ANGELA ATWELL VS FIRST GENERAL SERVICES

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STATE OF LOmSIANA COURT OF APPEAL FIRST CIRCmT NUMBER 2006 CA 0392 ANGELA ATWELL f6 vA VERSUS FIRST GENERAL SERVICES Judgment Rendered Appealed December 28 2006 from the Office of Workers Compensation District 5 Docket Number 04 00160 Honorable Pamela Moses Laramore Workers Compensation Judge Presiding Counsel for Plaintiff Appellee Daniel Dazet Baton Rouge LA Stephen Brooks Covington LA BEFORE Jr Angela Atwell Counsel for Defendant Appellant First General Services CARTER C J WHIPPLE AND McDONALD JJ s WHIPPLE J This is an appeal by defendant from judgment of the Office of Compensation awarding claimant benefits Workers with penalties and attorney affirm a s fees For the assessing defendant and following reasons we amend and amended as FACTS AND PROCEDURAL mSTORY Claimant Angela Atwell was employed by defendant First General Services and when she slipped claimant underwent a to chronic Benefits steps and fell cervical fusion experience pain continued terminated concrete on were injured was restoration as a 1 As on specialist November 4 2002 result of the a injury However after the surgery claimant in her neck shoulder and back which became to claimant but claim for compensation initially paid were subsequently by her employer Claimant filed a disputed January 8 2004 on seeking reinstatement of her weekly compensation benefits adjustment of her weekly compensation treated rate various medical benefits by a physician of choice and penalties and attorney In its answer defendant denied that claimant additional benefits Additionally in that claimant had willfully made false about an alleged prior history about her of an amended or psychological problems physical limitations and abilities claimant had forfeited her entitlement to any Thus s was answer statements the right to fees entitled to any defendant asserted misrepresentations and drug use and defendant contended benefits pursuant to LSA R S 23 1208 lAtwell s duties involved commercial and residential painting drywall hanging finishing and textming work light plumbing and electrical work and floor repairs and restoration At the time ofthe accident she had worked for defendant for almost two years 2 be in Following trial rendered matter the workers judgment finding that claimant 13 beginning October claimant did was this not entitled treatment to 2003 and temporarily totally disabled was continuing through reimbursement of by Dr Sandra Weitz and out to in of pocket medical treatment with Dr Weitz and Dr judge also With claimant regard s and penalties refusing 2 000 00 and ordered to pay penalized refusal to provide such treatment determined that defendant was s fees treatment 5 000 00 in The workers the workers Defendant attorney s 2 Defendant was compensation judge further arbitrary and capricious for its termination of ordered to pay attorney termination of benefits in December 2003 and and ordered benefits in to pay April 2004 2Claimant 5 000 00 in as was fees for its benefits in December 2003 and for its failure to reinstate benefits after 24 2004 was arbitrary and capricious was authorize and pay for medical to continue 346 66 attorney compensation judge determined that defendant for to compensation The workers rate at weekly indemnity to entitled was for treatment Craig Waggoner and that claimant undergo cervical and brain MRIs set that expenses patient pain management Infirmary Pain Center that claimant to the date of trial commit any violation of LSA R S 23 1208 that claimant at Touro entitled compensation judge attorney previously s ordered fees of s was also April l OOO OO for its 2 000 00 penalized fees for its failure to reinstate by the OWC compensation benefits had been temporarily suspended from January through April 21 2004 for her failure to attend a medical examination with Dr The workers compensation Robert Applebaum defendant s choice of neurosurgeon determined that defendant had improperly terminated benefits in December 2003 judge s 27 2004 prior to the date 9f the suspension claimant s benefits at the ordered by the OWC and thereafter failed to reinstate expiration ofthe suspension period as ordered thus forming the bases for imposition of penalties and attorney s fees While the actual date that benefits had been ordered reinstated was April 21 2004 the workers compensation judge in her subsequent judgment awarding penalties reinstatement as April and attorney 24 2004 3 s fees incorrectly listed the date of From this elTed in compensation judge finding violation no finding claimant temporarily totally disabled 23 1208 LSA R S of reimbursement for medical expenses for