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Theriot v. Full Serv. Sys. Corp.

Court of Appeals of Louisiana, Third Circuit

May 27, 2015

ARLINE THERIOT
v.
FULL SERVICE SYSTEMS CORP

Page 1191

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION -- Dist. 03, PARISH OF CALCASIEU, NO. 13-06395. CHARLOTTE A. L. BUSHNELL, WORKERS COMPENSATION JUDGE.

Paul J. Cox, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Arline Theriot.

Elizabeth Lynn Finch, Keith E. Pittman, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metarie, LA, COUNSEL FOR DEFENDANT/APPELLANT: Full Service Systems Corp.

Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and David Kent Savoie, Judges. GREMILION, Judge, dissents and assigns written reasons.

OPINION

Page 1192

[14-1199 La.App. 3 Cir. 1] D. KENT SAVOIE, Judge.

In this workers' compensation case, the employer, Full Service Systems Corporation (" employer" ), appeals the Workers' Compensation Judge's (WCJ's) finding that its employee's accident arose out of and in the course of her employment. For the reasons that follow, we affirm, and award Ms. Theriot an additional $3,000.00 for attorney fees incurred in connection with the defense of the appeal.

FACTS

On December 25, 2012, Ms. Theriot was scheduled to work for her employer as a porter at the L'Auberge du Lac Casino in Lake Charles, Louisiana. Her shift began at 11:00 p.m. Ms. Theriot alleged that between 10:35 p.m. and 10:45 p.m., as she searched for a parking space in one of the casino's parking lots where casino employees and employees of casino contractors were instructed to park, she was struck by a vehicle driven by a casino employee. The collision resulted in an injury to Ms. Theriot's neck.

Ms. Theriot filed a Disputed Claim for Compensation alleging that her employer had not authorized cervical surgery recommended by Dr. Gregory Rubino. Ms. Theriot also sought penalties and attorney fees for her employer's alleged arbitrary and capricious failure to approve the neck surgery. Trial was held on July 16, 2014

At issue for trial was whether Ms. Theriot's accident arose out of and occurred in the course of her employment, and whether the recommended cervical surgery was reasonable and necessary. Prior to trial, the parties had stipulated (1) to the amounts to be awarded for penalties and attorney fees, (2) that the injuries claimed by Ms. Theriot were caused by, or aggravated by, the accident at issue, (3) [14-1199 La.App. 3 Cir. 2] that the recommended neck surgery was related to the auto accident, and (4) that the Medical Director identified that the surgery meets the medical treatment guidelines.

Ultimately, the WCJ rendered judgment on September 11, 2014, finding " that Arline Theriot is entitled to have the neck surgery recommended by Dr. Gregory Rubino" and ordering that

1) Defendant and claimant have stipulated that the defendant owes $2,000 in penalties and $5,000 in attorney fees;
2) Claimant was in the course and scope of her employment at the time of the accident;

Page 1193

3) The neck surgery recommended by Dr. Gregory Rubino is reasonable and necessary; and
4) The need for neck surgery is causally related to the work place accident; . . .

The employer lodged this appeal, and Ms. Theriot has answered the appeal.

DISCUSSION

Arising Out of And In the Course of ...


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