VERMILION PARISH POLICE JURY v. Darren WILLIAMS, Sr., 824 So. 2d 466

11YELVERTON, J. This is an appeal from the Office of Workers’ Compensation. The present dispute was initiated by the Vermilion Parish Police Jury when it filed a claim alleging that it was not responsible to its employee, Darren Williams, for treatment of his Bell’s palsy condition. It also alleged that Williams should receive supplemental earnings benefits as opposed to the temporary total disability benefits he had been receiving.

In a reconventional demand, Williams sought approval of a multi-disci-plinary pain program and payment of medical expenses related to a fall which occurred a couple of years after his work-related accident. He also sought penalties and attorney fees. FACTS The facts of this case are not in dispute. We quote from the trial court’s reasons for judgment. On April 8, 1996, Williams was employed with the [Vermilion Parish] Police Jury as a road foreman. A tire blew out on the vehicle he was driving on that date. The vehicle ran into a ditch, and Williams hit the steering wheel.

He received emergency treatment at Abbe-ville General Hospital, then was seen the following day by the employer’s doctor, Dr. Howard Alleman. These early reports note primary complaints with the right hip, groin and leg. He began treating with Dr. John Cobb, an orthopedic specialist, in May, for complaints including headaches, aching in the neck, low back, burning through the hip and leg to the thigh, and problems with the left ankle. An MRI was obtained and was normal. Dr. Cobb prescribed physical therapy and SI joint injections. In October 1996, Dr. Cobb referred Williams to Dr.

Daniel Hodges for conservative treatment. Dr. Hodges undertook treatment, and by March 1997 wanted Williams to try working 4 hours per day at light duty. Williams applied for part-time work at several places, but was not hired. In April 1997 Dr. Hodges referred Williams to Dr. Charles Aprill, and Williams saw Dr. Aprill on June 18. Dr. Aprill performed a right SI joint arthorogram and injection followed by a CT scan, which essentially ruled out right sacroiliac joint abnormality. Dr. Aprill’s records reflect that on June 26, |%Williams woke up with a really bad headache and the left side of his face was drooping.

Williams was subsequently diagnosed with Bell’s Palsy. Though the doctors had initially been optimistic about Williams’ chances for returning to work, his physical complaints have never significantly improved. Further, his depression and anxiety escalated. He treated with Dr. Jimmie Cole, a psychologist, and completed Dr. Cole’s Coping Skills program. He is also currently being treated by Dr. Charles Bramlet, a psychiatrist who specializes in chronic pain patients. Dr. Bramlet has recommended a program similar to Dr. Cole’s Coping Skills program, but which Dr. Bramlet says is more comprehensive that [sic] Dr.

Cole’s program. Vocational rehabilitation was begun in 1998. Karen Herron was the vocational counselor assigned to assist Mr. Williams. Two or three job possibilities were identified, but the most promising, a job with an ice company, turned out to be beyond Mr. Williams’ physical restrictions. Ms. Herron acknowledged several barriers to Mr. Williams’ return to the workforce: his limited education, his physical restrictions, and the fact that he is not driving. As it became apparent that it would be difficult to find suitable employment possibilities for Mr.

Williams, he was offered a position with Work Enterprises, Inc. (WE, Inc.). WE, Inc. is an enterprise which provides “homebound” work to injured workers. The work consists of such activities as packaging bath salts and confetti. Ms. Herron testified that although the DOT lists the jobs as light, they are actually sedentary. Tools and materials are delivered to the injured worker at his home, and the injured worker is able to work at his own pace. There are no requirements set for hours worked or production, but the worker is guaranteed $5.15 per hour, 30 hours per week.

The workers can receive raises or increased pay, depending on circumstances. Employment with WE, Inc. is not open to the general public. WE, Inc. is paid up front by the insurer or employer of the injured worker. The items produced are sold to various retail outlets for sale to the public. Mr. Williams refused the position offered with WE, Inc. His benefits have been paid without interruption. The employer requests a reduction in bené-fits based upon the WE, Inc. positions which were approved by Dr. Hodges and Dr. Bramlet.

After the trial on August 3, 2000, the workers’ compensation judge ruled that the Bell’s palsy was not related to Williams’ work injury. She also denied his request for the pain program recommended by Dr. Bramlet, finding that it was duplicative of |3services that he had already received. The workers’ compensation judge found that Williams remained temporarily totally disabled and that an ankle injury he suffered on November 10, 1998, was related to the work accident. Penalties and attorney fees were awarded for failure to timely investigate and pay the expenses of the ankle injury.