Waggoner failing submitted to a amount the suspend 4 000 00 and imposed and by attorney Claimant answered the of penalties by Weitz Dr treatment by an s Dr and Applebaum fees appeal seeking increase in assessing against amendment of the an attorney actually 11 000 00 totaling and Drs Weitz benefits until the date that Atwell medical examination penalties totaling defendant to claimant awarding treatment authorizing cervical and brain MRIs and continued and the workers judgment defendant appeals contending that s fees for defending appeal TEMPORARY TOTAL DISABILITY BENEFITS Assignment of Error No 1 a temporary total disability TTD shall be awarded only claimant proves by clear and convincing evidence that she is physically Benefits for if a unable to engage in any Family Dollar Stores Inc 99 0622 La 1214 writs denied 2000 2356 2000 2363 727 Disability Lathan be proven La 2001 2639 App 1st Cir 11 8 02 to return to to TTD Williams Cir from 7 10 94 a accident to pre benefits 644 So 2d 705 707 work as a La 00 760 So 2d 00 773 So 836 So result of Additionally a produce disability accelerated Peveto v or a mental La combined with the pre to 4 Isaac v 199 A injury is App 1st benefits if the existing WHC Contractors 93 1402 La 630 So 2d 689 691 2d claimant who suffered existing medical condition is also entitled aggravated 2d 191 Capitol Steel 93 2154 v v 12 5 by medical and lay testimony claimant who is unable entitled Collins c 13 11 App 1st Cir 1210 can 1 1221 LSA R S 23 employment condition 14 1 94 finding regarding whether The factual claimant has be must her burden of met Porter en or 1st Cir 9 25 98 734 So 2d 638 that furnishes of facts will a not be overturned reasonable factual basis for such be disturbed on reasonable not appeal a absent appeal on La App 18 12 98 La writ denied 98 2712 compensation judge If there is evidence before the workers inferences of fact will length thereof Gaylord Chemical Corporation 98 0222 721 So 2d 27 30 testimony the v not compensation and the proving disability given great weight and will manifest workers a finding the determination Moreover where there is conflict in evaluations credibility of and reasonable Porter 721 So be disturbed upon review 2d at 30 In the instant claimant that case the workers from suffering was specifically related to this from The workers employment found claimant to compensation judge very definitive the fact depression her compensation judge explained that she be disabled because of claimant compensation judge found inpatient pain management doctor severe as a physical injury that temporally totally disables s need for management which defendant had refused to authorize workers found as a Additionally the fact that had defendant authorized treatment claimant would have been inpatient pain recommended much farther by claimant s along in of her terms recovery and return to work Based workers Contrary on our review of the record compensation judge to we findings s find as the assertions in defendant s brief compensation judge medical evidence s findings Claimant related to her chronic are was pain from no to we manifest claimant s enor disability find that the workers amply supported by the record clearly suffering from the work accident 5 in the severe and the depression While she may have suffered from in the depression time of this accident with be that she had argued no a past claimant was not by this court at issue disabled given her even the at if it could depression it is to precipitated compensation judge temporarily totally be disturbed Thus existing condition relating pre Thus the workers rendered working full time demonstrated limitations clear from the record that the accident depression was her cunent severe conclusion that she s condition will CUlTent 3 REJECTION OF DEFENDANT S LSA R S 23 1208 CLAIM Assignment Defendant In the false Resweber 12 Revere 923 So 2d lOl forfeited her workers be reversed on or 3Regarding compensation temporarily totally evidence introduced defendant disabled either by that claimant ongoing pain pain management therapy s 2 23 04 on a defeating or representation any benefit 2708 La or it 2004 1758 La must one Scott v was payment 660 So 9 5 95 quasi penal enor be App an strictly 1st Cir employee of fact which is not to Wal Mart Stores Inc 873 So 2d 664 672 that mental level defendant was statement willfully made and 3 it benefits is assertion s ed en claimant s benefits will be Moreover the issue of whether 107 App 1st Cir was Inc appeal absent manifest 2003 0858 La false Company 94 Dolgencorp v a a 23 l208 is Because LSA R S construed 9 23 05 obtaining Haroil Construction v 23 1208 representation statement or compensation judge