DocketNumber： No. 12-77
Citation Numbers： 105 So. 3d 1048, 12 La.App. 3 Cir. 77, 2012 La. App. LEXIS 1620, 2012 WL 6178221
Judges： Cooks, Ezell, Gremillion, Peters, Pickett
Filed Date： 12/12/2012
Status： Precedential
Modified Date： 10/19/2024
[tThe plaintiff, Paul Magbee, appeals certain issues arising from a workers’ compensation judgment which awarded him indemnity benefits and awarded or denied various medical treatments, tests, penalties and attorney fees. For the following reasons, we affirm the judgment in part as amended, reverse it in part, and render judgment on issues arising from the reversal.
DISCUSSION OF THE RECORD
Mr. Magbee, a fifteen-year employee of Federal Express Corporation (FedEx), suffered a work-related injury on December 9, 2009, while attempting to open the hood of his delivery truck. At the time of the accident, he was standing in water, and his feet slipped out from underneath him as he raised his arms to lift the hood. Mr. Magbee fell backwards onto a cement floor, ending up flat on his back. The next day after the accident, Mr. Magbee was seen by Dr. Gregory Gidman, a Lafayette, Louisiana orthopedic surgeon, who was FedEx’s choice of orthopedic surgeon. His numerous complaints at that time included neck, bilateral arm and leg, lower back, and thoracic spine pain. Dr. Gidman noted that Mr. Magbee complained of hurting from his posterior cervical spine down to the pelvic area and from his posterior arms down to his wrists and both legs, including his left knee.
Dr. Gidman also noted that Mr. Mag-bee’s past medical history included being stricken with poliomyelitis (polio) at a very young age, an illness which left him with a shorter left leg as well as a left pelvic tilt; marked atrophy of that leg, thigh, and foot; and atrophy of the left arm, forearm, and hand. As a result of his physical difficulties arising from being stricken with polio, Mr. Magbee had undergone a triple arthrodesis of the left foot. Dr. Gidman also noted that Mr. Magbee received approximately seven months of treatment from a chiropractor for treatment of pinched nerves in his back and spine arising from a July 4, 2007 fall at|2a Wal-Mart department store. The doctor also concluded that Mr. Magbee suffered no residual problems from that accident. X-rays of Mr. Magbee’s cervical spine, taken by Dr. Gidman, revealed multilevel degenerative changes with narrowing and spur formation at the C3-4, 4-5, 5-6, and 6-7 levels. X-rays of his lumbar spine revealed bilateral pars defects at L5 and small spur body at L3-4.
After concluding his examination, Dr. Gidman reached the opinion that Mr. Mag-bee was suffering from an acute contusion or sprain of his entire spine and his upper and lower extremities. The doctor instructed Mr. Magbee regarding various therapies, such as soaks, rubdowns, heat, stretching, strengthening, and range of motion exercises, and told him to return on December 14, 2009.
When Mr. Magbee returned to Dr. Gid-man, he complained of suffering from lower back and bilateral leg pain, headaches, and an aching, throbbing tailbone. He also informed Dr. Gidman that he was transferring his care to Dr. John Cobb, a Lafayette, Louisiana orthopedic surgeon, who had previously treated him.
Mr. Magbee initially saw Dr. Cobb for his injuries sustained in this accident on December 21, 2009. He related the particulars of the accident to Dr. Cobb, asserting that he suffered immediate pain throughout his body when he fell and that he struck his head when he came in contact
Dr. Cobb’s records note that Mr. Mag-bee had a history of two previous accidents: the Wal-Mart accident in July of 2007; and a June 17, 1998 automobile |saccident, wherein he sustained injuries to his neck and back and was treated in-house with physical therapy before being released. Dr. Cobb also noted Mr. Mag-bee’s past history of polio at the age of five months, with the resulting left lower-extremity atrophy and pelvic hip tilt, left ankle surgery, and spina bifida. Dr. Cobb’s office records further reflected Mr. Magbee’s prior history of facet joint involvement at the L5-S1 level, without significant herniation.
Dr. Cobb concluded that Mr. Magbee was suffering from post-traumatic pain syndrome and a sprain or strain of the cervical and lumbar spine; a possible cervical disc-related condition, with no evidence of radiculitis; a possible lumbar herniated disc, without radiculitis; and a previous diagnosis of spondylosis, degeneration at C-5-6 and facet joint pain at L5-Sl. Dr. Cobb recommended physical therapy for Mr. Magbee’s cervical and lumbar spine and restricted him to light-duty work, with no lifting or driving.
