LOMBARD, Judge.
The defendant, the Sewerage & Water Board of New Orleans, appeals the judgment rendered in favor of the plaintiff/claimant, Catherine Johnson, awarding her workers' compensation benefits, imposing penalties, and assessing costs and attorney's fees against the defendant. After review of the record in light of the applicable law and arguments of the parties' counsel, the judgment is affirmed in part and reversed in part.
The plaintiff was hired by the defendant on April 1, 2013. During her six-month probationary period, on July 26, 2013, the plaintiff was injured during the course and scope of her employment. On August 15, 2013, a pre-termination hearing was held and her employment was subsequently terminated.
The plaintiff testified that on the day of her injury, she reported it, was sent for treatment, placed on restricted duty, and she was still being treated for the injury. She stated that she was initially hired to work in the "emergency department," taking calls over the phone and taking information about bill payments, but she conceded that she had trouble inputting data into the database. The plaintiff alleged that after a confrontation with another employee, she was transferred to another department where her duties involved opening and closing accounts, as well as checking account balances. She testified that no supervisor ever notified her that her work was unsatisfactory.
The plaintiff testified that on August 9, 2013, her request for a day off was approved by "Ms. Brown," but that when she returned to work the following Monday, she received a written notice that as a probationary employee she was not authorized to take time off and that she had left her job without permission. That same day she was sent for her "six month drug test," which indicated that she was positive for Butalbital, a drug prescribed by the employer's doctor.
The plaintiff began treating with a doctor of her own choice and requested mileage reimbursement from her employer. She could not recall when she was reimbursed for her mileage expenses, but agreed that she retained a lawyer to get reimbursement and that the mileage reimbursement requests were sent more than once to the defendant. The plaintiff submitted into evidence a letter dated September 19, 2014, requesting mileage reimbursement, and a letter dated January 6, 2014, requesting reimbursement of the mileage initially requested in September 2013.
The plaintiff testified that she was still treating with Dr. Bourgeois who recommended surgery for her, but her employer refused to pay the related medical expenses because she had not tried physical therapy. She testified that she had, in fact, gone through two courses of physical therapy for a total of nineteen sessions.
On cross-examination, the plaintiff acknowledged that her term of employment with the defendant was approximately five and a half months and during that entire period she was a probationary employee. She conceded that in the first department in which she worked, "[t]hey were always saying that you need to answer the phone faster," but asserted that she had no other problems in that department. She stated subsequently, however, that she was transferred to the "Mail Resolve" department after a confrontation with her supervisor and because "I wasn't answering the phone at a prompt time." The plaintiff testified that she had no problems in her new department and when she asked, "they told me I was doing good."
The plaintiff testified that she asked her supervisor (Ms. Brown) three times about taking leave on August 9, 2013, and was given permission. However, when she returned on August 12, 2013, she was given notice that there would be a meeting to determine if she was going to be terminated for leaving her job without authorization. She asserted that she did not have a pre-termination hearing but, rather, they had a meeting "on Wednesday" and, after she refused to resign (because she had not left without authorization), she was terminated.
The plaintiff conceded that the defendant had paid for all of her medical treatment and for all submitted mileage reimbursements up until the date of the hearing. She also conceded that the letter stating that she was terminated for a failed drug test was sent by the City of New Orleans and not the defendant, that the Drug Test Report did not indicate that she was terminated by the Sewerage & Water Board because of a failed drug test, and that her separation notice from her employer did not indicate that her termination was because of a failed drug test.
On redirect, the plaintiff acknowledged that it was her understanding when she was hired that all new employees were placed on a probationary period. The plaintiff submitted into evidence her medical records from treating physicians, the defendant's separation notice of August 20, 2013, and a termination letter from the City of New Orleans dated September 20, 2013. After submitting her medical records into evidence, counsel for the plaintiff rested.
