December 23, 2014
LOUISIANA-I GAMING, A LOUISIANA PARTNERSHIP IN COMMENDAM D/B/A BOOMTOWN CASINO
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT
7, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 13-4863,
HONORABLE SYLVIA T. DUNN, JUDGE PRESIDING.
G. ALBE, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR
LANGLOIS, III, ATTORNEY AT LAW, Gretna, Louisiana, COUNSEL
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, Marc E. Johnson, Robert A. Chaisson, and Hans J.
Liljeberg. JOHNSON, J., DISSENTS IN PART WITH REASONS.
J. LILJEBERG, J.
[14-467 La.App. 5 Cir. 2] Defendant-Employer, Louisiana -I
Gaming, A Louisiana Partnership in Commendam d/b/a Boomtown
Casino (" Boomtown" ), appeals the decision of the
of Workers' Compensation granting medical benefits,
supplemental earning benefits, penalties, and attorney's
fees to claimant, Letress Washington. For the following
reasons, we affirm in part and reverse in part.
13 and 15, 2013, claimant filed two disputed claims for
workers' compensation relative to two slip-and-fall
accidents, asserting that no benefits were being authorized
by defendant-employer, Boomtown. On September 9, 2013, the
matters were consolidated. On October 23, 2013, the parties
entered into a consent judgment, which ordered Boomtown to
authorize and pay for an initial evaluation and report of Dr.
F. Allen Johnston and Dr. William Alden. A trial on the
merits was heard on November 25, 2013, before the Office of
Workers' Compensation. [14-467 La.App. 5 Cir. 3] On
January 24, 2014, the workers' compensation judge
rendered judgment in favor of claimant. Boomtown now appeals.
basic facts of this case are undisputed. Claimant previously
was employed by the Marriott Hotel for 37 years in a
supervisory, janitorial role. At the age of 62, claimant
retired and collected Social Security retirement benefits.
Claimant thereafter became restless with retirement and
sought employment with Boomtown, located on the West Bank of
Jefferson Parish. Boomtown hired claimant on March 23, 2013,
to work in the capacity of a cook. Claimant's essential
functions as a cook required that she " lift, carry, and
push/pull up to 50 pounds so as to be able to move and stock
all necessary supplies."
trial, the parties stipulated that claimant sustained
injuries in two slip-and-fall accidents while employed with
Boomtown. The first incident occurred on May 5, 2013, when
she slipped on a wet, kitchen floor. Claimant testified that
her lower back, neck, and right shoulder were bruised and
sore. Claimant reported the incident to Boomtown and was sent
to West Jefferson Industrial Medical Center for treatment,
where she was diagnosed as having a contusion of the hand and
a lumbar strain. Claimant testified that the doctor took
X-rays and prescribed Ibuprofen for the pain and released her
back to full duty work. Claimant was unsatisfied with the
doctor's treatment and went to see her primary care
physician, Dr. Allen Brown, on May 7, 2013. Dr. Brown
explained to claimant that he did not handle workers'
compensation claims, but ultimately wrote her a slip that she
could not lift over 15 pounds until May 13, 2013. Claimant
testified that she did not give the slip to Boomtown and
returned to her regular duties. She testified that she was
able to complete most of her duties with a little help with
the lifting from [14-467 La.App. 5 Cir. 4] fellow employees;
however, she still complained of soreness in her lower back,
neck, and right hand.
second incident occurred on July 6, 2013. Claimant explained
that she slipped on the wet, dish room in a similar fashion
to the previous accident. Claimant testified that she could
not immediately stand and required assistance, but did not go
to the hospital. Claimant did not immediately seek a doctor
until after consulting with her attorney. Claimant thereafter
saw Dr. Alden upon her attorney's referral on July 10,
2013. Dr. Alden ordered physical therapy, prescribed pain
medication, and returned claimant to light duty work only.
further testified that prior to the second incident, she
decided that she wished to retire and gave her
two-weeks-notice to Boomtown. She explained that she did not
like Boomtown's kitchen and did not like working the
graveyard shift. After the second incident, claimant did not
contact Boomtown regarding the accident, nor did she return
parties further stipulated that claimant's average weekly
wage was $420.00 at $10.50 per hour with a 40-hour work week.
of Error No. 1 -- Supplemental Earnings Benefits
first assignment of error, Boomtown asserts that the
workers' compensation judge erred as a matter of law in
finding that claimant is entitled to supplemental earnings
benefits (" SEBs" ) after the July 6, 2013
accident, and " for any time period when she earned less
than 90% of her pre-injury wages." Boomtown maintains
that as a matter of law, to be entitled to supplemental
earnings benefits, claimant must prove an inability to earn
90% of her pre-injury wages as a result of the accident, and
that claimant did not bear that burden. We agree.
