FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 2
PARISH OF RAPIDES, NO. 17-03079 JAMES L. BRADDOCK, WORKERS
J. Anzelmo Charles A. Anzelmo Anzelmo & Creighton, L.L.C
COUNSEL FOR DEFENDANT/APPELLANT: St. Genevive Health Care
Arthur Flournoy Flournoy Law Firm COUNSEL FOR
PLAINTIFF/APPELLEE: Malvilen Cook
composed of Sylvia R. Cooks, Billy Howard Ezell, and John E.
E. CONERY JUDGE.
Genevive Health Care Services Inc. (St. Genevive)
suspensively appeals the December 14, 2018 judgment of the
Workers' Compensation Judge (WCJ) entered in favor of its
former employee, Ms. Malvilen Cook. The WCJ awarded Ms. Cook
Temporary Total Disability Benefits (TTDs), reimbursement of
her medical and travel expenses, $4, 000 in penalties, and
attorney fees in the amount of $14, 000, with interest. The
WCJ assessed all costs to St. Genevive. The WCJ denied St.
Genevive's special defenses pursuant to La.R.S. 23:1208,
a misrepresentation defense based on fraud, as well as
La.R.S. 23:1208.1 based on misrepresentation on a second
injury questionnaire. Ms. Cook answered the appeal and seeks
additional penalties pursuant to La.R.S. 23:1208(I) as well
as additional attorney fees for appellate work. For the following
reasons, we affirm as amended and render.
AND PROCEDURAL HISTORY
claimant, Ms. Cook, was a long time employee of St. Genevive,
having begun her work as Director of Social Welfare (DSW) on
March 1, 2006, and continued through March 31, 2017. Shortly
after her hire date she was promoted to DSW supervisor. That
job involved her supervision of thirty to forty DSW workers,
and also made her responsible for twenty-five to thirty
client's homes. Ms. Cook continued in this position until
her second job related injury on March 31, 2017. Ms. Cook
testified that she enjoyed her work with the mentally and/or
physically handicapped. In addition, Ms. Cook was responsible
for cleaning the offices of St. Genevive, for which she was
paid $200.00 for every two-week period.
Cook claims two work-related injuries. The first occurred on
March 28, 2017 when she was called to assist DSW Noris Marie
Scott in transporting a client to LSU hospital in Shreveport.
The client had a specially adapted wheelchair that had to be
placed in Ms. Cook's trunk. It weighed approximately
50-60 lbs. While lifting the chair, Ms. Cook experienced a
sudden severe burning pain down her low back into her left
leg and felt a sudden snap in her back. She informed Ms.
Scott that she could have hurt her back while lifting the
chair, but at first Ms. Scott thought she was only joking.
However, when they arrived at the hospital, Ms. Cook was
unable to help in unloading the wheelchair, and Ms. Scott had
to enlist the help of a gentleman to remove the chair.
as a supervisor, Ms. Cook would have remained at the hospital
until they were able to obtain a bed for the client, but due
to the long delay and her increased back and leg pain, she
told Ms. Scott she needed to leave. Ms. Scott testified she
could tell by the pained expression on Ms. Cook's face
she was in pain and told her to go home.
Cook returned to work the next day, still in pain and
noticeably limping. Her direct supervisor, Ms. Delmar
Aguilar, inquired why she was limping, and Ms. Cook told her
about the wheelchair incident. Although required, Ms. Aguilar
did not prepare an incident report or send Ms. Cook to Work
Kare, St. Genevive's group of treating physicians for
work-related injuries. At trial, Ms. Aguilar denied that she
talked to Ms. Cook about the wheelchair incident.
days later, on March 31, 2017, Ms. Cook made house calls in
Mansfield and Many. However, driving her car to Mansfield
caused the pain in her low back to increase, and she had to
get out of the car to stretch in order to get some relief
from the back and leg pain. She began to experience severe
muscle spasms, migraine-like headaches, dizziness, and she
began to feel faint. Ms. Cook thought she was having a stroke
and called her husband and son for help. Her son met her in
Cook was getting out of the company car to get into her
son's car, her left leg gave way and she fell to the
ground. Her son drove her to Byrd Regional Hospital, where
emergency room physicians determined she had not had a
stroke. The "Admit Sheet" lists the "Admitting
Diagnosis" as "HEADACHE BACK PAIN LEG." The
"Nurse's Notes" indicate Ms. Cook was given
intervention medication, consisting of "Zofran 4 mg,
morphine 5 mg, and Decadron 4mg" for treatment of
"10 out of 10" pain to her head which
"radiates to back and left leg pain." Ms. Cook
described the "quality of pain …"as burning,
aching, tender, throbbing." Ms. Cook was given discharge
instructions to "follow up [with her doctor] …
and medication usage."
the weekend, Ms. Cook's back and leg pain became worse
and she reported on April 3, 2017 to the Willis Knighton Work
Kare medical facility in Shreveport. As previously stated,
St. Genevive sends its employees to Work Kare for
work-related injuries. Ms. Cook told the receptionist at Work
Kare about her experience on March 31, 2017. She also stated
she had been instructed by the physicians at the emergency
room at Byrd Regional Hospital to seek follow-up care if she
felt worse. The receptionist received verbal approval for Ms.