committed any violation of LSA R S 1 the claimant makes made for the purpose of 2d 7 not Pursuant to LSA R S forfeited where 2 contends that the workers next finding that claimant had 23 1208 of Error No 2 or claimant we had contributing claimed to be note that the bulk of the medical without defendant s to never severe objection depression demonstrated for which she needed acknowledged by defendant in brief Additionally claimant specifically requested treatment by her choice of neuropsychologist in her disputed claim for compensation Also in her pre trial statement claimant listed as an issue the e xtent of injuries and or disability including but not limited to Neck Back and Left Shoulder compensation judge specifically as Thus erred in claimed to be we find finding merit to the argument that the workers claimant disabled on the basis that claimant had not no mentally disabled 6 In the instant with the evidence offered claimant had benefits 1208 by defendant support of its contention that in willfully made misrepresentations for the labeling such evidence evidence a having experienced an and obtaining excuse for that past histOlY of psychological problems the noted that claimant had in the past for ectopic an undergone only one episode of depression shortly after As noted pregnancy by the workers history of depression in a screening claimant testified that after going through the screening with the psychologist she felt better able by the workers episodes of to to mention that psychological screening following history purpose of was concluded single episode of depression and ectopic pregnancy psychological problems prior history of drug not compensation benefits credibility compensation judge or not was not an attempt mislead defendant for the constitute compensation judge also found mention her in the past been treated for any other ever a violation of 4 The workers to the As further noted nothing in the medical was obtaining benefits and thus did LSA R S 23 1208 failure of there Thus the workers depression a handle her situation suggest claimant had that claimant s failure conceal to compensation judge records of claimant to pitiful a defendant s regarding compensation judge while claimant did discuss that purpose of contention compensation judge psychological screening miniscule as Specifically claimant had lied about workers compensation judge was unimpressed the workers case done Rather determination in 4As noted by the workers for the purpose believing claimant compensation judge questionnaires ectopic pregnancy in all ofher medical 7 fact that claimant s which had use the workers as a of occun ed years obtaining workers compensation judge made s testimony that she did claimant consistently a not revealed the prior dIUg disclose because she use was ashamed of having done that in the past This reasonable credibility evaluation will 2d Porter 721 So not be disturbed appeal on at 30 Finally regarding the surveillance video of claimant the workers characterized it compensation judge one her home workers compensation judge found consistent with claimant s on one shopped she The workers compensation judge that the video of claimant in took someone store a with her to carry was heavy items found that the video did all of this evidence concluded that there on hour of video of absolutely were set for compensation judge the workers no show not doing anything outside of any restrictions that have been Considering of testimony that she had good days and bad days and that if she claimant use Additionally the three occasions only leaving 5 absolute travesty of the separate days defendant had approximately claimant her an noting that after conducting surveillance of claimant investigation twenty as grounds for a finding of a LSA R S 23 1208 violation Based on review of the record our compensation judge findings s are find that the workers amply supported by the record compensation judge rejected the workers we defendant s characterization of the evidence and its view of what the evidence established permissible views of the evidence the factfinder be cannot manifestly elToneous Development 617 So 2d 5Moreover Mitchell claimant one s also viewed the days on videotape on v State 883 La 1993 compensation judge Where there are two choice between them Through Dept of Transp Thus we cannot noted that while conclude Dr Horace treating physicians felt upon observing the videotape that the tape were contradictory to her stated symptoms Dr Burdine of claimant activities and that the workers 880 Stobart s Clearly s and specifically noted good days they can do fairly 8 that well patients can have good days and bad that the workers no compensation