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Boyd v. CCMSI and Harrahs New Orleans

Court of Appeals of Louisiana, Fourth Circuit

December 26, 2018

DANA BOYD
v.
CCMSI AND HARRAHS NEW ORLEANS DANA BOYD
v.
CCMSI AND HARRAH'S NEW ORLEANS CASINO

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 16-07385, DISTRICT "08" HONORABLE Catrice Johnson-Reid, The Office of Workers' Compensation

          Pete Lewis Sara D. Call Barrett R. Stephens LEWIS & CAPLAN COUNSEL FOR CLAIMANT/APPELLANT

          John H. Musser, V Emily Stevens Hardin Tarryn E. Walsh MURPHY ROGERS SLOSS GAMBEL & TOMPKINS COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods

          REGINA BARTHOLOMEW-WOODS JUDGE

         This appeal arises from a claim for worker's compensation. For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff-Appellant, Dana Boyd ("Ms. Boyd"), was employed as a cook by Defendant-Appellee, Jazz Casino Company, LLC, d/b/a Harrah's New Orleans Casino ("Harrah's").[1] On September 20, 2016, Ms. Boyd, in the course and scope of her employment, fell while ascending stairs as she exited Harrah's. Ms. Boyd sustained injuries when she landed on her hands and knees and hit her right shin. Despite persisting pain, Ms. Boyd returned to a full day of work on September 21, 2016. After her two (2) scheduled off days, Ms. Boyd returned to work on September 23, 2016, to report her injuries and request medical treatment. On that same day, Ms. Boyd reported to Concentra Medical Center[2] and complained of pain in her right knee. Dr. Marcus Pittman diagnosed her with a contusion of the right knee and a strained right knee and restricted her to light duty work. Based on that restriction, Ms. Boyd returned to work from September 24-26, 2016.[3]

         On September 26, 2016, Ms. Boyd presented to the West Jefferson Medical Center Emergency Room and reported increased pain and swelling; Ms. Boyd was diagnosed with an avulsion fracture to her right tibia, as well as sprains and strains.[4] Ms. Boyd was referred to an orthopedist. On September 27 and 28, 2016, as a result of her pain, Ms. Boyd called out of work.[5] After two (2) scheduled days off, [6] general manager Chris Brown contacted Ms. Boyd, via text message, wherein she explained that she would be unable to return to work until she could be seen by an orthopedist. According to Ms. Boyd, from September 30, 2016 to October 11, 2016, she communicated, via text messages, with her supervisor, Chef Eric Porter, regarding her accident and resulting injuries, doctor's appointments, and inability to work.[7] According to Ms. Boyd, it was not until October 3, 2016, that her completed paperwork was submitted to a Harrah's human resources representative. On October 6, 2016, the human resources representative contacted Dr. Wesley Clark ("Dr. Clark"), an orthopedist. On the next day, October 7, 2016, Dr. Clark evaluated Ms. Boyd; she complained of pain in her right leg and hip. Dr. Clark released Ms. Boyd to work with the restriction of modified duty. On the following day, Ms. Boyd contacted her supervisor, via text message, to notify him that she would return to work. On October 11, 2016, Harrah's terminated Ms. Boyd for job abandonment. Harrah's contends that it sent Ms. Boyd a letter advising her of the termination, via certified mail; however, Ms. Boyd contends that she never received the letter. Harrah's further avers that had Ms. Boyd produced a medical excuse regarding the days that she missed work, Harrah's would have reinstated her employment. To date, Ms. Boyd has not produced any such documentation.

         In January 2017, Ms. Boyd was released to work without restriction. On February 5, 2017, Ms. Boyd secured new employment with the Hyatt Hotel. Ms. Boyd continued to receive medical treatment and in March 2017, Ms. Boyd reported that in addition to continued pain, she was experiencing pain in her right hip, right leg, and lower back. Ms. Boyd was advised that physical therapy had been authorized for solely her right knee.[8] According to Ms. Boyd, she was forced to resign from the Hyatt Hotel on July 26, 2017, because she was still experiencing pain as a result of the injuries that she sustained due to the September 20, 2016 accident.

         Ms. Boyd avers that she was temporarily totally disabled from September 27, 2016 to February 5, 2017, and again on July 26, 2017, through the following month.[9] Ms. Boyd also contends that Harrah's refused to authorize medical treatment for all of her injuries. Ms. Boyd sought attorney's fees and penalties because she alleges that Harrah's refused to authorize treatment and pay indemnity benefits.

         This matter was heard before the Office of Workers' Compensation ("OWC") on September 27, 2017.[10] On December 15, 2017, the OWC rendered its written judgment and found, in pertinent part, that on September 20, 2016, Ms. Boyd, while in the course and scope of her employment as a cook at Harrah's, sustained compensable injuries to her right knee, shin, ankle, and arm. OWC further found that Harrah's did not fail to accommodate Ms. Boyd's work restrictions and that she was not entitled to expand her work-related injuries and medical treatment to include new body parts, specifically, her lower back, right hip, and right leg. Accordingly, OWC found that Ms. Boyd was not entitled to indemnity benefits, either TTD [temporary total disability] and/or SEB[11] [supplemental earnings benefits]. The OWC further declined to award attorney's fees and/or penalties. It is from this judgment that Ms. Boyd now appeals.[12]

         On February 2, 2018, the OWC Clerk's Office issued a Notice of Appeal Charges in the amount of $2, 043.10. Thereafter, Ms. Boyd's counsel was unable to reach her regarding the costs of the appeal and requested a waiver for payment of advanced costs. On March 6, 2018, Ms. Boyd's counsel filed an unopposed ex parte motion for extension of time for payment of appeal costs. On March 8, 2018, OWC extended the deadline to March 29, 2018, for Ms. Boyd to remit payment. On March 29, 2018, Ms. Boyd's counsel was still unable to contact her. On April 16, 2018, Harrah's filed a motion to dismiss the appeal on grounds of abandonment. On May 7, 2018, OWC held a hearing, and ordered Ms. Boyd to pay, in full, the estimated costs of the appeal on or before May 17, 2018. On May 15, 2018, Ms. Boyd filed an ex parte motion to file an in forma pauperis affidavit, pursuant to La. C.C.P. art. 5183(A).[13] The OWC granted the motion and permitted Ms. Boyd to proceed without paying the costs, in advance, or as they accrue, or furnishing security thereof; to which Harrah's opposed. On June 6, 2018, Harrah's filed a second motion to dismiss appeal, which the OWC denied on July 17, 2018. On July 24, 2018, Harrah's sought a writ of supervisory review from this Court. [14]On November 7, 2018, this Court issued an Order consolidating the writ with the above-captioned appeal.

         DISCUSSION

         On appeal, Ms. Boyd raises the following assignments of error:

1. Whether the OWC erred in finding that Harrah's did not fail to accommodate Ms. Boyd's light duty work restrictions;
2. Whether the OWC erred in finding that Ms. Boyd did not sustain injuries to her lower back, right hip, and right lower extremity in connection with her accident on September 20, 2016;
3. Whether the OWC erred in finding that Harrah's properly declined to authorize medical treatment for Ms. Boyd's lower back, right hip, and right lower extremity;
4. Whether the OWC erred in finding that Ms. Boyd was not entitled to either TTD or SEB; and
5. Whether the OWC erred in not awarding attorney's fees and penalties against Harrah's for not paying Ms. Boyd TTD and SEB, and not authorizing medical treatment.

         Standard of Review

         This Court is mindful that the Louisiana Supreme Court has stated that "the provisions of the worker's compensation law must be given a liberal interpretation . . . to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co., 545 ...


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