Cook's work-related treatment at Work Kare from Ms.
Aguilar, her direct supervisor.
April 3, 2017, Ms. Cook told Dr. Raymond Dennie at Work Kare
about the March 28, 2017 wheelchair incident, which was
recorded in total in Dr. Dennie's April 4, 2017 report
entitled "Treatment Memo Custom:"
CC: Low back and left leg pain.
HIP: This 45 [year old] lady states she was picking up a
wheelchair with a patient in it and experienced low back pain
which radiated all the way down to her toes. She states since
then, her left leg gives out. She also complains of numbness,
tingling, and generalized weakness in her left lower
extremity. She has significant past history. She informs me
that she has been having back problems for over a year. She
had a prior work injury. She states she was followed at LSU
and about a year ago she had an MRI and was told she had a
herniated disk in the lumbar spine and they wanted to do
surgery which she refused. She states on this occasion when
she was picking up the wheelchair, she had an immediate
recurrence of her symptoms. This appears to be a re-injury of
Dennie ordered occupational therapy, which was authorized by
Ms. Aguilar on April 5, 2017. However, after three more
exams, Dr. Dennie became aware of the severity of Ms.
Cook's pain and ordered an MRI on April 28, 2017. Ms.
Aguilar also authorized the MRI, which was conducted on April
29, 2017. The MRI indicated that Ms. Cook had a "broad
disk bulge" at "L5 - S1." Dr. Dennie
discontinued her therapy and recommended she see an
orthopedist. Ms. Cook made a request to see a specialist at
The Spine Institute but was denied further treatment by St.
Genevive in mid-May of 2017.
Cook filed a Disputed Claim for Compensation (Form 1008) on
May 22, 2017. St. Genevive initially filed a general denial
of Ms. Cook's claim on June 27, 2017. However, on
November 30, 2017, it filed an amended answer raising the
defense of fraud under La.R.S. 23:1208, and misrepresentation
on the second injury fund questionnaire, pursuant to La.R.S.
matter was tried on August 15, 2018 and the WCJ issued oral
reasons on November 7, 2018. Judgment was signed on December
14, 2018 wherein the WCJ found that Ms. Cook was entitled to
Temporary Total Disability Benefits (TTDs) beginning April 1,
2017, and that St. Genevive was entitled to a credit for
wages paid after March 31, 2017 in the amount of $3, 130.00.
further found that Ms. Cook's average weekly wage was
$949.17, that she was entitled to medical travel expenses in
the amount of $1, 000.21, and reimbursement of medical
expenses without benefit of the fee schedule to the following
medical providers; Work Kare, $1580.00; MRI, $3, 851.00; Red
River Consultants, $290.00; Byrd Regional Hospital, $16,
858.00, and Dr. Clark Gunderson, $3, 335.00.
further ordered St. Genevive to pay $4, 000.00 in penalties
pursuant to La.R.S. 23:1201(F) for failure to pay benefits
and medical expenses, and $14, 000.00 in attorney fees
pursuant to La.R.S. 23:1201(J). All costs were assessed
against St. Genevive, and interest was assessed on all awards
according to law. The WCJ denied St. Genevive's claims of
fraud under La.R.S. 23:1208 and La.R.S. 12:1208.1. St.
Genevive filed a motion for new trial which was denied after
hearing on January 28, 2019. St. Genevive now timely appeals
the WCJ's December 14, 2018 judgment.
Genevive asserts the following on appeal:
[1.] The Workers' Compensation Judge erred in finding
that Cook had sustained her burden of proof regarding the
occurrences of two separate accidents, on March 28, 2017 and
March 31, 2017.
[2.] The Workers' Compensation Judge erred in failing to
find that Cook forfeited the right to benefits by making
false statements representations in furtherance of a claim
for benefits in violation of La.R.S. 23:1208.
[3.] The Workers' Compensation Judge erred in failing to
find that Cook forfeited the right to benefits pursuant to
[4.] The Workers' Compensation Judge erred by awarding
penalties and attorney fees under the facts and circumstances
of this case.
court discussed the standard of review to be utilized in
workers' compensation cases in LeBlanc v. Wal-Mart
Stores, Inc., 15-558, pp. 10-11 (La.App. 3 Cir.
