STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-1264
CATHY TURNER
VERSUS
LEXINGTON HOUSE
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 13-03972 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.
AFFIRMED.
George Arthur Flournoy Flournoy & Doggett (APLC) P. O. Box 1270 Alexandria, LA 71309-1270 Telephone: (318) 487-9858 COUNSEL FOR: Plaintiff/Appellee - Cathy Turner
Morgan E. Levy Gugielmo, Marks, Schutte, Terhoeve & Love 320 Somerulos Street Baton Rouge, LA 70802-6129 Telephone: (225) 387-6966 COUNSEL FOR: Defendant/Appellant - Lexington House THIBODEAUX, Chief Judge.
The defendant employer, Lexington House LLC, d/b/a Lexington
House (Lexington), appeals from a judgment of the Office of Workers’
Compensation (OWC) awarding benefits, penalties, and attorney fees to the
employee, Cathy Turner. Finding no error or manifest error on the part of the
OWC, we affirm the judgment in all respects.
I.
ISSUES
We must decide:
(1) whether the trial court manifestly erred in awarding the employee temporary total disability benefits;
(2) whether the trial court erred in calculating the employee’s average weekly wage;
(3) whether the trial court manifestly erred in ordering the employer to pay for reconstructive surgery;
(4) whether the trial court manifestly erred in ordering the employer to pay for anti-depressant medication;
(5) whether the trial court manifestly erred in penalizing the employer for: arbitrary termination of benefits; payment of benefits at the wrong rate; failure to authorize a functional capacity examination; failure to authorize reconstructive plastic surgery; failure to authorize payment of medication; and
(6) whether the employee’s attorney fees should be increased for her attorney’s work on appeal. II.
FACTS AND PROCEDURAL HISTORY
Ms. Turner, a licensed practical nurse (LPN) in her forties, was
recruited and hired by Lexington House in September 2010 for the position of
Admissions Coordinator at their six-wing nursing home in Alexandria. Ms. Turner
generated admissions for the facility through off-site interviews with potential
patients, their families, their doctors, and their current facility personnel. She
received bonuses based upon her admissions.
On December 12, 2011, Ms. Turner was standing at the nurse’s station
at Lexington House when a co-worker exited the area causing the swinging door to
slam into Ms. Turner’s left hip at the incision site of a recent total hip replacement
(THR) surgery. The incision from the September 2011 surgery started at the
lateral, or outside, part of her hip and extended up onto the left buttock. The
impact was painful, causing her eyes to water, and it immediately produced
redness and an “8cm x 8cm circular” bruise to Ms. Turner’s left hip. The pain and
swelling continued, and Ms. Turner developed an increased gait problem which
aggravated chronic back problems. She was taken off work by her orthopedic
surgeon and ultimately underwent an exploratory surgery to ascertain the status of
the artificial hip. The joint was found to be intact, but permanent stitches from the
prior surgery found under the incision required removal. Ms. Turner began
physical therapy.
In June 2012, Ms. Turner’s prognosis was to return to work in one
month on light duty, secondary to fatigue. However, she fell twice at home and
was not able to return. At the end of June, she had a marked increase of pain along
the lateral aspect of the hip and buttock, point tenderness along the incision,
2 continued limping, and altered sensation in the left lateral leg and foot. Further
testing was requested. In November 2012, Ms. Turner’s surgeon opined that her
pain and gait problems were caused by the accident and were aggravating pre-
existing conditions. Ms. Turner also developed a deformity caused by the surgical
incision sinking in, muscle wasting, and the accumulation of atrophied fat.
In January 2013, Lexington sent a list of random duties to Ms.
Turner’s surgeon, and to the physician that Lexington had selected for a second
medical opinion (SMO). Both physicians checked off tasks while at the same time
both recommended a functional capacity examination (FCE). The surgeon wanted
an impairment rating, and the SMO conditioned its responses on the provision by
Lexington of a motorized scooter or chair.
