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Benjamin v. Wal-Mart #7512/12/2001
AMENDED AND, AS AMENDED, AFFIRMED.
In this workers' compensation case, Wal-Mart appeals a judgment of the Office of Workers' Compensation rendered in favor of Rhonda Benjamin for attorney fees. In the alternative, should this court find that the award of attorney fees is correct, Wal-Mart asserts that the amount of attorney fees should be decreased. Ms. Benjamin answers the appeal and seeks an award of penalties due to Wal-Mart's arbitrary and capricious failure to authorize medical treatment and an increase in the award of attorney fees for work performed on this appeal and at the hearing. For the following reasons, we amend the judgment of the workers' compensation judge to include an award for additional attorney fees for work done on appeal and further amend the judgment to include a penalty award of $2,000 for Wal-Mart's failure to authorize chiropractic treatment.
I. FACTS
Ms. Benjamin asserts that she was injured in the early morning (at approximately 2:00 a.m.) of February 28, 1998, while in the course and scope of her employment with Wal-Mart. While stocking items for sale, Ms. Benjamin slipped from a ladder and fell onto a cart, hitting her back. At trial, there was some question as to whether an accident occurred because it was unwitnessed; however, Wal-Mart does not appeal the finding that Ms. Benjamin suffered an on-the-job accident. Ms. Benjamin's workers' compensation benefit payments began soon after her accident, and were paid through August of 2000, when Wal-Mart decided to terminate payment of her workers' compensation benefits some two and one-half years later.
II. ISSUES
On appeal, Wal-Mart presents two issues for our consideration:
1) whether the trial court erred in finding it arbitrary and capricious for terminating Ms. Benjamin's indemnity benefits; and,
2) whether the trial court's award of attorney fees to Ms. Benjamin's counsel should be decreased.
Ms. Benjamin also presents two issues for our consideration on appeal:
1) whether the trial court erred in failing to award penalties for Wal-Mart's failure to authorize chiropractic medical treatment recommended by Ms. Benjamin's treating physician and the state's independent medical examiner (IME); and,
2) whether the attorney fees awarded by the trial court should be increased.
III. LAW AND DISCUSSION
Standard of Review
An appellate court may not set aside the factual findings of a workers' compensation judge in the absence of manifest error or unless it is clearly wrong. Wackenhut Corrections Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96); 685 So.2d 661. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. " here there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, a reviewing court may reverse a fact finder's determinations if such factual findings are not reasonably supported by the record and are clearly wrong. Stobart v. State through Dep't Transp. and Dev., 617 So.2d 880 (La.1993).
Arbitrary and Capricious Termination of Indemnity Benefits
"Whether an insurer acted in an arbitrary or capricious manner is a determination of fact, which should not be disturbed by this Court on review absent manifest error." McCray v. Commercial Union Ins. Co., 618 So.2d 483, 489 (La.App.
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