When Mr. Magbee returned to Dr. Cobb on January 18, 2010, he complained to the doctor of constant headaches; anterior chest and neck pain; constant tingling in his hands and feet; pain in his fingers and aching in the joints; frequent urination and a change in his bowel movements; increased burning above his hips; pain and weakness in his legs, which prevented him from walking for any length of time; and cramping in his leg muscles. Mr. Magbee further told Dr. Cobb that although he had been released to light-duty work, FedEx had none available. Dr. Cobb’s diagnoses (one month and nine days post-accident) was basically the same with the added diagnoses of possible carpal tunnel syndrome and/or ulnar nerve entrapment bilaterally. Dr. Cobb recommended MRIs of the cervical and lumbar spine, EMG and nerve conduction studies of both arms, and he discontinued the physical therapy.
|4On February 8, 2010, Bernadette Pre-vot, a case manager with Intracorp, Inc., notified Mr. Magee that she had scheduled him a March 3, 2010 appointment with Dr. Stanley Foster, a Lafayette, Louisiana orthopedic surgeon, at the request of FedEx’s workers’ compensation administrator, Sedgwick Claims Management (Sedgwick). Mr. Magbee did not keep this second medical opinion appointment.
At his February 22, 2010 appointment with Dr. Cobb, Mr. Magbee still complained of pain in his lower back and his left, and sometimes right, shoulder blade; burning across his lower back, radiating down into his legs and feet; numbness in both feet; and numbness and tingling in both hands. Dr. Cobb reviewed the results of a February 8, 2010 MRI of the cervical spine and noted that it revealed mild degeneration at C3-4, without significant stenosis or spondylosis, diffused spon-. dylitic changes at C4-5, and minimal spon-dylosis without compression at C5-6. With regard to the lumbar MRI, Dr. Cobb noted that it revealed mild Scheuremann’s disease and a mild disc bulge .at L4-5. He attributed this latter finding, to the degeneration process.
On March 24, 2010, Mr. Magbee filed a disputed claim against FedEx and Sedg-wick, alleging that the original weekly payment of $502.13 for workers’ compensation indemnity benefits was too low, that the payment of his waiting |r,week benefits was untimely, and that he was entitled to penalties, attorney fees, and legal interest. Mr. Magbee later amended his claim to seek penalties and attorney fees based on FedEx’s termination of his indemnity benefits on April 1, 2010, its failure to approve recommended medical treatment, its untimely payment of indemnity benefits, and its failure to timely provide him Dr. Gid-man’s medical reports.
On April 25, 2010, Mr. Magbee reported to Dr. Cobb that physical therapy had improved his balance although it had not significantly reduced the pain. At this appointment, he complained of headaches; neck pain; bilateral leg pain, worse in the left knee; increased pain with standing and walking; numbness in his hands and feet; and difficulty sleeping. Dr. Cobb’s diagnosis remained the same, with the added diagnoses of a possible twisting or meniscus injury of the left knee. Dr. Cobb continued the physical therapy as before; ordered an MRI of the left knee; and restricted Mr. Magbee from working.
On June 14, 2010, Dr. Cobb noted that Sedgwick denied coverage for Mr. Mag-bee’s left-knee complaints. During the examination on that day, Mr. Magbee complained of back and bilateral hip pain, with burning down into his hips and legs, worse since the physical therapy was discontinued; stiffness in his cervical spine; tingling in his hands, legs, and feet; and a stretching and tearing sensation in his left knee when bent. Concluding again that Mr. Magbee was not a surgical candidate for his lumbar complaints, Dr. Cobb reiterated his recommendation for physical therapy and an interlaminar epidural steroid injection at L3^4.
Ms. Prevot notified Mr. Magbee on July 12, 2010, that she had obtained another second medical opinion appointment for him, but this time with Dr. Gidman on August 24, 2010. In response to that notification, Mr. Magbee’s counsel informed FedEx, by a July 16, 2010 letter, that Mr. Magbee would not | ^consider attending this appointment unless FedEx supplied him with information pertaining to the reason for the appointment and the name and specialty of the doctor performing the examination. After counsel for FedEx responded to this request, Mr. Magbee’s counsel indicated that his client would keep the appointment. However, Mr. Magbee failed to keep the appointment.
