FROM THE OFFICE OF WORKERS' COMPENSATION NO. 17-08263,
DISTRICT "8" Honorable Diane R. Lundeen,
Workers' Compensation Judge
B. Mitchell Kiana M. Mitchell Michael S. Rodriguez MITCHELL
& ASSOCIATES, APLC COUNSEL FOR PLAINTIFF/APPELLEE
Stephen W. Brooks, Jr. Richard J. Voelker PUGH, ACCARDO,
HAAS, RADECKER & CAREY, LLC Chase Center COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Paula A. Brown,
Judge Tiffany G. Chase
TIFFANY G. CHASE JUDGE
a workers' compensation case. The defendant, The Fresh
Market, Inc. (hereinafter "Fresh Market"), appeals
the January 30, 2019 judgment of the Workers'
Compensation Judge (hereinafter "WCJ") rendered in
favor of the claimant, Geneva Hebert (hereinafter "Ms.
Hebert"). On that same date, the WCJ issued a separate
judgment excluding a witness' statement. Consolidated
with this appeal is Fresh Market's writ application
seeking reversal of the WCJ's exclusion of that evidence.
For the reasons that follow, we deny the consolidated writ,
affirm the judgment, and find the January 14, 2019 judgment
on a motion for contempt is not properly before this Court
AND PROCEDURAL HISTORY
Hebert, an employee of Fresh Market, worked in the bakery of
its St. Charles Avenue location. On September 12, 2017,
towards the end of her shift, Ms. Hebert was working with
Erik Terluin (hereinafter "Mr. Terluin"), a baker
for Fresh Market, who was showing her how to load a metal,
rolling baker's rack with frozen dough. The rack needed
to be moved up a grated ramp and put in a walk-in cooler
where the dough would defrost. Ms. Hebert was positioned on
the upper side of the ramp, pulling the rack, with her back
to the cooler. Mr. Terluin was on the lower side pushing the
rack towards the cooler. In their efforts to move the rack,
an incident occurred. The exact facts of the incident are
contested by the parties. Ms. Hebert alleges the rack, and
its contents, fell on top of her, knocking her to the floor,
and causing her to sustain injuries to her back and left
ankle. Conversely, Mr. Terluin alleges the rack did not fall
and that only a couple of pans of bread fell to the floor. He
was not aware of any injury to Ms. Hebert. After the
incident, the two completed their duties and left for the
following day, when the pain in her back and ankle persisted,
Ms. Hebert reported the incident and her injuries to Fresh
Market's management. Edward Woolsey (hereinafter
"Mr. Woolsey"), an assistant store manager, filled
out an incident report and obtained a written statement from
Ms. Hebert. As Ms. Hebert's statement identified Mr.
Terluin and Kelly Mosbacher (hereinafter "Ms.
Mosbacher"), another bakery employee, as witnesses, Mr.
Woolsey also obtained their statements. Fresh Market then
reported the incident to its workers' compensation
carrier, and Gallagher Bassett Services, Inc. (hereinafter
"Gallagher Bassett"), the claims adjuster.
September 18, 2017, Ms. Hebert noticed bruising on her back,
thigh, buttocks, knee, and swelling in her ankle and went to
the Touro Infirmary emergency room. She was diagnosed with a
left ankle sprain and lumbar contusion, but given no
restrictions in her ability to return to work.
after being discharged from Touro, Ms. Hebert went to the
Veterans Administration ("VA") hospital for a
second opinion. Diagnoses from an initial and follow up visit
were consistent with the findings at Touro. Ms. Hebert was
given crutches and a CAM (Controlled Ankle Movement) boot.
November 7, 2017, Ms. Hebert treated with LA Health Solutions
(hereinafter "LAHS"). Dr. Marco Rodriguez
(hereinafter "Dr. Rodriguez"), an orthopedic spinal
surgeon, examined Ms. Hebert and diagnosed her with thoracic
facet syndrome and lumbosacral facet joint syndrome causing
axial back pain. Dr. Rodriguez related her back and ankle
injuries to the September 12, 2017 accident and determined
that Ms. Hebert was unable to work in any capacity. Dr.
Rodriguez also referred Ms. Hebert to Dr. Robert Bostick
(hereinafter "Dr. Bostick") for her ankle injury.
December 28, 2017, Ms. Hebert filed a Form 1008 alleging
Fresh Market failed to pay wage benefits, authorize medical
treatment, authorize an initial evaluation of her choice of
Dr. Bostick to treat her ankle injury, and pay temporary
total disability (hereinafter "TTD") benefits and
supplemental earnings benefits (hereinafter "SEB").
