FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF
LAFAYETTE, NO. 14-07957 ANTHONY PALERMO, WORKERS'
Michael B. Miller Jacqueline K. Becker Chelsea Jackson
COUNSEL FOR PLAINTIFF/APPELLANT
J. Rabalais Matthew D. Crumhorn Rabalais Unland Aramark
Healthcare Services COUNSEL FOR DEFENDANT/APPELLEE
composed of Sylvia R. Cooks, John D. Saunders, and Candyce G.
D. SAUNDERS JUDGE.
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.
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.
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
AND PROCEDURAL HISTORY:
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.
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.
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
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
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.
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
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.
OF ERROR NUMBER ONE:
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.
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
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
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 ...