On July 26, 2010, or approximately six months after his accident, Mr. Magbee reported to Dr. Cobb that his cervical complaint of numbness and tingling in his hands had improved; his back was somewhat better; his leg pain and tingling was less intense; and his left knee was better. Dr. Cobb felt that the physical therapy had improved Mr. Magbee’s strength and balance, but noted Sedgwick’s refusal to approve additional therapy. Dr. Cobb’s diagnosis continued as before. Four months later, Mr. Magbee still complained
Based on Mr. Magbee’s failure to keep the appointments with Dr. Foster and Dr. Gidman, FedEx filed a motion to compel him to attend a second medical opinion examination by a physician of FedEx’s choice. After FedEx moved for an expedited hearing on its motion on October 2, 2010, counsel for Mr. Magbee evidently agreed that he would recommend to his client that he attend an examination with Dr. Gidman if FedEx would provide him with the doctor’s patient-intake form for review and possible revision before the appointment. Counsel for FedEx responded by providing Mr. Gidman’s counsel with the form. Mr. Magbee’s counsel made some suggested revisions and returned the form to FedEx’s counsel, who made the requested revisions and then returned the form to |7Mr. Magbee’s counsel on November 29, 2010, for final review. After more suggested revisions, Mr. Mag-bee’s counsel returned the form on November 30, 2010. However, by this time Dr. Gidman had apparently grown dissatisfied with the process and refused to examine Mr. Magbee based on the requirement that he use the revised form.
The second medical opinion examination finally took place on February 14, 2011, when FedEx had Mr. Magbee examined by Dr. Joe Morgan, a Baton Rouge, Louisiana orthopedic surgeon. During the examination, Mr. Magbee complained of constant, mild, non-radiating pain in his lower back and hips and intermittent headaches nearly every day. He reported that his condition had improved since the accident, but that his pain varied daily. According to Dr. Morgan, on examination Mr. Mag-bee experienced slight limitation of motion to rotation and bending and mild tenderness at the extremes of rotation in the cervical spine. He also experienced mild tenderness in the left wrist on compression, tightness of the lumbosacral muscles, and tenderness in the medial joint line in his left knee.
After reviewing Mr. Magbee’s x-rays, MRI reports, physical therapy records, Drs. Gidman and Cobb’s medical records, Dr. Morgan concluded that Mr. Magbee was suffering from post-polio syndrome. He explained that polio leaves a person with fewer anterior horn cells, which are the nerves which supply the skeletal muscles in the trunk and extremities. Although these cells are lost naturally during the aging process, people with a history of polio began suffering those problems associated with older age, i.e., the atrophy of muscles in the trunk and extremities, at an earlier age. He stated that the hall-mark of post-polio syndrome is “increasing weakness in all muscle groups and pain in all muscle groups” as a result of losing these anterior horn cells. Dr. Morgan said that all of the pain Mr. Magbee is experiencing is characteristic of this condition. Although | Rhe felt that Mr. Magbee had sustained a temporary lower-back injury, Dr. Morgan felt that this injury had resolved and that any restrictions he would place on Mr. Magbee’s ability to work are a result of his post-polio syndrome and not his work-related accident.
When Dr. Cobb saw Mr. Magbee on March 23, 2011, his patient had continued complaints of neck, lower back, and bilateral hip pain; bilateral lower leg pain, with a throbbing sensation anteriorly; and numbness and tingling in his hands and feet. He indicated that his left knee was
On May 2, 2011, the WCJ ordered Mr. Magbee to submit to an independent medical examination (IME) with Dr. Thad Broussard, a Baton Rouge, Louisiana orthopedic surgeon. This examination occurred on May 11, 2011, and during the examination, Mr. Magbee related to Dr. Broussard that his condition had improved since the accident. He denied suffering from radiating numbness, tingling, or pain in his lower extremities and radiating pain in his upper extremities, although he did complain of tingling in his hands. After examining Mr. Magbee and reviewing his medical history, Dr. Broussard concluded that Mr. Magbee was suffering from post-polio syndrome as well as cervical and lumbar spondylosis. Although he noted Mr. Magbee’s multi-level spondylitic changes, Dr. Broussard felt that these changes predated the December 9, 2009 accident. He further stated that with Rregard to the right-sided disc bulge at LS-á, he found no acute changes in the bony tissue.
Dr. Broussard was of the opinion that Mr. Magbee had reached maximum medical improvement but that, although he was capable of returning to work, he could not return to his courier job with FedEx. Dr. Broussard recommended that a functional capacity evaluation (FCE) be performed to determine Mr. Magbee’s employment limitations and that he then undergo a vocational rehabilitation consultation. Dr. Broussard did not feel that epidural steroid injections were necessary in Mr. Mag-bee’s case, since he exhibited no radicular findings in his lower extremities, and that although he found no need for further testing, he felt that Mr. Magbee might require continued symptomatic and supportive care and that his current complaints were only partly related to post-polio syndrome.