The Police Jury appeals the findings relating to Williams’ disability status and the ankle jury. Additionally, an amicus curiae brief has been filed on behalf of Work Enterprises, Inc. (WE, Inc.), who was not a party below, arguing that rulings by the workers’ compensation judge will have significant effects on its business. Williams discharged Christopher Edwards, his attorney at the trial level, after trial but before the appeal, and hired new counsel who represents him regarding this appeal.

The former attorney, Edwards, filed a brief requesting relief on his petition for intervention which sought recognition of his attorney fee and expenses lien. The intervention, as well as his brief on appeal, complained of the amount of attorney fees awarded, and the brief on appeal requested additional attorney fees for the appeal. The workers’ compensation judge has yet to hear or rule on the intervention, which was filed long after the trial and only a few days before the trial judge’s decision and judgment. We are unable to consider this attorney’s claims. Mr.

Edwards initially filed an appeal on October 5, 2001. Subsequently, he sent a letter to the Office of Workers’ Compensation seeking to convert his appeal to an answer. Then on December 17, 2001, he dismissed the appeal. Louisiana Code of Civil Procedure

Article 2133(

A) requires that an answer to the appeal must be filed no later than 15 days after the return day or lodging of the record, whichever is later. No formal Lanswer was ever filed in the trial court or the court of appeal. Furthermore, no filing fees to answer the appeal have ever been paid. Therefore, having dismissed his appeal and never having perfected his answer to the appeal, Mr. Edwards has lost the right to have us consider his assignments of error. However, this in no way affects his right to be heard on his intervention claim still pending in the trial court.

We shall now consider the Police Jury’s assignments of error regarding temporary total disability and the ankle injury. DISABILITY The Police Jury argues that the trial court erred in finding that Williams was entitled to temporary total disability (TTD) benefits as opposed to supplemental earnings benefits (SEB). Specifically, it argues that it proved that there were jobs available and offered to Williams, specifically the job offered by WE, Inc.

It argues that work offered by WE, Inc. was meaningful and helpful in returning an injured employee back to the work force, and that such work builds an injured employee’s self-confidence. The Police Jury submits that the trial court should have accepted this offer of employment and put Williams on SEB. As mentioned earlier, WE, Inc. has filed an amicus cwiae brief with this court. WE, Inc. argues that the workers’ compensation judge’s ruling regarding wage earning capacity is unconstitutional in its application and that it was not afforded fundamental due process rights at the time of trial.

WE, Inc. asks this court to reverse the portion of the workers’ compensation judge’s opinion involving earning capacity | Ror, in the alternative, allow remand of this matter in order to allow it to seek leave to intervene. WE, Inc. seeks relief other than that requested by parties to these proceedings. “The law is well-settled that issues not raised by the litigants cannot be raised by amicus curiae on appeal.” U.S. Fidelity & Guaranty Co. v.

Victory Land Co., Inc., 410 So.2d 359, 361 (La.App. 4 Cir.), writ denied, 412 So.2d 1113 (La.1982). “Also, relief beyond that which is sought by the parties cannot be requested by amicus curiae.” Id. The trial judge made no mention of WE, Inc. in her judgment. As to disability and entitlement to benefits, the trial judge found that Williams was temporarily, totally disabled, and entitled to indemnity benefits in the sum of $250.08 per week until further orders of the court.

Therefore, we will consider WE, Inc.’s, brief only insofar as it relates to the Police Jury’s argument that Williams should have been awarded SEB based on the job offers from Work Enterprises which Williams never accepted. A workers’ compensation judge’s finding regarding disability is a factual finding which should be given great weight and should not be overturned absent manifest error. Bolton v. Grant Parish School Bd., 98-1430 (La.3/2/99), 730 So.2d 882.

Pursuant to Louisiana Revised Statute 23:1221(1), TTD benefits are proper when the claimant is unable to engage in any self-employment or occupation for wages. Once an injured worker reaches maximum medical improvement and is able to return to work, even in pain, then he is no longer eligible for TTD benefits, but is | firelegated to SEB benefits if he is unable to earn 90% of his pre-accident wages. Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir. 12/11/96), 690 So.2d 792.

The reasons for judgment make it clear that the workers’ compensation judge found that Williams continues to be temporarily, totally disabled, and that the judge based that finding upon Dr. Bramlet’s testimony. At his March 28, 2000 deposition, Dr. Bramlet testified that Williams was unable to work due to his many problems which included the palsy, headaches, back pain, neck pain, family history, social abilities, and education. One of Williams’ biggest problems was his depression and anxiety. He further testified that Williams’ back pain and psychological problems associated with it would alone be disabling.

