, we note, that LFI has paid reimbursement for Dr.
Gunderson’s surgical fee totaling $10,000.00, which appears to make the issue of
15
his fee moot. It is, however, odd, and unexplained by LFI, that it has not paid the
attendant additional medical costs for this procedure including the bill from the
hospital. The WCJ articulated a sound basis for his decision awarding benefits and
medicals to DeBarge and it is worth quoting him at length:
The overreaching issue at dispute here is the extent of the
surgery Ms. DeBarge underwent after the accident. In brief, the
defendant contends that Ms. DeBarge’s orthopedic surgeon exceeded
the authority given him by the defendant and proceeded to expand the
scope of his surgery on his own initiative. Specifically, the defendant
complains that Dr. Clark Gunderson operated on the C4-5 level and
the C5-6 level of the spine after the employer agreed only to the
authorization at the C4-5-6 level.
The claimant counters that Dr. Gunderson’s decision to include
the C4-5 level was entirely reasonable, indeed necessary, given the
long history of medical treatment, most of it thoroughly unsuccessful,
which Ms. DeBarge had endured when she finally resorted to surgical
intervention to relieve her pain. The surgery was done more than
three years after her injury.
Most of the evidence presented to the Court during the trial
consisted of medical reports and records from the treating physician,
second opinion physician, and the independent medical examiner.
The only witness at her trial was Ms. DeBarge. The adjuster, who
presumably made the operative decisions regarding payments,
authorization of treatment, and ultimately the termination of medical
benefits, was not present, leaving the Court the task of pretty much
inferring from the written record the rationale and reasoning of the
insurance carrier.
The medical records indicate that the day after the November 2,
2005, accident Ms. DeBarge was sent to Hunter McGuire medical
facility and returned several times for the next month or so. She was
informed that she could not drive nor operate machinery and was
taken off work. She was then referred to a neurologist, Dr. Sleiman
Salibi, who on October the 13th, 2005, extended her leave from work
and advised her to rest for a month.
It appears from the records at this point, Ms. DeBarge was
treated on and off at a local charity hospital for about two years or so.
From all accounts, after she became increasingly frustrated with the
type of medical treatment she was receiving, she then obtained a court
judgment allowing her to be examined by Dr. Gunderson, who on
April the 24th, 2007, found her disability required that she be
continued in a no-work status. Dr. Gunderson still maintains that his
patient cannot work.
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The claimant was then sent by her ex-employer to be evaluated
by an orthopedic specialist of its choosing, Dr. James Perry, who
found her suitable for what he termed “at least sedentary work.” It’s
not clear what exactly the defendant did at that point in response to
that opinion, however, no evidence was presented that suggested that
the employer then offered her any position commensurate with its
own physician’s recommendation. Apparently, no vocational
rehabilitation services were offered.
Considering that these two medical opinions were not in sync,
the Court then appointed Dr. Thomas Bertuccini as an independent
medical expert who examined Ms. DeBarge on February the 11 th,
2008. Dr. Bertuccini agreed that Ms. DeBarge at that point was not
capable of working.
Now, there certainly are some shade(s) (sic) of difference in the
opinion of these two orthopedic surgeons, and this court is neither
qualified nor inclined to decide who is correct from a purely medical
standpoint; however, it is required to determine whether the adjuster’s
decision in refusing to pay for the overall surgery was reasonable
under the circumstances.
Dr. Bertuccini readily and candidly acknowledged that his one-
time examination was not sufficient for him to fully and completely
address the surgical recommendations of Dr. Gunderson. To do so, he
suggested that he would need to see her again, perhaps on a
continuing basis for a while at least.
But, Dr. Bertuccini did support Dr. Gunderson’s
recommendation that surgery was definitely required on Ms.
DeBarge’s neck at the C5-6 level, even as he questioned the
involvement of the C4-5 level.
Meanwhile, at this point, Ms. DeBarge was still dealing with
pain which Dr. Gunderson and Dr. Bertuccini agreed was debilitating.
Finally, on January the 15th, 2009, more than three years of
unsuccessful treatment and ineffective medicines, she paid Dr.
Gunderson $10,000.00, paid another $10,000.00 to the Lake Charles
Memorial Hospital, and ran up more than $25,000 in other medical
bills to have her neck fixed.
And, the result, according to Ms. DeBarge, was that the surgery
gave her relief from her continual headaches and constant pain.
Now Ms. DeBarge’s action on the surface make sense, certainly
from her point of view. She very credibly explained in court that after
more than three years, she simply could no longer tolerate the pain
and concluded that her only recourse was to follow the
recommendation of her treating physician, Dr. Gunderson, and to
undergo serious spinal surgery.
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On September the 17th, 2007, Dr. Gunderson had requested
authorization to perform an anterior cervical fusion at C4-5 and C5-6
with anterior plate and external stimulator. For the previous six
months or so, he had been providing non-intrusive, relatively
conservative treatment which seemed to have little positive effect
either in a substantive or palliative sense.
Now at this point, try as I might, I draw a complete blank as to
the adjuster’s line of thought. The employer’s S.M.O., Dr. Perry, saw
Ms. DeBarge about two months before Dr. Gunderson’s surgical
recommendation. How, the claimant’s attorney reasonably asks,
could Dr. Perry have recommended against a surgery which had not
yet been suggested at the time of the evaluation? And if that’s the
case, and it looks to be, the penultimate question is what exactly did
the adjuster have in his hands in the way of medical evidence which
would controvert Ms. DeBarge’s entitlement to the surgery
recommended by her treating physician.
The independent medical examiner, Dr. Bertuccini, later agreed
that neck surgery was required, although he was not certain that the
C4-5 portion of the operation was necessary.