This matter went to a trial on the merits on July 7, 2011. Following the close of evidence, the WCJ rendered oral reasons for judgment finding that Mr. Magbee had suffered a work-related accident and that he was entitled to maximum weekly indemnity benefits in the amount of $577.00 instead of the original $502.13 weekly benefit paid by FedEx. The WCJ further held that Mr. Magbee was capable of performing light-duty work, but because FedEx could offer no light-duty work, awarded him supplemental earnings benefits at a zero earning capacity pursuant to La.R.S. 23:1221(3). The WCJ tempered this award by stating that Mr. Magbee’s indemnity benefits could be reduced in the future if Mr. Magbee was earning wages or if FedEx could prove his wage earning capacity in any month. Finally, with regard to indemnity benefits, the WCJ held that all indemnity benefits owed to Mr. Magbee had been paid.
On the issue of medical treatment, the WCJ awarded Mr. Magbee additional physical therapy based on his testimony that his condition had improved with the |intherapy. The WCJ denied his request for cervical and lumbar epidural steroid injections, finding that these were not necessary based on Dr. Broussard’s opinion and Mr. Magbee’s lack of radicular symptoms. Despite finding Mr. Magbee credible and believing his account of pain, the
With regard to penalties, the WCJ awarded Mr. Magbee $2,000.00 in penalties based on FedEx’s underpayment of his indemnity benefits; $250.00 in penalties for FedEx’s late submission of Dr. Gid-man’s medical records; and $5,000.00 in penalties for FedEx’s termination of Mr. Magbee’s indemnity benefits based on his failure to attend the second medical opinion examination. However, the WCJ denied penalties based on FedEx’s denial of a May 10, 2010 appointment Mr. Magbee had with Dr. Cobb; its refusal to approve additional physical therapy; its refusal to approve the cervical and lumbar epidural steroid injections; its refusal to approve the left-knee MRI; and its untimely payment of indemnity benefits representing the waiting week. With regard to the claim for attorney fees, the WCJ awarded Mr. Magbee $7,000.00 for the work performed by his counsel and based that amount only on the work performed on the issues of FedEx’s termination of indemnity benefits, the miscalculation of his average weekly wage, and FedEx’s failure to timely provide Dr. Gidman’s medical records to Mr. Magbee.
In After the WCJ executed a July 29, 2011 judgment conforming to the reasons for judgment, Mr. Magbee has appealed from this judgment, raising six assignments of error:
1.The workers’ compensation judge erred in failing to award a penalty for Federal Express’s denial of physical therapy ordered by Dr. John Cobb.
2. The workers’ compensation judge erred in denying the left knee MRI ordered by Dr. John Cobb and in failing to award a penalty for this denial.
3. The workers’ compensation judge legally erred in including in paragraph 5 of the Findings of Fact in the judgment the following language:
“[Ujntil wages are earned or an earning capacity is established pursuant to La.R.S. 23:1221(3).”
4. The workers’ compensation judge legally erred in not awarding reasonable and necessary medical treatment but including in the judgment that any relief not specifically granted is hereby denied which is a violation of the law.
5. The workers’ compensation judge erred in not awarding a penalty for Federal Express’s failure to approve Mr. Magbee’s appointment with Dr. Cobb on May 5, 2010.
6. The workers’ compensation judge legally erred in limiting the attorney fee award to only those penalty issues upon which Mr. Magbee prevailed at trial.
OPINION
The standard of review applied on appeal in workers’ compensation cases is well settled. In Poissenot v. St. Bernard Parish Sheriffs Office, 09-2793, p. 6 (La.1/9/11), 56 So.3d 170, 174 (alteration in original), the supreme court stated:
Further, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530*1056 (La.1/14/94), 630 So.2d 738, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.
Furthermore, whether the WCJ committed legal error in rendering a decision presents a question of law. A question of law is simply reviewed by determining whether the ruling is legally right or wrong. LeBlanc v. Lafayette Consol. Gov’t, 07-1608 (La.App. 3 Cir. 5/28/08), 983 So.2d 1022.
First Assignment of Error
In his first assignment of error, Mr. Magbee argues that the WCJ erred by not awarding him a penalty based on FedEx’s refusal to approve additional physical therapy despite having found that physical therapy was warranted.
