Cynthia Amacker VS Washington Correctional Institute
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 2316 CYNTHIA AMACKER VERSUS WASHINGTON CORRECTIONAL INSTITUTE red udgment Rend JUL 1 201 Appealed from the Office of Workers Compensation Administration District 6 State of Louisiana y Docket No 09 00604 Honorable Elizab A Warren Workers Compensation Judge th Cynthia Amacker Poplarville MS James D Appellant Plaintiff Appellee In Proper Person Buddy Caldwell Counsel for Appellee Defendant Attorney General throu h S Provosty Henry Lena D Special New rosso Gian Assistant Orleans LA Attorneys General Appellant State of Louisiana Department of Public Safety and Corrections Washington Correctional lnstitute and the Of ice of Risk Management BEFORE PARRO GUIDRY AND HUGHES JJ GUIDRY J In his workers compensation proceeding the claimant appeals a judgment of the Workers Compensation Administration dismissing her claim for indemnity benefits and further barring the claimant from receiving future compensation benefits based on a finding that the claimant violated the provisions of La R S 1208 23 The employer also filed an appeal seeking further remedies pursuant to Having thoroughly reviewed the record and considering the La R 23 S 1208 arguments of the parties we deny both the appeal and the cross and affirm appeal the judgment o Workers Compensation Administration the FACTS AND PROCEDURAL HISTORY On January 27 2009 Cynthia Amacker claimant filed a Claim Disputed For Compensation form 1008 with the Office of Workers Compensation for injuries sustained in a workplace incident that occurred on August 4 2003 when a employee co attacked her In the disputed claim she sought medical treatment statutory penalties and attarney fees The Louisiana Departm ntof Public Safety and Corrections Washington Correctional Institute and the Office of Risk Management collectively employer were named in the claim as employer and insurer respectiv ly In response to the claim th employer filed an answer wherein it admitted that the claimant had sustained cervical injuries that she was temporarily disabled as a result of the workplace incident and that ind benefts had mnity been paid from August 4 2043 until present for a total of 122 However 304 the employer disputed that the alleged pain management and psychiatric care sought by the claimant are related to the work incident and the disability related resulting therefrom In the course of preparing for the hearing the employer requested an independent medical exam IME to determine if an anterior cervical discectomy 2 I and fusion surgery recommepd dby claimant treating orthopedist Dr John s Lo g an was medicall Y necessa rY and to determine whether the claimant had reached maximum medical improvement to return to woark On advice of counsel the claimant refused to submit to th IME scheduled by the emplayer for May 12 2Q09 and as a consequenc the employer filed a motion to suspend her benefits pursuant to La R 23 S 1124 Following a hearing the workers compensation judge WCJ granted the motion and suspended the claimant benefits from June s d scheduled 19 2Q09 until the date she attend the reIME The orthopedist who later conducted the IME Dr J Monroe Laborde concluded that the claimant was not a good candidate for surgery ar opined that he basically agreed with the d medical conclusions of Dr Paul van Deventer the employer sphysician who had provided a second opinion as to whether there was a need for surgery A second IME was then sch for the claimant to be evaluated by psychiatrist Dr duled Haarold Ginzberg who concurred with the opinions of Drs van Devent and r Laborde Shortly thereafter the claimant discharged her attorney and retained new counsel who then filed an amended claim on her behalf In the amended claim the claimant supplemented her original request to assert that the employer had failed to investigate and authorize treatment and medication for her shingles condition which had been diagnosed by her treating orthopedist related the condition to the workplace incident The doctor The claimant further objected to the employer failure to authorize additional diagnostic testing surgery and s Subsection A of La R 23 provides S 112 If the ern P lcY ee refuses to submit himself to a medical examinatic7n at the behest of the employer or an examination conducted pursuant to R 23 or S 1123 in anywise obstructs the same his right to compensation and to take or prosecute any further praceedings under this Chapter shall be suspended until the examination takes place The employee shall receive at least iourteen days written notice prior to the cxanli When a right to compensation is suspended no lation carnpensation shall be payable in respect to the period of suspension 3 medications recommended