11/4/15), 177 So.3d 1125, 1132-33, noting:
The standard of review in a workers' compensation claim
is well established and was succinctly stated in Bracey
v. City of Alexandria, 13-16, p. 3 (La.App. 3 Cir.
6/5/13), 115 So.3d 1211, 1214-15, writ denied,
13-1934, (La. 11/8/13), 126 So.3d 455 (other citations
Factual findings in workers' compensation cases are
subject to the manifest error or clearly wrong standard of
appellate review. Smith v. Louisiana Dep't. of
Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In
applying the manifest error standard, the appellate court
must determine not whether the trier of fact was right or
wrong, but whether the factfinder's conclusion was a
reasonable one. Stobart v. State, 617 So.2d 880
(La.1993). Where there are two permissible views of the
evidence, a factfinder's choice between them can never be
manifestly erroneous or clearly wrong. Id. Thus,
"if the [factfinder's] findings are reasonable in
light of the record reviewed in its entirety, the court of
appeal may not reverse, even though convinced that had it
been sitting as the trier of fact, it would have weighed the
evidence differently." Sistler v. Liberty Mut. Ins.
Co., 558 So.2d 1106, 1112 (La.1990).
"The determination of coverage is a subjective one in
that each case must be decided from all of its particular
facts." Jackson v. Am. Ins. Co., 404 So.2d 218,
220 (La.1981). "[T]he manifest error standard of
appellate review applies in workers compensation cases and
great deference is accorded to the [workers' compensation
judge's] factual findings and reasonable evaluations of
credibility." Central Lumber Co. v. Duhon,
03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593,
writ denied, 04-315 (La.4/2/04), 869 So.2d 880
(quoting Garner v. Sheats & Frazier, 95-39, p. 7
(La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61.
of Error One-Ms. Cook's Disputed Claim for
essence, the WCJ found that Ms. Cook's claim for benefits
and medical treatment was denied by St. Genevive on the basis
that they did not believe that the incident with the
wheelchair occurred on March 28, 2017. The WCJ further
concluded that Ms. Aguilar, Ms. Cook's direct supervisor,
determined that Ms. Cook's characterization of the
incident on March 31, 2017 as "a stroke" and not
job-related, but that determination was unreasonable and
Ebare v. Cubic Applications, Inc., 08-1095, pp. 3-4
(La.App. 3 Cir. 3/4/09), 5 So.3d 1028, 1030-31, a panel of
this court stated:
In Bruno [v. Harbert International,
Inc., 593 So.2d 357, 360-61 (La.1992)] (citations
omitted), the Louisiana Supreme Court noted that, while
"Louisiana courts view the question of whether there was
an accident from the worker's perspective[, ] ... the
worker's burden of proof is not relaxed. Rather, as in
other civil actions, the plaintiff-worker in a compensation
action has the burden of establishing a work-related accident
by a preponderance of the evidence." Regarding the
claimant's burden of proof, the Bruno court went on to
A worker's testimony alone may be sufficient to discharge
this burden of proof, provided two elements are satisfied:
(1) no other evidence discredits or casts serious doubt upon
the worker's version of the incident; and (2) the
worker's testimony is corroborated by the circumstances
following the alleged incident.
Id. at 361. In addition, this court has held that
the existence of a pre-existing condition alone does not
foreclose the receipt of workers' compensation benefits
where there is evidence that the on-the-job accident
aggravated and accelerated the claimant's pre-existing
condition. Bush v. Avoyelles Progress Action Comm.,
07-685 (La.App. 3 Cir. 10/31/07), 970 So.2d 63.
rendered extensive oral reasons for ruling, ultimately
finding that Ms. Cook sustained her burden of proving
"that she sustained an incident with a wheelchair on
March 28, 2017. The WCJ further assessed witness credibility
and explained that Ms. Cook's version of events was
"corroborated by the testimony of [Noris] Scott and the
medical records at Work Kare from a Dr. Raymond Dennie."
to making this determination, the WCJ concluded that indeed
Ms. Cook had been called by Ms. Scott to assist her in
transporting a client to the hospital. It was necessary for
the two women to load a 50 to 60 pound modified wheelchair
into Ms. Cook's vehicle. The WCJ found that during this
process, Ms. Cook "sustained injury to her low back. But
nevertheless, "they continued -- they loaded the
wheelchair and got this person to the hospital, had to wait
in the intake area for some time to have the person admitted
to the hospital."
The WCJ further explained that:
Ms. Cook testified that during the process at the hospital,
her pain in her back got worse and she had to leave. And Ms.
[Noris] Scott testified that Ms. Cook did indeed help her
with this patient and indeed helped lift the wheelchair into
Ms. Cook's vehicle, and that Ms. Cook told her at that
time that she felt like she hurt her back. but she testified
at trial that she thought … Ms. Cook was just joking
at the time, and ...