Dr. Cobb ordered physical therapy for Mr. Magbee’s cervical and lumbar spine after his initial examination on December 21, 2009. Although he discontinued the treatment after Mr. Magbee’s next visit, Dr. Cobb restarted it again on February 22, 2010, to be continued until Mr. Magbee reached maximum benefit, because Mr. Magbee expressed a belief that the physical therapy had helped in his recovery. Mr. Magbee attended twenty-two sessions of physical therapy between January 6, 2010 and March 23, 2010. By March 23, Fran Mancuso, the physical therapist, indicated that Mr. Magbee’s neck pain rating had decreased, that his functional skills had improved, that his cervical spine range of motion and lumbar spine flexion range of motion had increased slightly, but that his low back pain had not changed.
On April 5, 2010, Mr. Magbee informed Dr. Cobb that the physical therapy had helped him regain his balance, so Dr. Cobb recommended that it continue. Sedgwick submitted the request for continued physical therapy treatment for | ^utilization review by a physician reviewer retained by Intracorp. That review was performed by Dr. William H. Milnor, a Texas orthopedic surgeon, who determined that the request did “not meet the established standards of medical necessity.” Based only on this utilization review, Sedgwick rejected the request to continue physical therapy.
Dr. Cobb again recommended physical therapy on June 14, 2010, because Mr. Magbee began to complain of increased pain in his hip and back after his therapy had ended. Sedgwick submitted this request for utilization review to Intracorp. The physician reviewer, Dr. R.A. Shirley, an orthopedic surgeon licensed to practice in California, Connecticut, Florida, Mississippi, Missouri, Oklahoma, and Texas, determined that additional physical therapy was unwarranted. Notice of this finding was sent to Sedgwick on July 1, 2010, and immediately thereafter, Sedgwick again denied Dr. Cobb’s request for additional therapy for Mr. Magbee.
In LeMelle v. Wal-Mart Stores, Inc., 04-527, pp. 10-11 (La.9/29/04), 883 So.2d 526, 552-53, this court set out the law pertaining to the award of penalties in instances where the employer has denied
As stated in Harrington v. Coastal Construction & Engineering, 96-681, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-0109 (La.3/7/97), 689 So.2d 1375, “the employer must rely on competent medical advice when the decision to deny the medical treatment is made.” The mere production of a different opinion of a doctor who never examined the claimant does not constitute competent medical advice sufficient to reasonably controvert the claim. Id.; see also Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. While a utilization review process has its place in the workers’ compensation process, this court has consistently held that a long-distance diagnosis by a physician advisor is not an acceptable basis for denial of treatment and benefits. See id. In the instant case, the long-distance diagnosis flies in the face of the undisputed findings of the treating physician at [14a time when Wal-Mart was paying temporary total disability benefits, making Wal-Mart’s actions even more egregious.
In concluding that additional physical therapy was warranted, the WCJ relied on Dr. Broussard’s findings and his recommendation for an FCE. However, the award or non-award of a penalty is passed on what the employer knew at the time it refused to approve the requested treatment. In this ease, Mr. Magbee had not seen Dr. Broussard when the decision was made to deny additional physical therapy, and FedEx’s complete reliance was on the opinions of the utilization review physicians. Discounting the utilization review opinions, we find that Sedgwick and FedEx failed to reasonably controvert Mr. Magbee’s claim for additional physical therapy, and the WCJ erred in not awarding a penalty for this failure.
Accordingly, we reverse the WCJ’s judgment on this issue and award Mr. Magbee $2,000.00 in penalties based on FedEx’s failure to approve Dr. Cobb’s request for additional physical therapy.
Second Assignment of Error
In this assignment of error, Mr. Magbee argues that the WCJ erred by failing to find that he was entitled to the left-knee MRI and a concomitant penalty. We agree.
Dr. Gidman’s records indicate that Mr. Magbee complained of severe pain in his left knee on December 10, 2009, the day after his fall. On December 23, 2009, Dr. Cobb noted that Mr. Magbee was positive for pain down both legs and stiff, painful joints. On April 4, 2010, when Mr. Mag-bee complained of pain in his legs, worse in his left knee, Dr. Cobb diagnosed a possible twisting injury or meniscus tear in the knee and ordered an MRI. The request for the MRI was sent to FedEx by Mr. Magbee’s counsel by letter dated April 13, 2010. Sedgwick denied | ^coverage of his left-knee complaints. Over time, Dr. Cobb’s records indicate that Mr. Magbee’s left knee improved somewhat. However, Dr. Morgan noted medial joint line tenderness in Mr. Magbee’s left knee during the second medical opinion examination on February 14, 2011, although he related any need for the left-knee MRI to Mr. Mag-bee’s post-polio syndrome.
