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Ruebush v. Office of Risk Mgmt.

Court of Appeal of Louisiana, Third Circuit

April 8, 2015

LAURYN RUEBUSH
v.
OFFICE OF RISK MANAGEMENT & THE CARE CENTER OF DEQUINCY

Page 660

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION -- DISTRICT 3 PARISH OF CALCASIEU, NO. 11-05528. CHARLOTTE L. BUSHNELL, WORKERS' COMPENSATION JUDGE.

H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelousas, LA, COUNSEL FOR DEFENDANT/APPELLANT: The Care Center of DeQuincy.

Marcus Zimmerman, 4216 Lake Street, Lake Charles, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Lauryn Ruebush.

Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, John E. Conery, and David Kent Savoie, Judges. Conery, J., concurs in part, dissents in part, and assigns reasons. Savoie, J., concurs in part and dissents in part for the reasons assigned by Conery, J.

OPINION

Page 661

[14-1107 La.App. 3 Cir. 1] Marc T. Amy, Judge.

The claimant alleged that she sustained injury to her hand while working as a nurse at the defendant nursing home. She resigned from her position following the accident and alleged that the condition of her hand deteriorated, eventually resulting in a diagnosis of complex regional pain syndrome. Although the employer provided certain medical treatment, the claimant filed this matter seeking medical care that had been denied, indemnity benefits, and penalties and attorney fees. The workers' compensation judge ruled in favor of the claimant. The employer appeals. For the following reasons we affirm, and award additional attorney fees to the claimant for work performed on appeal.

Factual and Procedural Background

At the time of the December 4, 2010 work-related accident now at issue, the claimant, Lauryn Ruebush, was employed as a nurse at The Care Center of Dequincy, a nursing home. The claimant explained that, on that date, she approached an altercation between two patients and that an aluminum walker used by one of the patients struck her left hand/wrist. The claimant testified that she continued with her shift, but that she indicated to her supervisor that she was resigning due to the stressful nature of the position.

Although the claimant explained that her condition initially improved and she began working as a nurse at Deer Creek Hospital, she testified that her condition began to worsen. Specifically, she began

Page 662

having trouble with swelling and discoloration in her hand. The claimant explained that a physician at the facility suggested that she could have developed reflex sympathetic dystrophy. [14-1107 La.App. 3 Cir. 2] Ms. Ruebush explained that her family physician referred her to Dr. Steven Hale, an orthopedic surgeon.

Dr. Hale testified in his deposition that, although he found bruising, " swelling . . . and tenderness near her fifth metacarpal head and decreased sensation in the ulnar distribution of her hand[,]" x-rays were negative for obvious fracture or dislocation. He explained that, following an EMG, he diagnosed Ms. Ruebush as having an ulnar nerve injury and that she was beginning to have early complex regional pain syndrome. Dr. Hale stated that a bone scan and MRI, conducted in March 2011, were consistent with the complex regional pain syndrome diagnosis.

On Dr. Hale's order, Ms. Ruebush underwent a nerve block in June 2011 and also began seeing Dr. Robert LeBlanc, an orthopedic surgeon, for further investigation of the condition. Ms. Ruebush ultimately reported that her pain did not decrease following the nerve block. Dr. LeBlanc testified that the failure of the block to improve the condition could have meant either that she did not have complex regional pain syndrome or that she was outside of the time frame where it would be effective. Similarly, as with the nerve block, an injection performed by Dr. LeBlanc afforded no relief. Dr. LeBlanc offered the claimant an exploratory arthroscopic surgery for diagnostic purposes. However, that surgery was not performed.

During this time frame, the claimant's family physician referred her to Dr. Tarun Jolly, an anesthesiologist and pain management physician. Although the employer denied her request to see Dr. Jolly, she began treating with him in January 2012. He reported that, on this first visit, his diagnosis " was qualified as complex regional pain syndrome of Type 1 of the upper [left] limb, as well as [14-1107 La.App. 3 Cir. 3] chronic pain due to trauma." He explained in his deposition that objective findings supported the diagnosis. By June 2012, and while under Dr. Jolly's care, the claimant had a spinal cord stimulator inserted. At the hearing, she responded " [a]bsolutely" when asked whether she was " capable of doing some sort of light duty work" due to the success of that procedure. She explained that a revision surgery to that implantation was required after her symptoms returned. The claimant denied, however, that she could return to the physical demands of her prior work as a charge nurse. A November 2013 Functional Capacity Evalution also indicated that a return to light duty would be possible.

The disputed claim form instituting this matter was filed in July 2011 against both the employer and Risk Management Services,[1] by which the claimant sought indemnity benefits, medical benefits, and penalties and attorney fees for the failure to provide services. At the workers' compensation hearing, the parties entered into several stipulations, including: the occurrence of the work-related accident; the fact that the employer had not paid indemnity benefits (but that some medical expenses were paid); and the fact that the employer denied Dr. Jolly's involvement and any treatment emanating from him.

Following a hearing, the workers' compensation judge ruled in favor of the claimant.

Page 663

The ruling, and an amended ruling, awarded: temporary total disability benefits for the period between January 24, 2012 through September 9, 2012 and supplemental earnings benefits after September 10, 2012. The workers' compensation judge also ordered the reimbursement of the claimant's out-of-pocket medical expenses, as well as a penalty of $2,000 for the failure to reimburse [14-1107 La.App. 3 Cir. 4] sums expended in co-payments and $2,000 for failure to provide indemnity benefits. The workers' compensation judge awarded attorney fees in the amount of $18,000 as well as litigation expenses and court costs.

The employer appeals, arguing that the workers' compensation judge erred in: 1) finding that the claimant proved that her condition arose as a result of a workplace accident; 2) finding that the claimant is entitled to reimbursement of out-of-pocket medical expenses; 3) finding that the claimant is entitled to indemnity benefits; and 4) awarding penalties and attorney fees.

The claimant answers the appeal, seeking an increase in attorney fees and asserting that the workers' compensation judge erred in limiting reimbursement.

Discussion

Work-Related Injury


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