Glinda Jennings VS Ryan's Steakhouse

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0372 GLINDA JENNINGS VERSUS RYAN S FAMILY STEAK HOUSE Judgment rendered November 2 2007 On t Office Appeal from District 9 of Workers Compensation Administration Docket Number 05 02416 The Honorable Elizabeth C Lanier xt p Judge Presiding 1 Andrew W Horstmyer Rebecca M Urrutia 2nd Appellant Jennings Counsel for Glinda Diamondhead MS Pierre M Counsel for 1 Legrand sf Family Metairie LA Ryan Joseph H Jolissaint Baton Rouge LA Appellant Steak House Intervenor BEFORE 1 I o JI s PARRO KUHN AND DOWNING JJ s S e v TS fIvV 11 55 J G5 T5 E fr7 s J fs DOWNING J Ryan Glinda Family Steak s Jennings Jennings filed penalties defending this F or the judgment in a judgment awarding benefits and attorney fees It also to find that Ms failure WCJ s medical following part appeal seeking additional attorney fees appeal affirm the judgment in part amend the reasons we reverse the is also awarded in appeal alleging penalty and attorney fee cross She also answered the inadequacies required a committed fraud Ms Jennings appeals s compensation indemnity compensation judge the workers Jennings for workers Ryan future medical expenses treatment appeals House judgment in part and affirm 2 000 00 in additional amended as Ms attorney fees for the work protecting her rights in this appeal FACTS AND PROCEDURAL HISTORY On March 14 2005 while fell as she carried emergency LaSalle as room her a working tray of cheese 1 as a On the for back and neck pain cook at Ryan following day she May He referred her to the Morella treating orthopedist therapy 25 2005 Ms pain Jennings showed was out of no Jennings improvement Ms In a letter to on a May 2 his examination 2005 neurologist Dr Jennings had only been employed about one chmi findings Dr LaSalle Edward week when she sustained the 2 after Jennings injury and the however still for pain Haight management evaluation I Physical 2005 On June 1 Dr LaSalle noted in Ms proportion with imaging studies conducted referred Ms the Dr Morella told Dr LaSalle that after ten sessions of nearly three months of treatment that her went to She later selected Dr Michael Therapy Clinic for heat therapy with electrogalvanic stimulation written Jennings Ms s a On June 15 showed central performed an showed mild 2005 Dr protrusions Haight2 Haight reported and C4 5 at C3 4 EMG electromyography L4 and left SI right ordered on On Haight Dr s and right L4 2005 25 and intractable neck 2 conduction studies electrophysiologic evidence of cervicogenic headache 5 secondary back pam to Dr LaSalle Dr LaSalle Ms to was Jennings recorded that she if see sent a copy of the still in her the left EMG nerve 3 intractable due to chronic pain and to send Ms Jennings was indicated for her neck testing results about spinal cord on September spinal pain or nerve root 9 2005 but in his He opinion impingement Dr Jennings steroid epidural injections which she declined He noted that she intended to seek 2005 at injury injury by planned Dr LaSalle complaining her herniated disc did not show LaSalle offered Ms see Dr states that Ms radiculopathy C5 surgical management returned to was right He also stated he insomnia 2005 test pain with cervical disc displacement worsening depression 4 root test Haight This 21 July report nerve consistent with stretch levels Dr radiculopathy C5 right Jennings has 1 intractable low back pain with S1 On radiculopathies August 13 2005 July This her lower extremities that the EMG indicated mild upper extremities cervical MRI a Dr LaSalle released Ms following notation was made a second Jennings opinion to return to On full September duty work 26 The in her medical record however today walking in a bent over position again She is while walking down the hallway was standing straight up complaining of continued lower back pain neck pain and pain all over her entire She underwent an MRI of her cervical spine body recently which shows a central herniated disc at C4 5 with no spinal cord impingement nor nerve root impingement She has no surgical She returns indications did not wish that for surgery 2 Dr Haight noted that Ms epidural steroid injections with her She going to seek a second opinion to evaluate I have discussed I have Jennings She is nothing further to offer her was seeing him for 3 a work related injmy Ms Dr Jennings medical records show Haight the next day