I suppose the situation might be different if Dr. Gunderson,
who had the clear and explicit agreement from Dr. Bertuccini on the
requirement for C5-6 neck surgery, decided on his own to extend the
scope of operation to providing something like a knee transplant, but
that’s not at all what happened here. Any reasonable analysis of Dr.
Gunderson’s judgment must be tempered with an evaluation of the
extent of his knowledge of this patient’s circumstances.
The medical reports clearly indicate that he has seen Ms.
DeBarge repeatedly and had treated her for a long time, giving him
the insight to develop a fully informed decision of precisely which
parts of the spine were involved as a result of her work accident.
Commonsense, not to mention Third Circuit jurisprudence,
supports the proposition that the treating physician’s views should be
heavily weighed.
What’s also puzzling to me is why the adjuster paid only
$10,000 to Dr. Gunderson and did not pay the $10,000 owed Lake
Charles Memorial Hospital for her surgery. I don’t understand the
math here. Equally perplexing is the fact that the letter from the
adjuster authorizing the C5-6 portion of the surgery came only after
Dr. Gunderson had performed the operation.
And I am thoroughly baffled by the rationale which the adjuster
employed on August the 17th, 2009, when it was decided to
completely deny virtually all ongoing medical treatment. I read the
letter to Ms. DeBarge informing her in no uncertain terms that she
was pretty much on her own in getting her neck fixed. There’s not a
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word not even a hint of explanation as to why. There was no better
explanation given at trial either.
I am really not sure of exactly what else the adjuster could have
done to better qualify for the imposition of penalties for improper
termination of benefits.
Ditto - we can hardly say it better than Judge Lowery. As we discussed in
Louviere v. Food & Fun, Inc., 06-469 (La.App. 3 Cir. 10/11/06), 941 So.2d 155,
where, as here, the claimant spent several years in agony and pain while her
employer ignored her claim and after her prolonged period of
conservative/palliative treatment failed she obtained surgery which she had to pay
for on her own, the law does not require her to get her employer’s approval.
The court in Sneed v. RTA/TMSEL, 03-1532 (La.App. 4 Cir.
2/25/04), 869 So.2d 254, found that the employer’s denial of
claimant’s workers’ compensation request for surgery amounted to
denial of liability for claimant’s injury and, therefore, the $750.00 cap
imposed by La.R.S. 23:1142 was not applicable. Citing Gros v.
Gaudin, 00-1015 (La.App. 5 Cir. 10/31/99), 773 So.2d 172, writ
denied, 00-3242 (La.1/26/01), 782 So.2d 635, and Barron v. First
Lake Properties, Inc., 93-902 (La.App. 5 Cir. 3/29/94), 636 So.2d
970, the court went on to state that the compensability of a claimant’s
work related injury may be generally admitted, while authorization for
a specific medical procedure is denied, amounting to denial of
compensability under La.R.S. 23:1142(E). Id. The court found the
neurotomy medically necessary, stating that two years had passed
since the occurrence of the injury, the claimant had undergone
conservative treatment without any benefit, and it was apparent
that the treating physician was not “rushing to have the patient
undergo unnecessary surgery, but he intended to attempt to
alleviate her back pain.” Id. at 262.
....
The court would also note that La.R.S. 23:1142(C) dispenses
with the need for prior approval in cases of emergency, or where
treatment is “immediately necessary.” Defendant argues strenuously
that there is no emergency, as further delay would not cause Claimant
more damage. They do not discuss the phrase, “immediately
necessary.” In the instant case, we consider Dr. Blanda’s testimony
that Claimant had a herniated disc as L3-4 and a herniated disc at L4-
5, as well as considerable instability at the L4-5 level, clearly shows
that the procedure was necessary at the time it was performed. The
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fact that he had been treating Claimant for over seven years and had
run out of options clearly establishes that further delay would be
unreasonable. Then, the “immediate” factor is established.
Accordingly, we hold that the surgery was “immediately necessary”
and therefore, no approval was required.
Louviere, 941 So.2d at 160-61 (emphasis added)
The record fully supports the WCJ’s articulated reasons for his ruling and
we find there was a reasonable basis for his decision. Likewise, we find ample
support in the record for the reasonableness and soundness of the WCJ’s award for
attorney fees and penalties. The WCJ correctly awarded such based on the
provisions of La. R.S. 23:1201.1, and his finding that LFI’s
termination/discontinuance of medical benefits was arbitrary and capricious and
clearly without probable cause is not manifestly erroneous. We also find, under
our decision in Bradford and other cases cited herein, that DeBarge is entitled to
attorney fees for this appeal, including the Motion to Stay, and we thus award
claimant attorney fees for work done on appeal in the amount of $7,500.00.
DeBarge answers this appeal asserting the WCJ “tacitly” erred in failing to
award attorney fees and penalties for LFI’s failure to reasonably controvert
DeBarge’s entitlement to indemnity benefits. Given the trial judge’s findings,
which we agree are well supported by the record, we agree with claimant that she
is entitled to a $2,000.00 statutory penalty in addition to the penalty assessed by
the WCJ for other infractions. The award of $14,000.00 in attorney fees by the
WCJ adequately addressed all of the trial work performed by claimant’s attorney.
For the reasons stated we affirm the WCJ’s ruling except to amend it to
further award DeBarge an additional $2,000.00 in penalties to be paid by LFI Fort
Pierce, Inc. a/k/a Labor Finders. We also award DeBarge attorney fees for work
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done on appeal in the amount of $7,500.00, and assess all costs of this appeal,
including all costs associated with the Motion to Stay filed in this court, to LFI
Fort Pierce, Inc. a/k/a Labor Finders.
AFFIRMED AS AMENDED.
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