Fresh Market answered the petition controverting the claim,
arguing factual and legal bases. It later amended its answer
to add a reconventional demand averring Ms. Hebert forfeited
her rights to benefits by failing to disclose her history of
left ankle injuries.
Hebert subsequently filed a "Motion to Compel Choice of
Orthopedic Extremity Specialist" (hereinafter
"motion to compel") due to Gallagher Bassett's
failure to authorize the referral to Dr. Bostick. On March
14, 2018, the WCJ ruled in favor of Ms. Hebert. Assessment of
penalties and attorney's fees was deferred until the
trial on the merits. Despite this judgment, Gallagher Bassett
did not pay for Ms. Hebert's visit with Dr. Bostick which
prompted Ms. Hebert to file a motion for contempt which was
not adjudicated until after the trial on the merits.
Hebert continued her treatment at LAHS. Dr. Rodriguez
recommended twelve orthopedic visits and made additional
referrals for physical therapy for Ms. Hebert's lumbar
and thoracic spine. On March 29, 2018, when Ms. Hebert had
not reached her physical therapy goals, Dr. Rodriguez
requested an additional eighteen physical therapy sessions.
He further requested treatment and evaluation for Ms.
Hebert's mid-thoracic back. Gallagher Bassett denied
these requests stating the treatment was not related to an on
the job injury. In May 2018, while Dr. Rodriguez concluded
that Ms. Hebert had reached maximum medical improvement in
her lumbar spine, her thoracic spine had not. He recommended
additional therapy with the potential for injections.
Market's orthopedic expert, Dr. Robert Steiner
(hereinafter "Dr. Steiner"), conducted an
examination of Ms. Hebert on May 14, 2018. Although her
lumbar back issues had mostly resolved, she still complained
of ankle and thoracic back pain. Dr. Steiner also noted that
Ms. Hebert did not inform him of a prior left ankle injury or
indicate it in the medical history form he gave her to fill
On the same day as the examination, Dr. Steiner issued a
report stating his opinion that Ms. Hebert "sustained
[a] left ankle sprain and lumbar contusion as a result of the
[September 12, 2017 accident]." Subsequent to his
original report, Dr. Steiner issued an addendum wherein he
changed his opinion of Ms. Hebert's injuries entirely.
trial occurred on September 26, 2018. The parties stipulated
Ms. Hebert's average weekly wage to be $239.25, with a
corresponding minimum weekly compensation rate of $174.00.
During the course of the trial, Fresh Market sought to
introduce a written statement by Ms. Mosbacher contained in
the incident report prepared by Mr. Woolsey. Ms. Hebert
objected and the WCJ reserved ruling on the matter.
witnesses testified at trial: Ms. Hebert; Mr. Terluin;
Whitney Plaisance, the claims adjuster; and Mr. Woolsey.
Deposition testimony of Dr. Steiner and Dr. Rodriguez was
introduced in lieu of live testimony.
the trial, the parties submitted post-trial briefs and the
matter was taken under advisement. On January 30, 2019, the
WCJ issued a written judgment finding, in relevant part, as
• Ms. Hebert suffered injuries to her left ankle and
back as a result of the September 12, 2017 accident;
• Ms. Hebert is entitled to TTD benefits from Nov 7,
2017 through May 1, 2018 in the amount of $4,374.86;
• Ms. Hebert is entitled to SEB for the periods of May 3
through May 3, 2018 in the amount of $729.68; June 2018 in
the amount of $301.83; and July 2018 in the amount of
• Ms. Hebert is awarded $2,000 in penalties and $3,000
in attorney's fees associated with her motion to compel;
• Ms. Hebert is denied an award of penalties and
attorney's fees associated with her claim on the merits
as Fresh Market controverted the claim based on its
• Judgment is rendered against Fresh Market denying its
reconventional demand alleging Ms. Hebert forfeited her
benefits for willfully failing to disclose prior ankle
order granting Fresh Market's suspensive appeal from this
final judgment was signed by the WCJ on February 26, 2019.
same date of the January 30, 2019 final judgment on the
merits, the WCJ issued a separate interlocutory judgment
excluding Ms. Mosbacher's statement but allowing Fresh
Market to proffer it on appeal. Fresh Market sought
supervisory review of the exclusion and this Court granted
the writ for the limited purpose of consolidating it with the
second supervisory writ was filed by Fresh Market on April
15, 2019 regarding the judgment of contempt on Fresh
Market's failure to pay for Dr. Rodriguez's referral
to Dr. Bostick. Fresh Market incorporates ...