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Hebert v. The Fresh Market, Inc.

Court of Appeals of Louisiana, Fourth Circuit

September 18, 2019


          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 17-08263, DISTRICT "8" Honorable Diane R. Lundeen, Workers' Compensation Judge

          Craig 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 DEFENDANT/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Tiffany G. Chase


         This is 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 for review.[1]


         Ms. 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 day.

         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.

         On 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.

         Immediately 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.

         On 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.

         On 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.

         Ms. 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.[2] Assessment of penalties and attorney's fees was deferred until the trial on the merits.[3] 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.

         Ms. 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.

         Fresh 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 out.[4] 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.

         The 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.

         Four 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.

         Following 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 follows:

• 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 $301.83;
• 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 investigation; and
• Judgment is rendered against Fresh Market denying its reconventional demand alleging Ms. Hebert forfeited her benefits for willfully failing to disclose prior ankle injuries.

         The order granting Fresh Market's suspensive appeal from this final judgment was signed by the WCJ on February 26, 2019.

         On the 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 pending appeal.

         A 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 ...

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