
    James Wayne SAM, Plaintiff-Appellee, v. STANDARD FITTINGS COMPANY, Defendant-Appellant.
    No. 7681.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Dissenting Opinion Oct. 10, 1980.
    Lewis & Lewis, James C. Lopez, Opelou-sas, for defendant-appellant.
    
      Felix A. DeJean, III, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, FORET, CUT-RER, STOKER and LABORDE, JJ.
   CUTRER, Judge.

James Wayne Sam brought this workmen’s compensation suit against his self -insured employer, Standard Fittings Company (Standard), seeking medical expenses incurred as a result of a disabling work-related accident, along with penalties and attorney’s fees. Standard filed an answer and an exception of prematurity.- The exception was referred to the merits. After trial, judgment was rendered in favor of Sam overruling the exception of prematurity and awarding Sam penalties in the amount of $4,990.51 and attorney’s fees of $3,500.00. Standard appeals from this judgment. Sam has answered the appeal seeking an increase in the attorney’s fees.

The primary issue presented is whether the suit was filed prematurely and, thus, whether it should be dismissed under the provisions of LSA-R.S 23:1314. We have decided that a resolution of this issue disposes of the case.

Sam’s petition alleged that he was injured on the job in November or December of 1976. He alleged that weekly compensation payments had been paid in the amount of $77.84. Sam further alleged that medical expenses in the amount of $41,546.00 had been incurred and had not been paid at the time the original petition was filed on July 11, 1978.

The record reflects that after the suit was filed, but before trial, all medical expenses were paid. Standard issued two checks, dated September 6, 1978 and September 12, 1978, for the payment of the physicians’ bills and the hospital expenses for $41,590.06, the total medical expenses that were due.

Our examination of the record brings us to the conclusion that the trial court erred in overruling the exception of prematurity filed by Standard. Therefore, we reverse.

LSA -R.S. 23:1314 provides that suits under the Workmen’s Compensation Act shall be premature and shall be dismissed unless:

(1) “. . . the employee ... is not being-paid or has not been paid . . . the maximum percent of wages ...” or
(2) “. . . the employee has not been furnished the proper medical attention ...” or
(3) “. . . the employee has not been furnished with copies of the [medical] reports .. . after written requests].”

Items (1) and (3) above are not at issue. Sam alleged in his petition that he did not receive proper medical attention when he had been temporarily refused admission to Opelousas General Hospital because some previous bills remained unpaid. At trial it was shown that Sam had been instructed by his physician to have weekly blood tests for the purpose of detecting blood clots that might develop. On the first of these visits to the hospital he was refused admission. The next day, however, he was admitted for the tests, apparently as a result of his physician’s intervention. We do not deem this one instance significant in determining whether Sam was furnished proper medical attention. Sam’s medical treatment was not seriously disrupted, and he had otherwise received proper treatment. The evidence reflects no harm came of this brief delay, nor did the delay jeopardize Sam’s health. The petition does not otherwise allege failure by the employer to furnish proper medical attention. In view of the failure of plaintiff to make any of the required allegations, we find that the trial court erred in failing to sustain the exception of prematurity.

The record clearly reflects that Sam had always been furnished proper medical attention. In the case of Cooley v. Liberty Mut. Ins. Co., 346 So.2d 1352 (La.App. 3rd Cir. 1977), writ den., 350 So.2d 903 (La. 1977), the court, sustaining an exception of prematurity, addressed this issue as follows:

“In determining whether a suit should be dismissed on an exception of prematurity under LSA-R.S. 28:1314, the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether ‘the employee has been furnished the proper medical attention.’ Jack v. Fidelity and Casualty Company of New York, 306 So.2d 806 (La.App. 3 Cir. 1975); Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3 Cir. 1968); Cucote v. Harris, 335 So.2d 91 (La.App. 3 Cir. 1976).”

Sam was admittéd to the Opelousas General Hospital on several occasions. According to the hospital director, on each admission, Standard was informed by telephone and each time Standard agreed that it would be responsible for the medical expenses.

This court, in the very recent case of Dove v. Liberty Mutual Insurance Co., 379 So.2d 1193 (1980), faced with the same issue presented herein, and similar facts, reversed the trial court and sustained the exception of prematurity, concluding as follows:

‘‘In the instant case there has been no showing of a failure to furnish proper medical attention. This being considered together with the fact that plaintiff continues to be paid all benefits to which she is entitled under the workmen’s compensation act it is axiomatic that her suit is premature. Accordingly, we conclude that the exception of prematurity should have been sustained and plaintiff’s suit dismissed. ”

Since Sam failed to make the proper allegations and we have determined the allegation of failure to provide medical attention is not justified, the exception of prematurity should have been sustained and the suit dismissed as of non-suit.