September denies any improvement radiating to the shoulders her stopped longer no chiropractic be seeing Before Ms terminated Ms LaSalle not s Jennings repOli and his release benefits or T he workers no He also said that she effect and that she will second a opinion the insurer September to return to full 26 2005 duty work review his evaluation before on based The to workers a on Dr adjuster did tenninating Haight made compensation adjuster is denying adjuster s adjuster must have communicated October 11 2005 Dr concerning this patient due pain seeking another surgical opinion on However the because follow up visit with Haight recorded that she arms because it had Dr LaSalle and is a she remains with neck bilaterally and into the treatment Haight Dr since the last visit Jennings could get Haight somehow that 27 2005 Jennings benefits consult Dr that she had a Ms with Dr notation any and all treatment fraud compo case under investigation When Ms evaluation the on September After her neck work a Jennings requested adjuster refused 1 trial on back left TTD the date benefits that Ms second Jennings opinion for filed suit the a neurosurgical matter was tried 2006 the merits the WCJ found that Ms arm elbow left She also found that Ms disability Ms a benefits were Jennings neurosurgical evaluation deemed necessary by and back of the head from Jennings was entitled and the reinstatement of terminated was hip entitled September 26 to 2005 fall at temporary total The WCJ also found treatment and to future treatment with 4 to a indemnity benefits from further medical that evaluation Jennings did injure a including a neurosurgeon if The WCJ further found that behavior rose the forfeiture statute She then assessed Ryan The Ms not s with 5 000 00 in benefits benefits while the claim was still considered Judgment was rendered As summarized below 1 In 2 In s on subject 5 000 00 in 1 000 00 for prematurely payments of TTD legitimate by the employer sides LaSalle Dr Kevin Bianchinni s s 3 appealed that the WCJ ened of Dr admitting portions speculative testimony relying alleges this leading prematurely accordingly and both Ryan a 1 000 00 for 3 000 00 for the late and on penalties and benefits Jennings indemnity terminating medical has done research award consisted of penalty Jennings The WCJ commented that violated Dr Kevin Bianchinni neuropsychiatrist terminating was failed to prove that Ms s The WCJ found that La R S 23 1208 the level of fraud to attorney fees Ryan and opinions as the not follows adjuster s admitted into evidence find violation ofLa R S 23 1208 3 In failing 4 In awarding 5 In ruling that 6 In awarding future medical benefits and 7 In awarding penalties and attorney benefits In Ms fee awards as Jennings were to a any benefits claimant well as cross for was matters appeal she In her inadequate entitled to that a neurosurgical fees for the termination of were not at argues that her answer to exam issue penalty at the trial and attorney appeal she seeks additional attorney fees for defending this appeal CLAIMANT S ENTITLEMENT TO BENEFITS In its fourth assignment of enor Ryan benefits to Ms awarding TTD 3 assessment was for TTD owed This 15 3 penalty 05 to 3 2105 5 days they were paid Jennings during in full on the time 6 3 05 5 s that the WCJ ened in alleges Ryan periods s of 4 12 contends that Ms 05 to 6 6 05 53 days and Jennings story that she finding that Ms proved her entitlement Jennings also argues that Ms neck and low back pain neck Ryan to Dr pain LaSalle except to Dr on to such an extent The that she is unable WeJ Jennings testimony own work and was detennined perform somewhere between the standard and the 23 1 1221 943 So 2d 449 ordinary though addition report is disabled Jennings any kind of work that the MRI report and Ms resume c a claimant has the burden of as an to Clear and evidence intermediate standard preponderance 04 2622 p 10 as to of the evidence La App civil Roussell v 1 Cir 8 23 06 the medical condition symptoms personal testimony falling provide pain and Id Jennings reported back and neck pain to She testified that after the accident her back hurt all the time She said that Dr LaSalle referred her that Ms To meet this standard the claimant must 457 458 The record reflects that Ms day excessive and beyond reasonable doubt criminal standard objective expert testimony every to his of proportion Fmihermore it argues