As its first witness, the defendant presented Natika Madagal Vassal from the defendant's personnel department. She identified documents from the plaintiff's personnel file: (1) a letter from Ms. White in the personnel department stating that the plaintiff was employed as of April 1, 2013, and would be on probation for at least six months; (2) the notice of transfer from the emergency telephone center to the customer service, mail resolve department dated June 12, 2013, for "change of duties," signed by Jackie Shine and Antoinette Jenkins; (3) a letter dated August 8, 2013, to the plaintiff's supervisor advising her that the plaintiff's probationary period would end on September 30, 2013, unless a request for an extension was received in writing;
In addition, Ms. Vassal identified a "pre-Disciplinary Hearing Form" dated August 15, 2013, recommending immediate termination for "Poor Work Performance." The space indicating "Employee Response" was left blank. The "Supervisor's Response" stated "Catherine Johnson has failed to perform the required duties that was [sic] assigned to her." The supervisor's signature line is left blank with the notation "Refused to sign" while initials appear about the employee signature line; Ms. Vassal stated however, that it was the plaintiff who refused to sign.
Finally, Ms. Vassal identified a letter from Marcia A. St. Martin, Executive Director of the Sewerage & Water Board, dated August 16, 2013, advising the plaintiff that she had been hired on April 1, 2013 as a probationary employee and after a month of training started in the Emergency Unit on May 1, 2013, but that she was unable to perform her duties and committed numerous errors. Further, the letter stated that due to her poor work performance, she was "retrained, placed back on the phones and informed that you must improve your job performance." The letter states that, due to the plaintiff's inability to "adequately perform" her duties in the Mail Resolving unit where she "made several documented errors" and was "unable to perform" required job duties, the plaintiff was transferred on June 5, 2013. Additionally, the letter stated that on August 12, 2013, the plaintiff received a "Formal Written Warning" for leaving her job without authorization from a supervisor and that on August 15, 2013, her supervisor held a pre-termination hearing wherein it was deemed that her "continued display or poor work performance" was the reason to recommend dismissal. Ms. St. Martin concluded that after reviewing the plaintiff's "entire work record," she saw no reason to disagree with the supervisor's recommendation and advising her that she had thirty days to appeal the ruling to the Civil Service Commission.
On cross-examination, Ms. Vassal stated that she was not aware of the plaintiff's failed drug test, did not recall seeing the drug test report, the Sewerage & Water Board did not have in-house physicians, and she was unaware of who employed "J. Elder."
Ms. Sherry M. Lavasor, a Senior Officer Pay Specialist for the defendant, testified that the plaintiff's work sheets indicated that she worked on July 26, 2013, returned the next workday (Monday, July 29, 2013) for work, did not work the following Tuesday and Wednesday, returned on Thursday and worked for one hour, did not work on Friday, returned to work the following Monday (August 5, 2013) and worked Tuesday, Wednesday, and Friday of that week, but did not work Thursday. Finally, the plaintiff's worksheets indicated that she worked Monday August 12, 2013, did not work Tuesday, but returned for one final day, Wednesday, August 15, 2013. Ms. Lavasor confirmed that the plaintiff never previously missed five days in a row during her term of employment. The plaintiff's work sheets were submitted into evidence.
Ms. Judith Robinson a/k/a Judith Jones testified that she was the manager of the customer service telephone center and the plaintiff's supervisor in that department. She testified that the plaintiff was transferred out of her department because she "wasn't able to learn what was needed for her to do as a representative" and that despite six weeks of training she was not able to "grasp" her duties, which included answering customer calls regarding complaints and billing questions, in addition to opening and closing accounts, as well as
On cross-examination, Ms. Robinson stated that she had personal knowledge of the plaintiff's mistakes, including the misspelling of words, opening wrong accounts, and issuing incorrect work orders.