La.App. 5 Cir. 5] " The purpose of [SEBs] is to
compensate the injured employee for the wage earning capacity
he has lost as a result of his accident." Poissenot
v. St. Bernard Parish Sheriff's Office, 09-2793 (La.
1/9/11), 56 So.3d 170, 174, citing Banks v. Industrial
Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97),
696 So.2d 551, 556. An employee is entitled to receive SEBs
if he sustains a work-related injury that results in his
inability to earn 90% or more of his average pre-injury wage.
La. R.S. 23:1221(3)(a). Initially, the employee bears the
burden of proving, by a preponderance of the evidence, that
the injury resulted in his inability to earn that amount
under the facts and circumstances of the individual case.
Poissenot, supra. It is only when the employee
overcomes this initial step that the burden shifts to the
employer to prove, by a preponderance of the evidence, that
the employee is physically able to perform a certain job and
that the job was offered to the employee or that the job was
available to the employee in his or the employer's
community or reasonable geographic location. La. R.S.
23:1221(3)(c)(i); Banks, supra at 556.
Factual findings in workers' compensation cases are
subject to the manifest error or clearly wrong standard of
appellate review. Smith v. Louisiana Dept. of
Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129, 132;
Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94),
630 So.2d 733, 737-38. " In determining whether a
[workers' compensation judge's] finding that an
employee has met his initial burden of proving entitlement to
SEBs is manifestly erroneous, a reviewing court must examine
all evidence that bears upon the employee's inability to
earn 90% or more of his pre-injury wages."
Poissenot, supra, citing Seal v. Gaylord
Container Corp., 97-0688 (La. 12/2/97), 704 So.2d 1161,
workers' compensation judge clearly erred as a matter of
law in finding that claimant is entitled to SEBs " for
any time period when she earned less than [14-467 La.App. 5
Cir. 6] 90% of her pre-injury wages" without proof by a
preponderance of the evidence that her work-related injury
resulted in her inability to earn 90% or more of her average
pre-injury wages. Further, upon review of the record,
claimant presented no evidence that she was unable to earn
90% or more of her pre-injury wages. Although the record
reflects that claimant could not return to work as a cook,
Dr. Alden released claimant to light duty work. Moreover, Ms.
Jeannine Richert, Boomtown's Risk & Safety Manager,
testified that Boomtown had a bank of light duty positions
throughout the casino; however, claimant did not contact
Boomtown relative to any other work because she chose instead
to retire. A claimant is not entitled to SEBs when her
inability to earn wages equal to 90% of her pre-injury
wages is due to circumstances other than her work-related
injury. Coleman v. Walter Indus., Inc./Jim Walter
Homes, 10-1145 (La.App. 1 Cir. 2/11/11), 56 So.3d 1258,
we find that the workers' compensation judge erred in
finding that claimant is entitled to SEBs based on the lack
of evidence presented at trial.
of Error No. 2 -- Medical Benefits
second assignment of error, Boomtown asserts that the
workers' compensation judge erred in finding that it
failed to reasonably controvert claimant's medical
benefits after the second accident. Therefore, Boomtown
argues that the workers' compensation judge erroneously
awarded penalties and attorney's fees to
trial, claimant introduced exhibits, without objection, of
medical reports, bills, and mileage reimbursement relative to
her treatment for injuries sustained in the second accident.
Claimant testified that Boomtown refused to authorize MRIs
[14-467 La.App. 5 Cir. 7] requested by both Dr. Alden and Dr.
Johnston and that she did not receive reimbursement for her
medical mileage. Further, Ms. Richert testified that no
indemnity benefits were paid relative to the July 6, 2013
judgment, the workers' compensation judge found that
Boomtown failed to reasonably controvert claimant's
medical benefits and diagnostic testing after the second
accident; that Boomtown failed to timely pay medical benefits
in a timely manner after they entered the consent judgment on
October 22, 2013; and that Boomtown refused to pay medicals
and indemnity benefits even when they did not contest the
occurrence of the accident. Based upon these findings, the
workers' compensation judge assessed penalties in the
total amount of $8,000.00 for failure to timely pay and
authorize medical expenses, medication expenses, diagnostic
testing, medical evaluation and treatment, and supplemental
earnings benefits pursuant to La. R.S. 23:1201.
