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Johnson v. Transerve2/27/2002
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.
The employer appeals a judgment of the Office of Workers' Compensation awarding the claimant supplemental earnings benefits from August 17, 2000 through December 7, 2000. The claimant answered the appeal and requests this court award penalties and attorney fees for the employers failure to pay benefits. For the following reasons, we affirm the award of benefits, and render judgment awarding $2,000.00 in penalties and $5,000.00 in attorney fees.
FACTS
Lealon Johnson worked for the defendant, Transerve, maintaining railroad tracks. On April 26, 1999, Mr. Johnson alleged he suffered an injury to his back while engaged in the course and scope of his employment. Mr. Johnson was treated for a L4-5 and L5-S1 disk herniation by Dr. William Foster, a neurosurgeon and Dr. Kevin Gorin. In his March 29, 2000 report, Dr. Gorin stated Mr. Johnson was suffering from "temporary total disability" and was "not fit for duty."
Lori McGee, who represented Transerve, mailed a certified letter to Mr. Johnson on August 7, 2000. The letter provided as follows:
We have received a copy of Dr. Gorin's recommendation that he gave you on your last visit. It states that you are at MMI and you was (sic) released to participate in full-time employment at medium level. You have not contacted your employer and let them know that you are available for work. We are now requesting that you show up for work on August 8, 2000. You will be given your job instructions then. Any employee who fails to report will be considered to have resigned his/her position with the company.
Upon receiving the correspondence, Mr. Johnson spoke with his attorney about his ability to return to work. His attorney sent a letter to Ms. McGee, dated August 17, 2000, stating as follows:
This letter is in response to yours of August 4, 2000, directed to Lealon Johnson.
You sent the enclosed letter to Mr. Johnson directing him to return to work on August 8, 2000. Conspicuously, you did not mail the letter until August 7, 2000, at which time you mailed it by ordinary certified mail from Pittsburgh, Kansas, to Pitkin, Louisiana. This letter directs Mr. Johnson to return to work on August 8th. The first attempt of delivery via certified mail was not until August 9th. The second attempt was August 14th, which was a matter of six days after the return to work date.
Obviously, there is no good explanation why you would hold on to the letter for three days before mailing it and even attempt to notify Mr. Johnson of a demand to return to work in this fashion.
However, there are a number of substantive problems that are further created by your letter. First and foremost, Mr. Johnson is represented by me. As a represented person, anything regarding this claim should go through me before going to Mr. Johnson as a matter of ethics.
Furthermore, Dr. Gorin is not Mr. Johnson's treating physician in his judgment. Instead, Dr. William Foster is. Is there any work release to any level of duty by Dr. Foster?
Please consider this a demand that you provide me with all medical records pertinent to Mr. Johnson in keeping with LSA-R.S. 23:1125.
In response to the correspondence sent by Mr. Johnson's attorney, Ms. McGee sent the following letter:
In responding to your letter dated 8/28/2000, first, we have never received any papers stating that you are representing Mr. Johnson. Second, we do not hand out information to anyone that inquires about an employee without their approval. Third, I have never received a copy of that letter dated 8/17/2000. Do you have a
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