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Nelson v. Windmill Nursery of Louisiana9/23/2005
BEFORE: CARTER, C.J., DOWNING AND GAIDRY, JJ.
Defendant-Appellant, Windmill Nursery of Louisiana, L.L.C. (Windmill), appeals a judgment rendered by the Office of Workers' Compensation (OWC) awarding Francile Nelson (Nelson) attorney fees and penalties. The basis for these awards was Windmill's failure to give approval for Nelson to be seen by a doctor following an alleged work-related accident. For the following reasons we affirm the judgment of the OWC.
FACTS AND PROCEDURAL HISTORY
At the time of the alleged accident, Nelson had been a Windmill employee for seven years. Nelson was an irrigation specialist, and her duties included spraying a combination of chemicals into large tanks. While performing this duty, she was required to wear a protective suit.
Nelson claims that on June 10, 2004, while spraying the chemicals into the tanks, she experienced intense itching and pain beneath her protective suit. She testified that she informed her immediate supervisor and was told to go home to shower and return to work. Nelson testified that she followed these instructions, but after returning to work that afternoon, she was still itching all over. Nelson said that her immediate supervisor suggested she consult a physician, but the general manager overheard the conversation and overruled that suggestion. Nelson testified that he emphatically said, "No she's not going to the doctor." Nelson testified that he accused her of either not wearing the protective suit properly or not knowing how to spray. Nelson testified that when she returned to work, and complained about the problem again, she was handed a tube of cortisone cream and told to apply it. Nelson testified that when she put the cream on her legs, the hair on her legs came off in her hand. Nelson testified that her request to consult a physician was refused.
Further, Nelson testified that she was in intense pain that night, so she went to the LSU Medical Center emergency room where she could receive free care. Nelson testified that after a four-hour wait, she was treated. The diagnosis was a possible acute allergic reaction to Cornerstone and Millennium Eltra herbicides. The attending nurse gave Nelson a written receipt of this diagnosis, an excuse from work, and enough medication for a week.
The itching persisted, and on June 21 Nelson returned to LSU Medical Center, where she was advised to see a dermatologist. Nelson said that she immediately informed Windmill of her need, but Windmill refused authority to see this specialist.
On June 24, 2004 Nelson filed a Disputed Claim for Compensation alleging that she sustained a work-related accident. Simultaneously, she filed a Motion for Expedited Hearing to compel Windmill to authorize medical treatment. The OWC determined that Windmill failed to authorize such medical treatment for Nelson, which failure was held to violate LSA-R.S. 23:1121B(1). Nelson was awarded a penalty of $50.00 per day from the date of the accident, totaling $1,600.00, for the unreasonable delay, and $2,000.00 in attorney fees pursuant to LSA-R.S. 23:1201F. The judgment was signed and subsequently designated as final.
Windmill appeals the OWC judgment, claiming the award of attorney fees to be obviously excessive for the amount of work required and that any award of damages was premature on the grounds that a compensable injury was not yet shown when judgment was rendered.
ANALYSIS
LSA-R.S. 23:1121A provides that an injured employee shall submit to examination by a physician provided and paid for by the employer as soon after the accident as demanded. LSA-R.S. 23:1121B(1) provides that the employee shall have the
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