Romero v. Garan's, Inc.

• Decision Date: 26 December 2013
• Docket Number: No. 13–482.,13–482.
• Citation: 130 So.3d 451
• Parties: Dena ROMERO v. GARAN'S, INC.
• Court: Court of Appeal of Louisiana — District of US

130 So.3d 451

Dena ROMERO

v.GARAN'S, INC.

No. 13–482.

Court of Appeal of Louisiana, Third Circuit.

Dec. 26, 2013.

Michael B. Miller, Crowley, LA, for Plaintiff/Appellant, Dena Romero.

H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelousas, LA, for Defendants/Appellees, Garan's, Inc., Liberty Mutual Insurance Company.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, J. DAVID PAINTER, JAMES T. GENOVESE, SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.

PETERS, J.

The plaintiff, Dena Romero, appeals from the judgment of the workers' compensation judge (WCJ) awarding her penalties and attorney fees for her employer's failure to timely reimburse her mileage expenses, but denying her penalties and attorney fees for its failure to authorize medical treatment. For the following reasons,we reverse in part, render in part, affirm in part, and dismiss in part.

DISCUSSION OF THE RECORD

Ms. Romero sustained a work-related injury on June 3, 2000, while employed by Garan's, Inc., at its Kaplan, Louisiana business location. On May 2, 2005, the WCJ awarded her temporary total disability (TTD) benefits; all reasonable and necessary medical treatment, including back surgery; and various penalties and attorney fees. On appeal, this court affirmed the judgment in part, reversed it in part, and awarded additional attorney fees for work performed on appeal. Romero v. Garan's, Inc., 05–1297 (La.App. 3 Cir. 4/19/06), 929 So.2d 258.

The matter now before us arises from a February 16, 2012 motion filed by Ms. Romero wherein she sought awards of penalties and attorney fees based on the actions of Garan's, Inc. and its workers' compensation insurer, Liberty Mutual Insurance Company (collectively referred to as Garan), in terminating her TTD benefits on January 10, 2012, and in failing to timely reimburse her mileage requests submitted on September 15, 2011; September 29, 2011; October 6, 2011; and October 17, 2011.

In response to Ms. Romero's motion, Garan filed an exception asserting that the mileage reimbursement portion of the motion constituted the improper use of summary proceedings. Following an April 23, 2010 hearing on both the motion and exception, the WCJ rendered judgment in favor of Ms. Romero, awarding her $3,000.00 in penalties and $3,000.00 in attorney fees based on Garan's untimely payment of indemnity benefits, rather than termination of benefits. However, with regard to the mileage reimbursement claim, the WCJ granted Garan's exception and converted this claim to an ordinary proceeding. The WCJ did not reduce its rulings arising from this hearing to writing until July 12, 2012.

On July 2, 2012, and before the mileage reimbursement issue came to trial, Ms. Romero amended her pleadings to request additional penalties and attorney fees based on Garan's denial of the medical treatment recommended by her doctor. A trial on the merits of the remaining issues occurred on August 27, 2012, after which the WCJ took the issues under advisement. On October 22, 2012, the WCJ rendered oral reasons for judgment finding that Garan was untimely in paying Ms. Romero's mileage request and awarding her $2,000.00 in penalties and $3,500.00 in attorney fees. However, the WCJ denied her claim for penalties and attorney fees based on Garan's refusal to approve the medical treatment. The WCJ executed a written judgment conforming to its oral reasons for judgment on November 16, 2012.

Ms. Romero appeals from this judgment, raising four assignments of error:

1. The workers' compensation judge erred in bifurcating the medical and indemnity issues in the Motion for Penalties and Attorney's Fees.

2. The workers' compensation judge erred in allowing LSA R.S. 23:1203.1 as a defense in a pending claim for the nonpayment of reasonable and necessary medical treatment.

3. It was error for the workers' compensation judge to limit the penalty award for discontinuance of benefits to $3,000.00.

4. The workers' compensation judge erred in failing to award a $3,000.00 penalty for each failure to pay mileage and $3,000.00 for the denial of medical treatment recommended by Dr. Jindia.

OPINION

All of Ms. Romero's assignments of error raise questions of law. Therefore, we will review each issue in order to determine whether the WCJ was legally correct in his ruling. Orr v. Acad. La. Co., L.L.C., 12–1411 (La.App. 3 Cir. 5/1/13), ––– So.3d ––––, 2013 WL 1809878.

Bifurcation of Medical and Indemnity Issues

In her first assignment of error, Ms. Romero argues that the WCJ erred in granting the exception of improper use of a summary proceeding and ordering the bifurcation of the mileage issue from the indemnity issue. As a result of the grant of the exception, the indemnity issue was decided on April 23, 2012, while the mileage issue was heard on August 27, 2012. Based on the WCJ's November 16, 2012 judgment, Ms. Romero was awarded penalties and attorney fees based on Garan's untimely mileage reimbursement.

It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies. Louisiana State Board of Nursing v. Gautreaux, 2009–1758 (La.App. 1st Cir.6/11/10), 39 So.3d 806, 811,writ denied,2010–1957 (La.11/5/10), 50 So.3d 806. An issue is moot when a judgment or decree on that issue has been “deprived of practical significance” or “made abstract or purely academic.” Id. Thus, a case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Id. If the case is moot, there is no subject matter on which the judgment of the court can operate. Id.

Animal Legal Def. Fund v. State, Dep't of Wildlife & Fisheries, 12–971, pp. 15–16 (La.App. 1 Cir. 4/25/13), ––– So.3d ––––, ––––, 2013 WL 1774638 (footnote omitted), writ denied,13–1565 (La.10/4/13), 122 So.3d 1025.

In this instance, we find that the issue raised by Ms. Romero has been rendered “abstract or purely academic” by the WCJ's November 16, 2012 judgment awarding her penalties and attorney fees based on Garan's failure to timely reimburse her for mileage. “The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs.” Brown v. Sanders, 06–1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. In this instance, the grant of Garan's exception was neither determinative of the merits nor resulted in irreparable harm to Ms. Romero. Thus, Ms. Romero should have sought a supervisory writ from this court to review the WCJ's decision. Doing so would have avoided the very delay and increased work of which she now complains. Accordingly, we find no merit in this assignment.

Louisiana Revised Statutes 23:1203.1

In her next assignment of error, Ms. Romero argues that the WCJ erred in relying on La.R.S. 23:1203.1 in denying her request for penalties and attorney fees based on Garan's November 30, 2011 refusal to authorize the medical treatment recommended by Dr. Sanjiv K. Jindia, a Lafayette, Louisiana pain management doctor. She argues that La.R.S. 23:1203.1, which was enacted pursuant to 2009 La. Acts No. 254, § 1, does not apply in this instance because her work-related accident occurred eight years prior to its enactment, and its provisions should not be applied retroactively. She further argues, as part of her fourth assignment of error, that the WCJ erred by refusing her penalties and attorney fees based on Garan's refusal to authorize the medical treatment.

Louisiana Revised Statutes 23:1203.1 requires the director of the office of workers' compensation administration to appoint a medical advisory council to develop a medical treatment schedule for workers' compensation cases. It then requires that the medical treatment schedule so developed be promulgated by the director and office of workers' compensation administration no later than January 1, 2011. La.R.S. 23:1203.1(B)(1). With regard to the particulars of its application, the statute currently provides in pertinent part:

....

I. After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203, et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it is demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances.

J. After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers' compensation administration medical director on a form promulgated by the director. The medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.

K. After the issuance of the decision by the medical director of the office, any ...