Mary Anne Brown, the plaintiff's supervisor in the Mail Resolve Department, explained that the duties of the six clerks in her office included opening and sorting of the mail, processing payments and forwarding the payments to the cashiers. Ms. Brown stated that the plaintiff was assigned to "open, close accounts, bank drafts, faxes, and other accounts that needed to be opened." She identified documents submitted into evidence documenting the plaintiff's errors wherein the plaintiff (1) failed to cancel an old account when opening a new one on the property which could result in the then current tenant having water erroneously cut off; (2) placed an account in the agent's name rather that the owner's name (P.N.C. Bank, L.L.C.), which could have resulted in the account being turned over to collection; (3) failed to correctly change a mailing address as requested by customer which could have resulted in water being cut off because the customer would not receive bill; (4) failed to send a customer's application for signature, which could have resulted in water being cut off because the new customer failed to timely return the signed application; (5) opened an account in a wrong L.L.C.'s name, which would have created tax problems for the customer because the name did not match the tax I.D. number; (6) did not close the account of an owner upon the owner's notification that she had a new tenant, resulting in no notice to the new tenant to apply for services; (7) opened an account in the owner's name when owner requested water be turned on for HANO inspection, but issued a work order to turn off the water so that HANO would have been unable to complete an inspection; and (8) applied a payment to a wrong account, which would result in an erroneous delinquent fee. Ms. Robinson testified that she noted each of the errors on the documents the day they were committed. She explained that the documents submitted related only to errors committed by the plaintiff in the month of August because she had been instructed to bring those and was not instructed to bring documentation of errors committed in July. Ms. Robinson stated that the plaintiff's errors caused her to be put back in training for two weeks in July and that as long as she worked with a trainer she made no errors. Ms. Brown stated that, as was her custom, she brought the errors to the plaintiff's attention when they were committed but did not "write her up" because she was in her probationary period. Ms. Brown conceded that she did not tell the plaintiff that she was in danger of losing her job because of the mistakes.
On cross-examination, Ms. Brown stated that because the plaintiff was a probationary employee she did not have accrued days to take off because of her injury.
Antoinette Jenkins, Administrative Manager of Customer Service, testified that the plaintiff was terminated because she was unable to perform her duties successfully in either department under her supervision. She stated that it was her observation that in the customer service department the plaintiff was "not able to remember the different screens" or "remember what she was supposed to do." Accordingly, Ms. Jenkins decided "instead of terminating her employment to maybe move her to a department which was a slower pace ... but that didn't work out."
On cross-examination, Ms. Jenkins stated that the plaintiff "received write-ups from Ms. Robinson I'm sure." She indicated that it was departmental policy for probationary employees to receive write-ups and "we keep a copy in their files." Ms. Jenkins asserted that probationary employees were provided with forms indicating "where they are, where their strengths are, where their weaknesses are." She stated that she received copies of the documents with Ms. Brown's notations of errors and that, according to policy, the plaintiff would have received a form indicating her progress related to each of the errors and that a copy of such form would have been kept in her departmental file. Ms. Jenkins asserted that the plaintiff was not terminated because of a work injury but when asked whether she knew "for a fact" that the plaintiff was "written up for the mistakes she made," Ms. Jenkins equivocated, stating "What I should say is it was documented ... I'm not sure when you say written up, as in, I don't want to use the word punishment, but it as [sic] documented each time, yes ma'am." She confirmed, however, that documentation was in "the form" where the "supervisor actually write [sic] the comments, where the errors are." When asked by plaintiff's counsel to identify these "forms" in the records from the plaintiff's files turned over to plaintiff's counsel as a result of counsel's request for production of documents, Ms. Jenkins stated that she didn't see the "ones from the call center," but the documents notating errors by Ms. Brown were the "forms" because "there's [sic] different rules in every department" and "this is the way Ms. Brown would handle her employees." Under questioning, Ms. Jenkins conceded that the notated documents were not the "forms" she referred to in her prior testimony. She conceded that the plaintiff was never "written up" for the errors in the notated documents because "she was being monitored."
When asked whether the plaintiff was "ever written up, given a piece of paper in writing saying these are your mistakes" to be corrected, Ms. Jenkins stated that she never gave the plaintiff anything and could not answer whether anyone in her department ever gave the plaintiff a warning in writing before her termination that she was making mistakes.
Ms. Jenkins stated that upon transferring the plaintiff to the mail department, she gave Ms. Brown a directive to document the plaintiff's errors. She again identified the notated documents as being dated August 6, 7, 9, and 12.
