The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
25-681
DANA CORMIER
VERSUS
SWLA CENTER FOR HEALTH SERVICES AND
LOUISIANA WORKERS’ COMPENSATION CORPORATION
ie ie 2s 2 os 2c ok OK
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 22-06547
THOMAS E. TOWNSLEY, WORKERS’ COMPENSATION JUDGE
oe ok 26 2K 2 ie 2 2K os ok
VAN H. KYZAR
JUDGE
36 26 2 2 2 2 2K 3 2K oe
Court composed of Van H. Kyzar, Guy E. Bradberry, and Clayton Davis, Judges.
REVERSED AND RENDERED.
Gregory P. Marceaux
Marceaux Law Firm
2901 Hodges Street
Lake Charles, LA 70601
(337) 310-2233
COUNSEL FOR PLAINTIFF/APPELLANT:
Dana Cormier
Alysha B. Smith
Johnson, Rahman & Richards
P.O. Box 98001
Baton Rouge, LA 70898-8001
(225) 930-0414
COUNSEL FOR DEFENDANTS/APPELLEES:
SWLA Center for Health Services
Louisiana Workers’ Compensation Corporation
KYZAR, Judge.
In this workers’ compensation case, Plaintiff, Dana Cormier, appeals the
judgment of the workers’ compensation judge (WCJ) holding that she failed to prove
that she suffered an injury as a result of an accident while in the course and scope of
her employment with SWLA Center for Health Services (SWLA), and thereby,
dismissing her claim. For the following reasons, we reverse and render.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff has been employed as a medical assistant by SWLA since 2012. In
2021, she was assigned to SWLA’s Sowela Technical Community College (Sowela)
medical clinic, which is located in the Charleston Building on Sowela’s Lake
Charles campus. Five SWLA employees worked in the clinic: Plaintiff; Nurse
Practitioner Allissa Joseph (NP Joseph); Melinda Beasley, a medical assistant; an
unnamed medical assistant; and an unnamed laboratory technician.
Plaintiffs workstation was in the clinic’s lobby, about twenty feet from a wall,
which SWLA shared with Sowela’s culinary department. The culinary department
had a kitchen equipped with gas stoves and ovens.
On November 2, 2022, Plaintiff arrived at work wearing an N95 mask because
of the COVID outbreak. NP Joseph testified that when she arrived that morning, she
smelled gas throughout the clinic, including the lobby where Plaintiffs workstation
was located. Ms. Beasley also testified that she smelled gas throughout the day and
that she discussed the gas smell with her co-workers, who all indicated that they also
smelled gas.
Although Plaintiff's co-workers complained of the gas smell, she did not
notice the smell initially because of her N95 mask. However, just after the clinic
closed, Plaintiff went outside of the clinic to assist a gentleman that had knocked on
the clinic’s door. When she returned to the clinic, she was not wearing her mask. It
was at this time that Plaintiff first noticed a strong gas smell. When she went to the
nurses’ office to ask if the nurses smelled the gas, they all confirmed the strong smell.
Plaintiff attempted to report the smell to her supervisor, Sharon Dunbar, but
was unable to reach her. She then notified a security guard about the odor, who
advised that he would inform the Sowela administration about the smell. The guard
was eventually able to advise Ms. Dunbar about the odor. Ms. Dunbar, in turn,
reported the odor to Adam Reed, the executive director of facilities, planning, and
management for Sowela.
After approximately thirty minutes of smelling the gas, Plaintiff began to
experience a headache and dizziness. She then left the building and got into her
vehicle, where she passed out. When Plaintiff came to, she realized that she had
urinated on herself. Although she drove herself home, she had no recollection of
doing so. She was then helped into the home by her husband.
Once home, Plaintiff went to bed, but because she was still suffering from
dizziness and a headache, she was taken to CHRISTUS St. Patrick Hospital (St.
Patrick) by her husband later that evening. There she was seen by Dr. William
Laborde, an emergency room physician, with complaints of generalized weakness,
blurred vision, shortness of breath, nausea, and headaches, which she attributed to
“inhaling gas at work.” Although there is no specific test to establish gas exposure,
Dr. Laborde ordered an arterial blood gas test to determine the level of carbon
monoxide in Plaintiff's blood. The test results did not show elevated levels of carbon
monoxide. Plaintiff was then provided medication and discharged home.
Plaintiff stayed in bed the next day still suffering from weakness and a
headache. She was able to advise Ms. Dunbar about the gas inhalation and her
inability to work.
When Plaintiff's co-workers returned to work on November 3, 2022, the gas
smell was still present. This was reported to the Sowela administration, who in turn
contacted CenterPoint Energy (Centerpoint). Brandon Davis, a service technician,
was sent to Sowela, and upon his arrival, he noted that a group of people reported
smelling gas. In investigating the origin of the gas, Mr. Davis entered the culinary
department and discovered that a pilot light on a gas stovetop was extinguished. If
the pilot light is out, gas will continue to emit until the pilot light is relit or the gas
is shut off. Mr. Davis did not smell any gas, nor did his combustible gas indicator
(CGI) detect the presence of gas.
Plaintiff returned to St. Patrick on November 5, 2022, complaining of left-
sided numbness and weakness.’ She was referred to a neurologist. On November 14,
2022, she was examined by her primary care physician, Dr. Christian LeBlanc, who
noted that Plaintiff had inhaled fumes at work and diagnosed her with left-sided
paralysis and tremors. Dr. LeBlanc restricted Plaintiff from working.
A combustible gas indicator is an instrument that monitors the gas, carbon monoxide, and
oxygen present in the air.
” At the emergency room, Plaintiff underwent a drug screen which was positive for opiate,
amphetamine, and benzodiazepine. Plaintiff explained that she was prescribed amphetamine for
ADHD, benzodiazepine for anxiety, and the opiate was associated with the hydrocodone she was
taking for pain following the gas exposure. The hydrocodone had been prescribed to Plaintiff
following cervical surgeries she had undergone in 2017 or 2018.
On February 9, 2023, Plaintiff was examined by Dr. Fayez Shamieh, a
neurologist. She presented with weakness, numbness, and dizziness. Dr. Shamieh
felt Plaintiff was suffering from post-chemical exposure, encephalopathy, and
seizure disorder. He ordered an EEG; however, SWLA and its insurer, Louisiana
Workers’ Compensation Corporation (LWCC) (referred to collectively as
Defendants) had already refused her claim and authorization was denied.’
Due to Defendants denial of her workers’ compensation claim, Plaintiff
became Medicaid qualified. On April 3, 2024, Plaintiff came under the care of the
Allen Parish Rural Health Clinic (Rural Health Clinic). By this time, NP Joseph had
begun to work at the Rural Health Clinic as a nurse practitioner. NP Joseph noted
that Plaintiff was previously exposed to natural gas, and as a result, had suffered a
seizure and neurological issues. In her opinion, Plaintiff was suffering from panic
disorder and PTSD. Plaintiff was referred to a neurologist and restricted from
working.
