Melissa Arretteig VS Our Lady of the Lake Hospital, Inc.
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STATE OF LOiTISIAI TA COURT OF APPEAL FIRST CIRCUTC NUMBER 2013 CA 1603 J MELIS5A ARRETTEIG VERSUS OUR LADY OF THE LAKE HOSPITAL, INC. Judgment Rendered: AR 2 1 Zp q Appealed from the Office of Workers' Compensation District 5 Docket Number 11- 03$ 27 Honorable Pamela A. Moses- Laramore, Judge Presiding x*:*: x**, Ted Williams Counsel for Plaintiff/2" d Appellant, Baton Rouge, LA Melissa Arretteig Phillip E. Foco Scott Ledet Counsel for Defendant/ lst Appellant, Our Lady of the Lake Hospital, Inc. Baton Rouge, LA k* xi: k%: k4F: F' A' iedS TJ. BEFORE: WHIPPLE, C. J,, WELCH AND CRAIN, , WHIPPLE, C. J. In this workers' compensation matter, both parties challenge various portions of judgment the rendered below, which awarded the injured employee supplemental earnings benefits ( SEBs) in varying amounts for various periods of time, medical eXpenses, penalties, and attorney' s fees. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY On May 27, 2009, Melissa Arretteig a registered nurse ( RN) who was employed by Our Lady of the Lake Hospital (OLOL) at the time, injured her back while transferring a patient. Initially after the accident, Arretteig continued to work full time while also seeking medical treahnent for her injury. Because of continued pain, however, she was restricted from work, and received temporary total disability benefits, from July 27, 2009 to October 26, 2009. Arretteig then returned to full-duty work for a period of approximately eleven months, but she continued to have pain and discomfort, resulting in her treating physician restricting her to light duty as of September 29, 2010, pending further testing. Thus, Arretteig was placed in a light-duty position at OLOL, but this position vas terminated on March 4, 20ll. Ultimately, Arretteig' s treating physician placed permanent physical restrictions on Arretteig limiting her to a " low medium physical demand level" restrictions that prevent her from performing the duties of her prior position as a floor nurse. Although OLOL eventually paid Arretteig SEBs representi tg indemniry benefits for a short period time following the termination of the light-duty position in which she was working, disputes arose between the parties as to the calculation of the SEB benefit to which Arretteig was entitled and as to her continued entitlement to SEBs as of April 9, 2011, the 2 effective date on which OLOL terminated those weekly indemnity benefits. Thus, on May 12, 2011, Arretteig filed a Disputed Claim for Compensation, seeking additional weekly indersmity benefits, penalties, and attorney' s fees, together with costs and interest. Following trial of this matter, the warkers' compensation jndge signed a judgment dated May 29, 2013, which, in addition to awarding various medical benefits and related penalties, awarded Arretteig: additional SEBs in differing amounts for various periods between March 4, 2011 and April 20, 2013; ongoing SEBs from April 20, 2013, forward; a $ 2, 000 penalty for OLOL' s failure to timely pay SEBs far the period of March 7, 2011 to April 9, 2011; $ 20, 000.00 in attorney' s fees; and interest on all indemnity benefits from the date each installment is due until paid and on all medical benefits, penalties and attorney' s fees from the date of the award until paid. From this judgment, OLOL appeals; contending that the workers' compensation judge erred in: 1) finding that Arretteig met her initial burden of proving her entitlement to SEBs when she admitted that she did not want a full-time position and declined an interview for a full- time position within her restrictions that would have paid in excess of ninety percent of her average weekly wage; 2) finding that the Case Manager position with OLOL was not available to Arretteig where the evidence demonstrated that all of the factors set forth in Banks v. Industrial Roofina & Sheet Metal Works, Inc., 96- 2840 La. 7/ 1/ 97), 696 So. 2d 551, regarding job availability were satisfied; Arretteig did not actually receive payment for the SEB benefits to which OLOL determined she was entiUed until August 12, 20ll. 3 3) finding that the earning capacity f the Medical Call Center position with OLOL should be based on an assumed twenty hours per week when the uncontroverted evidence shawed the actual hours that would have been available far this position; and 4) finding that atto r ey' s Fzes of._$ JQO. OQ were reasonable where 2, the award was based on the time Arxetteig' s attorney spent on the entire case and only a small fraction of that time was spent on issues that OLOL was found to have failed to reasonably controvert. Arretteig has also appealed the judgrnent, cQntending that the workers' compensation judge erred in: 1) finding that the Medical Call Center job was sufFcient to reduce her SEBs for the period of April 14, 2011 to June 1, 2011; 2) finding that OLOL a was not arbitr. .