Carmouche v. Kraft Foods, Inc.

62 So. 3d 889, 10 La.App. 3 Cir. 401, 2011 La. App. LEXIS 449, 2011 WL 1376146
CourtLouisiana Court of Appeal
DecidedApril 13, 2011
Docket10-401
StatusPublished
Cited by2 cases

This text of 62 So. 3d 889 (Carmouche v. Kraft Foods, Inc.) 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
Carmouche v. Kraft Foods, Inc., 62 So. 3d 889, 10 La.App. 3 Cir. 401, 2011 La. App. LEXIS 449, 2011 WL 1376146 (La. Ct. App. 2011).

Opinions

GREMILLION, Judge.

| defendant, Kraft Foods, Inc. (Kraft), appeals the judgment of the Worker’s Compensation Judge (WCJ) finding that it was not entitled to change its choice of vocational counselor. Kraft further appeals the judgment finding that Kraft was not entitled to reduce the benefits of plaintiff, Robert E. Carmouche, because substantial pain prevented him from working at the job Kraft’s vocational rehabilitation counselor found for him. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

It is undisputed that Carmouche. was injured while in the course and scope of his employment as a truck driver for Kraft. Kraft sent Carmouche to Dr. John Stafford who referred him to Dr. Thomas Ber-tuccini. Dr. Bertuccini performed a lami-nectomy with decompression of the nerve root and excision of the L5-S1 interverte-bral disc in June 2006. Carmouche was treated by Dr. Ted Gillespie, a pain management specialist, from October 2006 through the end of 2008. Carmouche was released to sedentary or light duty work in 2007.

Carmouche received vocational rehabilitation counseling from Jamie Primeaux, a licenced vocational rehabilitation counselor and employee of Coventry Health Care. In August 2007, Catalyst RTW located a job for Carmouche as a home-based telephone solicitor for All Facilities, Inc., that was to have paid $9.00 per hour and was a 40-hour-per-week position. Carmouche tried the job for three days, then quit. His testimony was that given the pain, his medicated state, and the antagonism of the targets of his phone calls, the job was too stressful. At that point, Kraft terminated | ¿vocational rehabilitation and reduced [891]*891Carmouche’s benefits to Supplemental Earnings Benefits (SEBs) of $271.72 per week.

In October 2008, Carmouche filed a disputed claim for compensation. He continued treatment with Dr. Gillespie. At the end of 2008, Dr. Gillespie opined that Car-mouche would need scar injection four to six times a year for the duration of his lifetime.

On May 1, 2009, a hearing was held on Kraft’s request for a second medical opinion and its motion to compel vocational rehabilitation with a different counselor than previously chosen. The WCJ denied both the request for a second medical opinion and the motion to compel vocational rehabilitation. The WCJ further ordered an independent medical examination with a physician named by the OWC.

In July 2009, Carmouche underwent the ordered independent medical examination with Dr. Steve Rees. Dr. Rees opined that while Carmouche was at maximum medical improvement physically, he was not at maximum improvement for pain control. He also stated that further interventions would be required for Carmouche to reach maximum medical improvement with regard to pain. He further found that because Carmouche was depressed, any return to work needed to be in a low-stress environment.

The matter was tried in October 2009. The WCJ found in favor of Carmouche and ordered Kraft to pay full temporary total disability (TTD) benefits back to the date of termination but refused to award penalties and attorney’s fees. Kraft appeals.

| ¡ANALYSIS

Change of Vocational Rehabilitation Counselor

Kraft first asserts that the WCJ erred by finding that it could not change its choice of vocational rehabilitation counselor. The court disallowed a change of vocational rehabilitation counselor, explaining that:

And the reason for that is similar to the choice of physician statute. Just as you [sic] no one likes doctor shopping, nobody likes rehab shopping. And if you don’t like what the first rehab counselor says, you can’t just change and go to somebody else, [sic] So it has been my practice to require a showing of good cause before I will allow a change of selection.

The WCJ found that the employer did not make a showing of good cause for a change of vocational rehabilitation counsel- or and denied the motion.

The employment of the services of a vocational rehabilitation counselor, La. R.S. 23:1226(3)(a), provides that:

The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The procedure for hearing such claims shall be expedited as provided in R.S. 23:1124.

We find no statute or jurisprudence that supports the conclusion that the employer may change its choice of a vocational rehabilitation counselor at will, and Kraft cites none. The statute makes the employer responsible for the choice of “a licensed profession vocational rehabilitation counselor.” (Emphasis added.) We find that the WCJ’s interpretation of this statute is both reasonable and correct. In order to [892]*892change its choice of vocational rehabilitation counselor, the employer must show good cause. Therefore, the judgment of the WCJ in this regard is affirmed.

\ ¿Benefits Due

The analysis of this issue is difficult because Carmouche argues that he is entitled to TTD benefits based upon application of the substantial pain doctrine. Kraft argues that Carmouche is not entitled to TTD benefits because he did not prove application of the substantial pain doctrine by clear and convincing evidence, in that he failed to present objective medical evidence. The WCJ awarded TTD benefits based on Carmouche presenting clear and convincing evidence of his inability to work based upon substantial pain.

The WCJ discussed the medical testimony with regard to Carmouche’s ability to return to work, as follows (emphasis added):

However, in considering the testimony of Mr. Carmouche and the IME report of Dr. Rees, Dr. Rees does state that Mr. Carmouche is capable of returning to work from a 'physical standpoint. He does not make that same assessment with respect to a pain standpoint. In Dr. Rees’s opinion, Mr. Carmouche needs additional work before he has reached maximum medical improvement from a pain standpoint. But, in considering Dr. Rees’s report where he speaks to keeping Mr. Carmouche in a stress-free environment or as stress free as possible and combining that with Mr. Carmouche’s testimony of how he found the job to be stressful, and at this point, I do want to comment.
Mr. Schoenfeld makes some mention of a stress-free job, and I was going to say Mr. Schoenfeld, if you ever find one of those would you please let me know about it. I think any job is stressful, work is stressful even when you are doing something you love. I don’t think it is possible to find a completely stress free environment.
However, because of the unfamiliar nature of the work, and I’m sure even in his work with Kraft, Mr. Carmouche had to work with difficult clients. But given that it was a totally unfamiliar employment environment, considering the fact that he was in pain, I do make the finding combined with the medical evidence and particularly the comments of Dr. Rees, that he was in substantial pain which prevented him from performing this job.

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Carmouche v. Kraft Foods, Inc.
62 So. 3d 889 (Louisiana Court of Appeal, 2011)

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Bluebook (online)
62 So. 3d 889, 10 La.App. 3 Cir. 401, 2011 La. App. LEXIS 449, 2011 WL 1376146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmouche-v-kraft-foods-inc-lactapp-2011.