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Dabney v. Boh Brothers Construction Company.3/11/1998
r. James Butler, another orthopedic surgeon, in May 1995. The defendant again offered no evidence to support their allegations that the claimant was shopping for "a physician who will tell you what you want to hear." The defendant offered no evidence that the claimant requested a change in orthopedic surgeons and that the request was denied for the reasons the defendant alleges in its briefs.
However, the claimant offered significant proof that he sought treatment from Dr. Butler after a referral from his family physician. Furthermore, the claimant testified that the employer/insurer denied his request for treatment from his first choice of orthopedic surgeons, Dr. Butler. Claimant's allegations are further buttressed by his medical records.
The employer/insurer argues that the claimant chose to treat with Dr. Flood, upon referral by his first attorney, in January 1995, but the defendant offered no evidence to support their speculation. A claims adjuster testified at the trial, but he failed to mention who chose Dr. Flood to evaluate the claimant in January 1995. Claimant testified he returned to Dr. Flood for treatment after the defendant refused his choice of orthopedic surgeons, Dr. Butler, and continued to treat with Dr. Flood continuously until trial. When the court asked the claimant whether he was satisfied with Dr. Flood's treatment, he responded affirmatively. Accordingly, the trial court correctly determined that the claimant had acquiesced in treatment by Dr. Flood and "recognized as claimant's selection of treating orthopedic surgeon".
Defendant argues that the trial court wrongly awarded penalties and attorneys' fees for its refusal to allow claimant to choose an orthopedic surgeon. LSA-R.S. 23:1121(C) provides, in pertinent part:
If the employer or insurer has not consented to the employee's request to change physicians when such consent is required by this Section, and it is determined by a court having jurisdiction that the withholding of such consent was arbitrary or capricious, or without probable cause, the employer or the insurer shall be liable to the employee for reasonable attorney's fees related to this dispute and for any medical expenses so incurred by him for an aggravation of the employee's condition, resulting from the withholding of such physician's services.
Because the trial court found that the claimant's request for treatment from Dr. Butler in May 1995 did not constitute a request "to change physicians", and this court finds no error in this finding, the award of penalties and attorney's fees was not allowed by the law. Claimant's remedy for the employer's denial of his request to treat with his choice of orthopedists was to move the court for such an order to avoid this situation. The trial court, and the record supports this finding, found that the claimant acquiesced in Dr. Flood's treatment. The claimant offered no evidence to support the assessment of penalties and attorney's fees. Therefore, the trial court's judgment of 11 December 1996, awarding penalties in the amount of $1,000.00 and attorney's fees in the amount of $2,000.00 against the employer/insurer "for its refusal to allow Rickey J. Dabney to be treated by Dr. Butler[.]", is reversed.
SECOND ASSIGNMENT OF ERROR: The trial court erred by calculating the claimant's average weekly wage using his hourly wage, nine dollars and fifty-seven cents ($9.57), multiplied by forty (40) hours.
Defendant paid claimant supplemental earnings benefits until 27 February 1995, and again from September 1996, until 11 May 1997, calculating his average weekly wage by multiplying $9.57 "by the average actual hours worked in the four full weeks preced
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