that by clear and convincing Parish School Rd Tammany Dr LaSalle suspected thus entitled to TTD benefits entitlement to TTD treatment in it argues sufficient to prove that she could not convincing proof has been defined St erred in However she did not Haight showing to out Jennings reported however were Pursuant to La R S proving were her last visit there is insufficient medical evidence Specifically surgeon Dr LaSalle thought her complaints s findings benefits to treating orthopedic own her of malingering and extreme implausible and inconsistent that the WCJ was so to Dr on a suspected Edward scale of she was Haight a 6 one to ten her exaggerating pain was a ten Even her symptoms he still pain management neurologist Dr MRI showed disc Haight s to meet Ms finding the standard Jennings Ryan s next was set entitled to TTD Ryan s going back several pain long reviewing the record to the myriad complaints prior however do not show serious pains manifested review of the record this temporarily totally assigmnent err in indeed have may them Ryan showing that went to s introduced Jennings Ms work for Jennings had recognize that a was Ryan s long history Jennings had Ms Her voluminous medical records Jennings is presently physically unable evidence in the record that her after her fall at conclude that the WCJ did met her burden of proof Jennings not are fall at work we immediately we report spinal complaints return to work There is sufficient she is cause before she accident The WCJ found that Ms Ms years pain that was not caused by the After neck not Jennings argues that these records prove that Ms of back medical benefits contends that while Ms about back complaining s in Roussell and the WCJ did bulging discs her fall while working did medical records Haight Jennings Ms Accordingly information in Dr personal testimony along with sufficient 4 abnormalities by clear and Ryan not err back and Based s in convincing to on our finding that evidence that disabled and entitled to TTD benefits Therefore of error is without merit EVIDENTIARY RULINGS Ryan admitting Ryan s or s alleges relying argues that irrelevant and in its first on certain some assigmnent of portions of the of error that the WCJ erred in testimony and medical evidence testimony admitted speculative Specifically Ryan 4 s into evidence contends that portions was of Dr The MRI showed 1 the central protrusion indents tbe thecal sac at C3 4 but does not produce any central 2 a central protrusion measmes 2mm in AP dimension X 7 mm in lateral dimension 3 tbis results in indentation of the thecal sac at C4 5 but no central canal stenosis and mild anterior canal stenosis spondylosis with a noncompressive anterior protrusion 7 at C5 6 LaSalle deposition testimony concerning s The contested speculative Question And of course questions and back Jennings read answers as pain were follows you have patients where they might have the same injury but each one reported a different objective testing show the same level of pain to you is that correct Answer Ms Yes And in hypothetical situation you can have two different people report two different levels of pain and with the same objective medical tests with that both being accurate and not malingering is that correct Question Correct Answer Question Okay that she had thecal sac Ryan s a a But theoretically if you it before is it ve seen bulge in her disc that had not yet bulged enough when you first started to objected because question see was her possible the to press in speculative hypothetically could it be possible for someone to present to you with injuries and that later on the disc protrusion then reveal itself in the form of pain Question Ryan Then stated s Answer It Question s SAME OBJECTION possible Okay March 2005 If Ms which I believe is the date of the the date of her accident reported have a to the difference Answer If she the date of on Okay of the or the neck let s So based on by a as early as is that see day after her accident pain would you then Emergency Room that she had neck of opinion as to whether it may be related to her I think it could be caused Question to her Jennings reported the injury fall fall the fact that she did on that day the day after the accident report neck pain is it possible that that neck pain could have then resulted in the bulging disc that you saw her for September 9th 2005 Ryan s said Answer Ryan s SAME