Plaintiff seeks to recover penalties and attorney’s fees under LSA-R.S. 23:1201.2, alleging Standard’s refusal to pay medical expenses was arbitrary and capricious or without probable cause.

Since we have determined that the suit should be dismissed as premature we must reverse the award of penalties and attorney’s fees.

We have previously held that LSA-R.S. 22:658, providing for award of penalties and attorney’s fees against insurers, does not allow penalties where the main demand is premature. Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3rd Cir. 1968), writs den., 218 So.2d 902 (La.1969). As stated in Roberie v. Ashy Construction Company, 215 So.2d 857 (La.App. 3rd Cir. 1968), writs den., 217 So.2d 414 (La.1969):

‘‘The penalty statute applicable to insurers, LSA-R.S. 22:658, is essentially the same as that applicable to uninsured employers, LSA — R.S. 23:1201.2, and hence jurisprudence construing one statute is persuasive in construing the other. Plaisance v. Collins Industries, Inc., 193 So.2d 876.” Footnote (7), page 864.

We conclude therefore that, since the penalty statute LSA R.S. 23:1201.2 is essentially the same as LSA R.S. 22:658, penalties and attorney’s fees cannot be awarded under LSA R.S. 23:1201.2 when the main demand is premature.

For the reasons assigned, the judgment of the trial court is reversed and. the plaintiff’s suit is ordered dismissed as of non-suit. Plaintiff appellee is assessed costs at the trial level and on appeal.

REVERSED AND RENDERED.

STOKER, J., concurs and assigns written reasons.

■ FORET, J., dissents and assigns written reasons.

LABORDE, J., dissents.

STOKER, Judge,

concurring.

I concur in the majority opinion because I believe it correctly states the law as it has crystalized in jurisprudence. Nevertheless, this case and the Cooley case cited in the majority opinion illustrate that under the established jurisprudence an injured worker may be put to the expense, trouble and delay of a law suit in order to put an end to the dalliance of an employer or compensation carrier. Under the present law delay or tardiness in payment of medical expenses by one who owes them is sanctioned. All an employer or insurer need do after a suit is filed is pay the medical expenses, and the plaintiff worker will be undone by a plea of prematurity. When such a plea of prematurity is filed the plaintiff is met with the settled law that “the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether the employee has not been furnished the proper medical attention.” Under such circumstances the injured worker forced to sue is not entitled to penalties and attorney’s fees. Still worse, the plaintiff has to bear the costs of the abortive suit. Jack v. Fidelity & Casualty Company of New York, 306 So.2d 806 (La.App. 3rd Cir. 1975); Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3rd Cir. 1968), writ refused, 218 So.2d 902 (La.1969); Dugas v. Houston Contracting Company, 191 So.2d 178 (La.App. 3rd Cir. 1966); Cucote v. Harris, 335 So.2d 91 (La.App. 3rd Cir. 1976); Cooley v. Liberty Mutual Ins. Co., 346 So.2d 1352 (La.App. 3rd Cir. 1977), writ denied, 350 So.2d 903 (La.1977) and Dove v. Liberty Mutual Ins. Co., 379 So.2d 1193 (La.App. 3rd Cir. 1980). In fact the employer or insurer obligated to pay for medical treatment does not have to pay for the medical expenses to maintain an exception of prematurity. All such an obligor need show is that it authorized the medical services.

We may gather from the jurisprudence in this area that, if the provider of medical services furnishes them to the injured worker (to use the statutory language), because of assurances by the obligor that the obligor will pay for them, then this is deemed equivalent to furnishing medical services by the obligated employer or insurer. In other words, the rationale of the developed jurisprudence is that if the obligor enables the workman to obtain medical attention, it has been “furnished” to him, and the injured worker has no concern or interest as to when the obligor actually pays for the medical services.

Our prevailing theory raises several serious questions. Could the employee be held liable for the services if the obligor never pays for them? Suppose prescription runs on medical claims. Will the authorization given by an obligor to a medical provider to give medical services serve to interrupt prescription? Can we truly say, where injuries of a worker require extended treatment, that nonpayment of the accrued expenses does not hamper or inhibit the worker from obtaining continued service? Finally, can we truly say, where an obligor admits liability for medical services but fails to pay for them over a long period of time, that the obligor has “furnished” medical services? Why should the worker be left in the lurch?