In late April 2013, Lexington sent a job description to Ms. Turner’s
surgeon seeking his approval of a nurse aid training instructor position for Ms.
Turner. The surgeon initially approved the job description but withdrew his
approval by letter on May 8, 2013, after talking to Ms. Turner. On May 11, 2013,
Lexington terminated Ms. Turner’s indemnity benefits.
Ms. Turner filed a workers’ compensation claim 1008. Numerous
issues were tried, including the denial or late approval of various tests and the
concomitant penalties, which were decided in favor of Lexington. However, Ms.
Turner’s benefits were reinstated, and other issues were decided in her favor.
Lexington filed this appeal assigning nine errors in the OWC
judgment and seeking to reverse: the award of temporary total disability benefits;
the calculation of average weekly wage; the award for reconstructive surgery; the
award for certain medication; and the award of five penalties associated with the
termination of benefits and the failure to authorize benefits.
3 Ms. Turner answered the appeal, seeking an increase in the wage
benefit and additional attorney fees for the work done on appeal.
III.
STANDARD OF REVIEW
Factual findings in workers’ compensation cases are subject to the
manifest error/clearly wrong standard of review. Banks v. Indus. Roofing & Sheet
Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. In applying this standard,
the appellate court must determine not whether the trier of fact was right or wrong,
but whether its conclusion was reasonable. Id.
IV.
LAW AND DISCUSSION
Lexington contends that the OWC erred in awarding benefits to Ms.
Turner, asserting that she failed to prove that she was disabled and entitled to
temporary total disability (TTD) benefits under La.R.S. 23:1221(1) 1 or
supplemental earnings benefits (SEB) under La.R.S. 23:1221(3). 2 In the
alternative, Lexington argues that the award should have been for SEB only. We
1 For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment[.]
La.R.S. 23:1221(1)(c) (in pertinent part). 2 For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits, payable monthly, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment[.]
La.R.S. 23:1221(3)(a)(i) (in pertinent part).
4 note at the outset that Lexington has not previously addressed SEB prior to this
appeal, and that the termination of benefits dealt with by the OWC was
Lexington’s termination of TTD benefits with no attempt, unilateral or otherwise,
to reduce the TTD benefits to SEB.
The workers’ compensation judge (WCJ) reinstated Ms. Turner’s
TTD benefits after determining that her ongoing pain and problems with her hip,
her leg, and her increased back pain due to her altered gait, were causally related to
the work accident on December 12, 2011. He found that, while she had preexisting
conditions, she was working and not disabled before the accident, and the accident
was a factor in bringing about her disability. The record and the law support this
determination.
Because an employer takes his employee as he finds him, a preexisting condition does not prevent recovery through workers’ compensation. Curtis v. Wet Solutions, Inc., 98-789 (La.App. 3 Cir. 12/9/98); 722 So.2d 421. Aggravation of a preexisting injury may constitute a disabling injury when, for example, the plaintiff begins to suffer new symptoms after the second workplace accident. Howell v. Service Merchandise Co., Inc., 95-79 (La.App. 3 Cir. 8/9/95); 663 So.2d 96. To be compensable, the aggravation of a preexisting injury must result from an identifiable and discernable incident. City of Eunice v. Credeur, 99-302 (La.App. 3 Cir. 10/13/99); 746 So.2d 146, writ granted in part, judgment vacated in part, 99-3249 (La. 1/28/00); 753 So.2d 226. Moreover, there must be a causal link between the aggravation and a work related incident. As we have recently explained,
[a] pre-existing disease or infirmity does not disqualify the claimant from receiving benefits if the workplace accident aggravated, accelerated, or combined with the disease to produce the disability for which compensation is claimed. Thus, the element of causation is satisfied if the employee’s work-related accident was a factor in bringing about the employee’s disabled status. Whether a causal relationship exists between the disability and the employment is a question of fact. The hearing officer’s determination in this regard cannot be reversed unless it is manifestly erroneous based on examination of the record as a whole.