OBJECTION SPECULATIVE Yes also argues that their questions own adjuster should have been excluded since WCJ ovenuled the objection s testimony regarding these they were and stated that she 8 was same The also speculative not strictly bound by the rules of evidence would go to The La the in Chaisson 708 officers the 381 not bound language by in based La R S 23 1317 factual then the findings reviewing admissibility was ovelTuled go to the that In other words Ms Ryan s court must affirm of evidence is the Id Thus if the that s In to of Ryan The WCJ said when she deposition but it would adjuster elTor not s portions of Dr LaSalle s or for This is without merit s second about the mind set of Ryan on There is supposedly speculative testimony the s assignment study she recently read by a Dr Our review of the record indicates that the to indicate that the WCJ relied assignment hearing deposition in its entirety she would allow in the weight of the evidence matter general Id Jennings treating physician objection 708 So 2d at WCJ made its determination based upon competent evidence nothing hearing reasonably supported by competent evidence are Here the WCJ admitted Dr LaSalle LaSalle states Chaisson proceedings before administrative agencies s 23 1317 A competent evidence on Code of Evidence This relaxed standard for the officer La R S the technicallules of evidence be inadmissible under the La rule in all it officer has the discretion to admit evidence that would otherwise hearing 381 that explained must be findings the express are at 97 1225 pp 9 10 Supply Co Cajun Bag v So 2d 375 mandates that factual However testimony weight of the evidence court 3 4 98 She stated that if she considered the people contends that this neuro elTor it argues that the WCJ refelTed psychiatrist Dr Kevin Bianchinni who have been characterized study have been considered in Jennings committed fraud of was not as malingerers admitted into evidence and should making determinations about whether Citing Welch 9 v Robert Campbell Inc Ms 316 So 2d 822 La it argues that 1 Cir 1975 App introduced evidence to counsel has had neither form rebut Ryan s him a basis for the court however to La C E According ruling that admits party is affected was when or a case 1 Cir La App prejudice by proving the Emery s to the that tends to as a sense some decision is 103A people inquiry for contends that s elToneous Trucking evidentiary ruling of the v Owens Corp 00 2144 Bianchinni Dr predicated ruling Co is whether the 942 7 the party alleged the on Gautreaux 03 0120 p v The party alleging bears the burden of court p a substantial effect a upon right of substantial a s case determining whether 880 So 2d 932 8 4 04 on La App fact on whether Ms 1 Cir so 11 9 01 malingering garnered does not always from the WCJ s on from s was This personal knowledge malingering category suffer themselves fraud mean She then commented that Dr Bianchinni in the conduct Jennings and study showed depression make them exaggerate their medical condition due concentration nor true statement of law a may not be an elTor entire record had Arabie Bros fraudulent she said that common s conclusions about this alleged Before the WCJ ruled stated testimony 449 813 So 2d 441 was opposing study excludes evidence unless court compared outcome of the 13 art or Thus the proper prejudiced by elTor s indication that the WCJ relied no research to make determinations a Dr Bianchinni Ryan on un contention that evidence outside of the record cannot be relied upon to form There is on the explain or knowledge that the evidence will be used against the WCJ elTed when it relied rely basis for its decision because the a opportunity to an court cannot a to a which heightened Dr Bianchinni had concluded that this is not always fraud since these persons sincerely believe they have increased pain 10 These statements appear to have been made to substantiate her that premise for these conclusions they were prejudiced by these After a about her position the WCJ formed based ruling an on were we There is these Accordingly Ms to prove not assignments to statements her explain indication that no Jennings committed fraud Further there is support the conclusion that Ms Jennings did La R S 23 1208 conclude that the the issue of fi aud research s has failed s hannless remarks used opinion about whether Bianchinni Dr on study Ryan or comments careful review of