Dr. Gidman’s medical records also includes a previous physical examination of Mr. Magbee performed by Dr. Cary Hernandez, a physician with the Acadiana Center for Orthopedic & Occupational Medicine, L.L.C., out of which Dr. Gidman practices. The June 30, 2009 examination, taken for the purpose of recertifying his commercial driver’s license with the Louisiana Department of Public Safety and
In denying Mr. Magbee’s request for the MRI, the WCJ stated:
The MRI, I’m denying because, for reasons previously stated. There’s really nothing objective showing a problem with the knee. The more recent reports from Dr. Cobb, in fact, indicated that Mr. Magbee’s knee was getting much better or was better. In fact, Dr. Cobb quit recommending the lower extremity MRI after a time. And quite honestly, the way that the accident was described, both by Mr. Magbee’s testimony today or looking back to the December 2009[ ] report of Dr. Cobb, when the first description was given to Dr. Cobb — or was it Gidman — of the injury, where there was the primary, first initial fall on the buttocks and then flat on the back, both of those, I have a hard time of figuring out how the knee could have really been implicated. But, that’s not really addressed in any detail. I simply leave it at the evidence doesn’t establish, by a preponderance, the medical necessity of an MRI of the left leg or the right leg, if I got that wrong.
I mA review of Dr. Cobb’s records reveal that although he stopped requesting an MRI for the left knee, up until the last report in evidence, he listed a medial meniscus injury in Mr. Magbee’s left knee as one of his diagnoses. On June 14, 2010, Mr. Magbee complained that he felt a stretching, tearing sensation in his knee while bending. In July and November of 2010 and March of 2011, he reported that his knee had improved. Without the benefit of the MRI, it would be difficult to determine the nature or source of the injury to Mr. Magbee’s knee. As stated in LeMelle, 883 So.2d 526, an employer’s decision to deny a recommended treatment or procedure must be based on competent medical advice. However, Sedgwick has not proven that its decision was based on competent medical advice in denying this request as there is nothing in the record to explain why it denied this request.
Accordingly, we reverse the WCJ’s judgment finding that the left-knee MRI was not necessary. We further award Mr. Magbee a $2,000.00 penalty based on FedEx’s failure to reasonably controvert this claim.
Third Assignment of Error
In his third assignment of error, Mr. Magbee argues that the WCJ legally erred by including in the judgment the language, “until wages are earned or an earning capacity is established pursuant to La.R.S. 23:1221(3).” Mr. Magbee complains that should this language remain in the judgment, FedEx would be relieved of the obligation of first proving a change in circumstances and earning capacity before unilaterally terminating or modifying Mr. Magbee’s supplemental earnings benefits.
|17In the oral reasons for judgment, the WCJ stated the following with regard to the award of supplemental earnings benefits to Mr. Magbee:
Therefore, I believe the evidence preponderates that Mr. Magbee is entitled to Supplemental Earnings benefits at zero earning capacity at this point in time, thereby entitling him to the maximum benefits for the time of the injury of Five Hundred Seventy-Seven Dollars per week.
*1059 As I mentioned earlier, I will enter judgment that he is entitled to those benefits payable in accordance with the statute 1221(B). Therefore, for any month in which Mr. Magbee earns wages or the employer is able to meet a burden of establishing an earning capacity in accordance with the statute and the jurisprudence pertaining thereto, benefits may be payable at a different rate.
(Alteration in original.)
Considering the wording of the language inserted in the judgment and the WCJ’s oral reasons, we find no merit in this assignment. It is implicit in the language “earning capacity is established pursuant to La. R.S. 23:1221(3)” that no unilateral actions, i.e., reduction or termination, can be taken by FedEx until it first satisfies the criteria of La.R.S. 23:1221(3)(c)(i) and Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, that a suitable job exists within Mr. Magbee’s and FedEx’s community or reasonable geographic region; at a wage Mr. Magbee, considering his experience and training, would be expected to earn; and that the position actually existed when FedEx notified Mr. Magbee about the opening. Peters v. Gen. Motors Corp., 39,279 (La.App. 2 Cir. 1/26/05), 892 So.2d 717. FedEx can only do this by a judicial proceeding before the WCJ in which it presents evidence proving its claim.
Accordingly, we find no error in the WCJ’s inclusion of the contested language in the judgment. This assignment of error is dismissed for being without merit.
|1SFourth Assignment of Error
In this assignment of error, Mr. Magbee claims that the WCJ’s denial of reasonable and necessary medical treatment and the inclusion of the language, “that any relief not specifically granted is hereby DENIED[,]” in the July 29, 2011 judgment is a violation of the workers’ compensation law. Mr. Magbee argues that based on La.R.S. 23:1203 and prior jurisprudence from this court, he is entitled to all reasonably necessary future medical treatment and that this language would preclude him from seeking this relief.