5 The employee’s workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a causal relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.
Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95); 664 So.2d 750, 755, writ denied, 95-3093 (La. 2/16/96); 667 So.2d 1058 (citations omitted).
Tate v. Cabot Corp., 01-1652, pp. 5-6 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461,
writ denied, 02-2150 (La. 11/22/02), 829 So.2d 1044 (alteration in original); See
Rivers v. Bo Ezernack Hauling Contractor, Inc., 09-991 (La.App. 3 Cir. 3/10/10),
32 So.3d 1091.
Dr. Gordon Webb, Lexington’s occupational medicine physician, saw
Ms. Turner on December 16, 2011, four days after the accident on December 12.
He reported a history of congenital hip dysplasia and the hip replacement in
September 2011. Ms. Turner described the swinging door slamming into her left
hip and upper thigh over the incision, creating a loud thump and pain which
brought her to her knees. She reported that her hip hurt when she flexed it; that the
pain had not improved since the injury; that her gait was off; and that she was
limping so that now her back was hurting. She also reported a history of chronic
back pain, stress, and depression. Dr. Webb diagnosed contusion, bruising, and
swelling of the vastus lateralis muscle on the anterolateral proximal left thigh.
Dr. Steven Atchison, Ms. Turner’s orthopedic surgeon in Shreveport,
testified by deposition regarding Ms. Turner’s three pre-injury hip surgeries and
6 what effect the work-injury and the fourth surgery had on her condition. When he
saw Ms. Turner on December 6, 2011, before the work accident on December 12,
she had some pain and discomfort at the lower portion of the incision, but she
reported that she was doing “great.” Dr. Atchison saw her post-injury on
December 28, 2011. At that time, over two weeks after the accident, she had
increased pain from the incident and still had swelling along the incision. There
was still some swelling when he saw her on January 17, 2012. On January 31,
2012, he thought the soft tissue pain was related to the separation of the IT band
and the gluteus maximus as a result of the blunt trauma, and he recommended
exploratory surgery, which was approved in March 2012.
Lexington’s attorney asked whether, standing alone, the more serious
second and third pre-injury surgeries––the bi-polar hip in 2008, and the total hip
replacement in 2011––would have caused Ms. Turner “a significant impediment in
her everyday activities.” Dr. Atchison answered negatively. He explained that the
total hip replacements were hugely successful, with a 95% survival rate for lasting
the patients fifteen to twenty years. He said the surgery “actually fixes their gait
problem or the inability to work and function in society after that.” When asked
how much of Ms. Turner’s overall disability, inability, pain, atrophy, dysfunction,
and limping, were related to the injury and the fourth surgery, as opposed to her
three preexisting hip surgeries, Dr. Atchison said he could not separate them or
assign percentages to the causes. But, he clearly indicated that all of the events
were contributing factors in “all these issues that ruined her life.” He stated that
the door incident did not alone cause all of her problems, but it led to a fourth
surgery which was another insult to the fat and the skin. Dr. Atchison stated that
there was no doubt that Ms. Turner’s condition worsened after the swinging door
7 incident and the fourth surgery, including the muscle shrinking, the atrophy of the
subcutaneous tissue or fat, the incisional pain, and the need for plastic surgery.
Dr. Carl Goodman, selected by Lexington for an SMO, examined Ms.
Turner on January 24, 2013. Under the heading of “Assessment/Plan,” Dr.
Goodman assessed her back problems as disc degeneration. He then found: left
hip complaints are her problem and have not resolved––probable soft tissue injury
and at MMI; cause is job injury; no further RX or MRI advised; cannot stand or
walk any distance or for over two hours due to pain; FCE is advised. On the same
date, Dr. Goodman checked off certain light-duty tasks on a two-page list of
random duties. At the bottom of each page, Dr. Goodman wrote that Ms. Turner
will need a motorized scooter or chair to do the above; at the bottom of the second
page he added above his initials, “Really need FCE.”
