Baullion v. Old American Pottery Co.

801 So. 2d 567, 1 La.App. 3 Cir. 0562, 2001 La. App. LEXIS 2721, 2001 WL 1475072
CourtLouisiana Court of Appeal
DecidedNovember 21, 2001
DocketNo. 01-0562
StatusPublished
Cited by5 cases

This text of 801 So. 2d 567 (Baullion v. Old American Pottery Co.) 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
Baullion v. Old American Pottery Co., 801 So. 2d 567, 1 La.App. 3 Cir. 0562, 2001 La. App. LEXIS 2721, 2001 WL 1475072 (La. Ct. App. 2001).

Opinion

11 THIBODEAUX, Judge.

In this workers’ compensation case, Viola Baullion appeals the Office of Workers’ Compensation’s determination that she could return to light-duty work and its failure to address her need to use a rolling walker. Ms. Baullion also appeals the workers’ compensation judge’s findings limiting her work-related injuries to her neck, shoulder and arm problems and limiting her right to future medical treatment.

[570]*570The parties stipulated to an occurrence of an accident in May of 1993 while Ms. Baullion was in the course and scope of her employment with Old American Pottery Company (Old American), that Ms. Baullion’s compensation rate was $127.06, and that she was paid workers’ compensation benefits through March 3, 1999. The workers’ compensation judge found that Ms. Baullion’s employer, Old American, should have authorized an additional psychological evaluation based upon Ms. Baul-lion’s treating physician’s suspicion that she was suffering from work-related depression and anxiety due to chronic pain.

Old American answered Ms. Baullion’s appeal and contends that the workers’ compensation judge committed error in finding that Ms. Baullion is entitled to an additional psychological evaluation. Further, Old American contends the workers’ compensation judge erred in casting it, an insured employer, with the payment of penalties and attorney fees. Old American argues that an employer insured by a workers’ compensation carrier cannot be held liable for penalties and attorney fees.

We affirm the denial of payment for a rolling walker and the workers’ compensation judge’s determination that Ms. Baul-lion’s work-related injuries are limited to her neck, shoulder and arm. We amend the workers’ compensation judge’s | ^determination with respect to Ms. Baul-lion’s future medical treatment. We also affirm the workers’ compensation judge’s award of penalties and attorney fees against Old American for failure to authorize the medical treatment recommended by Ms. Baullion’s treating physician. We reverse the judgment of the workers’ compensation judge insofar as she found Ms. Baullion is not entitled to supplemental earnings benefits. This judgment is amended to award supplemental earnings benefits at a zero-base earning capacity from the date of the termination of the award.

I.

ISSUES

The issues presented for review are:

(1) whether the workers’ compensation judge failed to address an issue properly before her concerning Ms. Baullion’s rolling walker and whether this court can make a de novo review determination thereon;
(2) whether the workers’ compensation judge erred in the determination of Ms. Baullion’s disability status;
(3) whether the workers’ compensation judge was clearly wrong in finding that Ms. Baullion’s work-related injuries were limited to her neck, shoulder and arm problems;
(4) whether the workers’ compensation judge limited Ms. Baullion’s future medical treatment to one treating physician and to a one-time psychological evaluation and, if so, whether it was manifest error to do so; and,
(5) whether the workers’ compensation judge properly cast an insured employer with payment of penalties and attorney fees.

_kH.

FACTS

Ms. Baullion was employed with Old American as a warehouse manager. As warehouse manager, Ms. Baullion’s duties included loading and unloading the trucks that brought merchandise into the store as well as putting merchandise on store shelves for sale. Ms. Baullion began experiencing pain and numbness in her hands and arms while lifting boxes in May of 1993. At the time of her accident, Ms. Baullion had an average weekly wage of [571]*571$190.59 and a compensation rate of $127.06.

The following doctors have treated Ms. Baullion since May, 1993 when she first began experiencing problems with her hands: Dr. James E. Dowd, Jr.; Dr. Thomas Ford; Dr. William F. Foster, Jr.; Dr. Clark Gunderson; and Dr. Kevin E. Gorin. Ms. Baullion was also seen by Dr. Kip Patterson for a psychological evaluation in 1997 as well as Mr. William Stamp-ley, a rehabilitation counselor.

Ms. Baullion testified that not only did she manage the warehouse but she also sometimes worked as a secretary, worked on the sales floor and had bookkeeping duties that included doing the payroll, deposits and invoicing. To alleviate the pain in her hand, Dr. Dowd performed carpal tunnel surgery. In all, Ms. Baullion had two surgeries on her left wrist, two surgeries on her right wrist and one surgery on her thumb. After a diagnosis of cervical myeloradiculopathy, on October 2, 1995, Dr. Foster performed a two-level anterior cervical discectomy and fusion at the C5-6 and C6-7 spine levels. It was Dr. Foster’s opinion that the surgery would relieve Ms. Baullion’s neck pain. The surgical procedure was successful in stabilizing Ms. Baullion’s neck but not in ridding her of pain.

|4By August 4, 1997, Dr. Gorin was of the opinion that Ms. Baullion had reached maximum medical improvement. Dr. Go-rin concluded that Ms. Baullion could function at a sedentary to light duty capacity and that it would be difficult if not impossible for Ms. Baullion to ever return to “gainful employment in a competitive arena.” However, Dr. Gorin’s opinion regarding Ms. Baullion’s return to employment was based on her entire medical condition including her non-work-related injuries as well as her work-related injuries. After meeting with Ms. Baullion on January 19, 1999, Mr. Stampley, the rehabilitation counselor, recommended several positions which were presented to Dr. Gorin for his approval. Dr. Gorin gave his approval to two of the positions based upon a six-line description of the job duties provided by Mr. Stampley. In February of 1999, Dr. Gorin still recommended that Ms. Baullion receive a psychiatric or psychological evaluation for depression that he felt was due to Ms. Baullion’s chronic pain.

In March of 1999, Old American terminated weekly benefits to Ms. Baullion. A claim was filed on her behalf. In her written reasons for judgment, the workers’ compensation judge found Ms. Baullion capable of returning to a light-duty job and entitled to “treatment with her treating physician, Dr. Gorin, and treatment prescribed by Dr. Gorin, including but not limited to the psychiatric evaluation.” The workers’ compensation judge also cast Old American for payment of penalties in the amount of $2,000.00 and attorney fees in the amount of $5,000.00 for its failure to reasonably controvert Ms. Baullion’s claim that a psychiatric evaluation was necessary as recommended by Dr. Gorin, her treating physician. It is from this judgment that Ms. Baullion appeals. Old American answered Ms. Baullion’s appeal and claims that the workers’ compensation judge erred in finding that Ms. Baullion is entitled to an additional psychological evaluation and that it faded to reasonably | Rcontrovert its denial of that treatment recommendation. Old American additionally asserts that the workers’ compensation judge erred in casting it with payment of penalties and attorney fees.

III.

LAW AND DISCUSSION Standard of Review

Ah appellate court may not set aside the factual findings of a workers’ [572]*572compensation judge in the absence of manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

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Bluebook (online)
801 So. 2d 567, 1 La.App. 3 Cir. 0562, 2001 La. App. LEXIS 2721, 2001 WL 1475072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baullion-v-old-american-pottery-co-lactapp-2001.