upon the testimony and evidence submitted at trial, we find
that the factual findings of the workers' compensation
judge are manifestly erroneous. No evidence, other than
claimant's self-serving testimony at trial, exists in the
record that Boomtown refused to pay medicals and indemnity
benefits. Further, the only evidence in the record that
reflects the earliest point in which Boomtown received
claimant's medical bills or requests for authorizations
is a letter with attachments, dated October 14, 2013, from
attorney to Boomtown's attorney requesting payment for
medical bills, authorization for MRIs, and reimbursement
[14-467 La.App. 5 Cir. 8] for claimant's mileage. Trial
on the merits of claimant's workers' compensation
claim was held on November 25, 2013, less than 60 days later.
to La. R.S. 23:1201(E)(1), " medical benefits payable
under this Chapter shall be paid within sixty days after the
employer or insurer receives written notice thereof, if the
provider of medical services is not utilizing the electronic
billing rules and regulations provided for in R.S.
23:1203.2." No evidence in the record exists that
claimant's medical providers utilize such electronic
billing. Therefore, at the time of trial, 60 days had not
expired since Boomtown received notice of claimant's
medical claims. Therefore, we cannot find that Boomtown did
not reasonably controvert claimant's medicals.
the workers' compensation judge erroneously awarded
penalties and attorney's fees based on erroneous findings
the foregoing, the decision of the Office of Workers'
Compensation awarding supplemental earnings benefits,
penalties, and attorney's fees is reversed. The judgment
is affirmed in all other respects.
IN PART; REVERSED IN PART
La.App. 5 Cir. 9] JOHNSON, J., DISSENTS IN PART WITH REASONS
respectfully, dissent from the majority opinion on the issue
of Letress Washington's entitlement to supplement
earnings benefits (" SEBs" ). After considering the
record for this case in its entirety, I conclude the majority
opinion failed to apply the appellate review standard
properly for that assignment of error.
matter, Ms. Washington had retired at the age of 62 in 2010.
After being bored with retirement, Ms. Washington applied for
a position with Louisiana A-I Gaming (hereinafter referred to
as " Boomtown" ) and was hired as a cook on March
23, 2013. On May 5, 2013, Ms. Washington slipped on the job
and was sent by Boomtown to West Jefferson Medical Center.
She was diagnosed with having a contusion of the hand and a
lumbar strain. She was released to full duty and returned to
work. Ms. Washington sought a second opinion from Dr. D.
Allen Brown. Dr. Brown gave her a doctor's excuse
stating, " Due to recent low back injury[,] Ms.
Washington should not lift more than 15 lbs until
5/13/13." Although Ms. Washington had a doctor's
excuse, she did not notify Boomtown of her work restriction
subsequent to the May 5th accident.
the end of June 2013, Ms. Washington gave her two week notice
that she was resigning. On July 6, 2013, Ms. Washington fell
a second time during the course and scope of her employment.
Boomtown completed an incident report for the accident, and
Ms. Washington opted to go home instead of the hospital.
La.App. 5 Cir. 10] On July 10, 2013, four days after the
accident, Ms. Washington filed a 1008 claim with the Office
of Workers' Compensation (" OWC" ). Boomtown
received notice of Ms. Washington's workers compensation
claim on July 12, 2013. Following receipt of the notice of
Ms. Washington's claim, Boomtown did not pay any benefits
or medical bills, and it did not offer her any vocational
trial on the merits, OWC awarded Ms. Washington SEBs for 104
weeks, medical benefits, penalties and attorney's
fees. No reasons for judgment were requested. The instant
determinations in a worker's compensation case, including
whether the employee has discharged her burden of proof, are
subject to the manifest error or clearly wrong standard of
appellate review. Wilson v. Metro. Dev. Ctr., 12-487
(La.App. 5 Cir. 3/13/13); 113 So.3d 261, 266. Under this
standard, an appellate court may only reverse a worker's
compensation judge's factual findings if it finds from
the record that a reasonable factual basis for the finding
does not exist, or that examination of the entire record
reveals that the finding is clearly erroneous. Id.
The court of appeal may not reverse the findings of the trial
court even when convinced that, had it been sitting as the
trier of fact, it would have weighed the evidence
differently. Whetstone v. Jefferson Parish Sch. Bd.,
12-639 (La.App. 5 Cir. 5/30/13); 117 So.3d 566, 569.
purpose of supplemental earnings benefits is to compensate
the injured employee for the wage earning capacity he/she has
lost as a result of an accident. Poissenot v. St. Bernard
Parish Sheriff's Office, 09-2793 (La. 1/9/11); 56
So.3d 170, 174. In order to recover supplemental earnings
benefits, the employee must first prove by a preponderance of
the evidence that she is unable to earn wages equal to ninety
percent (90%) or more of the wages earned before the
accident. Wilson, supra. In determining if an
injured employee has met her initial burden of [14-467
La.App. 5 Cir. 11] proving entitlement to supplemental
earnings benefits, the reviewing court must examine all
evidence that bears upon the employee's inability to earn
90% or more of her pre-injury wages. Id. Factors
that have been considered in determining whether an employee
can earn 90% of her pre-injury wage include the
employee's age, education, job skills and work history.