Plaintiff came under the care of Dr. Reynard Odenheimer, a neurologist. On
October 9, 2024, Dr. Odenheimer performed an EMG, which showed changes
consistent with left-sided sensory motor polyneuropathy. He was of the opinion that
Plaintiff was suffering from nerve damage on the left side. He noted that Plaintiff
had inhaled fumes at work and suffered from left-sided hemisensory, migraines,
° Although Dr. Shamieh’s records state that Plaintiff suffered from right-sided weakness,
all of her symptoms were, in fact, on her left side.
‘ According to Defendants’ discovery responses, Plaintiff, on November 30, 2022, made a
demand for the payment of workers’ compensation indemnity benefits and authorization for
medical treatment, which was denied by Defendants. Plaintiff filed a LWC-WC-1008 claim with
the Office of Workers’ Compensation on December 14, 2022.
dystonia tremors, and chemical exposure. Dr. Odenheimer felt that Plaintiff was
unable to work.
Trial of the matter was held on June 11, 2025. At the end of trial, the WCJ
orally denied Plaintiff's claim. In his November 2, 2025 judgment, the WCJ held
that Plaintiff failed to prove “she suffered an “injury in an accident during the course
and scope of her employment with her employer, [SWLA], and its insurer, LWCC,
on November 2, 2022.” The judgement further held:
Claimant had a pre-existing history of epilepsy (seizure disorder) with
recurrent seizures. She had at least three (3) prior seizures before the
November 2, 2022, seizure in question and had a subsequent seizure in
June 2023. The Court also found serious inconsistencies in when and
where the seizure occurred on November 2, 2022.
Based on this finding, Plaintiff's claim was dismissed with prejudice.
Plaintiff now appeals the WCJ’s judgment, asserting the following
assignments of error:
1. The trial court committed legal error in placing an artificial “high
burden” of proof on Dana Cormier to show a causal link between
the natural gas exposure and her disability.
2. The trial court erred in finding that the pre-existing seizure
condition of Dana Cormier prevented her from recovering
workers’ compensation benefits.
3. The trial court erred in finding natural gas was not in the air at
the SWLA Center for Health Services.
4. The trial court erred in allowing an uncertified opinion letter of
the defendant’s expert into evidence.
5. The trial court erred in rejecting the opinion testimony of Dr.
Reynard Odenheimer, neurologist, and Nurse Practitioner Alissa
Joseph.
6. The trial court erred in failing to award penalties and attorney’s
fees.
Dystonia is a movement disorder that includes involuntary, painful contractions of the
body.
OPINION
The WCJ’s finding that gas was not present at SWLA’s clinic.
As part of his oral ruling, the WCJ found that there was no incident where gas
or other toxins were leaked into the air at SWLA’s clinic on November 2, 2022:
And the deposition of Brandon Davis, a CenterPoint Entergy
[sic], on page -- that’s “Defense Exhibit 8” and Page[s] 13 and 14. He
testified, “so I did my incident investigation in there first with my CTI
and my nose and then I didn’t smell anything and my CTI didn’t pick
up anything.” Page 16, he said he saw the pilot light was out in the stove
in the kitchen.
Page 34, his CTI machine measured 0.0 on November 3rd, 2022.
On Page 34 and 35 he said -- he reported upon arrival no loop found.
He checked the appliances. He didn’t find the leak. He checked the
drains in the restrooms for sewer gas and didn’t find a leak there but he
did notice and see visually that the pilot light was on.
On Page 37 on how close he was to the pilot light area, he said,
quote, “I was right -- I got all the way to the -- to the range and saw that
it was out. And that’s what I mean. J didn’t pick up anything on my
CTI, even standing right next to the -- you can stand right next to the
stove with the CTI, and it’s not in the air.”
Nurse practitioner Allissa Joseph said that she smelled gas.
Nobody else smelled it. The testimony was that Ms. Cormier didn’t
smell [gas] because she had the mask on until between 4:00 and 4:30
and then after getting the security guard - he didn’t smell gas according
to Adam Reed and they -- Brandon Davis said he didn’t smell gas the
next day even though he saw the pilot light on. I do think mercaptan
has a strong smell, and they smelled mercaptan because of the pilot light
being on.
In discussing the deference afforded a trial court’s factual finding, this court
in Thymes v. Golden Nugget Lake Charles, LLC, 23-100, pp. 4-5 (La.App. 3 Cir.
11/2/23), 373 So.3d 129, 133 (alterations in original), writ denied, 23-1576 (La.
1/24/24), 378 So.3d 69, stated:
When reviewing a verdict in a civil case, the manifest error-
clearly wrong standard applies, and the appellate court should not
disturb a finding of fact made in the trial court unless it is clearly wrong.
The Louisiana Supreme Court fashioned a two-part test when applying
this standard: (1) is there a reasonable factual basis for the finding of
the trial court; and (2) does a reading of the record establish that the
finding is not clearly wrong or manifestly erroneous. Arceneaux v.
Domingue, 365 So.2d 1330 (La.1978). In Rosell v. ESCO, 549 So.2d
840, 844 (La.1989), the court discussed the manifest error-clearly
wrong standard in detail, stating:
It is well settled that a court of appeal may not set
aside a trial court’s or a jury’s finding of fact in the absence
of “manifest error” or unless it is “clearly wrong,” and
where there is conflict in the testimony, reasonable
evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the
appellate court may feel that its own evaluations and
inferences are as reasonable. Arceneaux v. Domingue, 365
So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283
So.2d 716, 724 (La.1973). .. . [I]f the trial court or jury
findings are reasonable in light of the record reviewed in
its entirety, the court of appeal may not reverse even
though convinced that had it been sitting as the trier of fact,
it would have weighed the evidence differently. Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be manifestly
erroneous or clearly wrong. Arceneaux, supra at 1333,
Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d
967 (La.1985)....
When findings are based on determinations
regarding the credibility of witnesses, the manifest error-
clearly wrong standard demands great deference to the
trier of fact’s findings; for only the factfinder can be aware
of the variations in demeanor and tone of voice that bear
so heavily on the listener’s understanding and belief in
what is said. Canter, supra at 724.
Contrary to the findings of the WCJ, the evidence presented at trial
overwhelmingly established the presence of a gas or toxic-like smell in Plaintiff's
workplace. Mr. Davis’s deposition testimony revealed that he was dispatched to
Sowela because of a gas complaint on November 3, 2022, the day after the event.
