Salomone v. Greater Gulf Coast Auto Auctions, Inc.

• Decision Date: 26 April 2013
• Docket Number: No. 2012 CA 0952.,2012 CA 0952.
• Citation: 115 So.3d 1177
• Parties: Jerome SALOMONE v. GREATER GULF COAST AUTO AUCTIONS, INC.
• Court: Court of Appeal of Louisiana — District of US

115 So.3d 1177

Jerome SALOMONE

v.GREATER GULF COAST AUTO AUCTIONS, INC.

No. 2012 CA 0952.

Court of Appeal of Louisiana,First Circuit.

April 26, 2013.

Richard B. Eason, II, Raymond P. Ward, New Orleans, LA, for Defendants/Appellants, Greater Gulf Coast Auto Auctions, Inc. and American Home Assurance Co.

Daren Sarphie, Metairie, LA, for Plaintiff/Appellee Jerome Salomone.

Before GUIDRY, CRAIN, and THERIOT, JJ.

THERIOT, J.

[1 Cir. 2]In this workers' compensation case, Greater Gulf Coast Auto Auctions, Inc. (“GGCAA”), appeals a judgment of the Office of Workers' Compensation (“OWC”) in favor of claimant, Jerome Salomone, who was employed by GGCAA when he sustained injury. For the following reasons, we affirm in part, reverse in part, and render.

BACKGROUND

On October 4, 2006, Mr. Salomone was injured in the course and scope of his employment when his left foot was run over by a co-worker operating an auction vehicle. Mr. Salomone ceased working on January 9, 2007 and began receiving temporary total disability benefits (“TTD”) of $471.81 per week. While Mr. Salomone's doctor released him to sedentary work on April 22, 2008, he remained on TTD for the next seventeen months. On May 21, 2009, Mr. Salomone filed a disputed claim form seeking pain management treatment, the right to choose his pain management doctor, and penalties, costs, and attorney fees for GGCAA's refusal to provide pain management treatment. On August 20, 2009, Mr. Salomone stopped receiving TTD payments and began receiving supplemental earnings benefits (“SEB”) at zero earning capacity on September 21, 2009, equating to a reduction in benefits. GGCAA made this decision based on Mr. Salomone's doctor's authorization for him to do sedentary work. On October 6, 2009, Mr. Salomone filed The Injured Employee's Supplemental and Amended Petition challenging the reduction of Workers' Compensation benefits, challenging the change in disability status from TTD to SEB, claiming GGCAA failed to timely authorize medical benefits, and claiming he was entitled to costs, penalties, and attorney fees.

[1 Cir. 3]On June 21, 2010, GGCAA filed a Motion to Compel Independent Medical Examination. The OWC denied said motion on August 12, 2010, finding it to be a request for a second medical opinion rather than a request for an independent medical examination. A two-day trial commenced on August 3, 2011 and reconvened on August 29, 2011, at which time the hearing officer took the matter under advisement.

A judgment was filed on October 24, 2011, finding in favor of Mr. Salomone, awarding penalties and attorney fees for untimely authorization and arbitrary and capricious discontinuation of benefits, as well as entitling Mr. Salomone to unpaid and underpaid benefits.

GGCAA appealed the judgment and asserts the following assignments of error:

1. The trial court erred in ordering the employer and its insurer to pay for the repair of Salomone's torn rotator cuff, because undisputed medical testimony established that the rotator-cuff tear was not caused by the workplace accident. For the same reason, the trial court erred in penalizing the employer and insurer $2,000 for failing to reasonably controvert this claim.

2. The trial court erred in penalizing the employer and its insurer $2,000 for alleged untimely approval of psychiatric care for Salomone's depression and anxiety, because neither Salomone nor any of his mental-health-care providers had ever submitted any records or bills to the employer and insurer's third-party administrator for payment.

3. The trial court erred in finding that approval of pain management was untimely, because Salomone never needed any approval to change his choice of treating physicians to someone in another field or specialty, and because the employer and insurer's third-party administrator made a good-faith effort to determine the medical necessity for pain management before approving it.

4. The trial court erred in finding that approval of Salomone's second ankle surgery was untimely, because this would be Salomone's second surgery, and thus the employer and insurer's third party administrator was reasonable in seeking a second opinion before approving this surgery.

