KARA NEWINGHAM v. ELITE MEDICAL WELLNESS LLC ET AL (2026)

The defendants, Elite Medical Wellness, LLC, and Dr. Patrick Hayes, appeal the judgment of the trial court against both defendants awarding Kara Newingham $10,507.50 for unpaid wages, $25,042.83 for penalty wages pursuant to La.R.S. 23:632, and $27,067.30 in attorney fees.

FACTS

Kara Newingham is a licensed professional counselor. She entered a “Licensed Professional Counselor Services Agreement” with Elite Medical Wellness, LLC on September 1, 2022, though she began seeing patients later in the month. Dr. Patrick Hayes, the owner of Elite Medical, executed the contract on behalf of Elite Medical. The term of the contract was for twelve months. A second contract with amended terms was executed by the parties in November 2022.

Pursuant to the contract, Ms. Newingham gave notice to Elite Medical in July 2023 that she intended to terminate her contract with Elite Medical effective September 1, 2023. Ms. Newingham continued to see patients until August 24, 2023, the last date Elite Medical scheduled appointments for her. After receiving her last payment for services from Elite Medical, Ms. Newingham claims that she was not paid for services rendered to 123 patients in August 2023. Ms. Newingham made inquiries and demands for payment in December 2023 to both the practice manager, Kourtney Sittig Tomassi, and to Dr. Hayes. Ms. Tomassi explained that pursuant to the contract, Ms. Newingham was not entitled to receive the payments for her services received by Elite Medical more than forty-five days after her last date of providing services under the contract.

Ms. Newingham engaged counsel and filed a Petition to Collect Wages Due in Lake Charles City Court on May 17, 2024. She sought $10,507.50 in past due wages, penalty wages pursuant to La.R.S. 23:632, and attorney fees pursuant to the contract.

Elite Medical and Dr. Hayes filed a Peremptory Exception of No Cause of Action, Original Answer, Reconventional Demand for Attorneys’ Fees and Costs, and Motion to Disqualify. In it, the defendants claimed the contract Ms. Newingham signed made clear she was an independent contractor and not an employee, so she was not entitled to relief pursuant to La.R.S. 23:632. Elite Medical and Dr. Hayes further denied that they owed any compensation to Ms. Newingham under the terms of the contract and sought dismissal of Ms. Newingham's claims and attorney fees and costs pursuant to that contract. Finally, the defendants sought to disqualify Ms. Newingham's counsel because he had previously represented Dr. Hayes in a divorce proceeding.

After a hearing on November 14, 2024, the trial court overruled the defendants’ exception of no cause of action and the motion to disqualify Ms. Newingham's attorney was withdrawn by the defendants’ counsel. Trial of the main demand was held on May 8, 2025. The court heard testimony from Dr. Hayes, Ms. Tomassi, Ms. Newingham, and Caitlyn McGroarty (the current practice manager for Elite Medical), and considered documentary evidence submitted by both parties. The court allowed the parties to file post-trial briefs and took the matter under advisement.

On July 24, 2025, the trial court issued a written opinion finding that Ms. Newingham was an employee of Elite Medical, not an independent contractor. Thus, she was entitled to seek back due wages pursuant to La.R.S. 23:632. Further, the trial court found that Elite Medical and Dr. Hayes acted in bad faith by failing to submit invoices to the third-party payers until sixty days after Ms. Newingham rendered services to patients. They did so even though Elite Medical and Dr. Hayes knew that it was impossible that Elite Medical would receive payments within the forty-five days provided in Ms. Newingham's contract. The trial court awarded $25,042.83 in penalty wages pursuant to La.R.S. 23:632(A). Finally, the court found Ms. Newingham was entitled to an award of attorney fees to Ms. Newingham, subject to a hearing giving the defendants an opportunity to traverse plaintiff's counsel's invoices.

The trial court signed a judgment on September 11, 2025, awarding the aforementioned amounts for past due wages and penalty wages and $27,067.30 in attorney fees. The defendants timely filed a Motion for New Trial. After a hearing, the trial court denied the motion.

Elite Medical and Dr. Hayes now appeal the judgment of the trial court.