Upon arrival, he acknowledged that a group of people complained about the smell
of gas. On entering the culinary department’s kitchen, he observed that the pilot light
on a gas stovetop was not lit. Although gas was being released through the unlit
pilot-light hole, Mr. Davis stated that he smelled no gas at that time. After shutting
off the kitchen’s gas valve, he ran a test with his CGI monitor, which detected no
gas. Mr. Davis then turned the gas valve on and relit the pilot light.
Mr. Reed testified that on November 2, 2022, he was advised of a gas smell
in the SWLA clinic, which had caused someone to feel faint. Security guards, who
were sent to investigate, reported that they smelled something strong in the clinic
but did specifically report that the smell was natural gas. The following day, the gas
smell was again reported, and CenterPoint was contacted, resulting in Mr. Davis
being dispatched to the facility.
NP Joseph, who was accepted as an expert on the standard of care applicable
to nurse practitioners, testified that she had worked with Plaintiff for eighteen
months at SWLA. She described Plaintiff as a very trustworthy, dependable
employee. NP Joseph testified that on November 2, 2022, she was the last employee
to arrive at the clinic, and she immediately smelled what she thought was natural
gas. She asked the other employees if they smelled anything, and they indicated they
did not. NP Joseph stated that she smelled gas the entire day, and she explained that
besides Plaintiff, a laboratory technician also became sick from the gas smell and
required medical treatment. She pointed out that even if Mr. Davis did not detect any
gas, he was not at the clinic until the day after the gas smell was first reported.
Ms. Beasley testified that on November 2, 2022, she and the other employees
discussed the gas smell. All of the employees were wearing their N95 masks. She
stated that the smell seemed to fade over time, but it seemed stronger after she left
and then returned to the clinic. Ms. Beasley confirmed that NP Joseph complained
about the gas smell, as did all of the employees. She also recalled that a laboratory
technician told her that she was not feeling well that day, but she did not know if the
technician was medically evaluated.
Natalie Brooks testified that she was employed at SWLA as a patient access
registrar. Although she was not present at the clinic on November 2, 2022, she did
work on November 3, 2022, and she did smell something like gas.
Plaintiff testified that although NP Joseph complained of the smell of gas, she
did not smell anything initially because of her N95 mask. She did, however, notice
a strong gas odor at the end of the day after she left and then returned to the clinic
without her mask on. When she was unable to contact her supervisor, Plaintiff
reported the smell to a security guard, who indicated that he smelled something and
would report it.
The evidence at trial established that the only person who did not smell gas
was Mr. Davis, although he admitted that gas would have been flowing from the
stove’s unlit pilot light. He indicated that he tested for gas in the kitchen, but this
was after he turned off the gas at the source. Additionally, Mr. Davis was not present
at the clinic on November 2, 2022. Multiple witnesses testified that they smelled gas
or an odor at the clinic on that day. We, therefore, find manifest error in the WCJ’s
finding that there was no accident associated with the release of gas into the work
environment on November 2, 2022.
Whether there was a causal link between the gas exposure and Plaintiff's disability.
It is apparent to this court that from the outset, the WCJ identified Plaintiff's
disabling condition as a seizure or seizures rather than the left-sided neurological
impairments she suffered as a result of the gas exposure as established by the medical
evidence and expert testimony. The WCJ’s oral ruling makes this clear:
I didn’t have any testimony to say that the smell triggered a pre-
existing seizure disorder. If J had that, I would have related the seizure
to the smell at the Sowela building on - the Charleston Building.
On June Sth, 2023, as I stated earlier, there was a report of
another seizure or seizure activity. Natural gas is odorless. Mercaptan
has the smell of rotten eggs or sulfur. To cause a seizure, to cause the
actual seizure, with regard to natural gas or mercaptan, either one, it
takes a large dose or long-term exposure to deprive the brain of oxygen.
In order to determine that, it can be shown in blood work. So, Dr.
Laborde did blood work and said it didn’t show anything.
I think the claimant suffered a pre-existing condition of epilepsy
and recurring seizures. She had a seizure that day. I don’t know what
triggered it. I don’t feel that she’s met the burden, that she has shown
that there was a gas leak that caused her seizure.
I think that Brandon Davis and Dr. Laborde said there was no
objective evidence of any gas exposure that would have caused the
carbo-oxyhemoglobin level on her blood, so there wasn’t a deprivation
of oxygen. There was no objective evidence of anything other than an
epileptic seizure that evening after she returned to her house.
There wasn’t any testimony from any medical provider that
really elicited or demonstrated that the smell triggered the seizure for
Ms. Cormier.
In Barber Brothers Contracting v. Young, 03-747, pp. 3-6 (La.App. 1 Cir.
2/23/04), 873 So.2d 677, 679-81, writ denied, 04-704 (La. 5/7/04), 872 So.2d 1084,
the court addressed what a workers’ compensation claimant must prove to establish
that his work-related accident caused or contributed to his disability, stating:
In order for the employee to recover workers [sic] compensation
benefits, it must be determined that the employment somehow caused
or contributed to the disability, but it is not necessary that the exact
cause be found. Walton v. Normandy Village Homes Assn. Inc., 475
So.2d 320, 324 (La.1985). If the employee suffered from a pre-existing
medical condition, the employee may still prevail if he proves the
accident aggravated, accelerated, or combined with the infirmity to
produce the disability for which compensation is being paid. Peveto v.
WHC Contractors, 93-1402, p. 2 (La. 1/14/94), 630 So.2d 689, 691.
The Louisiana Supreme Court recognized the existence of a
presumption to aid plaintiffs in cases involving pre-existing conditions.
Id. Specifically, when an employee proves that before the accident he
had not manifested disabling symptoms, but commencing with the
accident disabling symptoms appeared, and that medical or
10
circumstantial evidence indicates a “reasonable possibility” of a causal
connection between the accident and the activation of the disabling
condition, the employee’s work condition is presumed to have
aggravated, accelerated or combined with his pre-existing disease to
produce the disability. Jd.
Once the employee has established the presumption of causation,
the opposing party bears the burden of producing evidence to prove that
it is more probable than not that the work injury did not accelerate,
ageravate, or combine with the pre-existing injury to produce his
disability. Preveto, 93-1402, pp. 2-3, 630 So.2d at 691. Medical
testimony, albeit significant, is not conclusive as to the issue of
causation, which is generally the ultimate fact to be decided by the court
after weighing all the evidence. Id.