by her treating physician Less than a month later s claimant new counsel filed a motion to withdraw as counsel of record due to the fac that undersigned counsel has beer unable to communicate with the claimant in addition to the fact that counsel and client have diffez opinions claimant as to the goals which can be reasonably obtained and how to obtain them The motion to withdraw was granted despite claimant opposition and new counsel s was obtained Following further discovery and pre litigation a h in this matter trial aring was finally set for October 20 2010 Shortly before the scheduled hearing date on October 1 2010 th employer filed a motion for leave to file an amended answer In the motion the employer averred that it had just received the claimant s discovery responses in June and only since receiving those responses was it able to attempt to find additional witnesses and obtain additional information The mployer further averred that it had recently located and contacted the claimant s husband ex who r vealed that claimant was involved in a pending lawsuit in Mississippi relative to that the claimant had th distribution of marital property not The employer averred r disclosed the lawsuit in h response to discovery The employer also averred that pleadings from the claimant divorce proceedings s revealed that she has treated with physicians who were not disclosed in discovery and that it had locat six 6 facilities and physicians with whom d or Claimant has treated and 1 additional phaz macy one prescriptions from November 2045 through the present where she filled As a consequence of these discoveries the employer requested leave to add a fraud defense to its answer The motion was granted and the employer amended its answer accordingly On October 18 2010 two days before the scheduled hearing the claimant s current counsel filed a motion to withdraw 4 as counsel of record Counsel also submitted a letter from him to the claimant dated October 14 2010 wherein he acknowledged a prior phone conversation with the claimant on Octobez 11 2010 In the letter counsel informed the claimant that he would be withdrawing as your attorney and will not assist you at the trial in this matter due to the conflict of interest which has arisen Counsel also informed the claimant that a telephone conference with the WCJ had been held on that date and that the WCJ had advis d that the scheduled hearing would proceed whether or r the claimant was ot dby counsel due to the numerous continuances that had been granted represent prolonging the case Further in the letter counsel stated that he had attempted to corttact the claimant by pho on October 14 2010 but discov that the e red s claimant phone had been disconnected Documentation attached to the letter revealed that it was sent by overnight express mail and delivered to the claimant s residence by 1 p the following day The motion to withdraw was granted by 44 m the WCJ On October 20 2010 the hearing was held as scheduled with claimant appearing pro se in the proceeding At the hearing extensive documentary evidence was submitted inta the record by the employer and the claimant presented two fact witnesses to testify on her behalf On considering the evidence presented the WCJ ruled from the bench The WCJ observed that the claimant had been through thr attorneys and with her last attorney the WCJ had hoped e the claimant would kind of see the handwriting on the wall and would try to resolve this with the state The WCJ further observed And all of this late discovered evidence about your prior treatment you know the reason it came in late is because you were frankly just dishonest with these people the whole time You gave a recoarded statement right after the accident You specifically denied ever having any back problems She didn ask injury You know she t I 2 he T record reveals that the employer had proffered a settlement offer of 5 which the 000 clairnant did not accept Moreover in her opposition to the withdrawal of the second attorney she obtained to represent her it was noted that counsel had urged her to settle the claim but claimant believed it would not be in her best interest to do so 5 specifically asked about prior back prablems Cervical thoracic or lumbar And as a nurse I assume you know what all that means And you answered No ma am In your deposition you know you didn tdisclose any of this treatment at Southeast Alliance that re you getting in Lafayette It seems to me pretty obvious that you were goin out of your way to hide Southeast Alliance and the treatment that they giving you from re the employer for the specific purpose of you wanted to keep them separate You didn want anybody to know that you had extensive t severe chronic preexisting back pain from a motor