ASSIGNMENTS OF ERROR

In their brief to this court, Elite Medical and Dr. Hayes allege the trial court committed four errors requiring reversal:

First, the trial court committed an error of law when it concluded that the unpaid commissions to Ms. Newingham were recoverable under the Act;

Second, the trial court committed an error of law when it concluded that Dr. Hayes was the employer of Ms. Newingham, such that Ms. Newingham had an actionable claim under the Act;

Third, the trial court committed an error of law when it concluded that Elite Medical was the [ ] employer of Ms. Newingham, such that Ms. Newingham had an actionable claim under the Act; and

Fourth, the trial court committed an error of law when it concluded that Elite Medical and Dr. Hayes were liable for bad faith damages under the Act for implementing a protocol expressly permitted and blessed by the Act.

DISCUSSION

In their first assignment of error, the appellants argue that, even if Ms. Newingham is considered an employee of Elite Medical, the commissions are not wages due pursuant to La.R.S. 23:631(E). At the time of trial, section E stated:

(1) For purposes of this Section and R.S. 23:634, compensation available in the form of commission, incentive pay, or bonus shall be considered an amount then due only if, at the time of separation, the compensation has been earned and not modified in accordance with a written policy addressing the commission, incentive pay, or bonus.

(2) The following provisions shall be lawful:

(a) A policy providing for adjustments to the amount based on changes to the order generating a commission which affects the amount of the commission.

(b) A policy providing that a payment to the laborer or employee is not earned unless and until the employer has received the payment which generates the commission, incentive pay, or bonus.

(3) In the case of a bonus, the amount of which is determined by financial information reflecting the employee's or employer's performance on an annual, quarterly, or other periodic basis, a reasonable amount of time, not to exceed one hundred twenty calendar days from the end of such periodic basis, shall be allowed based on standard accounting practices used by the employer to make the determination as to whether a bonus is due and the amount thereof.

This language was added to the statute by 2024 La.Acts No. 556, and became effective August 1, 2024, nearly one year after Ms. Newingham terminated her relationship with Elite Medical.

The second circuit addressed the issue of whether commissions are considered wages due under the pre-amendment version of La.R.S. 23:631 in U.L. Coleman Co., Ltd. v. Gosslee, 51,396, p. 16 (La.App. 2 Cir. 11/3/17), 244 So.3d 783, writ denied, 18-239 (La. 4/16/18), 240 So.3d 180:

Generally, when sale commissions are at issue, the inquiry of whether a wage was actually earned focuses on what work associated with the sale remained at the time of the employee's discharge. Schuyten v. Superior Sys. Inc., 2005-2358 (La. App. 1 Cir. 12/28/06), 952 So.2d 98, and citations therein. Where only collection of the fee is outstanding and collection is beyond the control of the employee, the employee has earned his commission for purposes of the Payment of Employees law; however, if a substantial amount of time and effort are needed to complete a sale, then the right to a commission may not have been earned. Id.

The evidence in the record before us indicates that, in addition to treating the patient, Ms. Newingham was required to complete a document referred to internally as a “superbill” and the chart note in order to be paid the commission due for services provided to clients who did not pay cash at the time of their appointment. Ms. Newingham testified that she completed all required paperwork by the end of the day that she saw the patient. So, Ms. Newingham completed the work required to earn the commission on August 24, 2023. There was no evidence to contradict that testimony. Further, Ms. Newingham had no role in the collection of payment from third-party payors.

Ms. Tomassi, the practice manager when Ms. Newingham worked at Elite Medical, testified that the bills were not sent to payors until the beginning of the second month after the appointment. For instance, if Ms. Newingham had turned in all the required documents by October 1, the invoices for payment would not have been sent until December 1. She testified that because of this lag, there was no way Ms. Newingham could have been paid for the last sixty days she saw patients. Ms. Tomassi also testified that when Ms. Newingham asked about the missing payments, Dr. Hayes instructed Ms. Tomassi to follow the regular office policy regarding the sending of invoices.

We find no error in the trial court's determination that La.R.S. 23:631(E) did not apply to relieve Elite Medical and Dr. Hayes from the obligation to pay Ms. Newingham commissions she earned. The language relied on by the appellants did not exist in the statute at the time of the termination of Ms. Newingham's relationship with Elite Medical, and the law in effect at the time does not support the argument of the appellants.

