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Cook v. St. Genevive Health Care Services, Inc.

Court of Appeals of Louisiana, Third Circuit

November 6, 2019



          Donald J. Anzelmo Charles A. Anzelmo Anzelmo & Creighton, L.L.C COUNSEL FOR DEFENDANT/APPELLANT: St. Genevive Health Care Services, Inc.

          George Arthur Flournoy Flournoy Law Firm COUNSEL FOR PLAINTIFF/APPELLEE: Malvilen Cook

          Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery, Judges.


         St. 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.[1] 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.[2] For the following reasons, we affirm as amended and render.


         The 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.[3] 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.

         Ms. 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.

         Typically, 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.

         Ms. 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.

         Three 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 Many.

         As Ms. 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."

         Over 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.

         On 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 some sort.

         Dr. 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.

         Ms. 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. 23:1208.1.

         This 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.

         The WCJ 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.

         The WCJ 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.


         St. 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 La.R.S. 23:1208.1.
[4.] The Workers' Compensation Judge erred by awarding penalties and attorney fees under the facts and circumstances of this case.


         Standard of Review

         This 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 omitted).
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.

         Assignment of Error One-Ms. Cook's Disputed Claim for Compensation

         In 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 without basis.

         In 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 state:
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.

         The WCJ 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."

         Prior 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 ...

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