vehicle accident so that every time someone asked you that pointed question you just denied it I find that you been very dishonest as far as your medical ve treatment with your own treating doctors It just inconceivable to me s that you would treat and I shawed you the stack of recoxds they were able to obtain from the Southea5t clinics whatever they call themselves Exhibit 40 I just find it incredible that you would get this much treatment and that much medication from them and not tell anybody else And conversely that you wouldn tell these p that t opl ve you treated with so extensively at Southeast about your incident that supposedly happened at the correctional institute i think you have a severe credibility problem Consequently in a written judgment signed the date of the hearing the WCJ nied d the claimant request for indemnity and medical benefits found that s claimant had violated La R 2 ordered the claimant forfeiture of future S 3 1208 s benefits pursuant to La R 23 S 120 Eand further ordered the claimant to pay a civil penalty of 500 ta th Kids Chance Scholarship Fund Louisiana Bar Foundation pursuant to La R S D 1208 23 It is from this judgment that the claimant appeals pro se The employer filed a cross appeal seeking reversal of the s WCJ refusal to order the assessment ofrestitution or criminal penalties DISCUSSION As in the proce below the claimant is pursuing the subject appeal in dings proper person In her brief to this court claimant asserts several issues for consideration While we find no merit in y of the issues raised for consideration an and moreover fnd that the record amply supports th WCJ finding that the claimant violated La R 23 we will limit our discussion herein to the S 1208 6 s claimant contentions regarding the WCJ rulings to allow claimant counsel to s s withdraw his repres two days before the hearing and for failing to continue ntation the hearing on the merits The claimant does not offer any argument in support of the contentions raised in these issues however in light of the due process concerns implicated by these issu we find it prudent to address these two issues s Louisiana Revised Statut 23 provides that the WCJ shall not be A 1317 bound by technical rules of evidence or procedure other than as herein provided As provided in Section 1310 of Title 23 authority is granted tl director of C 1 e the Oftice of VVorkers Compensatian Administration to adopt reasonable rules and regulations including the rules of procedure for matters pending before WCJs Pursuant to that authority LAC 40 was promulgated which allows SS47 I counsel representing a party in a workers compensation proceeding to withdraw by ex parte order of the WCJ Paragraph A ofthat regulation provides When an attorney seeks to abtain an ex parte order to withdraw as counsel for a party he shall include in his applicatian the last known address of the claimant along with a statement that he has given written notice to the party he was previously representing that he is no longer of counsel to him and of the status of the case on the court s docket The attorn shall certify to the court that he has given notice y to all counsel of record at the same time artd in the same manner as notification to the court A copy of such written notice and certification shall be attached to the application for the ex parte order for withdrawal An attorney who has been permitted by ex parte order to withdraw shal give notice of same to all parties Th record before us shows that counsel for the claimant complied with the requirements outlined in LAC 40 A 5547 1 In the ather issues raised by the clairnant she asserted that the WCJ erred in admitting all the s employer exhibits without them bein properly submitted in not allowing a witness to testify about his persanal knowledge of the claimant scondition and in not allowing the claimant to defend l Our review af the record reveals that all oF the employer lf ers sexhibits were properly adrnitted that the witness was allowed to testify as to his personal observations but not as to statements made by the claimant streating doctc and that the refusal to allow the claimant to rs speak as the WCJ was orally rendering judgment was proper During the course af the hearing the claimant was allowed to present evidence and to testify and the WCJ rendered her ruling ter af the presentation of evidencc had concluded Finally as the record a appeal clearly supports the findin of f and the forfeiture of benefits the claimant objection to her raud s benefits not being reinstated pendin this appeal are rendered moot See also I R a S E 1208 23 7 On October 18 2010 two days befare the scheduled hearing claimant sthen current couns filed a motion to withdraw as counsel of record in the motion l counsel