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Jackson v. Aramark Healthcare Services

Court of Appeals of Louisiana, Third Circuit

February 7, 2018

CHELSEA JACKSON
v.
ARAMARK HEALTHCARE SERVICES

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF LAFAYETTE, NO. 14-07957 ANTHONY PALERMO, WORKERS' COMPENSATION JUDGE

          Michael B. Miller Jacqueline K. Becker Chelsea Jackson COUNSEL FOR PLAINTIFF/APPELLANT

          John J. Rabalais Matthew D. Crumhorn Rabalais Unland Aramark Healthcare Services COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.

          JOHN D. SAUNDERS JUDGE.

         In this case, we must decide whether the Employee's disputed claim for the rate of workers' compensation benefits paid was incorrect. We must also decide whether Employer improperly suspended Employee's medical and indemnity benefits, and if so, whether Employee is entitled to penalties, attorney fees, and legal interest.

         Employee alleges that she suffered injuries to her head, neck, right shoulder, right arm and hand, and back as the result of a work-related accident. Following the accident, Employer initially paid Employee indemnity and medical benefits. However, Employee's medical benefits were suspended when she refused to submit to a neuropsychological evaluation. Likewise, Employee's indemnity benefits were suspended when an independent medical examiner's report indicated that Employee had reached maximum medical improvement and Employee was able to return to work. As a result, Employee filed a disputed claim form, seeking medical and indemnity benefits, penalties, attorney fees, expenses, and legal interest. Following a hearing, the workers' compensation judge found in Employer's favor.

         Employee now appeals the workers' compensation judge's ruling. Her argument is that the workers' compensation judge erred in failing to rule as to the proper amount of weekly wage and workers' compensation rate, and in failing to award penalties, attorney fees, expenses, and legal interest for the alleged improper suspension of her medical and indemnity benefits.

         FACTS AND PROCEDURAL HISTORY:

         Chelsea Jackson ("Employee") was injured in the course of scope of her employment with Aramark Healthcare Services ("Employer") when she fell down a small flight of steps, hit her head on the wall, and fell on her right side. At the time of her work accident, Employee was employed as a full-time pod server and runner. Her job duties included fixing orders and delivering food to patients' rooms. Employee worked six days a week, occasionally worked overtime, and due to a recent promotion and pay raise was allegedly earning $10.00 per hour.

         Prior to her work accident, Employee allegedly had no physical problems performing her job duties and did not miss any time from work for any physical injury or pain. However, Employee suffered from numerous pre-existing conditions, including a low back injury in 2005, which caused her to quit her job in 2006, a subsequent motor vehicle accident in which Employee suffered from "whiplash" to her neck and back, and a light stroke in 2008. In addition, Employee has a history of a heart murmur, bipolar disorder, and depression.

         Following her work accident, Employee received indemnity benefits, albeit allegedly at an incorrect rate, as Employer allegedly failed to factor in Employee's recent promotion and pay raise and occasional overtime hours in calculating her average weekly wage to determine her compensation rate. In addition, Employee's medical benefits were suspended in November 2014, when she refused to submit to a neuropsychological examination. In response, Employee filed multiple motions, seeking authorization for a one-time evaluation with an orthopedic surgeon of her choice, and an order lifting the suspension of her medical benefits. Ultimately, Employee's request was granted, and the medical suspension was lifted. At that time, Employee was also ordered to attend a neuropsychological evaluation, which she did. Next, at Employer's request, Employee presented to a second orthopedic surgeon for a second medical opinion in response to that of Employee's chosen orthopedic surgeon. Finally, Employer requested the appointment of an independent medical examiner to provide a third, independent medical opinion as to the nature and extent of Employee's injuries.

         Employee's indemnity benefits were suspended when the independent medical examiner's report indicated that Employee had reached maximum medical improvement and was able to return to work. At that time, Employee filed suit. Consequently, Employer filed an exception of prematurity and answer, alleging that Employee's suit was premature, that she was not disabled as a result of her work accident, and that Employee's medical and indemnity benefits were properly suspended.

         After oral arguments, the workers' compensation judge rendered judgment finding that some, but not all, of Employee's injuries were causally related to her work accident; that Employee was not disabled as of February 1, 2016; that Employee is not entitled to payment of non-emergency care for which pre-approval was not obtained; and that Employee is not entitled to penalties and attorney fees. Employee timely filed a motion for devolutive appeal. Pursuant to that motion, Employee is presently before this court alleging six assignments of error.

         ASSIGNMENTS OF ERROR:

1. The workers' compensation judge legally erred in failing to rule as to the proper amount of Ms. Jackson's average weekly wage and worker's compensation rate when this amount was an issue in dispute.
2. The workers' compensation judge legally erred in failing to award any indemnity benefits when Chelsea Jackson had a compensable work accident and was disabled after her accident.
3. The workers' compensation judge erred in finding that Ms. Jackson's right arm and low back complaints are not casually related to her work accident of May 5, 2014, and in not addressing her right shoulder and hand injury.
4. The worker's compensation judge erred in allowing into evidence and in relying upon the IME report of John Budden, M.D., which did not comply with the mandatory requirements of La.R.S. 23:1317.1 and lacks reliability and trustworthiness.
5. The workers' compensation judge erred in failing to award any penalties, attorneys fees, and expenses.
6. The workers' compensation judge legally erred in failing to award legal interest on all amounts owed.

         SASSIGNMENT OF ERROR NUMBER ONE:

         In her first assignment of error, Employee contends that the workers' compensation judge legally erred in failing to rule as to the proper amount of her average weekly wage and workers' compensation rate when this amount was an issue in dispute. We find merit to this contention.

         When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court determines whether the lower court was legally correct. Tran v. Williams, 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224.

Louisiana Revised Statutes 23:1221 provides, in pertinent part, as follows:
Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(1) Temporary total.
(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

         Louisiana Revised Statutes 23:1021(13)(a)(i) provides as follows:

(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater.

In Driscoll v. Stucker, 04-0589, pp. 18-19 (La. 1/19/05), 893 So.2d 32 (citations omitted), our ...


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