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Mouton v. Walgreen Co.

Court of Appeals of Louisiana, Third Circuit

May 2, 2018

ALYCE MOUTON
v.
WALGREEN COMPANY

          APPEAL 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 Mouton

          James F. Scott James F. Scott, III, L.L.C. Counsel for Defendant/Appellee: Walgreen Company

          Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          PHYLLIS M. KEATY, JUDGE.

         Claimant, Alyce Mouton, appeals a judgment rendered by a workers' compensation judge (WCJ) in favor of her former employer, Walgreen Company [1](Walgreens), terminating her entitlement to indemnity benefits. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         After a March 27, 2007 trial, the WCJ rendered judgment on August 14, 2007, [2] (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.[3]This court affirmed the judgment. See Mouton v. Walgreen Co., 07-1403 (La.App. 3 Cir. 4/2/08), 981 So.2d 75.[4]

         In 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.

         On 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.[5] 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, [6] 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."[7] Counsel for Walgreens submitted a written judgment in the substance of the WCJ's oral ruling which was signed on August 25, 2017.

         Claimant 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 conditions.
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 ...

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