*-; and capricious in t rminating her SEBs on Apri19, 2011; and 3) failing to award all attorney' s fees requested. DISCUSSION Entitlement to SEBs OLOL' s Assignment of Error No. l) OLOL first contends that the workers' orrzpensation judge erred in finding that Arretteig met her initial burden of proving her e atitlement to SEBs. The puzpose of SEBs is ta compenaate Yhe injured eznployee far the wage earning capaeity she has ] ost as a result of her accident. Poissenot v. St. Bernard Parish Sheriff' s Office, 2009- 2793 ( La. 1/ 9/ 11), 56 So, 3d 170, 174. An employee is entitled to receive SEBs if she sustains a work-related injury that results in her inability to eam ninety percent or more of her average pre- injury wage. LSA-R. S. 23: 122I( 3)( a). Initially, the employee bears the burden of proving by a preponderance of the evidence that the 4 injury resulted in her inability to earn that amount under th2 facts and circumstances of the individual case. This ana! ysis is necessarily a facts and circumstances one in which the court is tca be mindful of the jurisprudential tenet that workers' comper sataon i to be liberaily construed in favor of coverage. Banks, 696 So. 2d ai T'he workers' compensation judge 556. must take into account all Taciors which rnight bear on an employ e' s ability to earn a wage in determining wl etn.er the injured employee has met her burden of showing an inability to earn ninety percent of her pre- injury wage, including factors such as the employee' s medical condition, efforts at obtaining employment post-injury, and actual u ark history after the accident. See Poissenot, 56 So. 3d at 174, 178- 179. Turning to OLOL' s arguments in support of this assignment of error, we find no merit to its first contention that the workers' compensation judge seemed to" find that Arretteig physician- imposed restrictions met i er burden f proof because ihe revent her from employment as a RN and, thus, " applied the wrong legal standard." OLrJL suggests that the workers' compensation judge appeared to iocus only on A cretteig' s inability to return to her prior employment as a registered nurse. rather than focusing on whether she could earr. ninety percent of her pre- injury wages in any employment. compensation However, a reading af the judge' s reasons for entirety of the ivorkers' judgment demonstrates that she considered all the evidence, including Anretteig' s perrrianent medical condition, her resulting inability to perform her pre- injury RN job as a floor nurse, and her post- injury efToz ts in obtaining related employment within her educational background. The record demonstrates that at the time of the accident, Arretteig was an RN employed as a floor nurse, a job which required frequent turning of 5 patients as wells as transferring patients and assisting them in and out of bed. Her position was a night position, which entitled her to evening and night shift differentials in addition to the base pay, resulting in an average weekly wage of $ 1, 217. 82. As a result of the work injury, Arretteig has been assigned permanent physical restrictions in accordance with a functional capacity evaluation, which limit lner to work at a " low medium" physical level, with only occasional lifting of 20 to 45 pounds. She is no longer able to perform her pre- injury job as a floor nurse because of her work injury. Ultimately, on April 4, 2011, Arretteig accepted a part-time job within her physical restrictions at Woman' s Hospital in the radiology department of the Breast Center at Woman' s Hospital, a posrtion that does not pay any shift differentials. 2 Contrary to OLOL' s contention that the workers' compensation judge erred in finding that Arretteig met her initial burden of proof because her testimony demonstrated that she did not want a full-time position, we note that Arretteig did in fact wark full time after h r accident in the modified position at demonstrating OLOL her that was willingness to within work her in a restrictions, thus, full- time capacity. clearly Indeed, Arretteig continued to wark full time in that modified- duty position until Although the position at Woman' s Hospital is part-time, Arretteig stipulated at trial to an eazning capacity of a 40- hour work week at the wage rate she is being paid in the part-time position. 