the record the Bianchinni regarding explain reinforce bolster ample evidence commit fraud of elTor are as to defined in without merit CLAIMANT S ENTITLEMENT TO A NEUROSURGICAL EVALUATION AND FUTURE TREATMENT IF NECESSARY Ryan any field Ryan argues 1 provides 23 1121 B in s in argues that she also s opinion that Ms pain Ryan We second disagree treatment injury Scott 708 2d So treatment epidural needed v 1296 23 1203 as well to as Piccadilly Cafeteria 1299 A WCJ s not requires necessary to relieve disability La treating physician one Dr Michael wants now R S LaSalle yet another steroid rendered injections for her opinion that an an Ms evaluation deemed necessary palliative treatment result of her surgical La R S that elTor contends that Dr LaSalle has rendered Jennings only a select Haight but Dr contends that Dr LaSalle has needs Jennings medical s s can Jennings selected saw Ryan of assigmnent employee Ms specialty or fifth that the evaluation for surgery as a its the is necessary is factual in injured employee of the designed to cure 97 1584 p 4 finding as nature 11 employer employee an that the to La whether and will furnish all This includes pain she suffers her work related App a to 3 Cir particular not 1 4 98 medical be disturbed on review in the absence of manifest Eater 93 1530 La 14 1 94 See Freeman error 630 So 2d 733 Dr LaSalle testified under oath that he was However when asked malingering evaluated by somebody evaluated by nothing a more else he LaSalle based his medical The statute to concluded that Ms the her disability be reasonable for her Ryan is not s than to in finding Ms is see a have presently an the neck Jennings was Ryan can perhaps a it Cir 10 6 95 655 So 2d 400 arises the expenses as 404 are the the plaintiff a that solution to asked would it order can an independent is without merit s alleges that the further to Moreover yes treatment nothing WCJ by a in the law treatment We agree Transp held that incurred award for future medical expenses but the always reserved to reason neurosurgeon to rule out he answered entitled Jobbers Oil v find was argues that there is s fact that Dr It stands to assigmnent of error Thus this a the WCJ evaluation from on as treatment disabled physician who allowing the award of future medical only be fUll1ish all medical with the evaluation The court in Prevost to As discussed above to injured employee neurosurgeon if warranted idea for her complete information Regarding the sixth assignment of error Ryan erred good was a Jennings thought she should be Furthermore when Dr LaSalle happy medical examination if he The WCJ found employer an any need for further treatment if again that it opinion on less Jennings she should be allowed to remedy Jennings requires deemed necessary replied that Ms suspected Dr LaSalle has made it very clear that he has neurosurgeon to offer Ms PoulanlWeed v A Co 95 0224 liability for medical plaintiff right to App 1 expenses is not entitled to an claim such expenses is In Prevost this court reversed the judgment making such awards because the award of 12 La portion of future medical treatment not was awarding future medical treatment expenses is error the portion of the judgment is premature and the claim for such Jennings when appropriate expenses is reserved for Ms assignment of Therefore necessary has merit The Accordingly this judgment awarding future medical hereby reversed PENALTIES AND ATTORNEY FEES Ryan September her of s paid Ms Jennings 26 2005 s assessed 5 000 in benefits and April La App did 1 000 00 Ryan find Ms not suspected that he Dr reported as well penalty 5 000 00 in as for attorney fees This prematurely terminating indemnity penalty for prematurely terminating s was and assessed with a 3 000 00 to medical penalty March 21 for not 2005 and 12 2005 to June 6 2005 must be providing for penalties strictly construed 1 Cir 11 8 96 attOlney fees Patterson v Long are penal 96 0191 1 1201 provides in pertinent part insurer who at any time discontinues of claims due and arising under this Chapter when Any employer payment and 682 So 2d 1327 1336 Louisiana Revised Statute 23 or such discontinuance is found to be arbitrary capricious or without probable cause shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attOlney fee for the prosecution and collection of such claims forth in R S 23 1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section