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Hataway v. Akal Security, Inc.

Court of Appeals of Louisiana, Third Circuit

December 28, 2017



          Maria A. Losavio Losavio Law Office, LLC COUNSEL FOR PLAINTIFF-PPELLANT: Lori Hataway

          Jonathan L. Woods Brian J. Lindsey Preis PLC COUNSEL FOR DEFENDANT-APPELLANT: Akal Security, Inc. New Hampshire Insurance Co.

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.


         A workers' compensation claimant, her employer, and its insurer appeal a judgment that dismissed her claims for indemnity benefits, medical treatment including prescription medications and mileage reimbursement, as well as penalties and attorney fees, and dismissed the employer's claim for reimbursement of benefits it paid to the claimant because she failed to report income that she received while being paid benefits. For the following reasons, we affirm.


         In October 2015, Lori Hataway filed a disputed claim for workers' compensation benefits against her employer AKAL Security, Inc. and its insurer, New Hampshire Insurance Company (hereinafter AKAL), seeking proper payment of indemnity and medical benefits, additional medical treatment, penalties, and attorney fees. Ms. Hataway claimed that she had been injured on January 20, 2015, while working for AKAL as an aviation security officer, when a fight broke out among some of the deported immigrants being transported on the airplane to which she was assigned.

         Immediately after the fight, AKAL began paying Ms. Hataway indemnity and medical benefits. In time, Ms. Hataway's claims for medical treatment became complicated because no physiological basis could be found for her physical complaints and symptoms. Furthermore, her complaints developed a psychological component. Additionally, some confusion arose with regard to whom Ms. Hataway and how Ms. Hataway was to submit her claims for reimbursement of medical expenses. Ms. Hataway claimed that AKAL failed to pay timely for and/or approve all the medical treatment recommended by her physicians, and she sought to recover penalties and attorney fees from AKAL.

         The matter proceeded to a trial on the merits on June 28, 2016. Ms. Hataway and her husband Dewey Pittman testified at trial. Medical evidence was presented by deposition and/or medical records. Documentation prepared by AKAL personnel provided additional information regarding the incident at issue.

         Ms. Hataway testified to the events that led to her being injured and her claim for benefits, explaining that a fight broke out among some of the 101 deportees being transported that day. She stated that eleven of the deportees were being non-compliant with the guards' instructions and that, after the deportees and AKAL personnel were seated, "a riot broke out" behind her. She described straddling the arm rest of her seat in an attempt to tend to deportees around her. At that time, a Haitian seated behind her freed one of his hands from his handcuffs, jumped over the seat behind her, landing "square in" her back, then "crawled" over her shoulder and head, trying to get to a friend who needed help. After two other guards restrained the Haitian, the airplane's engines were stopped, order was restored among the deportees, and the flight resumed. Ms. Hataway remained aboard and completed the round-trip flight. Her version of the events was corroborated by a statement made by Edwin Pippin, another AKAL guard on the flight with Ms. Hataway.

         Mr. Pittman testified that he met Ms. Hataway when she returned to the airport in Alexandria, stating that she looked scared and as though she was hurting and had been crying. He brought her to St. Frances Cabrini Hospital's emergency room, where she was diagnosed with a bruise on her back. Thereafter, Ms. Hataway sought treatment from nine medical professionals to whom she related various complaints including neck, shoulder, and back pain; her right arm and leg being drawn up and spastic; nightmares; and anxiety. Initially, Ms. Hataway's physicians made tentative diagnoses of lumbar radiculopathy, cervical radiculopathy, possible rotator cuff tear or adhesive capsulitis or frozen right shoulder based on her complaints and their physical examinations of her. Nevertheless, diagnostic testing failed to reveal a physiological explanation for her complaints. After complaining of nightmares and anxiety, Ms. Hataway was referred to a psychologist, who diagnosed her as having conversion disorder, posttraumatic disorder, and pain syndrome related to physical condition.

         During its cross-examination of Ms. Hataway and Mr. Pittman, AKAL presented evidence to prove that Ms. Hataway earned income while being paid compensation benefits without reporting it to AKAL as provided in La.R.S. 23:1208. AKAL argued that the evidence it produced established Ms. Hataway forfeited the workers' compensation benefits it had paid her and sought a judgment ordering her to reimburse it for all benefits it had paid her.

         After taking the matter under advisement, the workers' compensation judge (WCJ) issued extensive reasons for ruling in which it thoroughly reviewed the parties' claims in light of the evidence. The WCJ determined that Ms. Hataway failed to prove she suffered a mental injury caused by mental stress, as provided by La.R.S. 23:1021(8)(b), or a mental injury caused by a physical injury, as provided by La.R.S. 23:1021(8)(c), and dismissed all of her claims against AKAL. The WCJ also determined that AKAL failed to prove its La.R.S. 23:1208 forfeiture claim and dismissed it. These findings were reduced to judgment and signed by the WCJ. Both parties appealed.


         Ms. Hataway assigns the following errors with the trial and the WCJ's judgment:

1. [Trial] court erroneously found plaintiff failed to prove a compensable work injury.
2. [Trial] court erroneously found no physical-mental injury was proven by the injured worker.
3. Trial court erred in allowing expansion of the pleadings and/or ruling to include whether a compensable work accident had occurred since that was not an issue presented at trial.
4. Trial court erred in allowing expansion of the pleadings by allowing defendants to ask questions of the injured worker at trial regarding possible income from Facebook postings and the filing of exhibits in connection therewith and the subsequent allowing defendants to file supplemental and amended pleadings alleging fraud defense over the timely objection of plaintiff's counsel.
5. Trial court erred in allowing Dr. Strother's deposition to be admitted into evidence over the timely objection of plaintiff's counsel.
6. Trial court erred in not awarding benefits, penalties[, ] and attorney fees for statutory violations.

         AKAL assigns one error: "The [WCJ] erred in denying the La. R.S. 23:1208 defense of the Employer."

         STANDARD ...

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