On November 2, 2022, Plaintiff presented to St. Patrick at around 9:38 p.m.,
with complaints of gas inhalation and symptoms of dizziness, weakness, shortness
of breath, and nausea. She was seen by Dr. Laborde, who ordered an arterial blood
gas test to measure the carbon monoxide in her blood. In his deposition, Dr. Laborde
explained that carbon monoxide is a byproduct of natural gas. The test results
revealed that Plaintiffs blood level was not elevated at the time she presented. The
fact that it was not elevated would indicate that she did not take in sufficient
quantities of carbon monoxide. Dr. Laborde did state, however, that there is no
specific test to determine if a patient has been exposed to natural gas. Although the
length of time between Plaintiff's exposure and the test would result in a much lower
carbon monoxide level, the fact that she was still symptomatic led him to believe
that carbon monoxide was not causative of her continuing symptoms. Dr. Laborde
testified that although he found no objective findings, Plaintiff's subjective
symptoms were consistent with gas exposure. As such, he could not say to a
reasonable medical certainty that Plaintiff's seizure was caused by her gas inhalation
11
as opposed to her epileptic history. Plaintiff was provided medication and discharged
home.
Plaintiff returned to St. Patrick on November 5, 2022, with concerns of having
suffered a stroke, however, CT scans of her brain and lumbar spine were normal.
Plaintiff complained of weakness and numbness on her left side. On November 14,
2022, Plaintiff was examined by Dr. LeBlanc, who diagnosed her with left-sided
paralysis and tremors and restricted her from working.
The WCJ felt that Plaintiff's condition was caused by her “pre-existing
condition of epilepsy and recurring seizures.” Plaintiff's medical history indicated
that she initially suffered a seizure on May 16, 2021. At the time, Plaintiff went to
St. Patrick, where she was seen by Dr. Timothy Best, a neurologist, who prescribed
anti-seizure medication. Plaintiff also saw Dr. LeBlanc on May 21, 2021, who noted
that she had experienced a seizure with no head injury. Plaintiff advised that she
became confused when she sat down to eat, at which time her whole body shook,
and she urinated on herself. Dr. LeBlanc’s diagnosis included “[e]pilepsy and
recurrent seizures[,]” and his report provided, “New onset seizures.” Plaintiff was
referred to Dr. Best for an evaluation.
On Plaintiff's July 9, 2021 office visit to Dr. LeBlanc, she requested a
clearance to return to work. It was noted that she had been seen by Dr. Best and had
undergone an EEG. She stated that the vision in her left eye had been blurry since
the May 16, 2021 seizure and that she had experienced numbness in the first three
fingers of her left hand the day before this visit.
Dr. LeBlanc’s September 2, 2021 office note indicates that Plaintiff was seen
by an eye doctor and diagnosed with visual migraines. It was noted that she had last
been seen in July and had suffered one seizure in May 2021. She had undergone an
12
EEG and an MRI, which were both unremarkable. She was not currently on anti-
seizure medication. Dr. LeBlanc stated that the patient was unable to drive for six
months after her seizure, but if she remained seizure free while off her medication,
she could resume driving. Plaintiff was prescribed Topamax, an anticonvulsant
medication, and scheduled to return in four weeks.
On November 22, 2021, Plaintiff returned to Dr. LeBlanc and advised that she
had experienced a seizure, without loss of consciousness, approximately one month
prior to this visit. She reported that she had stopped taking her Topamax due to
having severe headaches, and she had not taken Keppra, another anticonvulsant
medication, since her initial seizure. Dr. LeBlanc recommended that she restart the
Keppra. He restricted her from driving and recommended that she continue working
from home.
On January 5, 2022, Plaintiff returned to Dr. LeBlanc and requested a release
to drive and to return to work as she had not experienced a seizure since she restarted
the Keppra. Dr. LeBlanc’s note stated that Plaintiff had suffered from seizure-like
activity but she was now on Keppra and had no further issues. He released Plaintiff
to return to work, but continued her driving restriction.
Once Plaintiff started taking her medication, she suffered no seizures from
September 2021 until November 2, 2022, when she inhaled the gas fumes. During
this time, Plaintiff was fully capable of performing her job duties as a medical
assistant. NP Joseph opined that the gas had to have caused Plaintiff's seizure since
Plaintiff had not had a seizure since September 2021, but had not suffered another
seizure since September 2021 until her exposure to the gas.
NP Joseph testified that she began treating Plaintiff at the Rural Health Clinic
on April 3, 2024. At that time, Plaintiff presented with left-sided weakness, abnormal
13
speech, and was dependent on a walker. Because the pain was so pronounced on her
left side, Plaintiff was referred to Dr. Odenheimer for the performance of an EMG.
NP Joseph last examined Plaintiff in March 2025. At that time, Plaintiff's speech
had improved but she still suffered from left-sided weakness and was dependent on
a cane. In NP Joseph’s opinion, Plaintiff was on a “non-duty status.”
In rejecting Plaintiffs claim, the WCJ stated:
We have discrepancies in the testimony of Ms. Cormier with
regard to having seizures versus not having seizures. There’s at least a
report of a seizure between her September visit of 2021 and November
22, 2021, a seizure since last visit; that would be her second seizure,
then we have a third seizure on November 2nd, 2022, then we have a
fourth potential seizure on November 4, 2022, and then we have another
seizure June of 2023.
During the hearing, Plaintiff explained that to her knowledge, she had suffered
only two seizures, on May 16, 2021, and on November 2, 2022. She reiterated that
in both instances, she lost conscience and urinated on herself. Particularly, the
November 2, 2022 seizure occurred when she got into her car to leave work.
Plaintiffs husband, Kelyn Thierry, confirmed that Plaintiff was disoriented and had
urinated on herself when she arrived home, which was how they knew that she had
suffered a seizure.
Regarding whether she had experienced any seizures between September
2021 and November 22, 2022, Plaintiff explained that although she had suffered
seizure-like symptoms, these symptoms were related to her anxiety. She stated that
her doctors had ruled out that she had suffered seizures.
It should be noted that Dr. LeBlanc’s January 5, 2022 report did provide that
Plaintiff suffered from “seizure-like” activity but now on Keppra with no further
issues. Likewise, regarding the WCJ’s statement that Plaintiff had a seizure on
November 4, 2022, Plaintiff denied this. This was in reference to a July 29, 2024
14
note by NP Joseph that Plaintiff had been seizure-free from November 4, 2022. NP
Joseph testified that she was told Plaintiff suffered a seizure on November 2, 2022,
when her husband found her listless in the garage. Additionally, the November 5,
2022 St. Patrick report provides that Plaintiff presented with a three-day history of
progressive weakness affecting her left side. The report also noted that her past
medical history was significant for “anxiety.”
Finally, regarding the WCJ’s statement that Plaintiff had another seizure in
June 2023, Dr. LeBlanc’s June 15, 2023 report stated that Plaintiff said, “she had
another episode.” However, the report goes on to state that Plaintiff had a panic
attack, and it was recommended that she undergo a psychological examination to
rule out a conversion disorder.*
To establish that her current condition was caused by her exposure to gas
fumes, Plaintiff submitted the deposition testimony Dr. Odenheimer, who performed
her October 9, 2024 EMG. This test revealed nerve damage on Plaintiff's left side.
