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Angelle v. City of Kaplan-Kaplan Police Department

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

BEA ANGELLE
v.
CITY OF KAPLAN-KAPLAN POLICE DEPARTMENT

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 04 PARISH OF LAFAYETTE, NO. 15-04691 ANTHONY PAUL PALERMO, WORKERS' COMPENSATION JUDGE

          Theodore G. Edwards, IV Jordan T. Precht Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP COUNSEL FOR PLAINTIFF-APPELLANT: Bea Angelle

          Christopher R. Philipp Attorney at Law COUNSEL FOR DEFENDANT-APPELLEE: City of Kaplan-Kaplan Police Department

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET JUDGE

         In this workers' compensation case, plaintiff/employee, Bea Angelle, appeals the judgment of the Workers' Compensation Judge ("WCJ") finding that she is not entitled to supplemental earnings benefits ("SEBs"). For the following reasons, we affirm.

         Facts and Procedural History:

         On November 3, 2011, Ms. Angelle was hired as a police officer by defendant/employer, the City of Kaplan Police Department ("City of Kaplan"). It is undisputed that on October 18, 2012, Ms. Angelle sustained a back injury while in the course and scope of her employment. Ms. Angelle testified that she strained her lower back while assisting a handicapped lady get back into her bed after having fallen in her home. Following the accident, the City of Kaplan accommodated Ms. Angelle by placing her in various positions of light-duty work until she stopped working on February 13, 2013. The City of Kaplan paid Ms. Angelle temporary total disability benefits ("TTDs") at the rate of $305.14 per week from the date of the accident until April 28, 2015; thereafter, Ms. Angelle's TTDs were converted to SEBs. On June 23, 2015, Ms. Angelle's SEBs were terminated based on her alleged earning capacity as established by Dawn Marroquin, a vocational rehabilitation consultant.

         On July 28, 2015, Ms. Angelle filed a Disputed Claim for Compensation Form 1008 disputing the City of Kaplan's decision to terminate her SEBs. On August 5, 2015, the City of Kaplan filed an answer to the claim and requested a preliminary determination hearing. After a hearing was held on July 21, 2016, the WCJ made a preliminary determination that Ms. Angelle "is not entitled to Supplemental Earnings Benefits as of June 23, 2015." Ms. Angelle objected to the preliminary determination and requested a trial on the merits.

         This matter was tried on March 9, 2017. At trial, the parties introduced as evidence the entire record of the July 21, 2016 preliminary hearing. Ms. Angelle provided additional testimony at trial explaining why she thought she was entitled to SEBs after June 23, 2015. At the end of the trial, the WCJ left the record open for the deposition of Dr. Michael Berard, Ms. Angelle's treating psychologist, to be taken. Dr. Berard was deposed on March 31, 2017, after which the parties were allowed twenty days to submit post-trial memoranda.

         On May 19, 2017, the WCJ stated the following reasons for its denial of Ms. Angelle's request for SEBs:

The Court finds, after review of the evidence, that the plaintiff is not entitled to supplemental earnings benefits. This is based on the medical information provided to the Court, specifically the opinions of Dr. Miller, Dr. Appley and Dr. Michael Berard. Dr. Miller has released Ms. Angelle to light-duty work with no heavy lifting or frequent bending. Dr. Appley's evidence provides that she is not a surgical candidate. The latest tests have been an EMG nerve conduction study, was read as normal. There is ample evidence that Ms. Angelle is capable of engaging in some type of employment. The basis for which Ms. Angelle has stated that she cannot engage in employment is the opinion of Dr. Michael Berard, a psychologist. Dr. Berard is a long-time medical provider to Ms. Angelle. She first saw him in 2010 and has continued to see him on an off-and-on basis since then. Her contention is that she has a mental injury caused by a physical injury, and therefore this allegation must be shown by clear and convincing evidence. The Court also notes that Dr. Berard finds that Ms. Angelle would not be able to work because of the degree of her mental injury. It is also important to note that Dr. Berard's medical records were entered into evidence and Dr. Berard's clinical diagnosis of Ms. Angelle's condition was done in accordance with the DSM IV, which is not the latest issue of the DSM. Therefore[, ] this calls into question his opinion concerning her disability. The Court does not find that Ms. Angelle has shown a mental disability caused by physical injury. Therefore, the Court has determined that Ms. Angelle is capable of engaging in gainful employment and has not shown that supplemental earnings benefits are owed to her.

         On June 16, 2017, the WCJ signed the judgment denying Ms. Angelle SEBs, and dismissed her claim with prejudice. Ms. Angelle now appeals this judgment. In her sole assignment of error, Ms. Angelle alleges that the WCJ ignored the uncontradicted testimony of Dr. Berard finding that the October 18, 2012 accident caused her to have a psychological condition that prevented her from returning to work. Thus, Ms. Angelle argues that the record supports the continuation of her SEBs.

         In response, the City of Kaplan argues that the WCJ correctly denied the continuation of SEBs because (1) Ms. Angelle was actively looking for work, (2) Dr. Roland Miller, her treating orthopedic surgeon, released her to perform light-duty work with no heavy lifting or frequent bending, (3) Dr. Stephen Staires, her pain management doctor, was no longer prescribing her pain medications, and (4) her EMG nerve condition study was normal. Further, the City of Kaplan alleges that it was unaware that Dr. Berard had been treating Ms. Angelle throughout the workers' ...


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