judge committed manifest elTor in finding violation ofLSA R S 23 1208 MEDICAL BENEFITS Assignment Defendant In of Error No 3 ordering reimbursement for medical Sandra Weitz a to undergo in ordering continued treatment Craig Waggoner and in ordering that claimant Defendant argues that these awards MRIs because claimant did ed en expenses for treatment with Dr pain management specialist with Dr Weitz and Dr entitled compensation judge contends that the workers next not specifically were in was enor seek these medical benefits in her disputed claim for compensation Pursuant to Section 6201 issues listed in the pretrial for 40 1 6201 statement sic good cause or In the instant as issues to be shall be statements issues shall be raised except judge of the OWC litigated Rules only trial and at those no new by written order of the workers compensation upon mutual case agreement of the parties claimant LAC in her pretrial specifically listed litigated entitlement to medical treatment and test payment of medical bills physician of choice and wrongful denial of medical benefits These issues of the above awards and to clearly Stowe Woodard 40 044 La writ denied 2005 2365 La were place defendant intenelated medical issues could be medical refenals were broad on App 2nd Cir 17 4 06 enough 17 8 to encompass 05 at trial See object to testimony v 926 So 2d 510 regarding her choice of physicians treatment and tests that that Puioe 911 So 2d 304 311 had not been authorized subsequently awarded by the workers compensation judge not all sufficient notice that these contemplated Moreover when claimant testified did Hearing to assert 9 that the testimony was and that defendant beyond the scope of claimant considering the above we were not no to merit to 6 properly Accordingly defendant s contention that the these medical benefits was not before the compensation judge workers We likewise find was find entitlement s that these issues or compensation judge for resolution before the workers issue of claimant statement pretrial s walTanted not 7 unreasonable no merit to that or Accordingly defendant claimant we find no argument that this s choice s basis of to reverse treatment physicians was these awards PRIOR SUSPENSION OF BENEFITS Assignment of Error No 4 Defendant also contends that the workers in her ruling in failure to of a ed en prior judgment that suspended claimant s benefits for her present herself for a second medical opinion by defendant s choice In that physician benefits from 21 prior judgment s 2004 the date 6Additionally specifically listed at the without choice of on the OWC the date of January 27 2004 opinion with defendant April compensation judge which claimant s scheduled second medical a physician suspended claimant that claimant missed agreed to attend a until rescheduled beginning of trial the workers compensation judge objection by defendant claimant s entitlement to reimbursement for medical expenses from treatment with Dr Weitz and entitlement to a cervical MRI as issues to be determined 7Defendant argues in brief that because Dr J Michael Burdine a pain management specialist her treatment to Dr terminated his treatment ofclaimant claimant s Sandra Weitz a psychologist was request to change unreasonable discontinue his treatment of claimant because of the circumstances Dr Burdine did surrounding her medication which technically violated an request for a replacement prescription for pain agreement claimant had signed with his office While defendant asserts that claimant s request to change to Dr Weitz was unreasonable given that Dr Burdine quit treating her for a violation ofhis treatment agreement we note that Dr Burdine candidly stated in his Febmary 9 2004 office note that with regard to the misplaced prescription he felt claimant had violated the treatment agreement through no fault of her own agreement he deferred her treatment to Dr Weitz whom claimant had previously at the request of defendant Thus we find no manifest error in the workers compensation judge s implicit finding that Nonetheless because there had been a breach ofthe seen claimant s request for this change ofphysicians 10 was reasonable Defendant argues that the workers medical examination judge ed in en the date that claimant physician for suspending on the other hand contends that this issue is her benefits interlocutory and thus rendered8 and judgment we on earlier However merit properly before this to the appeal properly not prior judgment assuming that the prior judgment the issues of entitlement no not immediately appealable not that the issue is nonetheless find 2004 opinion because defendant did court June 11 actually evaluated by defendant s choice of was