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Sims v. Sun Chemical Corp.8/22/2001
Terry C. Sims ("Sims") was granted penalties and attorney fees by the Workers' Compensation Judge ("WCJ") who determined that Sun Chemical Corp. ("Sun") and its insurer, Continental Casualty Co. ("Continental"), had failed to timely authorize Sims' surgery. Sun and Continental (collectively "appellants") appeal, which appeal Sims answered. For the following reasons, we affirm.
Facts
On May 14, 1999, Sims was injured on the job while employed by Sun. Sims was a service technician for the company and his duties included delivering the company's ink to various customers. On the day he was injured, Sims and another employee of Sun, while making a delivery to a customer, were unloading a container of ink which weighed over 2,000 pounds that was loaded on a pallet jack. Sims, who was in front, guided the container while the other employee pushed from behind. When Sims stepped off the dock, the dock lifted and the container came to an abrupt stop pulling Sims around to his left side and causing a sharp pain in his back.
Sims reported the injury to his employer and sought medical attention on May 17, 1999 at the Monroe Medical Clinic. As a result of the accident, Sims suffered from serious pain, numbness in both legs and loss of bowel control. Those symptoms did not dissipate from the time of his injury until he finally underwent surgery in March, 2000. He testified at trial that prior to the accident, he suffered from no low back pain.
In June, 1999, Sims sought treatment from an orthopedic surgeon, Dr. Douglas Liles ("Dr. Liles"), for the injury . Following x-rays and an MRI, Dr. Liles recommended surgery and suggested that Sims see Dr. Thomas Whitecloud ("Dr. Whitecloud"), a specialist in New Orleans who was more familiar with the surgical procedure Dr. Liles felt Sims needed to correct his back injury.
In July, 1999, Dr. Whitecloud initially suggested various exercises for Sims, but then on October 18, 1999 made the recommendation for surgery. The procedure was scheduled for December 8, 1999, and Sims actually traveled to New Orleans in anticipation of undergoing the procedure. However, within an hour of the scheduled surgery, Sims learned that the procedure had not been approved by the appellants.
In January, 2000 Sims saw Dr. Donald Smith ("Dr. Smith"), a neurosurgeon, at Sun's request. Dr. Smith also recommended surgery. The appellants eventually approved the surgery, which was not performed until March 30, 2000 by Dr. Whitecloud. Rather than the initially recommended plate-and-screws procedure, Dr. Whitecloud performed a regular spinal fusion. At the time of trial, Sims remained under Dr. Whitecloud's care.
Sims filed a Disputed Claim for Compensation with the Office of Workers' Compensation, asserting that Sun and Continental owed him penalties and attorney fees for failing to authorize his back surgery timely. After considering the evidence and testimony, the WCJ determined that the appellants' failure to authorize Sims' surgery was "arbitrary and capricious," and that the appellants had not "reasonably controverted" the failure to provide medical care. The WCJ awarded Sims $2,000 in penalties and $3,500 in attorney fees. This appeal ensued.
Discussion
The standard of review of the workers' compensation court is the same as for the district court. Absent a finding of manifest error of fact or law, the judgment will be upheld. We review the WCJ's award of attorney fees and penalties under the manifest error standard. Kelley v. Jack Jackson Const. Co., 32,663 (La. App. 2d Cir. 12/30/99), 748 So. 2d 1270, citing, Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 07/01/97), 6
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