Dr. Michael Dole, specializing in physical medicine/rehabilitation and
pain management, testified by deposition that he treated Ms. Turner for left hip and
left leg pain and depression secondary to chronic pain. His opinion in April 2013
was that Ms. Turner was “fully and totally disabled from the hip pain.” In October
2013, Dr. Dole opined that the denial of necessary medical treatment for the left
hip had caused progressive atrophy and deformity that, without treatment, would
likely lead to permanent disfigurement and significant loss of function. He further
indicated that Ms. Turner was not at MMI and was unable to return to work. He
recommended that she see Dr. Quillin to “help manage depression due to work-
related injury.” Dr. Dole opined that Ms. Turner had preexisting depression
worsened by the stressors of losing her job and her loss of function. He was
hopeful that the plastic surgery would help her return to work at some point in the
future. As of the February 2014 deposition, his opinion had not changed.
8 On cross-examination, Dr. Dole confirmed that he had found Ms.
Turner disabled under social security guidelines in 2010 and had encouraged her to
apply for disability benefits. 3 In August 2012, nine months after the subject
accident, he again discussed disability with her; and in April 2013, he supplied
supporting documentation for her. In July 2013, Ms. Turner was awarded Social
Security Disability Benefits. Based upon the medical evidence and the testimony
at trial, the OWC reinstated Ms. Turner’s TTD benefits.
On appeal, Lexington argues that Ms. Turner should have been
awarded SEB at most because Dr. Goodman and Dr. Atchison signed off on the
task list in January 2013, and Dr. Atchison signed off on the nurse aid training
instructor position in April 2013. However, the record reveals that Dr. Atchison
retracted his approval of the instructor position on May 8, 2013, and both
physicians recommended an FCE earlier in January 2013 which was never
performed. The FCE is used to determine whether the employee is capable of
performing a sedentary level job. See Richard v. Calcasieu Parish Sch. Bd., 11-
469 (La.App. 3 Cir. 12/28/11), 125 So.3d 1113. Once the extent of the employee’s
disability is determined, and it is established that she can do a certain level of
work, it is then appropriate to convert TTD benefits to SEB, even though the
employee is not working and the SEB payments are based upon zero earning
3 During the cross-examination of Dr. Dole, Lexington’s attorney sought to obtain Dr. Dole’s opinion about events outside Dr. Dole’s records. In so doing, he repeatedly supplied Dr. Dole with inaccurate dates, confused Dr. Dole, and at times created a flawed sequence of events. Based upon the record, Ms. Turner filed an application for social security disability benefits in 2010, but dropped the claim apparently when hired by Lexington in September 2010. After a year of what appears to have been aggressive and physically active work, Ms. Turner had a total hip replacement on September 28, 2011. She returned to work November 14, 2011 and worked modified hours for four (4) weeks, until the accident on December 12, 2011. She received workers’ compensation benefits until they were terminated in May 2013. On July 3, 2013, Ms. Turner was found disabled and was awarded social security disability benefits as of the date of the subject accident, offset by workers’ compensation benefits and to be reviewed in twenty-four months.
9 capacity. See Id. Here, Ms. Turner is still under regular treatment by physicians.
No reasonably reliable determination of the extent of her disability has been made
because the recommendations of Dr. Atchison and Dr. Goodman regarding the
FCE were ignored by the employer.
In the WCJ’s reasons for judgment, he mentioned that the nurse aid
training instructor position was not actually in existence at Lexington at the time it
was offered. Lexington argues that the burden had not shifted to it to prove
availability under Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793 (La.
