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
LOUISIANA DEPARTMENT OF JUSTICE Counsel for Appellee
LITIGATION DIVISION By: E. David Gilmer Assistant Attorney
BROWN, WILLIAMS, and GARRETT, JJ.
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.
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.
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.
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."
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. Ms. Johnson's counsel asked for
confirmation that defendant would accommodate any work
restrictions and/or that SEB would be paid. 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.
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
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