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Brister v. Sears Authorized Retail Dealer12/8/1999
ed that she did not follow up with Dr. Steiner following the FCE, which provided in part that Brister was not capable of returning to work at even a sedentary level, to determine if the doctor would render another opinion in light of the FCE. While the defendants may have had a basis for initially reclassifying the benefits, the FCE should have triggered further investigation. This failure to adequately investigate the claim was willful, unreasoning, and without consideration and regard for the facts presented. Therefore, we find no manifest error in the workers' compensation judge's decision to award attorney fees.
Even so, the defendants appear to assert that attorney fees should not be awarded because benefits were reclassified more than six months after the injury such that it was Brister's responsibility to seek an extension by filing a disputed claim. Without commenting on the retroactivity of the recent amendment to La.R.S. 23:1221(1)(d), we note that it deleted the requirement that benefits shall cease six months after the injury and the requirement that the employee submit a claim for extension. In any event, Brister filed a claim in August of 1998 after the benefits were reclassified in July of 1998. Ms. Justice did not give the six-month limit as a reason for the reclassification, and we are of the opinion that La.R.S. 23:1221(1)(d) was not designed to allow defendants to use its provisions as a safe harbor for avoiding attorney fees when the reclassification is later found to be arbitrary and capricious. Thus, we reject this argument.
Brister has answered the appeal, seeking additional attorney fees for work done at the trial level and on appeal. The workers' compensation judge awarded Brister $2,000.00 in attorney fees, and we find no abuse of discretion in the amount of that award. We award additional attorney fees of $3,000.00 against LWCC for work done on appeal.
DISPOSITION
For the foregoing reasons, we reverse the award of penalties but affirm the judgment in all other respects. We award attorney fees of $3,000.00 against Louisiana Workers' Compensation Corporation for work done on appeal. Additionally, we assess costs of this appeal to William Dunn and Louisiana Workers' Compensation Corporation.
REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.
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