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Hurst v. Cirrus Allied & Kentucky Insurance Guaranty Association

Court of Appeals of Louisiana, First Circuit

January 8, 2018

KYM HURST
v.
CIRRUS ALLIED & KENTUCKY INSURANCE GUARANTY ASSOCIATION

         On Appeal from The Office of Workers' Compensation, District 9 Parish of Terrebonne, State of Louisiana Trial Court No. 11-04733 The Honorable Elizabeth Lanier, Workers' Compensation Judge Presiding.

          Michael E. Parker Lafayette, Louisiana Attorney for Defendants/ Appellees, Cirrus Allied, LLC and Insurance Kentucky Guaranty Association

          Mark L. Riley Jeremy A. Bazile Lafayette, Louisiana Attorneys for Plaintiff/Appellant, Kym Hurst

          BEFORE GUIDRY, PETTIGREW, AND CRAIN, JJ.

          CRAIN, JUDGE.

         In this workers' compensation proceeding, Kym Hurst appeals a judgment terminating her indemnity and medical benefits. We affirm.

         FACTS AND PROCEDURAL HISTORY

         On January 6, 2010, Hurst, a physical therapy assistant, injured her back while assisting a patient. Before the accident, Hurst was diagnosed with degenerative disc disease and treated for low back pain on numerous occasions, including in 1999 after an automobile accident, in 2005 when injured while assisting another patient, and ongoing treatment in 2007, 2008, and 2009.

         Following the 2010 work accident, Hurst filed this proceeding seeking workers' compensation benefits from her employer, Cirrus Allied, and its insurer, Ullico Insurance Company. The parties consented to a judgment awarding Hurst a lump sum of $46, 192.39 for all claims for indemnity and medical benefits through December 26, 2012, inclusive of penalties and attorney fees. The judgment also ordered the defendants to pay weekly indemnity benefits effective December 27, 2012, and future medical benefits according to the Louisiana Workers' Compensation Act.

         In February 2013, Ullico stopped paying indemnity benefits and, three months later, was declared insolvent. The Kentucky Insurance Guaranty Association (KIGA) assumed the claim and began paying indemnity benefits on May 5, 2014, making a lump sum payment for accrued, unpaid indemnity benefits through that date and resuming bi-weekly indemnity payments. Several events subsequently occurred that prompted Cirrus and KIGA to file a motion seeking a modification of their compensation obligations in the consent judgment.

         First, on May 7, 2014, two days after KIGA resumed paying indemnity benefits, Hurst had an automobile accident. Within a week, she presented to her primary care physician and, referencing the automobile accident, complained of "significant pain in her low back." She had additional treatment through June 23, 2014. Hurst did not inform KIGA or Cirrus of the automobile accident and settled a claim arising from the accident without their knowledge or consent.

         Also in early 2014, Hurst began treating with Advanced Neurosciences Institute, complaining of headaches, cognitive impairment, sensory disturbance, muscle cramps, imbalance, and gait impairment. On July 1, 2014, after numerous tests, she was diagnosed with multiple sclerosis (MS) and began treatment.

         Finally, on October 13, 2014, Hurst experienced an episode of "severe lower back" pain after bending over and feeling a "pop" in her back. The severity of the pain was immobilizing, and she was transported by ambulance to a local hospital and admitted overnight for treatment. According to the EMS records, Hurst reported she "never had an injury like this in the past." An MRI showed arthritic changes and bulging discs, but no herniations.

         Based on the foregoing, Cirrus and KIGA filed a motion, later amended, seeking to terminate their obligation to pay indemnity and medical benefits because Hurst (1) is no longer disabled as a result of the January 6, 2010 accident; (2) forfeited her benefits under Louisiana Revised Statute 23:1208 by receiving indemnity benefits without seeking medical treatment and failing to comply with treatment recommendations; and (3) forfeited future benefits under Louisiana Revised Statute 23:1102 by settling her 2014 automobile accident claim without the consent of Cirrus or KIGA. In response, Hurst denied the ...


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