We next consider the appellants’ third assignment of error, whether the trial court erred in determining that Ms. Newingham was an employee of Elite Medical, rather than an independent contractor. The evidence is uncontradicted that the contracts Ms. Newingham signed in September and November 2022 indicated that she was an independent contractor. “[T]he term independent contractor connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants.” Hickman v. S. Pac. Transp. Co., 262 La. 102, 117, 262 So.2d 385, 390 (1972). In Gordon v. Hurlston, 03-112, p. 5 (La.App. 3 Cir. 9/10/03), 854 So.2d 469, 472 (citing Hickman), this court set out the following factors for determining whether a relationship is that of independent contractor or employer-employee:

(1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor's own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.

While Hickman considered whether a party was an independent contractor for the purpose of determining whether to shield an employer from liability for torts committed by an employee, this court has found the same analysis “helpful in determining an employee's status vis-à-vis the employer's liability for claims arising under La.R.S. 23:631.” Gordon, 854 So.2d at 472.

In its reasons for ruling, the trial court clearly applied these factors to the evidence presented at trial:

The court considers the following factors to determine if an independent contractor relationship is present: (1) whether there is a valid contract between the parties; (2) whether the work being done is of an independent nature, such that the contractor may employ a nonexclusive means in accomplishing it; (3) whether the contract calls for specific piecework as a unit to be done according to the independent contractor's own methods, without being subject to control and direction of the principal, except as to the result of the services rendered; (4) whether there is a specific price for the overall undertaking agreed upon; and (5) whether the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. Certified Cleaning & Restoration, Inc. v. Lafayette Ins. Co., 10-948, p. 6 (La.App. 5 Cir. 6/14/11), 67 So.3d 1277, 1281; Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385, 390-91 (La.1972); Honeycutt v. Deutschmann, 07-211, p. 4 (La.App. 5 Cir. 1/22/08), 976 So.2d 753, 755; Smith v. Zellerbach, 486 So.2d 798, 801 (La.App. 1 Cir. 1986), writ denied, 489 So.2d 246 (La.1986) (citing HIckman). “However, the most important test in determining whether or not an independent contractor relationship exists involves the employer's control over the work.” Morales v. Davis Bros. Const. Co., 94-0902, p. 4 (La.App. 4 Cir. 12/15/94), 647 So.2d 1302, 1305.

In Simon v. Farm Bureau, 297 So.3d 147 (La.App. 3 Cir. 2020), the Third Circuit Court of Appeals pointed out that what matters in determining employment classification is the substance of the relationship between the parties and not just the title of the contract. Newingham testified that from the beginning of her engagement with defendants, she did not consider herself as an independent contractor, but rather as an employee. She testified she was directed as to specific counseling methods to use; she was instructed by defendant, and specifically Tommasi, on procedures for maintaining patient records and billing protocols. Defendants controlled procedures, policies, guidelines, and more specifically, defendants had exclusive control over scheduling, record maintenance and billing, and the presence of an at-will termination clause in the contract. Newingham testified that at no time did she believe she could deviate from Elite's directives without risking termination, further evidencing her status as an employee rather than an independent contractor. This court finds the totality of the circumstances demonstrates Newingham was an employee of Elite and not an independent contractor.

The trial court went on to review the evidence introduced by each party with respect to the five Hickman factors. It found that there was a valid contract between the parties. The trial court found Elite Medical and Dr. Hayes “exercised vast control over Plaintiff's work.” Ms. Newingham was required to follow Elite Medical's “specific methods and practices” rather than exercising her own discretion. She was required to submit documentation with specific content and on strict timelines. She was expected to attend staff meetings without compensation. The court further found that Ms. Newingham had no control over the billing or collection of invoices once she submitted the mandatory paperwork. The trial court found that Dr. Hayes, and not Ms. Newingham, determined the method that was to be used in the services rendered to her patients. Ms. Newingham even testified that she had not been trained on those methods and had to do independent research to comply with that mandate. The trial court found that the payment structure aligned more closely with an employee relationship than with an independent contractor relationship. Finally, the trial court found the contract was terminable at will. All these factors supported a finding that Ms. Newingham was an employee of Elite Medical.

We find the trial court applied the correct law in determining whether Ms. Newingham was an independent contractor or an employee. Elite Medical argues that the policies imposed by Elite Medical were simply to enforce quality standards on Ms. Newingham's work. The trial court heard the evidence and reached a different conclusion.

