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Johnson v. Northwest Louisiana War Veterans Home

Court of Appeals of Louisiana, Second Circuit

February 28, 2018

REBECCA JOHNSON Plaintiff-Appellee
v.
NORTHWEST LOUISIANA WAR VETERANS HOME Defendant-Appellant

          Appealed from the Office of Workers' Compensation, District 1-W Parish of Caddo, Louisiana Trial Court No. 16-02175 Linda Lea Smith Workers' Compensation Judge

          WORKERS' COMPENSATION, LLC By: Gregory S. Unger Counsel for Appellant

          LOUISIANA DEPARTMENT OF JUSTICE Counsel for Appellee

          LITIGATION DIVISION By: E. David Gilmer Assistant Attorney General

          Before BROWN, WILLIAMS, and GARRETT, JJ.

          BROWN, C.J.

         This is a workers' compensation case. Defendant, the Northwest Louisiana War Veterans Home, has appealed from a judgment awarding claimant, Rebecca Johnson, Supplemental Earnings Benefits ("SEB") for three and one-half months, together with attorney fees and a penalty. Claimant answered the appeal, seeking an additional attorney's fee for work performed in conjunction with this appeal. For the reasons set forth below, we amend the judgment of the workers' compensation judge ("WCJ") to award an additional attorney's fee, and, as amended, affirm the judgment.

         FACTS/PROCEDURAL HISTORY

         Claimant, Rebecca Johnson, was employed as a psych aide supervisor at the Northwest Louisiana War Veterans Home in Bossier City, Louisiana. On June 19, 2013, she sustained a compression injury to her right hand and right middle and ring fingers when a metal bed side rail collapsed. The claim was accepted as compensable by defendant.

         On June 18, 2014, Ms. Johnson's treating orthopedic surgeon, Ellis Cooper, performed a right middle finger A1 pulley release. Claimant was paid Total Temporary Disability ("TTD") benefits at the weekly rate of $320.21 from June 17, 2014, through November 4, 2014. Ms. Johnson thereafter returned to work in a modified capacity and eventually returned to work in her pre-accident capacity.

         On January 25, 2016, which was more than one year after Ms. Johnson received her last TTD benefit payment, Dr. Cooper performed a right ring finger A1 pulley release on claimant. On February 5, 2016, Ms. Johnson saw Dr. Cooper, whose notes indicate that her pain was adequately controlled, although swelling and stiffness were still present. Dr. Cooper also noted, "[H]ealed surgical site, no evidence of infection, minimal swelling and mildly limited IP and MP motion. No triggering is present. Sensation is intact in all nerve distributions." He further directed that "[t]he patient will continue to limit activity with the affected hand for 2 weeks and advance activities as tolerated after that. Begin soft tissue massage as directed. An occupational therapy consult [has] been generated."

         On January 13, 2016, approximately two weeks before Ms. Johnson's second surgery, her attorney sent a letter to Elaine Clark, defendant's workers' compensation claims manager, notifying her of claimant's upcoming surgery and of their plan that claimant would be able to work, with restrictions, following this procedure.[1] Ms. Johnson's counsel asked for confirmation that defendant would accommodate any work restrictions and/or that SEB would be paid.[2] Thereafter, upon receipt of the information contained in the February 5, 2016, post-surgery report, defendant's workers'compensation claims manager sent Dr. Cooper a request for more specific information about claimant's work restrictions, but did not follow up when no response was forthcoming.

         In the meantime, defendant sent Ms. Johnson a packet with several documents related to the Family and Medical Leave Act ("FMLA"), including instructions to have her treating physician fill them out and return them by March 28, 2016. Claimant did so, then requested that SEB be initiated retroactive to January 25, 2016, the date of her second surgery. However, defendant refused to pay SEB, relying upon the recommendation of its claims examiner, whose determination to deny SEB to claimant was based solely upon one of Dr. Cooper's responses in the FMLA form. Specifically, skipping over Dr. Cooper's enumerated list of job functions claimant would be unable to perform - "no pushing, pulling, lifting, flexing, extending, or repetitive use of the right hand" - the claims examiner concluded that Ms. Johnson was totally, temporarily disabled by Dr. Cooper's indication that claimant would be "incapacitated for a single continuous period of time due to his/her medical condition, including any time for treatment and recovery" from "01/25/16 to 04/18/16 approximately."

         Ms. Johnson filed a Disputed Claim for Compensation (LDOL-1008) on April 5, 2016. Trial was held on December 5, 2016. Claimant testified that after her follow-up visit to Dr. Cooper on February 5, 2016, she began occupational therapy on her right hand and was capable of performing some type of modified ...


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