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White v. Fresenius Medical Care12/12/2001
is unresolved by the record. Therefore, during the period questioned by the employer, the award of either temporary total disability benefits or supplemental earnings benefits at a TTD rate, is not one requiring reversal.
Penalties and Attorney's Fees
Finally, FMC questions the award of $2,000 in penalties and $2,000 in attorney's fees. La.R.S. 23:1201 provides, in part:
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, 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. Penalties shall be assessed in the following manner:
(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.
Although the workers' compensation judge determined that the claimant satisfied the requisite burden in this case with regard to entitlement to benefits, a determination we have affirmed, our review of the record in this procedurally awkward case does not support an award of statutory penalties and attorney's fees. In her support of the awards, Ms. White argues that the employer/insurer failed in its responsibility to investigate the possibility of injury from the work- related fall. In particular, Ms. White points to conversations she had with her supervisor and another employee at FMC at the time she applied for short-term disability prior to the lumbar surgery.
With regard to these conversations, the record supports, at most, a finding that FMC personnel considered whether Ms. White might consider a workers' compensation claim or whether she might continue in her pursuit of medical insurance and disability benefits. In any event, Ms. White did not make a workers' compensation claim or seek either indemnity or medical benefits until the time the disputed claim form was filed.
Simply put, the employer was never put in the position of either providing, or failing to provide payment, in accordance with the compensation statutes until the date of the compensation form. Certainly the face of the medical records, which evidence Ms. White's failure to report her injuries after the accident or correlate her pain to the work-related accident, reveal a basis on which the employer could reasonably controvert the claim. Accordingly, the award of statutory penalties and attorney's fees is erroneous. The award is reversed.
DECREE
For the foregoing reasons, the decision of the Office of Workers' Compensation is affirmed insofar as it finds the claimant, Deborah White, entitled to workers' compensation benefits. However, the award of penalties and attorney's fees is reversed. All costs of this appeal are assigned to defendant, Fresenius Medical Center.
AFFIRMED IN PART; REVERSED IN PART AND RENDERED.
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