Opinion
21-C-668
12-10-2021
SHEILA ALLEN v. OCHSNER CLINIC FOUNDATION IN RE SHEILA ALLEN
APPLYING FOR SUPERVISORY WRIT FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7, PARISH OF WORKMENS COMP, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SHANNON BRUNO BISHOP, NUMBER 21-2920
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.
WRIT DENIED
In this worker's compensation proceeding, relator-claimant, Sheila Allen, seeks review of the trial court's denial of her "Motion to Strike the Employer's Request for Preliminary Determination Hearing." For the following reasons, we deny the writ.
On May 24, 2021, claimant filed a Disputed Claim for Compensation against her employer, Ochsner Clinic Foundation (respondent herein) arising out of injuries allegedly sustained in a February 11, 2020 work-related accident. In her Disputed Claim for Compensation, Claimant sought a referral for treatment with Dr. Ryan Charles for a knee injury and further disputed "late/failure to pay indemnity; failure to authorize total knee replacement; basis to deny evaluation by Dr. Ryan Charles obtained through surreptitious means; reimbursement of out-of-pocket medical expenses; reimburse private health insurance for medical treatment; Penalties & attorney fees pursuant to La. R.S 23:1201F []; reimburse costs; judicial interest for indemnity, medical expenses, penalties, attorney fees, and costs awarded."
On June 21, 2021, Ochsner filed an Answer to the claim, disputing the issue of disability and continued medical treatment. In its Answer, Ochsner requested a preliminary determination hearing pursuant to La. R.S. 23:1201.1. Ochsner attached to its Answer an August 20, 2020 and October 23, 2020 "Notice of Payment, Modification, Suspension, Termination or Controversion of Compensation of Medical Benefits" reflecting an initial payment of temporary total disability benefits and a subsequent controversion of continued medical treatment.
Claimant subsequently filed a, "Motion to Strike the Employer's Request for Preliminary Determination and Rule to Show Cause," contending that Ochsner is not entitled to a preliminary determination hearing because it failed to comply with the statutory requirements set forth in La. R.S. 23:1201.1. In her motion, Claimant alleged that Ochsner failed to comply with the requirements set forth in the subsections of La. R.S. 23:1201(A), including proof that the initial payment was made on the same date that notice of payment was issued. Ochsner filed an Opposition to the motion to strike, contending that it complied with all requirements set forth in La. R.S. 23:1201.1(A) and that it has proved it is entitled to a preliminary determination hearing under La. R.S. 23:1201.1. The Worker's Compensation Judge (WCJ) requested that the motion to strike be considered on the briefs, to which neither party objected. On September 28, 2021, the WCJ issued a written judgment denying Claimant's motion to strike Ochsner's preliminary determination hearing. Claimant has filed the instant writ application seeking review of that judgment.
La. R.S. 23:1201.1(H), in pertinent part, provides that "the employer or the payor who wishes to have a preliminary determination hearing shall request the hearing in his answer to the disputed claim arising from the notice of initial payment or any subsequent modification, suspension, termination, or notice of controversion." Subsection I further sets forth that an employer or payor who has not complied with the requirements set forth in the statute, or has not initially accepted the claim as compensable subject to further investigation, shall not be entitled to a preliminary determination and may be subject to penalties and attorney fees. An employer must comply with all statutory requirements set forth in La. R.S. 23:1201.1(A) as follows:
A. Upon the first payment of compensation or upon any modification, suspension, termination, or controversion of compensation or medical benefits for any reason, including but not limited to issues of medical causation, compensability of the claim, or issues arising out of R.S. 23:1121, 1124, 1208, and 1226, the employer or payor who has been notified of the claim, shall do all of the following:
(1) Prepare a "Notice of Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits".
(2) Send the notice of the initial indemnity payment to the injured employee on the same day as the first payment of compensation is made by the payor after the payor has received notice of the claim from the employer.
(3) Send a copy of the notice of the initial payment of indemnity to the office within ten days from the date the original notice was sent to the injured employee or by facsimile to the injured employee's representative.
(4) Send the "Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" to the injured employee by certified mail, to the address at which the employee is receiving payments of compensation, on or before the effective date of a modification, suspension, termination, or controversion.
(5) Send a copy of the "Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical
Benefits" to the office on the same business day as sent to the employee or to his representative.
Moreover, Subsection (D) of La. R.S. 23:1201.1 requires that, "if the injured employee is represented by an attorney, the notice shall also be provided to the employee's representative by facsimile." Subsection D further instructs that, "[p]roof that the notice was sent to the employee's representative by facsimile shall be prima facie evidence of compliance with Subsection A of this Section." See also Robinson v. Cap. Staffing, 17-114 (La.App. 3 Cir. 10/18/17), 230 So.3d 643, 649.
In support of its opposition to the motion to strike, Ochsner submitted documentation to reflect that it provided to Claimant the August 20, 2020 and October 29, 2020 "Notice of Payment, Modification, Suspension, Termination or Controversion of Compensation of Medical Benefits." Ochsner also submitted documentation to reflect that the August 20, 2020 "Notice of Payment," reflecting Ochsner's notice of its "first payment of compensation," accepting the claim and issuing its initial payment of TTD benefits to Claimant, was submitted via facsimile to Claimant's counsel.
Upon review of relator's writ application and attachments thereto, we find that Ochsner presented, as statutorily set forth in 1201.1(D), prima facie evidence of compliance with La. R.S. 23:1201.1(A) to properly request a preliminary determination hearing. Prima facie evidence is "evidence that is sufficient to establish a given fact"; if that fact is not rebutted or contradicted, the fact is sufficiently proven. Smith v. Alliance Compressors, 05-855, p. 7 (La.App. 3 Cir. 2/1/06), 922 So.2d 674, 679; La. Code Evid. art. 308(A). Comment (b) to La. C.E. art. 308 explains that "'prima' facie evidence is generally afforded the weight of a presumption," which shifts the burden of proving the "non-existence of the inferred fact to the opponent." Robinson v. Cap. Staffing, 17-114 (La.App. 3 Cir. 10/18/17), 230 So.3d 643, 649. The documentation submitted in connection with this writ application does not reflect that Claimant produced any evidence to prove the "non-existence of the inferred fact" that Ochsner complied with all of the requirements statutorily set forth in La. R.S. 23:1201(A)(1) through (5).
In her writ application to this Court, Claimant also complains that the WCJ erred in accepting Ochsner's evidence submitted in connection with its opposition on August 18, 2021, two days after the date of the initially set hearing on the motion to strike. However, the writ application reflects that the matter did not proceed to hearing but rather was submitted on briefs by agreement of the parties and the Court. Further, the writ application does not reflect- between the August 18, 2021 filings and the WCJ's September 28, 2021 judgment-any objection by Claimant, asking to the WCJ to strike or not consider Ochsner's "late" filed documentation, nor does it reflect a request for Claimant to file an additional reply memorandum responding to that evidence. Given the fact that the matter was submitted on briefs and the relaxed evidentiary procedures permitted in worker's compensation proceedings, we find this assignment of error lacks merit.
Upon our review of this writ application, we find the WCJ was correct in the denial of Claimant's "Motion to Strike the Employer's Request for Preliminary Determination Hearing." This writ is denied.
Gretna, Louisiana, this 10th day of December, 2021.
FHW
SJW
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