Linda Paisant, the Workers' Compensation Coordinator for the Sewerage & Water Board, testified that the plaintiff reported her injury on July 26, 2013, and was referred for a medical review and drug test. Ms. Paisant stated that the defendant authorized and paid for all physical therapy requested by the plaintiff's physicians and that all requests for mileage reimbursement were paid. She explained
Ms. Paisant indicated that the mileage reimbursement request for July 26 through September 14, 2013, for $28.15 "was submitted and paid on [May 28, 2014]." Ms. Paisant stated that mileage reimbursement requests for April 8 through May 22, 2014, were submitted and paid on May 28, 2014. Ms. Paisant stated that there was some duplication as to dates on requests for mileage reimbursement that were not paid, but that all valid mileage reimbursement requests had been paid. She reiterated that no request for medical payment had been denied. Finally, Ms. Paisant explained that because the plaintiff was not eligible for TTD benefits and was terminated, she was not offered vocational rehabilitation.
The defendant submitted into evidence (1) the plaintiff's employment letter, confirming the plaintiff's employment date of April 1, 2013, and her probationary status of "at least six months;" (2) the "change of duties" letter dated June 5, 2013, indicating that the plaintiff was being transferred to the "Mail Resolving unit" because of her inability to "function properly as a Telephone Emergency rep because of the constancy, concerning incoming calls;" (3) the notice of transfer dated June 12, 2013, indicating that the plaintiff was transferred from the position of "Office Assistant Trainee" in the Emergency Telephone Center Group to the position of "Office Assistance Trainee" in the Customer Service-Mail Resolving Group; (4) a letter from the Personnel Department advising that the plaintiff was scheduled to attain Permanent Civil Service status on September 30, 2013; (5) various notated documents purporting to show errors by the plaintiff in performance of her duties in the Mail Resolving unit in August 2013; (6) a letter dated August 12, 2013, from Ms. Jenkins to the Senior Service Manager requesting the termination of probationary employee Catherine Johnson based on her failure to meet the duty requirements of the Mail Resolving unit and inability to retain information from her training; (7) a Notice of Pre-Termination set for August 15, 2013; (8) a Pre-Disciplinary Hearing Form, recommending termination of employment for "poor work performance;" (9) a letter of dismissal dated August 16, 2013; and (10) the plaintiff's weekly timesheets for the period beginning July 22 through August 16, 2013.
On August 23, 2015, Workers' Compensation judge issued the following judgment:
Upon the defendant's request for findings of fact and reasons for judgment, the workers' compensation judge issued "Reasons for Judgment," stating only that "[t]he Court adopts as its reasons for judgment the well thought out finding of facts, law and conclusion submitted on behalf of Catherine Johnson." The post-trial memorandum adopted by the workers' compensation judge alleged that "[t]his is a classic case of the employer's attempt to circumvent its duties under the Louisiana Workers' Compensation statutes by terminating its injured worker under the guise of a "for cause" termination and concluded in pertinent part that the defendant "failed to prove that her work performance, not her injury, was the cause of her termination."
The defendant timely appeals this judgment.
Notwithstanding anything that the workers' compensation judge or counsel may have asserted or argued to the contrary, it is totally irrelevant to the issues of this case relating to workers' compensation benefits whether or not the plaintiff was terminated from her employment with the defendant for cause. Assertions to the contrary are red herrings in the context of the workers' compensation administrative court jurisdiction. The plaintiff was a probationary employee with the Sewerage and Water Board at all pertinent times. Although the defendant is subject to civil service laws, probationary employees do not come within the ambit of the protection of those laws until a permanent member of the civil service.
If the plaintiff was discharged for filing a workers' compensation claim, such may be compensatory in accordance with appropriate law, but the workers' compensation administrative court has no jurisdiction of the matter; only a district court has jurisdiction to determine that issue.
"Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review." Seal v. Gaylord Container Corp. Banks v. Industrial Roofing & Sheet Metal Works, 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164 (citations omitted) "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." Id.
