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Maricle v. Sunbelt Builders11/2/2005
Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese, Judges.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.
In this workers' compensation case, the employee, his employer and its workers' compensation insurer seek review of a judgment on the issues of penalties and attorney fees under La.R.S. 23:1201. The employer and its insurer have appealed and the employee has answered the appeal. For the following reasons, we affirm in part, reverse in part, and render. We also award an additional $2,500.00 in attorney fees for work done on appeal.
FACTS
Plaintiff, Clifton Maricle ("Maricle"), sustained a work related injury while employed with Defendant, Sunbelt Builder's, Inc. ("Sunbelt"), on July 11, 2002. Sunbelt's workers' compensation insurer, The Ohio Casualty Group, paid Maricle workers' compensation benefits. Maricle filed a disputed claim for compensation, commonly referred to as a 1008, alleging untimely payment of medical benefits, failure to provide medical treatment, and failure to timely pay indemnity benefits.
After trial on the merits, the workers' compensation judge ("WCJ") assessed the Defendants with six different penalties in the amount of $2,000.00 each for their:
(1) failure to approve physical therapy; (2) failure to timely authorize surgery; (3) payment of indemnity benefits on a biweekly basis; (4) failure to pay the first week of indemnity benefits; (5) late payment of various installments of benefits; and (6) failure to timely reinstate indemnity benefits following surgery. The WCJ also assessed a $10,000.00 attorney fee, and awarded Maricle the first unpaid week of indemnity benefits. It is from these rulings that Defendants appeal.
Maricle filed an answer to the appeal asserting his entitlement to an increase in attorney fees as a result of the work necessitated by Defendants' appeal and by the WCJ's refusal to award a separate attorney fee under La.R.S. 23:1201.2. Maricle also claimed that he was entitled to an increase in penalties as a result of the Defendants' failure to timely pay medial expenses.
ISSUES
The following issues are presented by Defendants for our review:
I. Whether the trial judge committed legal error or, in the alternative, manifest error in litigating extraneous issues;
II. Whether the trial judge committed legal error or, in the alternative, manifest error in concluding that there was a failure to approve the physical therapy recommended by Dr. DeLapp on September 24, 2002, and awarding penalties and attorney fees;
III. Whether the trial judge committed legal error or, in the alternative, manifest error in concluding that there was a failure to authorize the surgery on time and awarding penalties and attorney fees;
IV. Whether the trial judge committed legal error or, in the alternative, manifest error in awarding penalties and attorney fees in reference to the following: (1) the payment of indemnity benefits on a biweekly basis as opposed to a weekly basis; (2) the failure to pay the first week of indemnity benefits (December 7, 2002 to December 13, 2002); (3) the payment of various installments of benefits on a late basis, including the first installment of indemnity benefits that was never actually paid; and (4) the failure to timely reinstate indemnity benefits after the surgery was performed; and
V. Whether the trial judge committed legal error or, in the alternative, manifest error in awarding more than $8,000.00 in penalties, thereby disregarding the penalty cap.
Additionally, Maricle raises the following issues in his answer to
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