1/9/11), 56 So.3d 170, because Ms. Turner had not proved that she was unable to
earn 90% of her pre-accident wages. We addressed Poissenot and the shifting of
the burden in Richard, 125 So.3d 1113, and found that the conversion to SEB was
appropriate in Richard because an FCE had indicated that the claimant was capable
of performing sedentary work. There, the SEB was awarded at zero earning
capacity, and the burden shifted next to the employer to prove job availability at a
certain pay level. In Poissenot, also, an FCE had been performed.
We have an entirely different set of facts in this case. No FCE was
provided, and it appears that converting benefits to SEB was never even considered
by Lexington before this appeal. They simply terminated Ms. Turner’s TTD
benefits after Dr. Atchison retracted his approval of the nurse aid training
instructor’s position. The WCJ was very clear that he placed “great significance in
the testimony of Ms. Turner” who said she had taught the course at her previous
employment and at Delta College, and it required much more than the “occasional”
walking, stooping, and bending indicated by Lexington in the job description. The
WCJ also found that the evidence warranted further surgery. We find that the
10 WCJ’s determinations were reasonable and supported by the record. We affirm the
reinstatement of the TTD benefits.
Calculation of Average Weekly Wage
At the time of the December 12, 2011 injury, Lexington was paying
Ms. Turner $21.00 per hour as a full-time admissions coordinator. Giving her the
presumption of the forty-hour work-week in La.R.S. 23:1021(13)(a)(i), the WCJ
calculated her average weekly wage (AWW) at $840.00 and awarded her TTD
benefits at $560.00 per week ($21 x 40 x .666). Lexington contends that this was
error. It asserts that her wage should have been calculated on the actual hours
worked in the four weeks preceding the accident, pursuant to La.R.S.
23:1021(13)(a)(ii), rather than the presumed forty-hour week of La.R.S.
23:1021(13)(a)(i).4 We disagree. Ms. Turner’s hip replacement was on September
28, 2011. She took unpaid leave and returned to work on November 14 and was
working reduced hours post-surgery when the accident occurred on December 12.
Referring to the record and the exhibits in the record, Lexington states in its own
brief to this court: “Prior to Turner’s FMLA leave following her hip replacement
surgery, she was regularly offered and worked 40 hours per week.” Lexington’s
brief further states that it agreed to reduce her hours after her hip surgery. Thus,
4 Under La.R.S. 23:1021(13)(a), the AWW of employees paid by the hour is determined as follows:
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident[.]
11 Lexington had given its permission to the shorter hours worked by Ms. Turner for
the four weeks between her return to work on November 14 and the accident on
December 12, 2011.
Further, Ms. Turner’s payroll records for 2011 indicate that, in
addition to her “regular” pay hours, she received 48 hours of holiday pay, 46 hours
of overtime pay, 40 hours of vacation pay, 8 hours of jury duty pay, 5.10 hours of
in-service pay, and 7.7 hours of worked-holiday pay. She also received $1,047.45
in bonuses for the year, though $500.00 of that amount was not paid until February
2012. While the twenty-four days for post-surgery recovery that she took under
the FMLA were uncompensated, Lexington still allotted eight hours each day for
the leave. Accordingly, the records support the conclusion that Ms. Turner was a
full time employee with benefits who was temporarily working shorter hours
before the accident.
In Hargrave v. State, DOTD, 10-1044 (La. 1/19/11), 54 So.3d 1102,
the claimant took annual and sick leave and was actually not present for forty
hours of the four full weeks preceding his accident. The court determined that:
La.R.S. 23:1021(12)(a)(i) provides the average weekly wage is calculated based on the “average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater” [emphasis added]. In using this language, the legislature indicated its intent to base the calculation of an employee’s average weekly wage on the employee’s ordinary earning capacity, not actual hours being worked at the time of the injury. See MALONE & JOHNSON, 14 LOUISIANA CIVIL LAW TREATISE: WORKERS’ COMPENSATION LAW AND PRACTICE § 322, p. 82 (2002 ed.). Hargrave, 54 So.3d at 1107.