Because Dr. Odenheimer noticed a neurologic condition that he felt he could treat,
he began seeing Plaintiff on October 24, 2024. At that time, he noted that Plaintiff
presented with left hemisensory motor complaints that affected her face, left arm,
and left leg and that her left leg was shaking. His note stated that Plaintiff's left-
sensory motor complaints had been ongoing for two years and were related to her
inhalation of gas fumes at work in November 2022. The note further stated that
Plaintiff experienced a seizure on exposure to the gas.
* <A conversion disorder, also called functional neurological symptom disorder, is a
relatively uncommon mental disorder. Typically the person has physical symptoms that cannot be
explained by a thorough diagnostic evaluation.” Howard E. LeWine, MD, Conversion disorder
(functional neurological symptom disorder), Harvard Health Publishing (Jan. 30, 2026),
https://www.health.harvard.edu/a_to_/conversion-disorder-functional-neurological-symptom
disorder-a-to-z.
15
Dr. Odenheimer’s diagnosis included left non-dominant hemiparesis, left
hemisensory disturbances, dystonia, dystonia tremor, movement disorder,
adjustment disorder, and chemical exposure. In his opinion, Plaintiff's symptoms
were related to her inhalation of fumes in November 2022. He stated, “History would
suggest she was exposed to a toxin and, after that, developed a variety of symptoms
she didn’t have before it.” Dr. Odenheimer further testified, “I believe that I can say
with reasonable degree of certainty, or the phrase I understand we’re looking for, is
more probable than not that she has a constellation of symptoms that began with an
event that took place at work.”
In rejecting Dr. Odenheimer’s opinion, the WCJ stated:
With regard to Dr. Odenheimer, he said, “the event was a seizure, not -
- not toxin exposure causing the seizures”, Page 37 of his depo.
Dr. Odenheimer’s causal connection opinion, however, is flawed
due [to] his knowledge and history of the patient’s seizures being
incorrectly logged also. Dr. Odenheimer thought Ms. Cormier had only
had one prior seizure, which is not correct according to the medical
records. The Court has counted at least four seizures and maybe five,
but Dr. Odenheimer on Page[s] 39 and 40 said it was idiopathic and it
was only one seizure.
Dr. Odenheimer did not state that the event was a seizure as asserted by the
WCJ. To the contrary, Dr. Odenheimer’s deposition testimony provided:
Q. Is this event a seizure, or why are we calling it an event? Can you
explain that for me?
Something happened. That’s an event.
Okay. Would you say it was a seizure?
Somewhere along the line, she had a seizure.
Okay. Is that the event that you’re referencing?
> OO & O PY
No. The event was the toxin exposure.
16
Q. Okay. Is it your opinion that the exposure to a toxin caused her
to have a seizure?
A. — Probably.
It is clear that the WCJ was of the opinion that Plaintiff's condition was the
result of her having a seizure. In his oral ruling, the WCJ stated:
I think that Brandon Davis and Dr. Laborde said there was no
objective evidence of any gas exposure that would have caused the
carbo-oxyhemoglobin level on her blood, so there wasn’t a deprivation
of oxygen. There was no objective evidence of anything other than an
epileptic seizure that evening after she returned to her house.
There wasn’t any testimony from any medical provider that
really elicited or demonstrated that the smell triggered the seizure for
Ms. Cormier.
Dr. Odenheimer explained that a stroke is caused by a lack of oxygen to part
of the brain, which results in tissue death or hemorrhage,’ whereas a seizure iS a
transient, temporary, electrical phenomena, which affects the brain and can cause a
wide variety of symptoms. A person predisposed to seizures is more likely to
experience such when subjected to stressors or a derangement in chemistry than a
person with no such history. However, Dr. Odenheimer clarified that Plaintiff's
current condition was not caused by a seizure, but, instead, was the result of her
being neurologically compromised by the inhalation of gas or toxins while at work.
Dr. Odenheimer’s testimony in this regard provided:
Q. Socan you say to a reasonable degree of certainty, knowing what
you know now, that her symptoms are due to inhaling a substance
on November 2nd of 2022, as opposed to it being an idiopathic
seizure or a seizure as a result of medications?
A. Iam lumping her globally, and her second seizure is the least of
my concerns. Still isn’t clear that she would need medication for
seizures. She’s now had two. That isn’t why I felt she would
benefit from neurologic consultation, evaluation, and treatment.
And seizures, you know, yeah, it - - was part of the picture, but
” Dr. Odenheimer stated that the MRI findings ruled out that Plaintiff suffered a stroke.
17
that’s the least of my concerns. And if we ever need to address
it, I'll treat it. And it’s academic to me whether chemical
exposure facilitated her next one or enhanced the likelihood of
future seizures. That’s a - - a non-issue. The issue is she’s
neurologically compromised whether she had seizures or not.
And it was evident just looking at her without hearing any of her
history that she had problems that might be treatable.
Dr. Odenheimer stated that toxins can cause nerve damage, and natural gas is
a toxin.’ His opinion that Plaintiff's neurological symptoms were not the result of a
seizure is reinforced by Dr. Laborde, who testified that when Plaintiff returned to St.
Patrick on November 5, 2022, her complaints had changed from general weakness
to one-sided weakness. At the time, Dr. Laborde felt that this was associated with
Todd’s paralysis, which is a complication of a seizure that is transient, with the
patient regaining functionality a day or two later. However, this is not what happened
to Plaintiff as she continues to suffer neurologic symptoms years after her exposure
at work. Dr. Odenheimer’s opinion that Plaintiff's condition resulted from her
exposure to gas rather than from seizures was essentially uncontradicted.
In Brown v. Town of Ferriday, 11-570, pp. 2-3 (La.App. 3 Cir. 11/2/11), 76
So.3d 155, 157-58 (alteration in original), this court explained:
The claimant in a workers’ compensation action has the burden
of establishing a work-related accident by a preponderance of the
evidence. Quinn v. Vidalia Apparel, 10-712 (La.App. 3 Cir. 12/8/10),
54 So.3d 123. A panel of this court recently reiterated the presumption
of causation applicable in workers’ compensation cases, stating:
“An employee in a worker[s’] compensation action
has the burden of establishing a causal link between the
work-related accident and the subsequent disabling
condition.” Miller v. Roger Miller Sand, Inc., 94-1151, p.
6 (La.11/30/94), 646 So.2d 330, 334. An employee’s
disability is presumed to have resulted from the accident
if before the accident, the injured employee was in good
health, but commencing with the accident, symptoms of
the disabling condition appeared and continuously
* Dr. Shamieh felt Plaintiff was suffering from post-chemical exposure.
18
manifested themselves afterwards. Walton v. Normandy
Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985).
However, the presumption requires either that there is
sufficient medical evidence to show there to be a
reasonable possibility of causal connection between the
accident and disabling condition, or that the nature of the
accident, when combined with the other facts of the case,
raises a natural inference through human experience of
such a causal connection. Jd.