“[T]he distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.” Tower Credit, Inc. v. Carpenter, 01-2875, p. 6 (La. 9/4/02), 825 So.2d 1125, 1129 (citing Fontenot v. J.K. Richard Trucking, 97-220 (La.App. 3 Cir. 6/4/97), 696 So.2d 176). We will not disturb the factual finding of the trial court in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). Having reviewed the evidence in its entirety, we find no manifest error in the trial court's conclusion that Ms. Newingham was an employee of Elite Medical. The third assignment of error is without merit.

We note that Elite Medical argues that we should apply the factors set out in La.R.S. 23:1711.1. “Notwithstanding any provision of this Chapter to the contrary, there shall be a rebuttable presumption of an independent contractor relationship with the contracting party for whom the independent contractor performs work, if an individual or entity controls the performance, methods, or processes used to perform services and meets at least six of the following criteria[.]” La.R.S. 23:1711.1(A)(1). In this case, Ms. Newingham is the “individual or entity” and Elite Medical is the “contracting party.” As found by the trial court, Ms. Newingham did not control the “performance, methods, or processes used to perform services[.]” Therefore, one of the two conditions necessary to apply the presumption in La.R.S. 23:1711.1(A) are not met, and it is unnecessary for this court to analyze the factors listed in the remainder of La.R.S. 23:1711.1(A)(1)(a) – (k).

In its fourth assignment of error, the appellants argue the trial court erred in finding they engaged in bad faith or unfair dealing. They claim that the methodology they employed “is completely lawful and appropriate under Louisiana law.” As we have already explained, the law upon which they premise this argument is not applicable in this case because it was not the law at the time of the formation or termination of the contract.

The trial court found that Elite Medical and Dr. Hayes engaged in bad faith by including a provision in Ms. Newingham's contract that she would not be paid any commissions she earned unless Elite Medical collected the amounts from third-party guarantors within forty-five days of the last date she treated a patient. In the original contract signed on September 1, 2022, the clause at issue stated:

Upon termination of this Agreement, such professional fees shall remain the property of the Company. LPC [licensed professional counselor] shall receive compensation of said income up to 45 days post termination/resignation. LPC will be paid any fee due, which has settled by the 45th day after LPC's last clinical encounter associated with a signed, clean submitted claim or invoice, minus the value of any unsigned, unbillable claim(s) which have been rendered unbillable due to LPC having not completed it/them in a timely manner. All notes must be signed as of the close of business on the last worked day, as access to records will be locked at the close of business on that day.

In the November contract, the analogous section was changed (changes indicated in bold):

For any LPC-initiated resignation, or mutually agreed upon termination of the contract under favorable terms (eligible for rehire), LPC will be paid any fee due, which has settled, and for which funds have been deposited, by the 45th day after LPC's last clinical encounter associated with a signed, clean submitted claim or invoice, minus the value of any unsigned, unbillable claim(s) which have been rendered unbillable due to LPC having not completed it/them in a timely manner. This means the value of any unsigned, unbillable claim(s) will be subtracted from any pay which is formally due.

As noted previously, Ms. Tomassi testified that Elite Medical's regular practice was to wait and send invoices to third-party guarantors at least thirty and as many as sixty days after treatment was provided. Ms. Tomassi testified that the billing system was intentionally designed to avoid paying providers for the last sixty days they worked. Ms. Tomassi also testified that she edited the contract but only made those changes that Dr. Hayes instructed her to make. The trial court found that Dr. Hayes, the managing member of the limited liability company, was responsible for implementing the system that attempted to deny Ms. Newingham compensation for her final weeks of work. The trial court found that Elite Medical and Dr. Hayes acted in bad faith by failing to send out invoices until the expiration of the forty-five day “tail provision.” The trial court found this behavior constituted bad faith in violation of La.Civ.Code art. 1983. Thus, in addition to the past-due wages owed to Ms. Newingham, the trial court awarded penalty wages pursuant to La.R.S. 23:632 and attorney fees pursuant to the contract. The evidence supports the trial court's conclusion that penalties and attorney fees were appropriate.

