Opinion
2010 CA 2193
06-08-2012
BATON ROUGE GENERAL MEDICAL CENTER v. LOUISIANA RESTAURANT ASSOCIATION SELF INSURERS FUND, LOUISIANA GENERATING, L.L.C.
John S. Bradford Lynsay M. Fontenot Thomas A, Filo Lake Charles, Louisiana Attorneys for Plaintiffs/Appellant Baton Rouge General Medical Center Stephen W. Glusman Stephen E. Broyles Baton Rouge, Louisiana Attorneys for Defendants/Appellees Louisiana Restaurant Association Self Insurers Fund, Louisiana Generating L.L.C.
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE OFFICE OF WORKERS' COMPENSATION
DISTRICT 5
STATE OF LOUISIANA
DOCKET NUMBER 08-21591
THE HONORABLE JASON OURSO, JUDGE
John S. Bradford
Lynsay M. Fontenot
Thomas A, Filo
Lake Charles, Louisiana
Attorneys for Plaintiffs/Appellant
Baton Rouge General Medical Center
Stephen W. Glusman
Stephen E. Broyles
Baton Rouge, Louisiana
Attorneys for Defendants/Appellees
Louisiana Restaurant Association Self
Insurers Fund, Louisiana Generating
L.L.C.
BEFORE: GAIDRY, McDONALD, AND HUGHES, JJ.
McDONALD, J.
In this workers' compensation case, a health care provider, Baton Rouge General Medical Center (BRGMC) appeals a judgment sustaining a peremptory exception raising the objection of prescription as to its claim for penalties and attorney fees. The claim was based on the failure of the Louisiana Restaurant Association, SIF, and/or Louisiana Generating, L.L.C. to pay BRGMC the unpaid portion of its fees for medical services provided to Angela Macias, the employee of Louisiana Generating, after she was injured at work. For the following reasons, we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
On July 28, 2006, BRGMC provided medical services to Angela Macias after she was injured at work. After receiving what it considered to be only partial payment for its services from Ms. Macias' employer and the Louisiana Restaurant Association Self Insurers Fund on October 6, 2006, BRGMC filed suit on August 27, 2008, for the balance owed. In addition to the unpaid portion of its fees for services, BRGMC also asserted a claim for penalties and attorney fees pursuant to LSA-R.S. 23:1201(F)(4).
In response, the defendants filed a peremptory exception raising the objection of prescription as to the claim for penalties and attorney fees asserting that this claim is subject to a prescriptive period of one year. The defendants did not contest the claim for the unpaid balance as they recognized it was subject to a three-year prescriptive period and was filed timely. The Office of Workers' Compensation Judge (WCJ) sustained the exception and dismissed BRGMC's claim for penalties and attorney fees.
Thereafter, the defendants tendered the unpaid amount of BRGMC's bill for services, together with interest and costs and moved the WCJ for summary judgment as there were no remaining issues in dispute. This motion was granted. BRGMC now appeals the dismissal of its claim for penalties and attorney fees.
DISCUSSION
Pursuant to LSA-R.S. 23:1201(F), the failure to pay benefits to an employee in accordance with the workers' compensation law "shall result in the assessment of a penalty...together with reasonable attorney fees...against either the employer or the insurer, depending upon fault" unless the claim is "reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control." Further, in accordance with LSA-R.S. 1201(F)(4), when a health care provider prevails on a claim for payment of his fee, penalties and reasonable attorney fees may be awarded and paid directly to the health care provider.
Louisiana Revised Statute 23:1201(F) provides:
Failure to provide payment in accordance with this Section or failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers' compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers' compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
(3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.
(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.
(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance.
A claim is reasonably controverted when the employer has sufficient factual and/or medical information to counter evidence presented by the claimant. A determination of whether an employer or insurer has failed to reasonably controvert a claim is a question of fact and is subject to the manifest error standard of review. Clark v. Godfrey Knight Farms, Inc., 2008-1723, p. 20 (La. App. 1 Cir. 2/13/09), 6 So.3d 284, 297, writ denied. 2009-0562 (La. 5/29/09), 9 So.3d 163.
However, LSA-R.S. 23:1201 does not contain a prescriptive period to be applied to a health care provider's claim for penalties and attorney fees. Prescription of a workers' compensation claim is addressed in general in LSA-R.S. 23:1209, which provides for a one-year liberative period from the date of the injury or from the time the injury develops, but "in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident." See LSA-R.S. 23:1209(A)(1) and (A)(3). When a payment of benefits has been made, LSA-R.S. 23:1209(A)(2) provides that "the limitation shall not take effect until the expiration of one year from the time of making the last payment" (except that in cases of supplemental earnings benefits the limitation does not take effect until three years from the time of making the last payment of benefits under LSA-R.S. 23:1221(1), (2), (3), or (4)). Further, all claims for medical benefits, payable pursuant to LSA-R.S. 23:1203, are also subject to a one-year liberative period dating from the time of the accident, unless medical payments have been made or a formal claim has been filed. See LSA-R.S. 23:1209(C). When such payments have been made, the limitation on bringing the claim does not take effect until the expiration of three years from the time of making the last payment of medical benefits. Id.
Louisiana Revised Statute 23:1209 provides:
A. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in eases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.
B. Any claim may be filed with the director, office of workers' compensation, by delivery or by mail addressed to the office of workers' compensation. The filing of such claims shall be deemed timely when the claim is mailed on or before the prescription date of the claim. If the claim is received by mail on the first legal day following the expiration of the due date, there shall be a rebuttable presumption that the claim was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service made at the time of mailing which indicates the date thereof
C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.