It appears to me that in focusing always on the facts as they exist at the time of trial of exceptions of prematurity, rather than the overall facts, we may fail in certain cases to give effective meaning to the word “furnished” as employed in LSA-R.S. 23:1314. This statute provides that a workmen’s compensation suit is premature unless “the employee has not been furnished the proper medical attention.”

Perhaps in the case before us we have simply been presented with a case of hard facts failure to pay medical expenses for an injury in November or December of 1976 until after suit is filed on July 11, 1978. In view of the settled nature of the jurisprudence, I think adherence to the settled rule is proper. Any change or emendation of our interpretation of the statutory language in question is a matter which should be left to legislative action.

FORET, Judge,

dissenting.

My research is this case reveals a series of cases, including some of our own, which lead to the inevitable conclusion that quite possibly we have made inconsistent remarks in Cooley v. Liberty Mutual Insurance Co., 346 So.2d 1352 (La.App. 3 Cir. 1977), writ denied, 350 So.2d 903 (La.1977); Dove v. Liberty Mutual Insurance Company, 379 So.2d 1193 (La.App. 3 Cir. 1980), and in Cucote v. Harris, 355 So.2d 91 (La.App. 3 Cir. 1976). In Cooley, in which I was a member of the panel, we stated:

“In determining whether a suit should be dismissed on an exception of prematurity under LSA-R.S. 23:1314, the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether the employee has been furnished proper medical attention.”

However, in Cooley, we said that the record did not show whether all of the medical expenses incurred by plaintiff had been paid by defendants, and we held therefore that our judgment sustaining the exception of prematurity and dismissing the suit did not prevent plaintiff from maintaining another action against defendants to recover any other medical or hospital expenses incurred by plaintiff for treatment of the above injuries, which may be due by defendants and are still unpaid or unreimbursed. Although I was on the panel, and signed this decision, there certainly seems to be an obvious inconsistency in our judgment. This inconsistency now bothers me a good deal.

I make mention some other cases which have held that an employee’s claim for medical expenses does not exist outside the workmen’s compensation statute, and the time within which to claim medical expenses is accordingly governed by the statute and that an employee’s claim for medical expenses must be brought within one year of the last medical payment. See Rowley v. Lumberman’s Mutual Casualty Company, 2A1 So.2d 135 (La.App. 2 Cir. 1971), writ refused June 21, 1971; Blanchard v. Liberty Mutual Insurance Company, 280 So.2d 592 (La.App. 3 Cir. 1973); Brown v. Travelers Insurance Company, 247 La. 7, 169 So.2d 540 (1964).

Again, in Andrus v. Employers Insurance of Wausau, 348 So.2d 1337 (La.App. 3 Cir. 1977), we again said that there was no showing of a failure to furnish medical attention, and the suit was therefore premature, “however, medical expenses which have not been paid may be demanded in an independent action,” citing Blanchard v. Liberty Mutual Insurance Company, supra, and that particular portion of the opinion in Cooley.

It seems to me, however, that a claim for unpaid medical expenses may be demanded by plaintiff even though he is being paid weekly benefits, and therefore precluded from (a) filing a suit for weekly benefits, or (b) from lumping together a lawsuit for both weekly benefits and medical expenses. In order to reconcile these cases, we can hold that a claimant who is drawing weekly compensation benefits can nevertheless maintain a separate action for unpaid medical expenses independent of any proceedings concerning his extent of disability, etc. If we are going to say that Cooley, Andrus, Cucóte, etc. mean that a plaintiff can never file suit for unpaid medical expenses, as long as he is receiving medical treatment, then we run into the problem of peremption/prescription mentioned in Blanchard and Prejean v. Travelers Insurance Company, 234 So.2d 527 (La.App. 3 Cir. 1970). LSA-R.S. 23:1209 certainly sets out a per-emptive period within which the claimant must file suit for medical expenses or his cause of action will be prescribed, even though he may be drawing weekly compensation benefits. I think what I am really trying to say here is that we cannot insinuate that the legislature was so inept as to mean that LSA-R.S. 23:1314 declares premature any action by a claimant for unpaid medical expenses to which he is entitled, as long as he is furnished proper medical attention; whereas, on the other hand, the legislature in LSA-R.S. 23:1209 says that a claim for unpaid medical expenses by an employee must be brought within one year from the incurring of these expenses, or his claim will be perempted or prescribed, and he will forever lose his cause of action for such unpaid medical expenses. I simply cannot believe that the legislature intended such an absurd result.