5. 4The trial court erred in completely denying the employer's reconventional demand with respect to Salomone's frivolous claims because there was never any evidence to support these claims.

6. The trial court erred in awarding Salomone 100% of his attorney-fee claim, because a significant portion of those fees were spent pursuing frivolous claims and other claims reasonably controverted by defendants.

7. The trial court erred in finding that, despite Salomone's capability of doing sedentary work, his earning capacity was zero when he was not temporarily totally disabled.

8. The trial court erred in awarding interest on attorney's fees and penalties at the rate in effect on the date Salomone filed his claim, when as a matter of law, interest on penalties and attorney's fees cannot begin to accrue until the date the penalties and attorney's fees are awarded.

STANDARD OF REVIEW

In workers' compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Const., 03–1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96–2840, pp. 7–8 (La.7/1/97), 696 So.2d 551, 556. If the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. See Connor v. Family Dollar Store, 09–1537, pp. 6–7 (La.App. 1 Cir. 3/26/10), 36 So.3d 339, 345,writ denied,10–0959 (La.6/25/10), 38 So.3d 344. Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly [1 Cir. 5]erroneous. Bolton v. B E & K Const., 01–0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

ASSIGNMENT OF ERROR NO. 1

GGCAA asserts the OWC erred in requiring GGCAA and its insurer to pay for the repair of Mr. Salomone's torn rotator cuff and subsequently penalizing GGCAA and its insurer for failing to reasonably controvert this claim. It is undisputed that Mr. Salomone's shoulder injury predates the accident at issue in this case. However, a pre-existing injury may still be considered a compensable injury if the employee proves that the accident aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. Peveto v. WHC Contractors, 93–1402 (La.1/14/94), 630 So.2d 689, 691. A presumption of causation arises when an employee proves that (1) before the accident, the injured employee had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Id. at 691.

In the case at issue, Mr. Salomone visited Dr. Hontas (his personal doctor), on April 13, 2006 regarding a shoulder injury. Dr. Hontas treated Mr. Salomone with injections. Mr. Salomone's last visit with Dr. Hontas was on July 6, 2006. Pursuant to the accident on October 4, 2006, Mr. Salomone was prescribed crutches. On the December 4, 2006 visit to Dr. Van Deventer (GGCAA's doctor of choice), Mr. Salomone complained of pain in his left shoulder. In January of 2007, Dr. Van Deventer performed an MRI of Mr. Salomone's left shoulder and discovered a torn rotator cuff. On January 29, 2007, Dr. Van Deventer notified GGCAA of his findings. Dr. [1 Cir. 6]Van Deventer stated in part, “[I]t is my opinion that the patient's left shoulder pathology, specifically rotator cuff, though not related to his injury, was significantly aggravated by his convalescence of his foot, specifically the need for crutches.” Dr. Van Deventer recommended shoulder surgery in March of 2007 and again in May of 2007. Mr. Salomone had arthroscopic surgery on August 27, 2007.

Following an extensive review of the record and exhibits in this matter, we are unable to say that the OWC erred in determining that the shoulder injury was aggravated by the accident of October 6, 2006. Furthermore, the OWC did not err in penalizing the employer for failing to reasonably controvert this claim. The OWC made specific findings regarding Dr. Van Deventer's deposition and those findings are reasonable and supported by the record.

ASSIGNMENT OF ERROR NO. 2

GGCAA asserts the OWC erred in finding GGCAA and its insurer did not timely approve psychiatric care for Mr. Salomone's depression and anxiety and in subsequently penalizing the employer and insurer for said untimely approval.

On September 21, 2010, Dawn Gassen, claims adjuster for GGCAA, stated in her notes that she authorized mental health treatment for Mr. Salomone. As of the trial date in August 2011, GGCAA still had not paid for any of the mental health visits. The OWC made specific findings regarding Ms. Gassen's testimony and the findings of David Hyde, a psychiatric practical nurse, and Leonard Grubstein, a family therapist. The OWC's decision to penalize GGCAA for failure to timely pay for mental health treatment was reasonable and supported by the record. This assignment of error is without merit.

[1 Cir. 7]ASSIGNMENT OF ERROR NO. 3

GGCAA asserts the OWC erred in finding GGCAA and its insurer untimely approved Mr. Salomone's pain managementcare. On February 26, 2009, Dr. Van Deventer recommended pain management. On May 21, 2009...