APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 3, PARISH OF CALCASIEU, NO. 09-03832. SAM L. LOWERY, WORKERS' COMPENSATION JUDGE.
H. Douglas Hunter, Misti Landry Bryant, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelousas, Louisiana, Counsel for Defendant/Appellant: St. Frances Nursing & Rehabilitation Center.
Michael B. Holmes, Hebert, Holmes & Bertrand, Kinder, Louisiana, Counsel for Plaintiff/Appellee: Lucy Johnson.
Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges.
[14-599 La.App. 3 Cir. 1]
In this workers' compensation case, St. Frances Nursing & Rehabilitation Center appeals a judgment in favor of its former employee, Lucy Johnson, ordering Supplemental Earnings Benefits (SEBs), statutory penalties, and attorney fees, and holding that Johnson did not violate the provisions of La.R.S. 23:1208(A). For the following reasons, we affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
On July 5, 2006, in the course and scope of her employment as a nurse employed by St. Frances, Johnson was injured by a patient who hit her in the back of her head and neck. As a result of her injuries, Johnson sought treatment from Dr. Clark Gunderson, an orthopedic surgeon, who performed a three-level cervical disc fusion. He subsequently released her to return to work with restrictions in November 2007. Following her initial release, Johnson maintained a part-time schedule working light duty at St. Frances from November 2007 through February 2008. Johnson testified that she experienced pain while working part time although it was controlled by pain medication prescribed by Dr. Gunderson.
In February 2008, after Dr. Gunderson released her to work full duty, Johnson began working with restrictions on a full-time schedule until June 2008. Johnson testified that during her transition from part-time, light-duty work to full-time, full-duty work, her pain increased and " became very excruciating." She returned to Dr. Gunderson and advised that her increased pain was uncontrolled by medication. As a result, Dr. Gunderson reduced her release to light duty in May 2008. Based upon Johnson's continued subjective complaints of pain, Dr. Gunderson changed his opinion to no-work status from June 5, 2008, through November 2008. Dr. Gunderson subsequently released her to return to light-duty [14-599 La.App. 3 Cir. 2] work with restrictions in November 2008, in her position with St. Frances. Johnson returned to work that same month and worked only two days as she was unable to perform the duties within the restrictions. Dr. Gunderson again placed her on a no-work status. During a regularly-scheduled appointment with Dr. Gunderson approximately eight months later on July 27, 2009, Dr. Gunderson maintained Johnson's no-work status. Dr. Gunderson also opined that Johnson was not a surgical candidate and referred her to Dr. Stephen Katz, a pain management physician.
On July 28, 2009, Johnson presented to Dr. Katz. Dr. Gunderson testified that he was aware that Dr. Katz had taken over Johnson's care as of July 28, 2009. Dr. Gunderson testified that he deferred to Dr. Katz regarding Johnson's restrictions and/or ability to return to work as of the date of his referral. Johnson testified that during her initial visit with Dr. Katz, she was never asked to demonstrate any physical abilities related to work duties nor did he discuss with her any ability to return to work. Johnson testified that she was not asked to walk across the room, bend,
stoop, reach up, or reach down. According to excerpts from the employer's adjuster's file, dated August 14, 2009, Dr. Katz advised that he would offer " only to monitor medications [with] no discussion of return to work abilities."
Buster Fontenot, a vocational rehabilitation consultant assigned to Johnson in 2008, developed a modified licensed practical nurse (LPN) job analysis in order to enable Johnson to return to work. Fontenot met with Dr. Katz on September 11, 2009, wherein Dr. Katz agreed that Johnson could return to work in a modified LPN position. Despite the foregoing, Johnson testified that Dr. Katz never told her that he believed that she was able to return to work. Approximately two months [14-599 La.App. 3 Cir. 3] later on November 9, 2009, Dr. Katz withdrew his opinion rendered on September 11, 2009, when Johnson advised him that Dr. Gunderson placed her on a non-return to work status. Dr. Katz's medical record on that date states that in order to avoid confusion, he would defer to Dr. Gunderson for determination of Johnson's return to work status.
Johnson returned to Dr. Gunderson on April 20, 2010, with complaints of pain and trouble swallowing. Dr. Gunderson removed her fusion hardware on May 9, 2011, in order to alleviate the pain she experienced when swallowing. Johnson subsequently underwent a functional capacity examination (FCE) on May 1, 2013, which was rendered by physical therapist David Regan. Johnson testified that she was aware that Regan believed that she intentionally misrepresented her physical capabilities during her examination. According to the FCE, Regan opined that " the INVALID results identified in this assessment and Functional Assessment Overview represent the levels Ms. Johnson chose to demonstrate as her physical capabilities. The numbers do not represent her true safe capabilities as Ms. Johnson intentionally manipulated the results of the assessment." According to Regan's deposition testimony, he did not attempt to determine whether the alleged misrepresentations during Johnson's FCE were willfully made. Regan testified that he deferred that issue to Dr. Gunderson for investigation.
Johnson received medical and indemnity benefits from the onset of her disability through the beginning of September 2009. St. Frances terminated indemnity benefits from September 11, 2009, through May 7, 2011. Indemnity benefits were reinstated and paid from May 9, 2011, through the date of trial which [14-599 La.App. 3 Cir. 4] began on October 23, 2013. Johnson's indemnity benefits were based upon an average weekly wage (AWW) of $413.13.
Following termination of benefits on September 11, 2009, Johnson filed the instant claim for reinstatement of benefits, penalties, attorney fees, and a psychological evaluation and/or care by a mental health professional. St. Frances countered with the assertion that Johnson committed fraud, thereby forfeiting her right to benefits pursuant to La.R.S. 23:1208(A), by misrepresenting her condition to her treating physicians and by misrepresenting her physical capabilities during the FCE.
After a trial on the merits, the workers' compensation judge (WCJ) held that Johnson did not commit fraud for purposes of La.R.S. 23:1208(A) forfeiture and awarded her $35,723.53 in SEBs from September 11, 2009, through May 9, 2011, utilizing an AWW of $413.33 per week. The WCJ awarded Johnson $4,000.00 in statutory penalties, ordered St. Frances to authorize a mental health evaluation, and awarded attorney fees.
St. Frances has appealed, asserting the following ...