6 March 4, 2011, when OLOL made the decision to terminate that position.3 Moreover, the record further establishes that after the modified-duty position was terminated, Arretteig was diligent in her efforts to find other employment within her Arretteig applied for the jobs the restrictionso vocational counselor identified for her, in addition to pplying for jobs she herself found. Notably, upon graduating Tmm nursing schaol in 2008, Arretteig began working for OLOL in the inpatient unit; where she provided patients to whom she was assigned with total care, i. e., a floor nurse position, and she had no other experience in any ther types of RN positions. With regard to her ability to make her pre- injury wage, Arretteig testified that most RN jobs that pay as much as she was making at the time of the accident require lifting beyond what her physical restrictions allowed. This testimony is supported by OLOL' s workers' compensation coordinator, who acknowledged at trial that she had told the vocational counselor assigned to the case that it is very difficult to accommodate a nurse with permanent lifting restrictions. For this reason, even prior to OLOL terminating the modified- duty position in which she was working full time; 2 rretteig had retumed to school to obtain her advanced practice degree that would allow her to seek jobs as a nurse practitioner. She believed this would allow her to earn her relatively high pre- injury wage in a job within her physical restrictions. While 3The OLOL workers' compensation coor iinator who was assigned to Arretteig' s case testified that OLOL will accommodate restrictions, but will then reassess the need for such light duty every 90 days. If the employee appears as though he ar she will get to the point where the employee can return to full duty, OLOL will continue to accommodate the employee. However, in Anetteig' s case, her restrictions are permanent, and OLOL terminated the modified position. Aftex the modified-duty position was terminated, Arretteig inquixed about her entitlement to workers' compensation benefits and was initially told on two occasions by the OLOL workexs' compensation coordinatox that she was not entitled to any benefits. We note that an employer cannot avoid paying compensation benefits to an injured employee by creating a job that accommodates the injured employee` s work restrictions and then firing the injured employee, Poissenot, 56 So. 3d at 177. 7 Arretteig expressed concerns about a full-time job with inflexible hours as potentially interfering with her continued schooling; she tesXified at trial she would have considered any job that was offered to her. She further testified that she believed that she couid have continued to work full time and pursue her advanced degree in another position with flexible hours, like the hours of the modified-duty position in which sh_ had been working. e Moreover, regarding OLOL' s additional contention that Arretteig demonstrated her unwillingness to consider full-time employment by declining an interview for a Case Manager job after she had accepted her current position at Woman' s Hospital, we note, as addressed in our discussion of OLOL' s second assignment of error below, that the warkers' compensation judge determined that that particular position was unavailable" to Arretteig, a finding that we cannot say is manifestly erroneous. In reviewing the factual findings made below, we note that the warkers' compensation judge specifically found Arretteig to be " highly credible" and found her efforts at finding employment within her restrictions following OLOL' s termination of the modified-duty position to be in " good faith." Thus, considering the faregoing and the record as a whole, finding no manifest error in the workers' compensation judge' s factual findings, and mindful of the credibility determinations that were made herein, we find no merit to OLOL' s contention that the workers' compensation judge erred in finding that Arretteig met her initial burden of proving that her injury resulted in her inability to earn ninety percent of her pre- injury wages. See e y Chauvin v. Terminix Pest Control, Inc., 2011- 1006 ( La. Cir. 6/ 28/ 12), 97 So. 3d 476, 480- 484. 8 ls` App. Availabilitv of C; ase ManaEer Position OLOL' s Assignment of Error No. 2 OLOL ne ct argues thae it identified at ieast one job fQr Arretteig within her phys; cal restrietiotls that woulci pay r ore than ninety percent of her pre- injury average w eekly wage, a ly a C; ase : 1an ger position, specz and that the workers' compensa io judge p ¢red ; n nciing fhat the position was " unavailable" to Arretteig. Once the employee has met her burden of proving an inability to earn ninety percent of average pre- injury wage, the burden shifts to the employer who, in order to defeat the employee' s claim for SEBs or establish the employee' s evidence: ( earning capacity, must by a preponderance of the prov, 1) that the employee is physically