Tynes v. Gaylord Container Corp. 11-12 (La.App. 1
Cir. 2/14/03); 844 So.2d 80, 86. An injured worker's
testimony that she is no longer able to return to her
pre-injury employment, without more, is insufficient to prove
entitlement to supplemental earnings benefits. Wilson,
trial on the merits, it was established that Ms. Washington
was 65 years old and had worked as a cook for over 30 years.
On direct examination, Ms. Washington testified that after
falling the second time at Boomtown, she wanted to retire
without working anymore. She stated that Dr. Alden could not
complete his evaluation because Boomtown refused to authorize
the payment for an MRI. In support of her disability claim,
Ms. Washington offered doctors' reports into evidence
explaining her work restrictions and the requests for MRIs.
In particular, Dr. F. Allen Johnston, an orthopedic surgeon,
reported in November 2013 that Ms. Washington was unable to
work as a cook, and that he ordered MRIs to determine whether
to suggest interventional injections.
review of the evidence presented to the OWC, pursuant to the
manifest error standard, I cannot find the trial court was
manifestly erroneous in its finding that Ms. Washington met
her burden of proving she was unable to earn wages equal to
90% or more of the wages she earned before the July 6, 2013
accident. Because Boomtown did not approve the MRI requests,
Ms. Washington was limited in the medical evidence that she
could present. However, Ms. Washington set forth evidence
that she was 65 years old, worked for over 30 years as a
cook, and had a doctor's report stating that she could
not work as a cook. According to [14-467 La.App. 5 Cir. 12]
Tynes, those are factors that can be considered in
determining whether Ms. Washington met her burden of proof.
the factors mentioned above, I believe Ms. Washington proved
by a preponderance of the evidence that she could not earn
90% or more of her pre-injury wages. Thus, the burden shifted
to Boomtown to prove that Ms. Washington was physically able
to perform a certain job, and that a job was offered to her
or was available in her community or reasonable geographic
location. See, La. R.S. 23:1221(3)(c)(i). Boomtown
did not present any of the required information to the OWC;
consequently, it failed to meet its burden.
majority opinion completely ignores the manifest error
standard of review and is reweighing the evidence differently
on appeal, despite its jurisprudential prohibition to do so.
See, Whetstone, supra. The majority opinion
fails to acknowledge the validity of Ms. Washington's
properly admitted evidence. The majority opinion also
improperly shifts the burden to Ms. Washington to prove that
she was physically able to work another job, which is not the
procedure set forth in La. R.S. 23:1221(3)(c)(i). It is
irrelevant in this matter that Jeanine Richert, the Risk and
Safety Manager at Boomtown, testified that Boomtown had a
bank of light duty positions throughout the casino. Ms.
Richert also testified that she did not contact Ms.
Washington in any manner following the second accident. So,
due to Ms. Richert's and Boomtown's failure to
contact Ms. Washington after the July 6th accident, none of
the available light duty positions were ever offered to Ms.
review of the entirety of the record, I am of the opinion
that there was a reasonable basis factual basis for the
OWC's award of SEBs to Ms. Washington. Therefore, for the
above stated reasons, I dissent from the majority [14-467
La.App. 5 Cir. 13] opinion and would affirm the OWC on this
issue. In all other respects, I agree with the majority
By stipulating that claimant had a work
related accident that has necessitated medical treatment,
Boomtown has rendered moot any argument that the workers'
compensation judge erred in awarding " payment of all
medical expenses, medication expenses, and transportation
expenses, for the injuries from the two
La. R.S. 23:1201(F) provides in part,
" [e]xcept as otherwise provided in this Chapter,
failure to provide payment in accordance with this
Section or failure to consent to the employee's request
to select a treating physician or change physicians when such
consent is required by R.S. 23:1121 shall result in the
assessment of a penalty in an amount up to the greater of
twelve percent of any unpaid compensation or medical
benefits, or fifty dollars per calendar day for each day in
which any and all compensation or medical benefits remain
unpaid or such consent is withheld, together with reasonable
attorney fees for each disputed claim; however, the fifty
dollars per calendar day penalty shall not exceed a maximum
of two thousand dollars in the aggregate for any claim. The
maximum amount of penalties which may be imposed at a hearing
on the merits regardless of the number of penalties which
might be imposed under this Section is eight thousand