second medical a Claimant before this suspend claimant s benefits until to refusing compensation to court that now was final a has been rendered compensation defendant the time it at was challenge of the merits of that s ruling Pursuant LSA R S 23 1124 if to medical examination compensation and at to the behest of the of a place claimant s determination must be reasonable to Motors as time Corporation 8In employee refuses employer the submit to employee to right s a to prosecute any further proceedings shall be suspended until the examination takes suspension an However before the drastic should compensation made that the apply a remedy of prior judicial requested medical examination is place and circumstances 605 So 2d 219 222 La See Collins General v App 2nd Cir 1992 Smith v UNR Home Products 614 So 2d 54 54 55 La 1993 the Louisiana compensation statute appeal from a final governing appeals of compensation judgments contemplated decision upon completion ofthe required evidentiary hearing and that piecemeal appeals allow the go counter to the workers compensation procedures which are designed to workers compensation judge to decide the merits of the controversy as equitably Supreme Court held that LSA R S 23 1310 5 the workers an summarily and simply as maybe judgment of the OWC merely acted examination and to suspend LSA R S 23 13l7 A and in Corporation case the prior medical upon a motion to compel claimant s benefits for her failure to attend the examination what amount 98 1239 La present compliance with It did not decide the essential issues of the benefits In the App See 5th Cir case ie LSA C C P 27 4 99 11 whether claimant art 1915 was Beaumont 734 So 2d 155 156 a entitled to v Exxon The transcript of the 23 April 2004 hearing on defendant motion s suspend claimant s benefits demonstrates that claimant had agreed to physician could not the workers hearing after that benefits until that date her benefits for that physician could claimant until June 11 see not noting that 1 it get her many other doctors of that much Just sooner medical requested circumstances as time just fair to in the workers because defendant there must be 605 a reasonable So appointment 2d also must for that entire While LSA R S 23 ll24 is see 597 599 La to 21 generally Kirby v App 2nd Cir 1943 defendant herein the judgment 2004 provided that medical examination retroactive to the judgment event April s 2 to suspend choice of there were s reasonable obvious we note to not as an suspending claimant We find to no reasonable and wananted primarily protect the Paper Bag Co that as finding that the period was not clearly intended Terminal was place and believe that the we be initially Inc additional s 16 So 2d protection benefits until if claimant failed to appear at the June 11 April 2004 plaintiff s compensation benefits would be suspended 21 2004 without additional action by the complained of adequately protected defendant claimant failed suspend time to as 222 at compensation judge suspension of benefits employer to determination that the timeliness of the rescheduled medical examination thus that months claimant timeliness and the circumstances under which it is scheduled enor two specialty who could probably evaluate claimant Collins subsequently scheduled not was his calendar until then and on examination is see 2004 almost compensation judge refused length of submit to However because defendant s choice the requested medical examination of to to attend the June 11 12 s OWC Thus interests in the 2004 examination For these reasons find we merit no the assertion that the to benefits should be modified as judgment suspending suggested by defendant PENALTIES AND ATTORNEY S FEES Assignment In its final assignment of compensation judge and attorney fees s ed in en to defendant contends that the workers en or 11 000 00 its refusal reinstate benefits Appeal 4 000 00 assessing it with penalties totaling totaling termination of benefits refusal of Error No 5 Answer to on for its to provide 21 2004 April arbitrary and capricious and its medical treatment as previously ordered by the OWC At the time of claimant s injury authority for assessing attorney Statute 23 1201 F commence installments s two fees andor employer payment of benefits timely or re commence or Louisiana Revised penalties which the in covered situations timely statutory provisions provided the to pay timely medical benefits fees to pay recoverable unless the s claims Additionally pursuant were reasonably controverted 23 l2012 the but not if the La Roussell to reasonably the manifest La App enor an the penalties and or s fees a claim is attorney a s So question Luper v Wal 844 So 2d 329 case Tammany