Richard v. Vermilion Hosp., 10-385, pp. 4-5 (La.App. 3 Cir. 6/9/10),
41 §$o.3d 1219, 1223 (quoting Marks v. 84 Lumber Co., 06-358
(La.App. 3 Cir. 9/27/06), 939 So.2d 723 (alteration in original)), writ
denied, 10-1611 (La.10/8/10), 46 So.3d 1269.7
Whether the presumption is applicable is a finding of fact subject
to the manifest error-clearly wrong standard of review. Littleton v.
Richardson Med. Ctr., 42,082 (La.App. 2 Cir. 4/4/07), 954 So.2d 812
(citing Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557). However,
the manifest error standard no longer applies where the trial court
makes one or more legal errors which interdict the fact-finding process.
Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731. In that
case, the appellate court must, if it can, make an independent de novo
review of the record and render judgment. Id.
> This presumption has become known as the “Housley
presumption.” In Housley v. Cerise, 579 So.2d 973 (La.1991), the
supreme court held that a plaintiff's disability is presumed to have come
from an accident where: 1) the plaintiff was in good health before the
accident; 2) the symptoms of the plaintiff's alleged injury appeared and
continuously manifested themselves after the accident; and 3) the
plaintiff submits evidence, whether medical, circumstantial, or
common knowledge, that demonstrates a reasonable possibility of
causation between the accident and the alleged injury. Although
Housley addresses the presumption of causation as it applies to
nonworkers’ compensation civil cases, the presumption “has its root in
workers’ compensation cases dating to 1917.” Detraz v. Lee, 05-1263
(La.1/17/07), 950 So.2d 557.
In Barber Brothers, 873 So.2d 677, the claimant asserted that his respiratory,
sinus, and dermatitis conditions occurred in the course and scope of his employment
from his exposure to asphalt fumes. In upholding the WCJ’s award of indemnity and
medical benefits, the court stated:
Once the employee has established the presumption of causation,
the opposing party bears the burden of producing evidence to prove that
19
it is more probable than not that the work injury did not accelerate,
aggravate, or combine with the pre-existing injury to produce his
disability. Preveto [v. WHC Contractors], 93-1402, pp. 2-3 [(La.
1/14/94)], 630 So.2d [689,] 691. Medical testimony, albeit significant,
is not conclusive as to the issue of causation, which is generally the
ultimate fact to be decided by the court after weighing all the evidence.
Id.
Id. at 681.
We find that the WCJ committed manifest error in holding that Plaintiff failed
to establish a causative link between her inhalation of gas fumes and her condition
as evidenced by his statement that he “didn’t have any testimony to say that the smell
triggered a pre-existing seizure disorder[,]” and “{i]f I had that, I would have related
the seizure to the smell[.]” The WCJ incorrectly focused on a seizure, or seizures, as
the necessary causative factor for Plaintiff's condition, rather than the exposure to a
toxin, the natural gas in this case. This is also evident by the WCJ’s statement that
“[t]here wasn’t any testimony from any medical provider that really elicited or
demonstrated that the smell triggered the seizure[.]” While this may be true, it is not
the focus of the issue, as clearly stated by Dr. Odenheimer. Plaintiff suffered no
neurological effects from her May 2021 seizure. Both Dr. Odenheimer and Dr.
Laborde testified that any neurological symptoms from a seizure would be of short
duration. The neurological impairments here are long term.
A review of the evidence in this matter clearly establishes that Plaintiff was
exposed to gas fumes or toxins while in the course and scope of her employment and
that this exposure resulted in neurological damage that continues to affect her face,
left arm, and left leg. Dr. Odenheimer testified without equivocation that Plaintiff's
symptoms and disability were caused by her exposure to gas and not by any seizure
activity. Not only was Plaintiff affected, but the evidence established that a co-
worker was also affected by the gas fumes.
20
Prior to this exposure, Plaintiff was fully capable of completing all of her job
duties at SWLA; however, following this exposure, she is not.’ She is, therefore,
entitled to the Housley presumption that her disability resulted from her exposure at
work on November 2, 2022. As such, Plaintiff is entitled to temporary total disability
benefits during her period of disability. La.R.S. 23:1221(1)(a). Based on Plaintiff's
wage records, her average weekly wage was $775.68, with a corresponding
compensation rate of $517.38. Accordingly, we award Plaintiff $95,818.78 in
temporary total disability benefits for the period between November 3, 2022,
through May 22, 2026. We further award her future temporary total disability
benefits at the rate of $517.38 per week until she is no longer entitled to such benefits
pursuant to La.R.S. 23:1221(1)(d). Said compensation benefits to bear judicial
interest from the date compensation was due until the date of satisfaction pursuant
to La.R.S. 23:1201.3(A).
Plaintiff is also entitled to all necessary medical treatment. In Figgins v. Wal-
Mart, 06-806, p. 4 (La.App. 3 Cir. 11/15/06), 945 So.2d 153, 156-57, writ denied,
06-2977 (La. 2/16/07), 949 So.2d 421, this court stated:
Louisiana Revised Statute 23:1203(A) mandates that an employer
provide an injured employee with all necessary medical treatment. To
establish a claim for medical benefits, the employee must show to a
reasonable certainty and by a preponderance of the evidence, that the
benefits are occasioned by the work-related accident and are necessary.
Alleman v. Fruit of the Loom—Crowley, 96-1246 (La.App. 3 Cir.
3/5/97), 692 So.2d 485.
Further, the supreme court in Authement v. Shappert Engineering, 02-1631,
p. 11 (La. 2/25/03), 840 So.2d 1181, 1188, explained:
The workers’ compensation scheme was not designed for the
worker to pay the costs of his medical treatment. It is the obligation of
” Dr. LeBlanc, Dr. Odenheimer, and NP Joseph all indicated that Plaintiff was currently
incapable of working.
21
the employer to pay for the cost of medical services, not the obligation
of the employee. The employee should not be denied treatment because
a controversy exists as to who will advance costs so that treatment will
be rendered.
As will be discussed more fully below, Defendants denied this claim from the
onset without a proper investigation, forcing Plaintiff to obtain her own funding for
her medical treatment. In addressing a similar situation, this court, in Smith v. Roy
O. Martin Lumber Co., 03-1441, p. 8 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, 667—
68, writ denied, 04-1311 (La. 9/24/04), 882 So.2d 1144, stated:
Martco also argues the WCJ erred in ruling it could not apply the
fee schedule of La.R.S. 23:1034.2 “because the employer denied the
claim from the very beginning.” Since Martco denied the claim from
the onset, Smith was forced to fund the costs of medical treatment
himself, either through insurance or from the Veteran’s Administration
Hospital. La.R.S. 23:1142(E) provides 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 provisions of
any diagnostic testing or treatment for that injury.” We agree with the
WCJ that the employer is not entitled to rely on the fee schedule
benefits after making a total denial of the claim and forcing the claimant
to seek medical treatment unilaterally. See Barron v. First Lake
Properties, Inc., 93-902 (La.App. 5 Cir. 3/29/94), 636 So.2d 970, 973
(noting if a “claim is found to be valid by the insurer or the court, the
employer will be liable for those expenses under La.R.S. 23:1202 as
well as La.R.S. 23:1142(D). If it’s not compensable, the employer will
not be held liable for them.”).
