Ducote v. Roy O. Martin Industries, Inc. , 1976 La. App. LEXIS 4585 ( 1976 )

338 So. 2d 1221 (1976)

Davis J. DUCOTE, Plaintiff-Appellant,
v.
ROY O. MARTIN INDUSTRIES, INC., Defendant-Appellee.

No. 5695.

Court of Appeal of Louisiana, Third Circuit.

November 10, 1976.

Riddle, Bennett & Ryland by Darrel D. Ryland, Marksville, for plaintiff-appellant.

Gold, Hall, Hammill & Little by Leo Gold, Alexandria, for defendant-appellee.

Before DOMENGEAUX, WATSON and HUMPHRIES, JJ.

WATSON, Judge.

This appeal from dismissal of a petition for payment of physicians' charges presents the issue of whether the defendant-employer, Roy O. Martin Industries, Inc., should be required to pay the fees of two orthopedic surgeons to whom plaintiff, Davis J. Ducote, was referred by his attorney.

There is no dispute about Ducote's job-related accident on March 19, 1975, or the payment of weekly compensation benefits. Ducote was originally treated by Dr. D. M. Kingsley, an orthopedic specialist of Alexandria, and continued under his treatment during the period when he was seen by the two other physicians. Dr. Kingsley discharged Ducote as still disabled on January 23, 1976.

In the interim, the attorney representing Ducote referred him to Dr. William E. Smith of Baton Rouge in July of 1975 and to Dr. T. E. Banks of Alexandria in September of 1975. Both examined Ducote but sent him back to Dr. Kingsley for continued treatment. They submitted reports of their examinations to the attorney. Plaintiff incurred a bill with Dr. Smith of $147.50 and with Dr. Banks of $225. Payment of these bills was refused by the employer, and plaintiff filed this suit, contending that the refusal to pay was not only incorrect as a matter of law but also arbitrary and capricious justifying penalties and attorney's fees.

The trial court, after hearing plaintiff's testimony but no other witnesses, and after considering the medical reports submitted by the various physicians, decided the case adversely to plaintiff, holding as follows:

"There is no evidence that there has been any treatment in any way by either Dr. Banks or Dr. Smith. In fact, the reports are just the reverse. They gave an evaluation and sent Mr. Ducote back to Dr. Kingsley and sent copies of the report to Dr. Kingsley; therefore, under the law and the facts as presented, neither Dr. Banks or Smith are a treating physician in any way and the defendant company is then not responsible for the bills that are at issue in this particular lawsuit and not being responsible, then the company is certainly not responsible for any penalties and attorney's fees and plaintiff's suit is dismissed at plaintiff's costs." (TR. 69)

We find no error in the decision of the trial court. See Caldwell v. Exxon Corporation, 320 So. 2d 319 (La.App. 4th Cir. 1975). Therefore, it is affirmed at plaintiff's cost.

AFFIRMED.