The The until Jennings guilty of fraud TTD benefits from March 15 2005 The statutes and s injured Haight penalties In addition Ryan was then terminated her benefits and s 1 000 00 a a timely paying nature to Dr however award includes benefits Ryan suspicions The WCJ from when Dr LaSalle informed malingering LaSalle benefits from the time she provisions as set provisions as set forth in R S 22 claims arising under this chapter 13 658 C shall be applicable to p in 15 1 1201 La R S 23 Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section and an award of such single attorney fee shall be res judicata as to any and all conduct for which penalties may be imposed under this Section which precedes the date of the hearing Here Haight Ryan Ryan should have s Instead it continued benefits Dr LaSalle was aware that Ms offer of s had medical evidence not err the fact that she in Thus capricious benefits Jennings before other still in was pain and the WCJ did not for I 1201 further err s despite the were fact that surgery arbitrary and and imposing penalties in were conclude that the we actions and after she refused supporting her possible need for implicitly finding that Ryan fees under La R S 23 results and Her benefits injections review and evaluation of the record thorough WCJ did steroid epidural Dr a test s simply terminated benefits despite After Haight Dr Jennings needed another opinion terminated Haight to Dr Jennings had been referred investigated determine if Ms to prognosis s attorney arbitrarily and capriciously discontinuing investigating physicians This next argues that there the portion medical of the evidence assignment from of Ms error is without merit Ryan payments s were late or that the matter We agree that the matter specifically asked Ms was at was not evidence properly properly were that the benefit before the court before the court indemnity benefits trial He answered in the affinnative that the pleadings proving The WCJ Jennings attorney if the tennination of benefits and the discontinuance of medical and be addressed was no expanded at trial 14 were the only issues to Nor is there evidence concerning the late payments After thorough review and evaluation of the record a that the WCJ erred in imposing because the 3 000 00 matter to Ms awarded hereby reversed This properly not was penalties for of the the TTD benefits timely paying before the Jennings for portion not court conclude we the Accordingly late payments purported IS assigmnent of error has merit REJECTION OF RYAN S La R S 23 1208 CLAIM In finding Ryan that Ms statute a assignment of error it contends that the WCJ erred in or s benefits defeating any benefit 94 2708 La employee La is not to be reversed on Stores Inc 11 In this revealed LaSalle Based on a s 07 16 3 case there is on our Ryan Jennings committed fraud evidence from both sides Atwell v is error The sole evidence s we or First General 353 writ The issue of whether 699 was obtaining 951 So 2d 348 1 Cir 2 23 04 review of the record WCJ s determination that 2d So Jennings that Ms representation one an of fact which Scott v Waf Mart 873 So 2d 664 672 direct evidence of fraud such surveillance tape suspicion or a Haroil Construction Co also absent manifest App no see v compensation benefits appeal La 12 952 forfeited her workers 03 0858 Resweber 1 Cir 12 28 06 App the claimant makes made for the purpose of was payment 1 the false statement 2 660 So 2d 7 Services 06 0392 p 6 La it 3 or 9 5 95 07 0126 forfeited when Pursuant to this violate La R S 23 1208 representation willfully made and denied not are Jennings did claimant false statement was third s Ryan s as might be has offered is Dr exaggerating her symptoms conclude that the record supports the did not meet its burden of proving that Ms The WCJ heard the characterization of the The WCJ rejected Ryan view of what the evidence established 15 s characterization and its Where there between them are be cannot Dept ofTransp two manifestly not err erroneous 617 So 2d 880 Dev that the WCJ did permissible views of the evidence the choice in La 1993 v State Through We thus conclude finding that Ms Jennings did not violate La R S of error is without merit Accordingly this assignment 23 1208 883 Stobart ANSWER TO APPEAL Finally Ms Jennings fees for the time spent on should be awarded when comi is forced 98 0717 p 10 to and La answer this a party who an was defends