At trial, Plaintiff submitted a list of medical expenses she incurred as a result
of her injury, totaling $118,418.71. Defendant is obligated to pay these expenses
without benefit of the Office of Workers’ Compensation Medical Reimbursement
Schedule. Defendant is further obligated to pay all future necessary medical
expenses incurred by Plaintiff related to her injury as provided in the Medical
Reimbursement Schedule. La.Admin.Code. tit. 40, Pt. I, § 5157.
22
The trial court’s acceptance of Dr. Segura’s opinion letter.
Plaintiff assigned as error the WCJ’s acceptance of Defendant’s uncertified
second-medical-opinion letter by Dr. Enrique Segura, a neurologist. At the time the
letter was introduced, Plaintiff objected to its acceptance because it was uncertified
and was submitted after the deadline for submitting exhibits. Although the WCJ
accepted the letter, he stated during his ruling that he did not review it in reaching
his decision. In that the letter was not reviewed by the WCJ, we consider this
assignment of error moot.
The trial court’s failure to award penalties and attorney fees.
Plaintiff asserts that she is entitled to both penalties and attorney fees due to
Defendants’ failure to adequately investigate and pay her workers’ compensation
claim. As the WC] denied Plaintiff's claim for benefits, it did not reach the issue of
penalties and attorney fees. Louisiana Code of Civil Procedure Article 2164
authorizes this court to “render any judgment which is just, legal, and proper upon
the record on appeal.” We find the record such that we can address the issue here.
In Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-10 (La. 12/1/98), 721
So.2d 885, 890-91 (alteration in original) (footnote omitted), the supreme court
discussed the award of penalties and attorney fees based on the employer’s failure
to reasonably controvert the employee’s workers’ compensation claim:
The unambiguous language of La. R.S. 23:1201 clearly
establishes that penalties and attorney fees for failure to timely pay
benefits shall be assessed unless the claim is reasonably controverted
or such nonpayment results from conditions over which the employer
or insurer had no control. Unreasonably controverting a claim, which is
the exception at issue in this case, requires action of a less egregious
nature than that required for arbitrary and capricious behavior.
Arbitrary and capricious behavior consists of willful and unreasoning
action, without consideration and regard for facts and circumstances
presented, or of seemingly unfounded motivation. BLACK’s LAW
DICTIONARY 104, 211 (6 “ed.1990). Stated another way, such behavior
23
arises from unrestrained exercise of the will or personal preference or
lacks a predictable pattern. WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY, UNABRIDGED 110, 333 (1966).
The phrase “reasonably controverted,” on the other hand,
mandates a different standard. In general, one can surmise from the
plain meaning of the words making up the phrase “reasonably
controvert” that in order to reasonably controvert a claim, the defendant
must have some valid reason or evidence upon which to base his denial
of benefits. Thus, to determine whether the claimant’s right has been
reasonably controverted, thereby precluding the imposition of penalties
and attorney fees under La. R.S. 23:1201, a court must ascertain
whether the employer or his insurer engaged in a nonfrivolous legal
dispute or possessed factual and/or medical information to reasonably
counter the factual and medical information presented by the claimant
throughout the time he refused to pay all or part of the benefits allegedly
owed. This definition is in accord with that presently used by the lower
courts to determine whether penalties and attorney fees are owed. See
Antrainer v. Great Atlantic & Pacific Tea Co., 97-1554, p. 6 (La.App.
1 Cir. 4/8/98), 712 So.2d 590, 594 (“Given the facts, medical and
otherwise, known to the employer or his insurer, did the employer or
insurer have a reasonable basis to believe that medical expenses and
compensation benefits were not due the employee.”); Woods v. Ryan
Chevrolet, Inc., 30,206, p. 9 (La.App. 2 Cir. 2/25/98), 709 So.2d 251,
257 (“The employee’s right to such benefits will be deemed ‘reasonably
controverted’ if the employer or insurer had a reasonable basis for
believing that medical expenses and indemnity benefits were not due
the employee. . . . Reasonably controverting a claim means that the
payor has factual or medical information of such a nature that it
reasonably counters that provided by the claimant.”); Cook v. Kaldi’s
Coffee House, 97-0979, p. 10 (La.App. 4 Cir. 1/28/98), 706 So.2d 1052,
1058 (“The test to determine whether the claimant’s right has been
reasonably controverted turns on whether the employer or his insurer
had sufficient factual and medical information to reasonably counter
the factual and medical information presented by the claimant.”);
Lemoine v. Hessmer Nursing Home, 94-836, p. 20 (La.App. 3 Cir.
3/1/95), 651 So.2d 444, 456 (“A workers’ compensation claim is
‘reasonably controverted,’ precluding imposition of penalties and
attorney fees, if the employer had sufficient factual and medical
information upon which to base a decision to reduce or terminate
benefits.”). If an employer or insurer reasonably controverts a claim and
then becomes aware of information that makes his controversion of that
claim unreasonable, he must then pay the benefits owed or be subject
to penalties and attorney fees from that point forward.
The case at hand, though involving a different work-related incident and
injury, is similar to that reviewed by this court in Broussard v. Dacon Corp., 96-
24
1615 (La.App. 3 Cir. 4/2/97), 692 So.2d 1325, where we determined that the
employee’s unusual working conditions were the cause of his atrial fibrillation.
There, like here, the WCJ did not reach the issue of entitlement to penalties and
attorney fees since she dismissed the employee’s claim as not compensable. On
review, after finding the employee’s claim compensable, we stated:
It is settled that a workers’ compensation claimant is entitled to
penalties and attorney’s fees if benefits are withheld or terminated
arbitrarily, capriciously, or without reasonable cause by the employer.
La.R.S. 23:1201 & La.R.S. 23:1201.2; Faul v. Bonin, 95-1236 (La.App.
3 Cir. 8/7/96); 678 So.2d 627, writ denied, 96-2221 (La.11/15/96); 682
So.2d 769. “The test to determine if the employer has fulfilled its duty
is whether the employer or his insurer had sufficient factual and medical
information to reasonably counter the factual and medical information
presented by the claimant.” Jd., at 632. This court has also held that an
employer or insurer “who fails to investigate an employee’s
compensation claim subjects itself to statutory penalties and attorney’s
fees.” Laneaux v. Opelousas Artificial Kidney Center, 93-1264
(La.App. 3 Cir. 6/1/94); 640 So.2d 701, writ denied, 94-1794
(La.10/14/94); 643 So.2d 163.