In its first assignment of error, the defendant argues that the workers' compensation judge erred as a matter of law by "not applying the initial burden of proof to Ms. Johnson's claim of retaliatory termination" and "erred in fact by `not considering the Board's evidence that Ms. Johnson was fired for cause.'" The plaintiff does not address any of the defendant's assignments of error specifically or in depth, stating with regard to this assignment of error only that the workers'? compensation judge was correct in determining that the defendant fired the plaintiff to avoid workers' compensation obligations and, therefore, the plaintiff was owed indemnity benefits.
The intent of the workers' compensation judge in "ordering" that "the defendant fired the claimant in an attempt to avoid its workers [sic] compensation obligation and not for cause" is unclear. An order is, by definition, a "command, direction, or instruction" or a "written direction or command delivered by a court of judge." Black's Law Dictionary, 8th ed., p. 1129. In this case, the workers' compensation judge's "order" that the plaintiff was not fired for cause is a non sequitur because it is conclusory rather than directive or instructive in nature. Moreover, the references to the plaintiff not being fired for "cause" in the judgment, as well as in the plaintiff's post-trial memorandum adopted by the workers' compensation judge as his reasons for judgment, misapprehend critical distinctions between probationary and permanent employees within the Workers' Compensation statutory scheme.
The defendant argues that the worker's compensation judge erred in his application of La.Rev.Stat. 23:1226 and La. Rev.Stat. 23:1203 because the employer has no duty to offer vocational rehabilitation prospectively when, as in this case, the employee is medically cleared to return to her existing job. It is of no moment that the plaintiff has been terminated from her position. The plaintiff's appellate brief does not address this argument, claiming only that the plaintiff is entitled to vocational rehabilitations services, TTD benefits and Supplemental Earnings Benefits ("SEB") because the defendant (a) "did not accommodate her restrictions, as indicated in her medical records when she complained of being on her feet all day," (b) did not accommodate her restrictions and "[o]nce terminated while on restricted duty, she was unable to earn 90% or more of her pre-accident wage; and (c) vocational rehabilitation should have recommended her for jobs she could perform."
In turn, La.Rev.Stat. 23:1226 provides in pertinent part:
Although the record contains no definitive categorization of the plaintiff's position as an office assistant trainee in the mail resolving unit, the duties (as described by Ms. Brown) (opening and sorting mail, processing payments, and forwarding the payments to the cashiers) are not beyond the medical restrictions indicated in the plaintiff's medical files. Although a medical note in the file indicates that the plaintiff complained once of being on her feet "all day," there is nothing in the record to indicate that standing more than fifteen minutes in an hour (the initial restriction immediately after the injury) was a physical requirement of her job or that she complained to her employer or alerted her supervisor that the required duties of her position as an assistant office trainee were beyond the medical restrictions imposed as a result of her injury. Specifically, to the extent that the plaintiff complains that the defendant failed to accommodate her restrictions, there is nothing in the record to indicate that the plaintiff was under medical ordered physical restrictions that implicated the normal duties of her job or that the defendant was advised of these restrictions and, being so advised, failed to accommodate them. The record shows that the plaintiff's work duties included sitting at a desk, opening mail, resolving issues, and occasionally walking (via an elevator) individual pieces of mail to the cashier. There is nothing in the plaintiff's medical records to suggest that she was unable to physically perform these duties or that she should not immediately return to work. Finally, there is nothing in the record to indicate that the plaintiff ever requested vocational rehabilitation or that she filed a complaint stating that she was being denied vocational rehabilitation.
Under these circumstances, to the extent that the workers' compensation judge found that the "the defendant failed to commence vocational rehabilitation and identify a job for the claimant within her work restrictions in which she could earn at least 90% of her pre-accident wage" and awarded penalties and attorney fees based on the defendant's failure to provide vocational rehabilitation, it was clear error. Accordingly, that portion of the judgment pertaining to vocational rehabilitation is reversed.