successfully on additional award of therefore will award Ms appeal seeks additional attOlney an increase in attorney fees awarded attorney fees in the trial appeal Bergeron an appeal by 2 000 in Jennings an 731 So 2d 399 1 Cir 3 2 99 App the appeal Generally of the record and the work done find that to v Watkins After 405 counsel for Ms a review Jennings attorney fees is reasonable additional 2 000 as we We attorney fees for successfully defending this appeal MS JENNINGS CROSS APPEAL Ms Jennings alleges that the WCJ erred in for each separate violation of La R S 23 1 1201 only awarding 1 000 00 instead of 2 000 for each violation The WCJ assessed reasons recite that the Ryan penalty s was 1 000 00 for prematurely with 5 000 00 in assessed as follows terminating indemnity benefits 1 000 00 for prematurely terminating medical 3 000 00 for failing 616105 and from 15 3 Her written penalties to pay TTD during 05 to 3 21 05 16 benefits and the time period of 4 12 05 to Since penalty for improperly as discussed above failing awarded this We agree for timely to prematurely terminating to certain time during periods 1 000 00 and raise that we The total for 1 allow R S 23 1201 I and La Accordingly was 1 000 00 only awarding fees when the discontinuance of claim 2 000 00 for each count 3 000 00 is reversed benefits indemnity medical benefits arbitrary and capricious judgment to pay benefits portion of the judgment penalties and attorney was have concluded that the however that the WCJ erred in prematurely terminating for we payments portion of the penalty award is amended 4 000 00 The judgment will be amended and rendered accordingly DECREE We the reverse 3 000 00 penalty for the failure expenses is reversed penalty award In accordance with La R S 23 1201 for the benefits is amended to arbitrary and capricious 2 000 00 And the arbitrary and capricious termination 2 000 00 We affirm these two awards the judgment is affirmed Ms her Additionally Jennings attorney be awarded for this Costs rights appeal are an as we 1 000 00 termination of indemnity amended order additional assessed pay the 1 000 00 I penalty award of medical benefits is to timely Jennings future medical Ms disability benefits The judgment awarding to for the hereby amended In all other respects adjudge and decree that 2 000 00 for against the protecting employer Ryan Family Steak House REVERSED IN PART AFFIRMED AS AMENDED IN PART AND RENDERED 17 s GLINDA JENNINGS FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA RYAN S STEAKHOUSE KUHN J I t dissenting disagree with the WCJ relied lD NO 2007 CA 0372 the Dr Bianchinni on conclusions about this Family Steak House majority s determination that her to make reasons no indication detenninations for or rejecting Ryan claim for reimbursement under La Ryan s s research articulating In case s there is s R S 23 1208 the WCJ stated always mean fraud Dr Kevin Bianchinni a neuropsychiatrist has done research that differentiates different types of people in the malingering category Those who suffer from depression tend to exaggerate their medical condition due to their heightened concentration on themselves However Dr Bianchinni feels these people are not fraudulent but sincerely believe they have increased pain and genuinely feel increased pain M The alingering does majority correctly points been made to explain bolster But the facts majority is not not that out or free the fact finding to not admitted into evidence neither or s was permitted It to was explain the testimony 822 826 La explain on that opinion have for these premise away the WCJ s reliance Her reliance prejudiced by the conclusion that expert evidence statements appear to on an interdicted process Clearly Ryan was hese substantiate the WCJ s opinion formulating t App Jennings opinion cited by the an WCJ in had not cOlmnitted fraud examine that witness Ryan s nor to present contrary precluded from the opportunity to object cross See Welch 1st Cir opinion would be used against 1975 v Robert Ryan s Campbell had no Inc to rebut 316 So 2d knowledge that the it the context in which it would be used or the oppOliunity ultimately In to engage in legal confrontation with that which was used to decide the claim against it Id light of the WCJ s prejudicial review of the evidence Accordingly elTor I dissent 2 I would conduct a de novo

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