stated that a copy oF this motion has been forwarded to the claimant and all opposing parties Also submitted was a letter from counsel to the claimant dated October 14 2010 wherein he informed the claimant that he would be withdrawing her attorney as would hold the hearing Counsel also informed the claimant that the WCJ scheduled for October 20 2010 whether or not the I claimant was represEnted by counsel Considering this evidence we cannot say that the WCJ rred in granting the motion to withdraw two days befor the scheduled hearing Furthermore generally a litigant whose lawyer withdraws at or near trial may be entitled to a continuance to employ another attorney However because a s defendant desire to have the case against him tried is also a factor the plaintiff is not entitled to indef nite continuances simply because he is unable to secure counsel Connor v Scro S21 p 16 La App 2d Cir 6 821 So 2d s3S 02 12 542 553 Fairness to both parties and the need far orderly administration ofjustic are proper considerations in deciding whether to grant or deny a continuance Connor 35 at 17 821 So 2d at 554 521 In the matter before us the record shows that the claimant was advised prior to the hearing that the matter would be heard on the scheduled h date arin whether or not the claimant was r by counsel because the matter had presented been nding p for a long time And although the WCJ observed that the claimant had been represented by a succession of attorneys she could not possibly predict when or if the claimant would be able to secure another attorney to represent her As the claimant appears in these proceedings pro se it does not appear that the claimant would have been successful in securing new counsel even if the WCJ had 8 granted a continuance Moreover as expressed by the WCJ who was extraordinarily amazed at how much time money and effort had been expended on the claimant case it is clear that the WCJ believed that to further delay the s proceedings would be even more costly to the employer and imprudent in light of the overwhelming evidence of fraud that was presented Consequently we cannot say that the WCJ abus dher discretion in proc with a hearing on the merits ding See Connor 35 at 18 821 So 2d at 554 521 The employer has filed a cross in this case seeking reversal of th appeal s WCJ decision to deny an award of z and for failing to impose criminal sanctions against the claimant for violating La R 23 We observe that the S 1208 legislature left the decisian to order restitution of benefits claimed or payment obtained to the discretion of the WCJ See La R 23 The WCJ did not S 124 D explain why she refused to grant an order of restitution but the record reveals that the claimant had filed for bankruptcy which according to the claimant stestimony at the hearin she filed to prevent foreclosure on her home So in light of this evidence w cannot say that the WCJ abused her discretion in failing to order restitution pursuant to La R 23 S 1208 D As for the WCJ refusal to assess the claimant with a criminal penalty s pursuant to La R 23 we likewise reject the employer S 1208 C sassertion that the WCJ erred in her refusal As observed by the court in Rivera v West Jefferson Medical Center 96 pp 17 La App Sth Cir 7 678 So 2d 02 152 18 96 30 611 Under the Louisiana Constitution the district court is vested with original jurisdiction over criminal prosecutians La Const 1974 Art 5 Sec 16 In exercising its criminal jurisdiction the district court is bound by the provisions of the Louisiana Code of Criminal Procedure C art 15 There is a fundamental difference between P Cr criminal and civil matters See Bd of Commissioners of Orleans 4 The record does not show that a formal reyuest for a continuance was made 9 Levee v Connick 94 La 3 6S4 So 1073 3161 9S 9 2d prosecutions put the defendant at risk of losing basic freedoms which are protected by both the United States Louisiana Constitutions As such criminal prosecutions Criminal personal and the must be conducted within the strict confines of the criminal justice system There is no provision in the Worker Compensation Chapter which s authorizes a hearing officer to convict a claimant of criminal activity and sentence him accordingly While civil penalties may be imposed in the foz of a fine those penalties are discretional with the director The hearing officer s authority foz imposing a penalty under R 23 is restricted to S 1208 section E See also Farm Fresh Food Su Inc v Davis 04 p 6 App 1 st Cir lier Sb 0 La OS 6 591 S So 2d 887 891 Hence we rthe employer allegations of error ject s CONCLUSION For the foregoing reasons we aff rm the judgment All costs of this appeal are assessed to the claimant Cynthia Amacker AFFIRMED 10
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