able to perform a certain job; and ( 2) that the job was offered to the employee ot that the job was available to the employee in his ar the employer' s community ar reasonabie geographic based upon region, the LSA- R. S. 23: 1221( 3)( difference between th c)( i). The amount of SEBs is employee' s re- injury average monthly wage and her proven post-injurY monthly earning capacity. LSAR. S. 23: 1221( 3)( a); Banks, 696 So. 2d at 556. In Banks, the I:ouisiana Suprem.e Crurt instructed thaY an employer may discharge its burden of proving jo? availabglity by establishing, at a minimum, the following, y competent evidence: 1) the existence of a suitabl job within the employe' s physical capabilities and within the employee' s or the employer' s community or reasonabie geographic region; 2) the amount of wages that an employee with the injured empioyee' s experience and training can be expected to earn in that job; and 9 3) an actual position available for thax particuiar job at the time that the employee received notification of ihe ob' s Banks, 696 So. 2d at 557. Therein, the Louisiana Supreme Court further Yhat " suitable job," mean explained xistence. job that the injured em loyee is not only physically capable of perforAning, but one t at also f.11s within the a limits of the empZoyee' s age, experierdce, and eciucation, unles ihe employer or potential axnployer is willing to provide an.y additional necessary training or education. Banks, 696 Sa 2d at SS r. In the instant case, tb.e vocation l counselor assigned to Arretteig' s case by OLOL advised Arrexteig f a ' Case Nlariager, Rehab liniz" position at OLOL. eaJperience The listed job required was "[ specifications provided that the minimum t] hre yea. s in general ar specialty nursing r practice," with preferred experience in "[ p]rior managed care and u?ilization management." The emazl correspondence sent to Arretteig did not specifically list any physical reyuir ment5 of' tb.e position. As to whether this position was a " suitable ob" for Arreiteig, the record demonstrates that the O, OL v vrkers' cor ipensa ion caordinator acknowledged tl-at position, undisp tedly she at the t; me . did i , vas irrLfc rmed oY tk e a°rett not ! ave the requisite aae M nager thre years of experience as a nurse. AdditionaYly, the caordznator further ackr owledged that Arretteig did not have the prefenred experience in managed care or utilization management. Moreover, regarding ?he warkers' compensation coordinator' s testimony that OLOL would have been wiliing to " hold" the job for Arretteig, the workers' compensation judge clearly rejected and did not believe her testimony, calling this testimony " disingenuousf" The warkers' compensation judge noted that informataon as to the existance or avai3ability of such a policy had not been supplied to Ametteig and that the 10 vocational counselor working on the case was also unaware of such a policy at OLOL. Furthermare, regarding the physical requirements of the job, we note that, by letter dated March 9, 2011, the OLOL workers' compensation coardinator informed Arretteig that she could n t retuz n to work at OLOL in a capacity greater than her restrictions of no lifting, pushing or pulling more than 25 pounds, until she had completed a functionat capaciry evaluation. OLOL then scheduled the functional capacity evaluation for April 14, 2011, eight days after she was notified of the Case Manager position. The April 6, 2011 email notifying Arretteig of the Case Manager position listed the job details as follows Works collaboratively rvith all members of the health care team and the patiendfamily to ensure coordination of patient care and resource utilization. The Case Manager participates i the assessment of patients including physical and psychological factors in order to plan for individualized continuum of care needs and ensures the implementation of the discharge plan. While the OLOL workers' compensation cocrrdinator testified at trial that the job involved " mainly desk work" and Arretteig was in.formed that it did not involve lifting patients, the lack of a description of the physical requirements of this job in the notification obviously left questions remaining as to whether all of the job duties were within her physical restrictions. Indeed; the OLOL warkers' compensation coordinator clearly recognized this problem, as evidenced from a May 25, 20ll email she sent to the vocational counselor, wherein she stated: I explained to you that we needed to do everything perfectly and to make sure we were able to reduce Miss Arretteig' s benefits in accardance with the comp act. I recall telling you that we did not have a job description on any OLOL position that included physical restrictions or pay, which is why I gave the hiring manager' s contact information for each job. I needed a JA to be done to accurately depict the physical you requirements of the position. ... 