The defendant argues the workers' compensation judge erred in awarding
La.Rev.Stat. 23:1221 provides in pertinent part:
The defendant's third assignment of error has merit. As previously discussed, there is nothing in the plaintiff's medical records that supports a finding that she was unable to return to work after her injury. Likewise, there is nothing in the record to indicate that the plaintiff's work duties were contrary to the medical restrictions imposed upon her by her treating
Because there is nothing in the record to support a finding that the plaintiff was temporarily totally disabled and unable to work, the workers' compensation judge's "order" that the plaintiff "is entitled to temporary total disability benefits in the amount of $236.76 per week based on an average weekly wage of $355.15 from August 19, 2013 to the present and continuing" is clear error. Likewise, to the extent that the judgment awarded penalties and attorney fees based on the defendant's failure to pay her TTD benefits, it likewise is clear error. Accordingly, that portion of the judgment related to TTD benefits is reversed.
The defendant argues that the plaintiff did not meet the burden of proof to be entitled to SEB. Again, the plaintiff does not specifically address this assignment of error in her appellate brief.
La.Rev.Stat. 23:1226(B)(3),
The defendant's fourth assignment of error has merit. An award of SEB is based on a claimant's inability to work. As previously discussed, there is nothing in the record to support a finding that the plaintiff's ability to work was impaired to the degree necessary to qualify for SEB as a result of her injury. Rather, all medical reports and notes indicate that she was immediately cleared to return to work with only minimal restrictions that did implicate duties as an assistant office trainee in the defendant's mail resolving unit. Under these circumstances, the "order' by the workers'" compensation judge that the plaintiff "is entitled to supplemental earnings benefits [sic] all time periods she was unable to earn at least 90% of her pre-accident wage" is clear error. To the extent that the judgment awarded penalties and attorney fees based on the defendant's failure to pay the plaintiff SEB, it is also clear error. Accordingly, that portion of the judgment pertaining to SEB is reversed.
The defendant argues that the workers' compensation judge erred in assessing penalties and attorney fees against the defendant because (1) the plaintiff failed to submit any valid indemnity and vocational claims to be controverted; (2) the denied surgery was properly controverted; and (3) all medical claims were paid. The plaintiff does not specifically address this assignment of error, asserting only that the trial court did not err in finding that the defendant failed to reasonably
La.Rev.Stat. 23:1201 "clearly establishes that penalties and attorney fees for failure to timely pay benefits shall be assessed unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control." Brown v. Tex.-La. Cartage, Inc., 98-1063, p. 9 (La. 12/01/98), 721 So.2d 885, 890. The phrase "reasonably controverted" indicates that the defendant has some "valid reason or evidence upon which to base his denial of benefits." Id. Thus, to determine whether imposition of penalties and attorney fees are precluded under La.Rev.Stat. 23:1201, this court "must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed." Id. "If an employer or insurer reasonably controverts a claim and then becomes aware of information that makes his controversion of that claim unreasonable, he must then pay the benefits owed or be subject to penalties and attorney fees from that point forward." Id., 98-1063, p. 10, 721 So.2d at 890-91.
The defendant's fifth assignment of error has merit.
The record is devoid of any evidence supporting the plaintiff's indemnity and vocational rehabilitation claims and the plaintiff does not dispute that all medical claims have been paid. With regard to the denied arthroscopic surgery, the plaintiff testified at the hearing that her doctor recommended the arthroscopic surgery but her employer refused to pay the related medical expenses because "she had not tried physical therapy" although according to the plaintiff she had gone through two courses of physical therapy for a total of nineteen sessions.
A review of the plaintiff's medical records indicate that she was notified on December 15, 2014 that her initial request for certification of arthroscopic surgery was denied based upon the recommendation of a board-certified orthopedist employed by an outside agency, CorVel Corporation, who found (based upon the medical records submitted by the plaintiff's treating orthopedist) that there was limited evidence [in the plaintiff's medical records] to suggest that physical therapy treatment has been tried and, therefore, the "medical necessity" for the requested surgery was "not established." The cover letter attached to the copy of the "Outpatient Non-Certification Recommendation" sent to the plaintiff (but submitted as part of her treating orthopedist's medical records) includes an advisory that any objection or disagreement with the recommendation should be submitted to the Louisiana Workers' Compensation Office within fifteen days. There is no indication in the record that the plaintiff disputed the recommendation or requested reconsideration of the recommendation.