Louisiana Revised Statutes 23:1203 mandates, in part, that the employer will provide all “necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” In Pal v. Stranco, Inc., 10-1507, pp. 6-8 (La.App. 1 Cir. 8/3/11), 76 So.3d 477, 481-83, unit denied, 11-1834 (La.11/4/11), 75 So.3d 925 (footnotes omitted), the court explained how res judicata does not bar re-litigation in workers’ compensation claims:
In general, the doctrine of res judica-ta, as set forth in LSA-R.S. 13:4231, bars a subsequent action when all of the following elements are satisfied, vis-á-vis a prior action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. See Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053. The doctrine of res judicata also applies when the opposing parties enter into a compromise or settlement of a disputed matter. Chaisson v. Central Crane Service, 2010-0112, p. 5 (La.App. 1 Cir. 7/29/10), 44 So.3d 883, 886 (citing Ortego v. State, Department of Transportation and Development, 96-1322, p. 6 (La.2/25/97), 689 So.2d 1358, 1363).
*1060 Louisiana Revised Statute 13:4231 was substantially amended in 1990, and it now embraces the broad usage of res judicata to include both claim preclusion (traditional res judicata) and issue preclusion (collateral estoppel). Under issue preclusion or collateral estoppel, resolution of an issue of fact or law essential to determination of the dispute precludes relitigation of the same issue in 119a different action between the same parties. Chaisson v. Central Crane Service, 2010-0112 at pp. 5-6, 44 So.3d at 886-87 (citing LSA-R.S. 13:4231, 1990 Comment (b); Mandalay Oil & Gas, L.L.C. v. Energy Development Corporation, 2001-0993, p. 9 (La.App. 1 Cir. 8/4/04), 880 So.2d 129, 135-36, writ denied, 2004-2426 (La.1/28/05), 893 So.2d 72).
However, as applied to workers’ compensation claims, res judicata does not bar re-litigation of claims subject to the OWC’s modification jurisdiction, as set forth in LSA-R.S. 23:1310.8(A) and (B). See Magee v. Abek, Inc., 2005-0388, pp. 2-3 (La.App. 1 Cir. 5/5/06), 943 So.2d 372, 373-74. The modification power of LSA-R.S. 23:1310.8(A) and (B) exists for the purpose of modifying awards due to a change in the worker’s condition. Because changes in medical condition and disability status are dynamic and ongoing by their nature, the legislature enacted LSA-R.S. 23:1310.8(A) and (B) to afford needed flexibility to ensure that benefits correspond to such changes. Res judicata thus cannot preclude litigation seeking a change in the amount of compensation benefits based upon a change in disability. Chaisson v. Central Crane Service, 2010-0112 at p. 9 n. 6, 44 So.3d at 888 n. 6.
A review of the trial transcript reveals that the judgment in this matter was drafted by counsel for FedEx on the instruction of the WCJ, with instructions for FedEx to submit the proposed judgment to counsel for Mr. Magbee so that objections could be made as to form. Although there is nothing in the record to suggest that counsel for Mr. Magbee objected to this language, we find that it would better further the liberal construction accorded our workers’ compensation laws if this language is deleted from the judgment. This would especially avoid confusion in the event that Mr. Magbee raises any future medical claims. Considering the fact that the WCJ awarded Mr. Magbee additional medical treatment, in the form of the EMG, nerve conduction tests, physical therapy, an FCE, and vocational rehabilitation counseling and our award of the left-knee MRI, it is not unlikely that future reasonably necessary medical treatment will be required. Accordingly, we order the deletion of the language, “IT IS FURTHER ORDERED that any relief not specifically granted is hereby DENIED.” from the July 29, 2011 judgment.
12aFifth Assignment of Error
In this assignment of error, Mr. Magbee argues that the WCJ erred by not awarding him a penalty based on FedEx’s denial of his May 10, 2010 appointment with Dr. Cobb. In support of his argument, Mr. Magbee points out a letter sent by his counsel on May 11, 2010, to counsel for FedEx. The letter states that counsel is confirming, based on a May 7, 2010 phone conversation with counsel for FedEx, that Mr. Magbee’s benefits were terminated and his treatment with Dr. Cobb was not approved by FedEx due to Mr. Magbee’s failure to appear at a second medical opinion appointment with Dr. Foster.
