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Massey v. Fresenius Medical Care Holding

Court of Appeal of Louisiana, Second Circuit

November 19, 2014

SHERI MASSEY, Plaintiff-Appellee,
v.
FRESENIUS MEDICAL CARE HOLDING, Defendant-Appellant

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[Copyrighted Material Omitted]

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Appealed from the Office of Workers' Compensation, District 1 East, Parish of Ouachita, Louisiana. Trial Court No. 1103778. Honorable Brenza Irving Jones, Workers' Compensation Judge.

THE JAVIER LAW FIRM, By: Roger A. Javier, Eric K. Buerger, Richard C. Ely, Jr., Counsel for Appellant.

STREET & STREET, By: C. Daniel Street, Counsel for Appellee.

Before STEWART, CARAWAY and PITMAN, JJ. CARAWAY, J., concurs in part and dissents in part with written reasons.

OPINION

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[49,407 La.App. 2 Cir. 1] STEWART, J.

Defendant, Fresenius Medical Care Holding, (" Fresenius" ) appeals a ruling from the Office of Worker's Compensation granting the plaintiff, Sheri Massey, supplemental earnings benefits from May 4, 2011, to January 15, 2013, in the amount of $579.00 per week; temporary total disability benefits in the amount of $579.00 per week from January 15, 2013, to the present and continuing; and $4,000.00 in penalties and $10,000.00 in attorney fees for Fresenius terminating payments and not timely authorizing and paying for treatment with Massey's choice of physician. For the reasons assigned in this opinion, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 11, 2010, Massey, a registered nurse employed as a floor nurse by Fresenius, was injured in the course and arising out of her employment in a motor accident while traveling from her home in Winnsboro, Louisiana, to her job in Columbia, Louisiana.[1] She received emergency care at Richardson Medical Center that day, after complaining of injuries to her back, left wrist, and left arm.

On August 16, 2010, she began treatment with the orthopedist of her choice, Dr. Scott McClelland. Dr. McClelland noted that Massey had injured her left wrist in a motor vehicle accident. In a patient questionnaire, Massey expressed concern about her mid-back. On September 7, 2010, she returned to Dr. McClelland for a follow-up appointment. No complaints regarding Massey's back were noted. During an appointment with Dr. McClelland on November 9, 2010, she complained of a " flare-up" of pain in [49,407 La.App. 2 Cir. 2] her thoracolumbar spine. On November 13, 2010, Dr. McClelland found that she was unable to work, but did not provide treatment for her mid-back pain.

On April 15, 2011, Massey underwent a functional capacity evaluation (" FCE" ). It was determined that she should not return to her preinjury job without restrictions. Specifically, she was released to job activity restricted to occasionally lifting no more than 25 pounds waist-to-shoulder, 30 pounds floor-to-waist, and 20 pounds floor-to-shoulder. She could frequently lift 15 pounds waist-to-shoulder, 20 pounds floor-to-waist, and 15 pounds floor-to-shoulder. Dr. McClelland agreed with the FCE's determination, and released her to light duty. She did not return to Dr. McClelland for treatment thereafter.

On April 21, 2011, Robbin Martin, the Director of Operations at Fresenius, contacted Massey via telephone to inform her that a position was available for her at its dialysis facility in Monroe, Louisiana, that met the restrictions established by the FCE. At the conclusion of their conversation, Massey was informed that she must accept or decline the job by April 25, 2011. On April 27, 2011, after not hearing from Massey, Martin sent her a letter informing her that the position offered could accommodate her restrictions. After again not hearing from Massey, Fresenius placed her on the Monroe facility's work schedule. After Massey did not appear for work, she was deemed to have resigned, and her

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employment was terminated, effective May 12, 2011.

On May 20, 2011, Massey filed a disputed claim for compensation, disputing the termination of her benefits and her choice of physician. She [49,407 La.App. 2 Cir. 3] also sought penalties and attorney fees. On January 4, 2012, Massey filed a motion for choice of treating physician, seeking an order compelling Fresenius to authorize and pay for treatment with Dr. Bernie McHugh. The motion was granted on March 12, 2012, and Fresenius sought supervisory writs from this court. The application was denied on April 27, 2012.

On May 31, 2012, Dr. McHugh examined Massey, and diagnosed her with fibromyalgia and a thoracic vertebral fracture. On September 11, 2012, Dr. McHugh opined that the thoracic vertebral fracture was caused by the August 11, 2010, accident.

On August 15, 2013, the trial took place. On November 13, 2013, the Worker's Compensation Judge orally rendered its judgment, finding that Massey's back complaints were work-related, and that she met her burden of proving her inability to earn 90 percent or more of her pre-injury wage through medical evidence presented by Dr. McClelland and Dr. McHugh. Massey was awarded supplemental earnings from May 5, 2011, to January 15, 2013, in the amount of $579.00 per week, and temporary total disability benefits in the amount of $579.00 per week from January 15, 2013, to the present and continuing. Massey was also awarded $4,000 in penalties and $10,000 in attorney's fees for Fresenius terminating payments and not timely authorizing and paying for treatment with Dr. McHugh.

Fresenius appeals, asserting three ...


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