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Turner v. Lexington House

Court of Appeals of Louisiana, Third Circuit

April 15, 2015

CATHY TURNER
v.
LEXINGTON HOUSE

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 13-03972 JAMES L. BRADDOCK, WORKERS' COMPENSATION JUDGE

George Arthur Flournoy Flournoy & Doggett (APLC) COUNSEL FOR: Plaintiff/Appellee - Cathy Turner

Morgan E. Levy Gugielmo, Marks, Schutte, Terhoeve & Love Defendant/Appellant - Lexington House

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

ULYSSES GENE THIBODEAUX CHIEF JUDGE

The defendant employer, Lexington House LLC, d/b/a Lexington House (Lexington), appeals from a judgment of the Office of Workers' Compensation (OWC) awarding benefits, penalties, and attorney fees to the employee, Cathy Turner. Finding no error or manifest error on the part of the OWC, we affirm the judgment in all respects.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in awarding the employee temporary total disability benefits;
(2) whether the trial court erred in calculating the employee's average weekly wage;
(3) whether the trial court manifestly erred in ordering the employer to pay for reconstructive surgery;
(4) whether the trial court manifestly erred in ordering the employer to pay for anti-depressant medication;
(5) whether the trial court manifestly erred in penalizing the employer for: arbitrary termination of benefits; payment of benefits at the wrong rate; failure to authorize a functional capacity examination; failure to authorize reconstructive plastic surgery; failure to authorize payment of medication; and
(6) whether the employee's attorney fees should be increased for her attorney's work on appeal.

II.

FACTS AND PROCEDURAL HISTORY

Ms. Turner, a licensed practical nurse (LPN) in her forties, was recruited and hired by Lexington House in September 2010 for the position of Admissions Coordinator at their six-wing nursing home in Alexandria. Ms. Turner generated admissions for the facility through off-site interviews with potential patients, their families, their doctors, and their current facility personnel. She received bonuses based upon her admissions.

On December 12, 2011, Ms. Turner was standing at the nurse's station at Lexington House when a co-worker exited the area causing the swinging door to slam into Ms. Turner's left hip at the incision site of a recent total hip replacement (THR) surgery. The incision from the September 2011 surgery started at the lateral, or outside, part of her hip and extended up onto the left buttock. The impact was painful, causing her eyes to water, and it immediately produced redness and an "8cm x 8cm circular" bruise to Ms. Turner's left hip. The pain and swelling continued, and Ms. Turner developed an increased gait problem which aggravated chronic back problems. She was taken off work by her orthopedic surgeon and ultimately underwent an exploratory surgery to ascertain the status of the artificial hip. The joint was found to be intact, but permanent stitches from the prior surgery found under the incision required removal. Ms. Turner began physical therapy.

In June 2012, Ms. Turner's prognosis was to return to work in one month on light duty, secondary to fatigue. However, she fell twice at home and was not able to return. At the end of June, she had a marked increase of pain along the lateral aspect of the hip and buttock, point tenderness along the incision, continued limping, and altered sensation in the left lateral leg and foot. Further testing was requested. In November 2012, Ms. Turner's surgeon opined that her pain and gait problems were caused by the accident and were aggravating preexisting conditions. Ms. Turner also developed a deformity caused by the surgical incision sinking in, muscle wasting, and the accumulation of atrophied fat.

In January 2013, Lexington sent a list of random duties to Ms. Turner's surgeon, and to the physician that Lexington had selected for a second medical opinion (SMO). Both physicians checked off tasks while at the same time both recommended a functional capacity examination (FCE). The surgeon wanted an impairment rating, and the SMO conditioned its responses on the provision by Lexington of a motorized scooter or chair.

In late April 2013, Lexington sent a job description to Ms. Turner's surgeon seeking his approval of a nurse aid training instructor position for Ms. Turner. The surgeon initially approved the job description but withdrew his approval by letter on May 8, 2013, after talking to Ms. Turner. On May 11, 2013, Lexington terminated Ms. Turner's indemnity benefits.

Ms. Turner filed a workers' compensation claim 1008. Numerous issues were tried, including the denial or late approval of various tests and the concomitant penalties, which were decided in favor of Lexington. However, Ms. Turner's benefits were reinstated, and other issues were decided in her favor.

Lexington filed this appeal assigning nine errors in the OWC judgment and seeking to reverse: the award of temporary total disability benefits; the calculation of average weekly wage; the award for reconstructive surgery; the award for certain medication; and the award of five penalties associated with the termination of benefits and the failure to authorize benefits.

Ms. Turner answered the appeal, seeking an increase in the wage benefit and additional attorney fees ...


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