In its second assignment of error, the appellants argue that the trial court committed legal error by finding Dr. Hayes personally liable. While Dr. Hayes was a member and manager of Elite Medical Wellness, LLC, they argue that Dr. Hayes was not her employer. Further, as a member of the limited liability company, Dr. Hayes is not responsible for the debts of the company except under limited circumstances not relevant here. La.R.S. 12:1320(B). In their reply brief, the appellants argue that Ms. Newingham never asserted any claim for fraud, for fiduciary breach, breach of Dr. Hayes's professional duty as a physician, or any other tort. The only claim in the original petition was a failure to pay wages due pursuant to La.R.S. 23:632.

In response, Ms. Newingham argues that Dr. Hayes exercised direct control over the terms and conditions of Ms. Newingham's employment. Further, she argues that the terms of the contract, drafted by Dr. Hayes, and the billing practices of Elite Medical were intentionally designed so that Ms. Newingham would not be paid for her last sixty days of work. This, she argues, constitutes fraud. Therefore, the exception in La.R.S. 12:1320(D) applies, which states:

Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.

Ms. Newingham cites Korrapati v. Augustino Bros. Constr., LLC, 19-426 (La.App. 5 Cir. 7/31/20), 302 So.3d 147, in support of her argument. In Korrapati, the plaintiff contracted with Augustino Brothers Construction, LLC, to enclose her porch. The plaintiff communicated with Christopher Perdomo, the company's sole member, in the negotiations for the contract. When the contractor failed to timely perform the work, the plaintiff terminated the contract and paid for the work completed. Later, the plaintiff was fined by the parish because there was no permit issued for the construction project. The plaintiff filed suit, alleging Mr. Perdomo falsely represented that he had acquired a permit (as required by the contract with Augustino). She alleged this misrepresentation amounted to fraud and Mr. Perdomo was personally liable for the damages, including return of the payment she made and the cost of removing the work performed by Augustino. The trial court found that Mr. Perdomo made “an intentional misrepresentation of a fact with the intent to deceive.” Id. at 155. Further, the plaintiff relied on Mr. Perdomo's false statements and suffered damages as a result.

In affirming the trial court's judgment, the fourth circuit stated:

In narrowly defined circumstances, when individual member(s) of a juridical entity such as an LLC mismanage the entity or otherwise thwart the public policies justifying treating the entity as a separate juridical person, the individual member(s) have been subjected to personal liability for obligations for which the LLC would otherwise be solely liable. Ogea v. Merritt, 13-1085 (La. 12/10/13), 130 So.3d 888, 894-95. A member's protection against personal liability is not unlimited. Id. at 897. La. R.S. 12:1320(D) sets forth an exception to the general rule[.]

․

La. R.S. 1320(D) has been interpreted to provide a cause of action against a member, manager, or employee of a limited liability company because of any breach of professional duty, as well as for any fraud or other negligent or wrongful act. Ogea, 130 So.3d at 897; W.J. Spano Co. v. Mitchell, 05-2115 (La. App. 1 Cir. 9/15/06), 943 So.2d 1131, 1132-33. Because fraud is not defined in La. R.S. 12:1320, the Civil Code provisions on fraud govern. B & P Rest. Grp., LLC v. Delta Admin. Servs., LLC, 18-442 (La. App. 5 Cir. 9/4/19), 279 So.3d 492, 500.

Korrapati, 302 So.3d at 154-155.

“Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” La.Civ.Code art. 1953. “Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. This exception does not apply when a relation of confidence has reasonably induced a party to rely on the other's assertions or representations.” La.Civ.Code art. 1954.

As we have noted, in the trial below, there was ample evidence that Dr. Hayes acted in bad faith in failing to timely pay Ms. Newingham's wages. Specifically, Dr. Hayes drafted the contract which would deny payment if invoices were not paid and deposited by Elite Medical within forty-five days of the day Ms. Newingham treated a patient. At his direction, the invoices were not sent to the third-party payors until up at least thirty days and up to sixty days after Ms. Newingham treated that same patient. While Ms. Newingham was aware that there was a delay because she noticed that her initial paycheck was low, she was not responsible for the billing and was not aware of the full extent of the delay.

We find the trial court did not commit manifest error in its conclusion that the actions of Dr. Hayes constituted fraud. Therefore, we find no error in the trial court's judgment holding Dr. Hayes personally liable.

CONCLUSION

We find no error in the trial court's judgment, and it is affirmed. Costs of this appeal are assessed to the appellants, Elite Medical Wellness, L.L.C., and Dr. Patrick Hayes.

AFFIRMED.

ELIZABETH A. PICKETT CHIEF JUDGE