Accordingly, although the plaintiff voiced frustration at the hearing as to the initial denial of her request for arthroscopic surgery, it does not appear from the record before us that the defendant was arbitrary or capricious in denying the initial request for surgery. Rather, the defendant submitted the plaintiff's request for arthroscopic surgery to an outside agency for a medical review and recommendation and, although the recommendation was not favorable for surgery at that time, the plaintiff did not dispute the medical findings, object to the recommendation, or request reconsideration. Under these circumstances we cannot say that the defendant
Finally, the defendant argues that imposition of penalties for failure to timely pay Ochsner Emergency Room medical expenses and mileage reimbursement requests is error. Again, the plaintiff does not directly address this assignment of error in her appellate brief.
The defendant's sixth assignment of error has merit. The plaintiff submitted records from Ochsner that indicate she was treated there on November 7, 2012 (with complaints of leg pain and sore ankles which she ascribed to "a fall in April 2012 requiring her to be out of work for 5 months") and on July 30, 2013, during her employment with the defendant. The record of July 30, 2013, indicates that she complained of bilateral knee pain related to a fall the previous week. Upon examination, there was no swelling or tenderness of the knees and, after "IM steroids" were administered, the plaintiff was given a "prescription for Ultram" and discharged. Although the plaintiff's medical records include a "detailed bill" for the medical services received at Ochsner on July 30, 2014, we find nothing to indicate when the bill was paid, and the plaintiff's appellate brief does not supply us with this information or direct us as to where it can be found in the record. Thus, without a payment date, the timeliness of the payment cannot be determined.
With regard to the plaintiff's mileage reimbursements, the plaintiff could not recall when she requested mileage reimbursements from her employer or when the requested amount was paid. Ms. Paisant testified that all mileage reimbursement requests had been paid, although duplicate requests were not paid.
The plaintiff submitted into evidence documents related to mileage reimbursement. First, there are several documents with the heading "Patient Sign In Sheet," listing dates and what is apparently the plaintiff's signature along with various notations and calculations. The plaintiff also submitted into evidence a letter from her attorney dated September 19, 2014, requesting mileage reimbursement and a letter dated January 6, 2014, requesting reimbursement of the mileage reimbursement initially requested in September 2013. Finally, the plaintiff submits two official "Request for Reimbursement of Medically-Related Travel Expenses" (under a "Louisiana Workers' Compensation" heading) indicating reimbursement requests for the two periods (July 26, 2013 to April 19, 2014 for a total of 27.12 miles and April 8, 2014 to May 22, 2014 for a total of 40.86 miles) and that the requests were submitted and paid ($28.15 and $43.30, respectively) on May 28, 2014.
Thus, although it appears that plaintiff was not reimbursed for mileage accrued as early as July 27, 2013, until May 28, 2014, the record evidence indicates that the reimbursement request was not properly submitted until May 28, 2014, at which time it was promptly reviewed and paid.
Accordingly, we find that the workers' compensation judge committed clear error in imposing penalties and awarding attorney fees for the defendant's purported refusal to "pay the claimant's emergency room expenses and mileage in a timely
With regard to the finding that the plaintiff had a compensable work-related accident on July 26, 2013, and that, accordingly, the defendant shall pay for all medical expenses, medically related travel expenses and medication expenses related to the plaintiff's work-related injury, the judgment is affirmed; the remaining portions of the judgment are reversed for the reasons discussed. Such does not mean that if the plaintiff can establish that she is in the future entitled to TTD or SEB (and possibly vocational rehabilitation) that is directly related to her injury in the course and scope of her employment with the defendant that she may not recover those benefits; we find only that the record does not support the plaintiff's right to recover those benefits at the time issue joined.
In this case, a compensatory claim under section 1361 was not asserted.