Mr. Magbee testified that Dr. Cobb’s office called and told him that his May 10, 2010 appointment was canceled because Sedgwick’s denied approval for the treat
In denying a penalty on this issue, the WCJ stated that Dr. Cobb’s medical records failed to substantiate Mr. Mag-bee’s claim. Although the WCJ found nothing in Mr. Magbee’s testimony to cast doubt on his testimony, there also existed nothing in Dr. Cobb’s records to support a conclusion that FedEx had refused to pay for the scheduled appointment. Based on this lack of evidence and a strict construction of La.R.S. 23:1201(F), the WCJ denied Mr. Magbee’s request |2ifor penalties on this issue. Considering the conflicting evidence, we find no manifest error in the WCJ’s determination to deny penalties on this issue.
Sixth Assignment of Error
In his final assignment of error, Mr. Magbee argues that the WCJ legally erred by only awarding attorney fees based on the issues for which he received penalties. He argues that based on his counsels’ affidavits and the holding in McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694, he is entitled to recover the entire amount of attorney fees sought, $14,550.00, for the work his counsel put forth in representing his claim.
In the oral reasons for judgment, the WCJ stated that the $7,000.00 award was based on FedEx’s discontinuance of Mr. Magbee’s indemnity benefits, its miscalculation of his average weekly wage, and its failure to timely provide Dr. Gid-man’s medical records. Mr. Magbee asserts that the award should be based on the efforts of his attorneys relative to all issues, including those issues for which he did not receive a penalty. We agree.
In McCarroll, 773 So.2d at 700, the supreme court held:
In our determination of the respective rights of the employee and the attorney to the statutory attorney fees, a persuasive factor is the methodology used to calculate the amount of the statutory attorney fees. The only limitation on the amount is the reasonableness of the fee awarded by the judge. Cain [v. Employers Cas. Co., 236 La. 1085, 110 So.2d 108 (1959)]. The amount awarded rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case. [14] H. Alston Johnson, III, [Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice] § 389 [(3rd ed.1994) ]. The amount awarded is intended to provide full recovery, without statutory limitation, for attorney’s services and expenses in connection with the litigation. If the attorney were allowed to collect the contractual attorney fees in addition to the full compensation awarded in the statutory attorney fees, the attorney would get double Recovery (to the extent of the limited contractual fee) for his services, at the expense of his client.
*1062 We therefore conclude that the statutory attorney fees, awarded to the employee in cases of arbitrary behavior of the employer or the insurer, were intended to benefit the employee, who would otherwise have to pay the contractual attorney fees out of his or her benefits recovered in the litigation, and were not intended to provide additional fees to the employee’s attorney, who received the amount of the statutory attorney fees as full compensation for legal services in the litigation.
(Emphasis added.)
Based on the supreme court’s holding in McCarroll, we find that the WCJ erred in awarding statutory attorney fees based only on the three issues for which penalties were awarded. However, we do not find that Mr. Magbee is entitled to an attorney fee award of the full amount evidenced by the affidavits submitted. The record contains two affidavits from Mr. Magbee’s attorneys. One is by the senior attorney who claims to have contributed fourteen hours to the litigation and who charges $225.00 per hour for his time. The other attorney claims to have contributed seventy-six hours to the litigation and claims an hourly rate of $150.00. This establishes a total time of ninety hours and a total fee of $14,550.00.
FedEx does not dispute the amount of time credited toward the case by Mr. Mag-bee’s lawyers, nor do we. However, in applying the factors set forth in McCar-roll, we conclude that the time spent in resolving the issue of Dr. Gidman’s second medical opinion in November of 2010, and the revision of the doctor’s patient-intake forms simply extended an otherwise simple issue and should not be counted toward the overall attorney fee. Therefore, we amend the judgment of the WCJ to increase the attorney fee award from $7,000.00 to $12,000.00.
DISPOSITION
For the foregoing reasons, we reverse the judgment of the WCJ denying Mr. Magbee’s request for treatment, penalties, and attorney fees based on FedEx’s | ^refusal to approve the left-knee MRI and physical therapy. We render judgment awarding Mr. Magbee the left-knee MRI and penalties of $4,000.00 based on FedEx’s actions in denying approval for the MRI and physical therapy. We amend the judgment of the WCJ to increase the amount of attorney fees awarded to Mr. Magbee from $7,000.00 to $12,000.00. We amend the WCJ judgment to delete the language, “IT IS FURTHER ORDERED that any relief not specifically granted is hereby DENIED.” We assess all costs of this appeal to the defendant, Federal Express Corporation.
AFFIRMED IN PART AS AMENDED; REVERSED IN PART; AND RENDERED.
GREMILLION, J., concurs in part and dissents in part and assigns written reasons.