Opinion
NO. 2015-CA-0358
09-23-2015
RAFAEL GAVARRETTE v. HOME TEAM PRODUCTIONS, LCI
Roberto L. Costales COSTALES LAW OFFICE 3801 Canal Street Suite 207 New Orleans, LA 70119 COUNSEL FOR PLAINTIFF/APPELLANT Shannon Michele Frese Wayne J. Fontana ROEDEL PARSONS KOCH BLACHE BALHOFF & MCCOLLISTER 1515 Poydras Street, Suite 2330 New Orleans, LA 70112--3720 COUNSEL FOR DEFENDANT/APPELLEE
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION
NO. 2014-04290, DISTRICT "EIGHT"
Honorable Robert Varnado, Workers' Compensation Judge
Judge Roland L. Belsome (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano) Roberto L. Costales
COSTALES LAW OFFICE
3801 Canal Street
Suite 207
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT Shannon Michele Frese
Wayne J. Fontana
ROEDEL PARSONS KOCH BLACHE BALHOFF & MCCOLLISTER
1515 Poydras Street, Suite 2330
New Orleans, LA 70112--3720
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED AS AMENDED
This appeal challenges the lower court's judgment imposing attorney's fees, costs, and sanctions in the amount of $250.00 on the claimant. For the following reasons the judgment is amended and affirmed as amended.
The underlying proceeding is a workers' compensation claim. On July 10, 2014, the claimant, Rafael Gavarrette's counsel filed a Motion for Court Ordered Approval of Choice of Physician. The claimant sought approval for an appointment with his physician of choice, Dr. Rand Voorhies. Subsequent to that filing, defendant's counsel, in writing, authorized claimant's appointment with Dr. Voorhies.
Dr. Voorhies' office informed claimant's counsel and the insurance adjuster handling the claim that the office requires a specific authorization form to be executed prior to the scheduled appointment on September 14, 2014. The record indicates that the required authorization form was faxed to the insurance adjuster on August 8, 2014 and again on September 11, 2014.
On September 5, 2014, Dr. Voorhies' office informed claimant's counsel that the authorization form had not been received. Later that day, a second Motion for Court Ordered Approval of Choice of Physician was filed. The motion also sought attorney's fees, costs, and sanctions. As stated in an affidavit, the authorization form was again sent to Dr. Voorhies' office on September 11, 2014, rendering the motion moot. Although the motion was mooted, claimant's counsel insisted on maintaining the scheduled show cause hearing. Then, defendant's counsel filed an opposition to the Motion for Court Ordered Approval of Choice of Physician and also requested attorney's fees, costs, and sanctions.
After appearing before the lower court and filing post hearing briefs on the issue of attorney's fees, costs, and sanctions, the lower court rendered judgment declaring the Motion for Court Ordered Approval of Choice of Physician moot and awarding $250 in attorney's fees, costs, and sanctions (hereinafter "sanctions") to the defendant. This appeal followed.
On appeal, this Court reviews the lower court's determination to grant sanctions under a manifestly erroneous standard, while the amount of the award is reviewed under an abuse of discretion standard. Hester v. Hester, 97-1326 (La.App. 4 Cir. 2/11/98), 708 So.2d 462.
In accordance with La. C.C.P. art. 863, an attorney must reasonably believe and certify that "[e]ach allegation or other factual assertion in the pleading has evidentiary support..." La. C.C.P. art 863(B)(3). Further, subsection D of Article 863 reads:
If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.A worker's compensation judge is authorized under Louisiana law to impose sanctions under Article 863. See Dufour v. River City Management, 06-1487 (La.App. 3 Cir. 11/28/07), 970 So.2d 1233.
Upon reviewing the record, there is no evidence that the authorization for the appointment with Dr. Voorhies was denied, as was alleged in the second Motion for Court Ordered Approval of Choice of Physician. In fact, it is undisputed that defendant's counsel authorized the appointment in writing. Additionally, the record contains two affidavits confirming that the authorization form required by Dr. Voorhies was completed and returned to his office twice prior to the scheduled appointment. It is also clear that prior to the filing of the second Motion for Court Ordered Approval of Choice of Physician, defendant's counsel was unaware that an additional form needed to be submitted before Dr. Voorhies would see the patient. Although the pleading alleged that the physician authorization was denied and suggested that the defendant was acting in bad faith, the record just does not support either of those allegations. Thus, defendant's counsel was made to file a pleading in response to false allegations and had to appear at a hearing for a moot issue. Under these circumstances, sanctions were warranted.
Communications regarding the authorization form were between Dr. Voorhies' office and the claimant's counsel or the insurance adjuster.
The defendant/appellee requested additional sanctions on appeal, but failed to file an answer to the appeal. La. C.C.P. art. 2133. Therefore the issue is not properly before this Court. --------
Accordingly, based on the record before this Court, we do not find that the lower court was manifestly erroneous in imposing sanctions for the continued pursuit of proceedings over an issue that was moot. Further, we do not find that the lower court abused its discretion in awarding $250. However, since all of the actions that resulted in the sanctions being imposed were executed by counsel for the claimant, we amend the judgment to reflect that the imposition of $250 in attorney's fees, costs, and sanctions is against claimant's counsel.
AFFIRMED AS AMENDED