D. When a petition for compensation has been initiated as provided in R.S. 23:1310.3, unless the claimant shall in good faith request a hearing and final determination thereon within five years from the date the petition is initiated, that claim shall be barred as the basis of any claim for compensation under the Worker's Compensation Act and shall be dismissed by the office for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.
The defendants' contention is that BRGMC's claim for penalties and attorney fees had prescribed based on this court's decision in Craig v. Bantek West, Inc., 2003-2757 (La. App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 2004-2995 (La. 3/18/05), 896 So.2d 1004. In Craig, the injured employee sued his employer for penalties and attorney fees for several instances of arbitrary and capricious handling of his workers' compensation claim. The WCJ sustained an exception raising the objection of prescription as to the employee's claims for penalties and attorney fees, and the employee appealed. On appeal, this court noted that although the prescriptive period applicable to claims for workers' compensation benefits is set forth in LSA-R.S. 23:1209, this statute made no reference to the prescriptive period applicable to claims for penalties and attorney fees. Craig, 885 So.2d at 1237. This court then analyzed LSA-R.S. 23:1201(F), which is the statutory basis for an award of penalties and attorney fees, noting that it also did not set out a prescriptive period for such claims. However, since such claims were to be assessed against either the employer or insurer, "depending upon fault," this court agreed with the WCJ that because a claim for penalties and attorney fees necessarily implies wrongful conduct or inaction and involves an inquiry into fault, the one-year prescriptive period for delictual actions as set forth in LSA-C.C. art. 3492 more appropriately applies to such a claim. Because several of the employer's actions giving rise to Craig's claims for penalties and attorney fees had occurred more than a year before he filed his claim, those claims were prescribed. Id.
Recently this court sitting en banc addressed the precise situation as that presented in the matter before us in St. Tammany Parish Hospital v. Trinity Marine Products, Inc., 2010-1481 (La. App. 1 Cir. 2/16/12), __ So. 3d __ (2012WL505836). Unlike Craig, which involved an employee filing a claim for penalties and attorney fees, the St. Tammany Parish Hospital case involved a health care provider claiming unpaid medical fees, as well as penalties and attorney fees. In the en banc plurality decision, five judges distinguished Craig, and then determined that the applicable prescriptive period for a health care provider's claim for penalties and attorney fees is the same prescriptive period that is applicable to its timely-filed underlying claim for medical benefits. Id. __ So. 3d __. These five judges further concluded that neither claim had prescribed, since the health care provider had simultaneously filed a claim for penalties and attorney fees along with its timely-filed disputed claim for underpayment of medical benefits. Prior to this decision a three-judge panel reached the same conclusion in St. Tammny Parish Hospital v. Ace American Insurance Company, 2010-1480 (La. App. 1 Cir. 6/16/11), 81 So. 3d 3.
Another plurality in the en banc decision in St. Tammany Parish Hospital reached the same result, but applied a different rationale. These five judges emphasized the delictual nature of the claim for penalties and attorney fees and suggested that because La. R.S. 23:1201(F), creating the cause of action for the healthcare provider's claim did not provide for a time period in which to assert the claim, the one-year prescriptive period of La. C.C. art. 3492 was the applicable period. While pointing out that under La. C.C. art. 3492, the prescriptive period commences the date that injury or damage is sustained, that plurality noted that prescription cannot run against a cause of action that has not accrued or while the cause of action cannot be exercised. They reasoned that because under the language of La. R.S. 23:1201(F)(4), a healthcare provider may only be awarded penalties and attorney's fees "[i]n the event that [it] prevails on a claim for payment of [its] fee," the healthcare provider's claim does not accrue until it has prevailed on the merits of its claim for payment of its fee. Id. at __
After the en banc decision in St. Tammany Parish Hospital v. Trinity Marine. Products, Inc., 2010-1481 (La. App. 1 Cir. 2/16/12), __ So. 3d __ (20I2WL505836), several cases have been decided by different panels of this court that have adopted this decision and its other plurality conclusion. SeeBaton Rouge Genera! Medical Center v. Louisiana Restaurant Association, SIF, 2010-2198 (La. App. 1 Cir. 3/12/12), _ So. 3d __; Baton Rouge General Medical Center v. Louisiana Restaurant Association, SIF, 2011-0625 (La. App. 1 Cir. 3/23/12), _ So. 3d __; Baton Rouge General Medical Center v. Louisiana Restaurant Association, SIF, 2010-2196 (La. App. 1 Cir. 3/23/12), _So. 3d __; Baton Rouge General Medical Center v. Louisiana Restaurant Association, SIF, 2010-2195 (La. App. 1 Cir. 3/23/12), _ So. 3d __; Baton Rouge General Medical Center v. Louisiana Restaurant Association, SIF, L.L.C, 2010-0610 (La. App. I Cir. 3/19/12), _ So. 3d __; Baton Rouge General Medical Center v. Louisiana Restaurant Association, SIF, 2010-2197 (La. App. 1 Cir. 3/14/12), _ So. 3d __.
CONCLUSION
Therefore, we conclude the WCJ erred in sustaining the defendants' exception pleading the objection of prescription. Therefore, the judgment of the WCJ dismissing the claim of BRGMC for penalties and attorney fees is reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed against the defendants, Louisiana Restaurant Association, SIF, and Louisiana Generating, L.L.C.
REVERSED AND REMANDED.