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
composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M.
Keaty, and Candyce G. Perret, Judges.
CANDYCE G. PERRET JUDGE
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.
and Procedural History:
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.
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
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
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.
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.
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' ...