11 It is too late to do a JA on either of the two case nanager positions or to present them to Dr. Smith. They have both been filled. Considering the foregoing and the record as a whole, we cannot conclude that the workers' compensation judge was manifestly erroneous or clearly wrong in finding that the Case Manager position was not " available" to Arretteig. This assignment of error lacks merit. Medical Call Center Position OLOL' s Assignment of Error No. 3; Arretteig' s Assignment of Error No. 1) Arretteig also applied for a part-time Medical Call Center position at OLOL, the with position hours listed on as " PRN, 20 hours March 8, 2011 and was a week." offered the She interviewed for job. However, she declined the position. The warkers' compensation judge found that this job fit within Arretteig' s physical restrictions and, thus, that she should not have declined it. Accordingly, in calculating Arretteig' s SEB rate, the workers' compensation judge reduced her average weekly wage by $ 648. 80, representing the hourly wage rate of the position for twenty hours per week. In her first assignment of error, Arretteig contends that the workers' compensation judge erred 'an finding that the Medical Call Center position was available to her because, as discussed above, on March 9, 2011, the day after the interview, OLOL' s workers' compensation coordinator sent her a letter, stating that she could not return to work at OLOL in a capacity beyond her current restrictions until she had completed a functional capacity evaluation. However, we note that Arretteig testified at trial that the Call Center position was a job that she could physically perform, thus acknowledging that the position was not beyond her physical restrictions. 12 Accordingly, we find no merit to Arretteig' s argument that the judge erred in finding that this position was " available" to her. OLOL claims in its third assignment of error that the workers' compensation judge manifestily erred in r ducing Arretteig' s SEBs by only 648. 80, contending that it suppl'red data showing that the person who ultimately filled the position has worked more than twenty hours a week and that the position was ultimately considered a full-time position as of October 2012. We disagree. The evidence of record demonstrates that the actual position identified and available at the time Arretteig applied for and interviewed for the job in early March 2011 had listed hours, as stated above; of "PRN, 20 hours a week." The mere fact that someone in this position may have ultimately worked more than twenty hours per week or that the position was eventually classified as full- time does not demonstrate that the position was still available to Arretteig at the time when the position offered greater hours. Thus, we likewise find no merit to this OLOL' s argument that the judge erred in refusing to further reduce Arretteig' s SEBs. ArretteiE' s Entitlement to Additional Penalties Arretteig' s Assignment of Error No. 2) While the workers' s compensation judge ultimately determined that the Case Manager position was " unavailable" to Arretteig and, thus, could not support a termination of SEBs, she further found triat OLOL' s terinination of SEBs on the basis of the alleged availability of that posirion was neither arbitrary nor capricious. In her second assignment of error, Arretteig contends that this finding was manifestly erroneous and that she is entitled to additional penalties. 13 An employem shall be subject ts, a penalxy nd payment of reasonable attorney' s fees far the pxasecution anci :; crlie4tiord cf a claim where it discontinues payment of claims due and su h d'zscc? ntinuance is £ound to be arbitrary, capricious, +r withont probable caus. I,SA-RS, 23: 1201( I). Arbitrary and ca ricious behavivr cvnsists of wil?ful and u r:;aso iin action, without consideration and re arci fur ft cts apid c rcum tances pr sented, or action of seemingly unf unded zn_ Qtivatian_. T ae detenmination of whether an employer has been arbitrary or capricious or has failed to reasonably controvert a claim is a question of fact subject to the manifest error standard of review, Nitcher v. Northshore Regionai 1tiledical Center, 2011- 1761 ( La. App, ls` Cir. 5/ 2/ 12), 92 So. 3d 1Q01, 1010- 1011, writ denied, 2012- 123Q La. 9/ 21112), 98 So. 3d 342. In the instant case, the wozkers' corzzpensation udge iound that OLOL' s actions in terminating SEBs as of March 9, 201 l, were not arbitrary ar capricious given that " vocatio nal effo ks were beir g made and there wzre communication problems compensation coordinatar, involved" nd the with vocational Arretteig, couns lor, the workers' Con idering the record on appeal, we cann_ cordclude that the workers' c mpensation judge ot was manifestly enoneous in this factual conGlusion, Attorn' s Fees OLOL' s Assignment of rror No. 4; Arretteig' s Assignment of Error No. 3) The workers' compensatioca judge further found that some af OLOL' s actions rendered Specifically, the pettalties against it liable to : workers' rretteig for penalties and attorney' s fees. compensation judge assessed the following OLOL: $ 2, 000. 