In Blanchard, supra, we said, at page 598:

“Our jurisprudence is settled that medical expenses do not constitute a part of “compensation,” that a demand for medical expenses can be independently asserted, and that such a demand is controlled by the prescription or peremption provided in LSA-R.S. 23:1209. Brown v. Travelers Ins. Co., 247 La. 7, 169 So.2d 540 (1964). The “payment” necessary to interrupt prescription of a claim for medical expenses is a medical payment. [In other words, payment of weekly compensation benefits does not interrupt prescription as to medical expenses.] Prejean v. Travelers Insurance Company, 234 So.2d 527 (La.App. 3 Cir. 1970).
In the instant suit more than one year elapsed between the medical payment made on February 4, 1969, and the one made on March 10, 1970. The trial judge thus correctly determined that plaintiff’s right to claim medical expenses was lost by prescription.”

A conclusion can be drawn then, based on Blanchard, that all that Standard Fittings was legally required to pay was the medical expenses incurred during the year before suit was filed. I have found nothing in the record to show that Standard Fittings ever acknowledged, in writing, either to Opelou-sas General Hospital, Dr. Granger, or any other doctors, or to the plaintiff, that they waived prescription, and acknowledged the debt. The only evidence in the record to that effect is that hospital employees testified that upon each admission to the hospital, that they called Standard Fittings and that someone at Standard Fittings said they would be responsible for the bill. The same testimony is applicable to the bill of Dr. Granger. However, again, we have nothing in writing, nothing but telephone conversations, until after suit was filed. On the contrary, the employees of Opelousas General repeatedly admonished plaintiff that if Standard Fittings did not pay the bill, he would be personally responsible; and also discussed the delinquent account with him on several occasions. So, it appears to me that the rationale of Blanchard and the cases cited therein is that a compensation plaintiff certainly must have a right to file suit for unpaid medical expenses at least before prescription runs.

DID EMPLOYER FURNISH PROPER MEDICAL ATTENTION?

The majority reverses the trial court and sustains defendant’s exception of prematurity on the grounds that a workmen’s compensation suit will be timely where “the employee has not been furnished the proper medical attention”, implying that if the employee is furnished proper medical attention, a suit by him for payment for these expenses will be premature. That may be well and good, however, I am of the opinion that in this case, where plaintiff was injured in November of 1975, and not one cent of medical expenses was paid by the employer until September 6, 1978, (2 months after filing of suit) two years and some ten months after the accident, at which time medical expenses totalled $41,-590, that by any stretch of the imagination can the employer be said to have “furnished medical attention” to the plaintiff. Plaintiff’s doctors and Opelousas General Hospital furnished him medical attention .. . not the employer. When this reasoning is applied to the prescriptive period of one year, resulting in almost two years of plaintiff’s right to recover medical expenses being prescribed, then I fail to see how the employer “furnished medical attention” to this claimant. See the comments on this point made by Judge Stoker in his concurring opinion herein.

For the above reasons, I respectfully dissent. As we said in Southern Builders, Inc. v. Carla Charcoal, Inc., 357 So.2d 638 (La.App. 3 Cir. 1978), writ denied 358 So.2d 632 (La.1978), quoting Justice Frankfurter in Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954): “justice must satisfy the appearance of justice”. The result in this ease certainly, in my mind, does not “satisfy the appearance of justice”. 
      
      . Cooley v. Liberty Mutual Ins. Co., 346 So.2d 1352 (La.App. 3rd Cir. 1977), writ denied, 350 So.2d 903 (La.1977).
     
      
      . I recognize Ancelet v. Moreno’s Air Conditioning, 331 So.2d 127 (La.App. 3 Cir. 1976) where a panel of this Court held exactly the opposite of Blanchard, supra, and picked up a dissenting opinion in a La. Supreme Court ^
      [2] Harris v. Traders & General Insurance Company, 200 La. 445, 8 So.2d 289 (1942).
      case to hold that the prescriptive period did not apply. Of course no writs were applied for in Ancelet, and I have grave doubts that Ancelet is correct in view of La.R.S. 23:1209.
     
      
      . I might mention that not only did claimant have to hire a lawyer to get his medical expenses paid, he also has been condemned to pay the court costs incurred herein, both at trial level and on appeal. On the other hand, the employer enjoyed a substantial economic benefit by hanging on to its money for the time for which it did — it probably either earned interest, or avoided payment of interest in a sufficient amount to pay its own lawyers to defend this suit.
     