12 The Hargrave court found that because the claimant generally worked
a normal forty-hour week, there was no need to look to the actual hours worked.
We affirm the OWC’s finding that Ms. Turner was entitled to the
presumption of the forty-hour week under Hargrave and La.R.S. 23:1021(13)(a)(i).
Ms. Turner has answered the appeal, asserting that her AWW
calculation should have included $742.00 in pre-injury, taxable fringe benefits that
she received, thus, increasing her AWW calculation from $840.00 to $854.27 (($21
x 40 hours) + ($742.00 ÷ 52 weeks)) before computing the .666% indemnity
benefit. The $742.00 represents four paid holidays and one day of in-service pay
as discussed above. However, while Ms. Turner’s figures are correct, Hargrave
does not support the addition of holiday pay which is considered as already
included in the wage calculation under the forty-hour presumption of La.R.S.
23:1021(13)(a)(i). Accordingly, we affirm the OWC’s calculation of the total
AWW pursuant to Hargrave and La.R.S. 23:1021(13)(a)(i).
Reconstructive Surgery
Ostensibly quoting “La.R.S. 23:1221(p),” Lexington contends that the
OWC erred in ordering it to pay for reconstructive plastic surgery on Ms. Turner’s
hip due to the fat necrosis at the incision site. It argues that in “not a single
reported case” has a court granted “cosmetic surgery to correct disfigurement of
the hip or buttocks” area. The implication of this sentence placed immediately
below the quoted material is that the surgery is cosmetic only and is not
compensable because it does not involve disfigurement of Ms. Turner’s face or
head. We disagree. As a threshold matter, Lexington improperly cites the statute
and then egregiously misquotes it, quoting subparagraph (p) as it existed over
13 thirty years ago, prior to its amendment in 1983. The proper citation is La.R.S.
23:1221(4)(p).5
Paragraph (4) pertains to “permanent partial disability,” not TTD, and
to compensation “solely for anatomical loss of use or amputation.” Subparagraphs
(a) through (o) refer to loss of “members” such as hands, feet, etcetera. The
current version of subparagraph (p) refers to hearing loss and internal system loss,
but it has not since mid-1983 contained the language quoted by Lexington
regarding serious permanent disfigurement “about the face or head.”[6] Further,
subparagraph (p) refers to indemnity, not to medical compensation. The cited
statute is inapplicable, in either version, because Ms. Turner is not seeking
permanent partial disability under paragraph (4) of La.R.S. 23:1221; she is seeking
TTD under paragraph (1).
The record reveals that Ms. Turner is five feet six inches tall and
weighs 135 pounds. The fat necrosis in this case concerns a movable bulge that
causes pain when Ms. Turner sits, lies, or changes position. The surgery is
5 In cases not falling within any of the provisions already made, where the employee is seriously and permanently disfigured or suffers a permanent hearing loss solely due to a single traumatic accident, or where the usefulness of the physical function of the respiratory system, gastrointestinal system, or genito- urinary system, as contained within the thoracic or abdominal cavities, is seriously and permanently impaired, compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks may be awarded. In cases where compensation is so awarded, when the disability is susceptible to percentage determination, compensation shall be established in the proportions set forth in Subparagraph (o) of this Paragraph.
La.R.S. 23:1221(4)(p) (in pertinent part). 6 Prior to its 1983 amendment, La.R.S. 23:1221(4)(p), as quoted by Lexington, provided:
In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.
14 reconstructive, not merely for the appearance of the scar or the indentation in the
hip/thigh area. We note that plastic surgeons regularly provide wound care and
grafting procedures in connection with injuries and surgeries performed by other
specialists, and this is reflected in the jurisprudence. In particular, we note that as
a result of a bruise and collection of blood under the skin (a hematoma which had
become stagnant and clotted), a male claimant had a skin graft on his thigh by a
plastic surgeon in Fontenot v. Wal-Mart, 08-158 (La.App. 3 Cir. 3/4/09), 5 So.3d
298, writ denied, 09-770 (La. 5/29/09), 9 So.3d 165. There, the wound, located
five inches above the knee, had experienced tunneling deep into the groin area.
