Andrus v. Crowley Laundry & Dry Cleaners

858 So. 2d 802, 2003 La. App. LEXIS 3010, 2003 WL 22499626
CourtLouisiana Court of Appeal
DecidedNovember 5, 2003
Docket03-571
StatusPublished
Cited by2 cases

This text of 858 So. 2d 802 (Andrus v. Crowley Laundry & Dry Cleaners) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrus v. Crowley Laundry & Dry Cleaners, 858 So. 2d 802, 2003 La. App. LEXIS 3010, 2003 WL 22499626 (La. Ct. App. 2003).

Opinion

858 So.2d 802 (2003)

Sidney ANDRUS
v.
CROWLEY LAUNDRY & DRY CLEANERS.

No. 03-571.

Court of Appeal of Louisiana, Third Circuit.

November 5, 2003.

Michael B. Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Sidney Andrus.

John W. Penny Jr., Penny & Hardy, Lafayette, LA, for Defendant/Appellee, Crowley Laundry & Dry Cleaning, Inc.

Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.

DOUCET, Chief Judge.

Claimant, Sidney Andrus, appeals a judgment of an Office of Workers' Compensation (OWC) judge denying his claim for benefits during the disputed period of time (between November 29, 2000 and August 14, 2001), but granting Claimant the right to be treated by an orthopaedist of his own choosing, at Defendant's, Crowley Laundry and Dry Cleaners, Inc.'s, expense.

*803 We reverse the judgment of the OWC and render judgment in favor of Claimant as set out below.

DISCUSSION OF THE RECORD

Both parties agree that Claimant had the distal portion of his right ring finger amputated in a work-related accident on May 4, 2000. Claimant was working at Crowley Laundry & Dry Cleaners at the time of the accident. Claimant also worked a second job as a porter at the Rice Palace in Crowley. The injury to his finger was treated at the emergency room of American Legion Hospital by Dr. Michael Holland. Subsequently, on July 7, 2000, Dr. Holland performed an amputation-revision of Claimant's finger tip. Claimant continued to see Dr. Holland through November 29, 2000, complaining of "finger pain and a cold hand." Noting that Claimant's revision "wound healed beautifully," Dr. Holland discharged Claimant from his care at that time. According to Dr. Holland's records from Claimant's November 29th visit, Claimant had reached maximum medical improvement on August 17, 2000, and was released to go back to work at that time. The records also indicate that Claimant was "working full-time at the Rice Palace and doing fine." Based upon the report of November 29, 2000, Defendant terminated Claimant's compensation benefits effective that date.

An affidavit from Jo Ann S. Broussard, the manager of the Rice Palace, established that Mr. Andrus had worked 517.09 hours between August 13 and October 30, 2000, when he was terminated for nonperformance.

Following discharge by Dr. Holland, Claimant filed a claim with the OWC for continued weekly benefits. He also filed a Motion and Order to Provide Medical Treatment, in which he sought treatment from another orthopaedist of his choosing.

Claimant's case was assigned to OWC Judge Constance Abraham-Handy, who ordered an independent medical examination (IME) by Dr. Gary L. Porubsky, and reserved Claimant's right to reargue that portion of his motion seeking treatment from another orthopaedist of his choice.

The IME was performed on February 12, 2001. Dr. Porubsky's report of the IME is equivocal as to Claimant's ability to work stating (emphasis ours):

He should work on desensitization of the tip of the digit. He may benefit from utilizing a transdermal gel to deliver a nonsteroidal anti-inflammatory agent topically. I would place him on a nonsteroidal anti-inflammatory agent at this time. I would instruct the patient to return to gainful employment and wear a loose fitting glove to protect the tip of the digit. Hopefully by utilizing the transdermal gel and a nonsteroidal antiinflammatory agent he would tolerate wearing gloves and returning to gainful employment.

Following Dr. Porubsky's examination, on May 21, 2001, Claimant refiled his motion seeking treatment from another orthopaedist of his choice. That motion was heard before OWC Judge Abraham-Handy on July 19, 2001. She denied Claimant's motion on July 26, 2001, finding that Dr. Holland was Claimant's "de facto" orthopaedic choice and limiting Claimant to orthopaedic treatment from either Dr. Holland or Dr. Porubsky (a writ on that ruling was taken to this court and denied).

Dr. Porubsky re-evaluated Claimant on August 14, 2001. His report of that examination reads, in part as follows:

I plan to place him in a formal rehabilitative program in Crowley to work on active and passive range of motion of the MP and interphalangeal joints of the ring digit as well as desensitization and *804 strengthening exercises. He was given a prescription to obtain a gel for the transmission of a non-steroidal anti-inflammatory agent topically.
He was tentatively instructed to be seen in follow-up by myself in approximately two weeks' time.
As discussed with him, other recommendations would include a third operative procedure to transect the radial and ulnar digital nerve further proximally, although as discussed with him, there is still the possibility that he could have persistent discomfort in the ring digit even if this procedure was performed.

Following receipt of Dr. Porubsky's report of Claimant's August 14, 2001 examination, Defendant reinstated Claimant's benefits effective that date. Claimant then filed a motion seeking to have the benefits retroactively reinstated to November 2000, when they were originally terminated. A hearing on that motion was held before OWC Judge Abraham-Handy on January 11, 2002, and taken under advisement. Judge Abraham-Handy dictated her decision into the record on June 28, 2002, finding Claimant was entitled to have his benefits retroactively reinstated to November 29, 2000. However, that decision was never reduced to a formal written judgment and there is no indication in the record that either counsel was informed of her decision. Judge Abraham-Handy died August 6, 2002.

Following her death, OWC Judge John Grout was appointed "to preside over all matters pending prior to Judge Handy's death." After reviewing the evidence and testimony, Judge Grout ruled that Claimant was not disabled between November 29, 2000 and August 14, 2000, and thus, was not entitled to weekly indemnity benefits during that period of time. He further ruled that Claimant had not "been treated by an orthopaedist of his own choosing," and thus, was entitled "to be treated by an orthopaedist of his choice at the employer's expense."

Claimant, Sidney Andrus, appealed, arguing that the judgment by Judge Grout should be set aside and the unsigned judgment of Judge Abraham-Handy be made the judgment of the OWC.

DISCUSSION OF THE LAW

We find no specific provision in the Office of Workers' Compensation Hearing Rules which covers a situation as in the case sub judice. Provisions for decisions after the death, resignation, removal from office or the expiration of a term in office are covered in La.R.S. 13:4209 (emphasis ours) which states:

A. In all cases heard and taken under advisement of the district judge or judges of the city courts, if the judge before whom a case is tried dies, resigns, or is removed from office, or if his term expires before rendering his judgment in the case, his successor in office shall decide the case from the evidence in the record, if all of the testimony is in writing. If it is a case in which the testimony has not been reduced to writing, the succeeding judge shall decide the case from a statement of the facts, if one is found in the record, or if the parties to the suit agree upon a statement of facts. If the testimony is not in the record, and there is no statement of facts, the case shall be tried de novo.
B. (1) In cases which are heard and in which judgment is rendered, but not signed,

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858 So. 2d 802, 2003 La. App. LEXIS 3010, 2003 WL 22499626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrus-v-crowley-laundry-dry-cleaners-lactapp-2003.