Id. at 1329.
In Brousard, we examined the scant notes of the insurer’s field representative
and held that penalties and attorney fees were appropriate based on the insurer’s
failure to adequately investigate the claim:
The record does not contain the typed statement referred to by
the Liberty Mutual representative. However, the record does contain a
handwritten “Illness Preliminary Report” completed by Dacon’s
Project Manager, Bud Cummings, on the date of the illness, September
25, 1995. In this report, Cummings stated that Broussard became ill on
the job and was eventually driven to the emergency room. Cummings
further explained that the doctors, having diagnosed a heart flutter,
opined that the flutter “could be brought on by a number of things.” It
was perhaps this statement that prompted the stance taken by the
insurer. Perhaps this statement indicated the need for investigation, but
it certainly was not a basis for withholding benefits.
Although Cummings clearly suffered his injury while in the
course and scope of his employment, Dacon failed to investigate the
claim or even contact Broussard’s doctors as to the possible causes.
Dacon had knowledge of the injury in September 1995 and received
25
medical bills from Broussard beginning in November 1995. Yet, it was
not until February 1996 that Dacon interviewed Dr. Yamada. We
conclude that Dacon’s failure to pay benefits, without any
investigation, and without anything more than a speculative basis for
withholding benefits, was arbitrary, capricious, and unreasonable. We,
therefore, find that penalties and attorney’s fees are appropriate in this
case.
Id. at 1329-30.
During the trial in the case at hand, the adjuster’s notes were entered into
evidence by Plaintiff to establish the lack of a valid investigation undertaken by the
adjuster. The notes simply indicated that the claim was “not questionable.” The notes
further provided:
Spoke with our insd. Insd was driving to the LC site. The [accident]
was reported late because it just made it to the HR office. Apparently,
the [injured worker] had a seizure due to inhaling [f]umes at the work
site the day before. Insd will send me all documents and timeline from
direct supervisor via email.
There is nothing else in the notes reflecting any further evaluation of the claim
by the adjuster and according to Defendants’ response to Plaintiff's interrogatories,
no one other than the adjuster investigated this claim. Defendants, in their brief,
assert that their investigation included “uncovering Cormier’s epileptic condition via
obtaining prior medical records, ultimately contributing to the claim denial.” A
review of the medical records indicates that Dr. LeBlanc’s records were certified on
February 15, 2023, and those of the other healthcare providers were not certified
until March 2023. Therefore, these records were not received by Defendants until
months after Plaintiff’s exposure, and there is no record of Defendants contacting
any medical expert regarding causation in this matter. While Defendants did have
Plaintiff examined by Dr. Segura, this was not done until May 16, 2025.
Based on our review, we find that Defendants did not possess “sufficient
factual [or] medical information to reasonably” controvert Plaintiffs claim when it
26
was denied. See Brown, 721 So.2d at 891. Thus, Plaintiff is entitled to penalties and
attorney fees.
Unless “reasonably controverted or if such nonpayment results from
conditions over which the employer or insurer had no control[,]” the failure to pay
benefits due “shall result in the assessment of” penalties and attorney fees. La.R.S.
23:1201(F)(2). The penalties assessed shall be “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[.]” La.R.S. 23:1201(F). “[H]owever, the
fifty dollars per calendar day penalty shall not exceed a maximum of two thousand
dollars in the aggregate for any claim(,]” and “[t]he 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.” Jd.
Here, Plaintiff asserts that a penalty of $8,000.00 is required as Defendants
have failed to pay indemnity benefits and medical expenses since the accident. We
agree and assess penalties at $8,000.00. Defendants did not set forth any argument
to counter this claim, relying, instead, solely on its defense of the occurrence of the
accident and causation.
We also find that an award of attorney fees is warranted. “Some of the factors
taken into account by the judge in fixing the amount of the fee are the degree of skill
and ability exercised by the attorney, the amount of the claim, the amount recovered
for the employee, and the amount of time the attorney devoted to the case.”
McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La. 11/28/00), 773 So.2d 694, 700.
Introduced into evidence at trial were the detailed billing records of Plaintiff's
27
counsel, evidencing a total of 92.2 hours expended in the representation of Plaintiff
for work performed through trial. That evidence was not controverted.
In Cox, Cox, Filo, Camel & Wilson, LLC v. Louisiana Workers’
Compensation Corp., 21-566, p. 13 (La. 3/25/22), 338 So.3d 1148, 1158, the
supreme court found that an award of $300.00 per hour for a total of 68.5 hours,
amounting to $20,550.00, was a “reasonable” attorney fee for defending the Cox law
firm against the workers’ compensation claim filed by its employee. Thus, we use
that hourly benchmark and fix attorney fees herein at $27,660.00.
Attorney fees for work performed on appeal.
Plaintiff has requested an additional award of attorney fees for work
performed on appeal. “It is within the appellate court’s discretion to award or
increase attorney’s fees for appellate work.” Chandler v. Ouachita Par. Sheriff's
Off, 48,179, p. 15 (La.App. 2 Cir. 8/7/13), 121 So.3d 1216, 1226. Given that
Plaintiff has successfully reversed the WCJ’s judgment and has obtained judgment
awarding her indemnity benefits and medical benefits as well as penalties and
attorney fees pursuant to La.R.S. 23:1201(F), we award her an additional $7,500.00
in attorney fees for work performed in conjunction with this appeal.
DECREE
For the foregoing reasons, the judgment of the trial court is reversed, and
judgment is rendered in favor of Plaintiff, awarding her temporary total disability
benefits in the amount of $95,818.78, for the period of time between November 3,
2022—May 22, 2026, and future temporary total disability benefits continuing during
the period of Plaintiff's disability based on her compensation rate of $517.38 per
week. Said compensation benefits to bear judicial interest from the date
compensation was due until the date of satisfaction pursuant to La.R.S.
28
23:1201.3(A). Judgment is rendered in favor of Plaintiff, ordering Defendants to pay
all medical expenses incurred by Plaintiff, from the date of her injury through the
date of trial, in the amount of $118,418.71. Defendants are further ordered to pay all
necessary future medical expenses incurred by Plaintiff pursuant to the Medical
Reimbursement Schedule. Judgment is further rendered in favor of Plaintiff,
awarding her penalties in the amount of $8,000.00; attorney fees in the amount of
$27,660.00; additional attorney fees for work done on appeal in the amount of
$7,500.00; and all costs associated with this trial, including all expert witness and
deposition costs. All costs of this appeal are assessed to SWLA Center for Health
Services and Louisiana Workers’ Compensation Corporation.
REVERSED AND RENDERED.
29