The workers’ compensation judge recognized that evidence was introduced by the Police Jury to support its position that Dr. Bramlet approved the WE, Inc. jobs for Williams. However, as noted by the workers’ compensation judge, these job descriptions were presented to Dr. Bramlet only two weeks after his deposition and it is hard to tell whose signature is on the line, Furthermore, a letter was written by Dr. Bramlet, after he allegedly approved these jobs, on June 5, 2000, at which time he stated that, “it is to [sic] late to rehabilitate Mr.

Williams both from a physical and psychological standpoint to gain [sic] employment .... I do agree with Dr. Blackburn that the chance of him going back to gainful employment is very low.” Therefore, there is a serious question of whether Dr. Bramlet had actually released Williams to return to work. Even Dr. Hodges testified at his deposition on March 28, 2000, that it was questionable whether Williams could perform light-duty, sedentary work. He opined that he is still suffering from significant anxiety and depression, and he was not certain if Williams’ mental status would allow him to do anything.

It appears that Williams’ pain from his initial work-related accident in addition to his psychological problems are what prevented his employability, in addition to his other limited abilities. We cannot say that the workers’' compensation judge was manifestly erroneous in finding that Williams continued, at the time of trial, to be temporarily, totally disabled from a medical standpoint and not able to engage in any gainful employment. Therefore, it is unnecessary for us to address whether what was offered by WE, Inc. would satisfy the Police Jury’s burden of establishing Williams’ entitlement to SEB.

ANKLE INJURY AND ASSOCIATED PENALTIES AND ATTORNEY FEES The Police Jury claims that the trial court erred in finding that Williams’ November 6, 1998 ankle injury was related to his work accident. It argues that it is more probable that he fell and twisted his ankle because of the symptoms of Bell’s palsy. Obviously, there were two potential explanations for Williams’ 1998 fall. We find that the record supports the workers’ compensation judge’s finding that the ankle injury was related to the fall.

The emergency room record from Our Lady of Lourdes Regional Medical Center, where Williams’ was treated for his ankle injury, clearly relates the ankle injury to Williams’ work accident as follows: “This 32-year-old gentleman has a problem with his back which results in weakness in his legs. He uses a cane all the time. His right knee gave out and fell down and kind of bumped it and twisted his ankle.” It is Williams’ right leg that has been giving him problems since the work accident.

Bell’s palsy affected his left side, not his right side. a The Police Jury also argues that penalties and attorney fees should not have been awarded for failure to pay the medical bill related to the ankle injury. “The workers’ compensation judge has great discretion in the award of penalties and attorney fees, and his decision will not be disturbed unless it is clearly wrong.” Gray v. Premier Staffing, 99-197, p. 7 (La.App. 3 Cir. 6/2/99), 736 So.2d 340, 344.

Recognizing that penalties and attorney fees can be awarded for the employer’s failure to pay medical benefits within sixty days after it receives written notice, the Police Jury claims that it requested the medical records pertaining to the ankle injury but never received them until 30 days before the trial. La.R.S. 23:1201(

E) and (F)(2). Pursuant to Louisiana Revised Statute 23:1201(

E) Williams’ attorney sent a copy of the medical report concerning the ankle injury on November 12, 1998. The letter also provided notice that the hospital had been instructed to bill the workers’ compensation insurer because the fall was caused by weakness in his legs and back. This letter was followed by another letter on November 17, 1998, requesting payment of $353.34 which represented charges for the ankle injury. The bill from the hospital was attached to the letter.

In response to this letter, Management Services USA, who was managing the claim for the Police Jury, wrote Williams’ attorney informing him that it was in the process of obtaining medical records to determine if the fall was related to the accident. Williams’ attorney then sent another letter on January 21, 1999, requesting payment of the hospital bill. A final letter requesting payment was sent on April 21, 1999. Lori Francis, who worked for Management Services, testified that the company never received the medical records until the Police Jury’s attorney sent the records |flto the company.

The records were received on June 2, 2000 yet, the bill still remained unpaid at the time of the hearing in August 2000. We agree with the trial court that Williams is entitled to attorney fees pursuant to Louisiana Revised Statute 23:1201. Management Services made only one request for Williams’ medical records. It does not appear that Management Services even followed up on its requests for the records when it did not receive them. Furthermore, even after the records were received, the claim still remained unpaid for 60 days.

Once these records were received, which clearly related the ankle injury to Williams’ work accident, the bill should have been paid. For the reasons set forth in this opinion, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Vermilion Parish Police Jury. AFFIRMED. THIBODEAUX, J., specially concurs. .

The trial court, finding no evidence of any actual worth for the services performed by WE, Inc. employees, determined that its- position was "simply a shifting of the workers’ compensation obligation, or the supplying of a substitute for the payment of workers’ compensation benefits.”