00 for its failure ti timely pay SEBs owed to Arretteig, u here OLOL had candidly admitYsd such benafits were due by leYter dated 1VIay 2, 2011; but payment vas not received b} Arretteig untii 14 August 2011; $ expenses that 2, 000. 00 for the untimely payment of iwo prescription had still not been pai3 as of the time o: irial; $2, 000. 00 for the untimely payment of an eut-of-pocket rsedical e cpense reimbursement request that had still not b en paid as of the time of tri 1, and i, 50. 10 for OLOL' s unwarranted refusal to timely auihorize Dr. Nvboer as Anetteig' s choice of physieian. In to addition the imposa ion , f those pznalties, the v% orkers' campensation judge ordered OLOL to pay Arretteig attonney' s fees in the amount of $20; 000. 00. On appeal, OLOL contends that the amount of the award was excessive, while Arretteig.contends ihat the award was too low. Pursuant to LSA-R. S. 23: 1201( F), the failure to provide payment of indemnity ar medical benefits in accordance with LSA-R.S. 23: 1201 or the failure to consent to the employee' s request to select a treating physician or change physicians when such consent is requ°red shall r resulf in the assessment of a penalty " tcagether with reasonable attorney fees for each disputed claim." Although thz priznar; consideration in the imposition of attorney' s fees is n t tc compe isate th err plUyee, but rather to discouxage certain offensive betiav ors on tfie parr of the employer ar insurer, the amount so awarded is intended to fudly carnpensate the emplayee' s attorney, thereby benefitting the connection with mployee, for the attorney s services renciered in the litigation. , an lev v. La. 6/ 29/ 011, 792 So. 2d 721, 726- 727. Petro Star C of La, 2n01- 0198 Factors to be .considered vhen fixing the amount of attorney' s fees to be awarded include the degee of skill and ability exercxsed by the attorney, the amount of the claim, the amount recovered by the employee, and the amount f time the attoiney devoted to the case. Davis v, Farm Fresh Food Su 5/ 14iO4), 879 So. 2d 215, 221. piier; 2003- 1381 ( La. pp. 1' Cir. On review, the arnouni of attorney' s fees IS awarded by the workers' compensation judge will not be disturbed absent an abuse of discretion. See Lan ley, 792 So. 2d at 727. In the instant case, Arretteig' s counsel, who has over twenty years of experience in xhe area of workers' compensation law, submitted an affidavit demonstrating that, prior to trial, he had expended over 117 hours on this case. In awarding $20, 000.40 in atzorney' s fees, the workers' compensation judge specifically concluded that this amount was reasonable, even without consideration of the claims for SEBs also awarded, " considenng the need for trial to obtain the obviously due penalties" and that counsel in this matter are highly experienced in this field and spent a great deal [ ofJ time in preparation and two days of trial." Thus, while the amounts remaining unpaid as of the time of trial for which Arretteig was awarded penalties were relatively small in relation to the entirety of all the awards, the warkers' compensation judge clearly found that the amount awarded was reasonable for the wark required on those claims alone in light of Arretteig' s attorney' s expertise and the particular circumstances, including the fact that Arretteig was forced to litigate these claims to obtain payment even of these relatively small amounts due. After careful review, we find no abuse of the workers' compensation judge' s discretion in the decision to make an award of $20,000. 00 for Anetteig' s attorney' s fees. See Billiot v. Wal- Mart Stores, Inc., 2003- 2451 ( La. App. 1 S` Cir. 10/ 29/ 04), 897 So. 2d 64, 67- 68. However, we likewise find no merit to Arretteig' s claim that the amount was abusively low. Thus, OLOL' s and Arretteig' s assignments of error challenging the amount of the award have no merit. 16 CONCLUSIOIV For the above and foregoing reasons, the May 29, 2013 judgment, awarding Arretteig benefits, penalties, and attorney' s fees, is hereby affirmed. Costs of this appeal are assessed against defendant, Our Lady of the Lake Hospital, Inc, AFFIRMEDe 17
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