The compensability of the surgery was not at issue on appeal, and we find the case
illustrative of the jurisprudence discussing such procedures with no question as to
compensability.
Lexington has cited no statute or jurisprudence in support of its
assertion that such surgery is not compensable. Thus, the issue is causation and
medical necessity. Dr. Atchison testified that the three pre-injury surgeries, the
trauma injury, and the fourth surgery all combined to cause the need for the
reconstructive surgery: “I think it’s the first, the second, the third, the fourth, the
trauma––all of it together that led to the fat saying okay, I’ve had enough, the need
to send her to a plastic surgeon.”
Dr. Taylor Theunissen, a Baton Rouge specialist practicing in the area
of plastic and reconstructive surgery, saw Ms. Turner for consultation regarding a
wide scar with pain symptoms at the left hip. He testified by deposition that due to
the amount of indention at the top of the scar, he feared nerve damage or muscle
separation from trauma or surgery. Another possibility is that the skin had become
atrophic or thinned because of multiple surgeries, and the separation and thinning
15 of the skin and fat in the area caused the indention. Nerve damage was ruled out
by EMG in September 2013, but the artificial joint foreclosed the possibility of an
MRI of the musculature. There is also point tenderness at the bottom of the scar
that could indicate a neuroma or a scarred or capsulated nerve. When asked, he
clarified that radiating pain from back problems had nothing to do with point
tenderness in the incision scar.
Dr. Theunissen testified that his plan is to excise the scar and explore
the area for muscle integrity and nerve entrapment, making sure there is no
neuroma present. If the muscle is detached, he can repair it if it is not too close to
the joint. If the muscle is intact, he will reclose the skin that has been excised, and
graft fat to fill the cavity. Dr. Theunissen indicated that the revision of the skin
portion of the scar and the fat grafting are for aesthetic purposes, but the repair
associated with the point tenderness and pain are not.
Following his deposition testimony favoring the surgery, Dr. Dole
later indicated that he did not think the surgery was necessary. The trial court gave
little or no weight to Dr. Dole’s opinion on this issue, given that his specialty was
pain management. The OWC found that the treatment recommendations of the
two surgeons, Dr. Atchison and Dr. Theunissen, were medically necessary and
reasonable and found the defendant responsible for the costs thereof. We find that
the OWC’s award of reconstructive plastic surgery was reasonable under the facts.
Medication
Lexington further contends that the trial court erred in ordering it to
pay for anti-depressant medication that Ms. Turner was taking prior to the work
injury. However, the record reveals that Dr. Dole did not prescribe Lexapro until a
16 year and a half after the accident. At his deposition in February 2014, Dr. Dole
confirmed that he began treating Ms. Turner in 2008, after the (bi-polar) hip
surgery, and had treated her for hip pain, stress, anxiety, and depression since then.
He managed her medication for those issues as needed (e.g., changing her from
Restoril to Xanax to Klonopin, and back again; he was also managing her
Wellbutrin and pain medications).
In May 2013, Ms. Turner reported increased depression. Dr. Dole
wanted to put her on Lexapro, but she said she could not afford it. He indicated
that his treatment of Ms. Turner was approved by workers’ compensation in
December 2013, at which time he sought approval of the Lexapro. His March
2014 report indicated that Ms. Turner was on Lexapro and that her depression was
stable. The OWC ordered Lexington to pay for Dr. Dole’s treatment and
prescribed medications arising from the work injury. We affirm this award.