Parish School Board 8 23 06 standard of review instant St v employer has been arbitrary controvert 1st Cir 3 28 03 In Cir 1st App determination of whether failed LSA R S employer arbitrarily and capriciously discontinued payment of benefits due 2004 2622 to could be liable for the payment of attorney employer penalties continued Under this statutory provision both penalties and attorney were failed to or capricious of fact and is or has subject to Mart Stores 2002 0806 334 the workers fees under both 13 A 2d compensation judge imposed provisions To the extent that defendant argues that its failure indemnity benefits commence establishment of provide medical reasonable was based re alleged argument As discussed above the workers compensation judge found as a clearly did constitute not a reasonable basis reinstate benefits that had been by the record and will violations 2d establish such to be disturbed not on proper under LSA R S were a to This suspended we find its on to or this fact that defendant s attempt 23 1208 violation treatment to a LSA R S to merit no violation was deny benefits weak and refuse or to finding is amply supported review Thus 23 1201 F for those penalties See Roussell So at Additionally judge s we determination find no manifest that defendant discontinuing benefits in December appointment by suspend claimant its workers to appear for a We employer is An medical App 3rd Cir Rather exam can be 3 2 94 specifically reject to Dr not a capricious to unilaterally employee contradictory hearing a See Foreman in missed medical permitted because of an suspended defendant s in contention v failure s must be Texaco Inc that the workers concluding that defendant had in December 2003 alleged by defendant February 2004 video and arbitrary compensation 634 So 2d 1370 1371 unilaterally discontinued benefits not in the workers because of 2003 compensation judge manifestly elTed that it did was compensation benefits conducted before benefits 93 900 La elTor We also rather than the date reject defendant s argument discontinue benefits until after it showed the surveillance Mitchell in whether claimant s February 2004 and obtained his opinion complaints were consistent with her activities 14 as on to the video 9 Finding conclusion manifest no that defendant en or was The we fees was proper pursuant s penalties imposed that the attorney fees s compensation judge s likewise conclude that the to within statutory limits and were awarded to regard increase the not were we conclude abuse of the workers an discretion under the facts and record in this claimant s penalties assessed demonstrated her entitlement work performed appeal when on a appeal answer to on review as to an case See Roussell the Accordingly we no s fees conclude that an s increase 2d and at Luper to claimant has s fees for usually awarded relief and the opposing party an are counsel appeal has that provided So Roussell additional award of appropriate and the judgment will be amended accordingly So decline we award of additional attorney Additional attorney on while requested by claimant opposing party appropriately requests at appeal party appeals but obtains necessitated additional work the imposition 2d at With on s LSA R S 23 1201 2 According these awards will not be disturbed So compensation judge arbitrary and capricious in unilaterally discontinuing in December 2003 of attorney in the workers 2d 1 500 00 is See Roussell 844 So 2d at 338 CONCLUSION For the above and the workers compensation judge General Services 9we to pay claimant reasons the August 2 2005 is amended Angela Atwell to an judgment of order defendant additional First 1 500 00 in note that while Dr Mitchell stated that he believed claimant had reached maximum medical clearly foregoing improvement as stated that she still needed defendant also refused to of the time he viewed the video pain management provide l5 treatment he nonetheless at that time which attorney s fees for the Costs of this appeal appeal are In all other assessed respects the judgment is affirmed against defendant First General Services AMENDED IN PART AND AFFIRMED AS AMENDED 16 STATE OF LOUISIANA ANGELA ATWELL COURT OF APPEAL VERSUS FIRST CIRCUIT FIRST GENERAL SERVICES McDONALD J Agreeing in part and dissenting in pmi While I agree with the Workers 2 000 benefits NO 2006 CA 0392 majority Compensation Judge penalty and on 5 000 the date Ms Applebaum Additionally I in affirming the decision of the respectfully dissent with affirming attorney fees for failure Atwell agreed to I would not award submit to reinstate to the the indemnity SMO with Dr attorney fees for the appeal

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