FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT NO. 4
PARISH OF LAFAYETTE, NO. 04-04416 ADAM C. JOHNSON,
WORKERS' COMPENSATION JUDGE
Michael B. Miller Counsel for Plaintiff/Appellant: Alyce
F. Scott James F. Scott, III, L.L.C. Counsel for
Defendant/Appellee: Walgreen Company
composed of Shannon J. Gremillion, Phyllis M. Keaty, and D.
Kent Savoie, Judges.
PHYLLIS M. KEATY, JUDGE.
Alyce Mouton, appeals a judgment rendered by a workers'
compensation judge (WCJ) in favor of her former employer,
Walgreen Company (Walgreens), terminating her entitlement to
indemnity benefits. For the following reasons, we affirm.
AND PROCEDURAL HISTORY
March 27, 2007 trial, the WCJ rendered judgment on August 14,
2007,  (hereafter "the original
judgment") finding that Claimant "was injured in
the course and scope of her employment with Walgreen Drug
Stores on March 29, 2004 and April 5, 2004" and ordering
Walgreens to pay her $429.00 in weekly temporary total
disability benefits (TTDs) beginning April 6, 2004, along
with all reasonable and necessary medical treatment resulting
from her workplace injuries.This court affirmed the judgment.
See Mouton v. Walgreen Co., 07-1403 (La.App. 3 Cir.
4/2/08), 981 So.2d 75.
December 2016, Walgreens filed a Motion to Modify Judgment
and Suspend Indemnity Benefits, alleging that there had been
a change in condition and that the original judgment should
be modified, pursuant to La.R.S. 23:1310.8(B), to convert
Claimant's benefits from TTDs to supplemental earnings
benefits (SEBs), pursuant to La.R.S. 23:1221. The basis of
Walgreens' motion to modify was a July 8, 2015 report
issued by Dr. Angela Mayeux in her capacity as the
Independent Medical Examiner (IME) wherein she found, for the
first time, that Claimant had reached maximum medical
improvement (MMI). In its motion to modify, Walgreens
asserted that "Claimant cannot or will not cooperate
with" a Functional Capacity Evaluation (FCE), "and
is therefore released to return to work at light duty
pursuant to the State IME." According to Walgreens, the
findings in the IME constituted a change in condition
pursuant to La.R.S. 23:1310.8 and warranted modification of
the original judgment, converting Claimant's TTDs to
SEBs. Because it had paid Claimant more than five hundred
twenty weeks of indemnity benefits, Walgreens asked the WCJ
to suspend its further payment of indemnity benefits.
Claimant did not file an opposition to the motion to modify.
February 23, 2017, the WCJ held a hearing on Walgreens'
motion to modify. At the start of the hearing, Claimant's
counsel stipulated that Walgreens had paid Claimant five
hundred twenty weeks of indemnity benefits. Thereafter,
Walgreens officially offered into evidence the documents that
were filed with its motion to modify, including Dr.
Mayeux's July 8, 2015 IME report. When Claimant's counsel
attempted to offer exhibits into evidence, Walgreens'
counsel objected based on La.Dist.Ct.R. 9.9, which requires
that opposition memorandum be filed at least eight days
before a contradictory hearing. After counsel for Walgreens
declined the WCJ's offer to continue the hearing on its
motion, the WCJ allowed Claimant's exhibits into
evidence. Those exhibits consisted of the original judgment,
the IME reports Dr. Mayeux completed after examining Claimant
on three occasions,  and certified records from Claimant's
pain management physician, Dr. Daniel Hodges. No witnesses
testified at the hearing. After hearing arguments from
counsel, the WCJ took the matter under advisement and the
parties were ordered to file post-hearing briefs. On July 5,
2017, the WCJ issued oral reasons for ruling in the presence
of counsel in which it stated that it would enter judgment in
favor of Walgreens and against Claimant, granting
Walgreens' motion to modify judgment and suspend
indemnity benefits, rendering judgment modifying the original
judgment to convert Claimant's temporary total disability
benefits (TTDs) to supplemental earning benefits (SEBs), and
suspending and terminating Claimant's entitlement to
indemnity benefits "as more than five hundred twenty
(520) weeks of indemnity has been paid." Counsel for
Walgreens submitted a written judgment in the substance of
the WCJ's oral ruling which was signed on August 25,
now appeals, asserting the following assignments of error:
1. The workers' compensation judge erred in finding that
Walgreens provided proof that there was a change in
2. It was error for the workers' compensation judge to
find that Ms. Mouton was no longer entitled to temporary
total disability benefits.
3. The workers' compensation judge erred in finding that
Walgreens was entitled to change Ms. Mouton's weekly
benefits from TTD to SEB and in terminating ...