Penalties
Lexington contends that the trial court erred in ordering it to pay
penalties for: (1) arbitrary and capricious termination of indemnity benefits; (2)
payment of indemnity benefits at the wrong rate; (3) failure to authorize plastic
surgery; (4) failure to pay for anti-depressant medication; and (5) failure to order a
functional capacity examination. The OWC awarded a $4,000.00 penalty for
Lexington’s arbitrary and capricious termination of Ms. Turner’s TTD benefits
under La.R.S. 23:1201(I), and it awarded a $2,000.00 penalty for each of the four
failures to authorize benefits under La.R.S. 23:1201(F). We will address each
award separately under the appropriate statutes.
17 Termination of Benefits
In awarding $4,000.00 for the termination of Ms. Turner’s TTD
benefits under La.R.S. 23:1201(I),7 the OWC analogized this court’s decision in
Williams v. Tioga Manor Nursing Home, 09-417 (La.App. 3 Cir. 11/18/09), 24
So.3d 970, writ denied, 10-298 (La. 4/9/10), 31 So.3d 389. There, the claimant
was awarded $4,000.00 in penalties due to the employer’s termination of her
indemnity benefits and $4,000.00 for its discontinuance of the physician’s
treatment under La.R.S. 23:1201(I). Finding that Ms. Turner’s medical benefits in
general had not been terminated, the OWC limited the penalty to $4,000.00. We
agree with this analysis. Lexington terminated Ms. Turner’s indemnity benefits
three days after Dr. Atchison withdrew his approval of the nurse aid training
instructor position, stating that Dr. Atchison’s letter of withdrawal did not change
anything. Lexington has not pointed to an objective reason for terminating the
benefits at the time of the termination, which is the crucial inquiry. Williams, 24
So.3d 970. Whether an employer is arbitrary and capricious is a finding of fact
reviewed under the manifest error standard of review; and the actual amount of the
penalty award is not to be disturbed absent an abuse of discretion. Id. We find no
manifest error or abuse of discretion in the OWC’s determinations regarding the
$4,000.00 penalty for termination of indemnity benefits.
7 Louisiana Revised Statutes 23:1201(I) provides:
Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(C) shall be applicable to claims arising under this Chapter.
18 Failure to Authorize Benefits
The remaining four penalties were awarded for failure to authorize
certain benefits pursuant to La.R.S. 23:1201(F).8
Incorrect Rate: The OWC awarded $2,000.00 for Lexington’s initial
failure to pay Ms. Turner’s TTD benefits at the correct rate. Lexington paid those
benefits using the same calculation it argued in its appeal, as discussed above,
without giving her the forty-hour presumption of the full-time employee under
La.R.S. 23:1021(13)(a)(i). In the four full weeks preceding the accident, Ms.
Turner actually worked a total of 116.7 hours because she was recovering from
surgery and temporarily working reduced hours. Citing La.R.S. 23:1021(13)(a)(ii),
Lexington calculated Ms. Turner’s AWW at $612.67 and her disability payment at
$408.44. We note that, even if subparagraph (13)(a)(ii) were the applicable
subparagraph in this case, Lexington used only Ms. Turner’s naked wages for the
116.7 hours preceding the accident. It did not use any of the above-discussed
benefits that Ms. Turner earned and received in calculating her AWW, in spite of
8 Louisiana Revised Statutes 23:1201(F) provides in pertinent part:
Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. . . .
....
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
19 the mandate that any remuneration or reward for services should be included in
fixing an employee’s AWW. Daigle v. Sherwin-Williams Co., 545 So.2d 1005
(La.1989).
Here, the employer knew, based upon the record and its own
admissions, that Ms. Turner was a full-time employee who generally worked a
forty-hour week. Therefore, the appropriate provision was La.R.S.
23:1021(13)(a)(i). The WCJ stated, “The argument of the employers is completely
unacceptable given the Hargrave case and the information known by the employer,
that Ms. Turner was a full-time employee and she’s entitled to the presumption of
40 hours per week.” We have already explained the Hargrave case and its
applicability to this case, where it does provide relief, and where it does not
provide relief. Lexington continues to give its own interpretation of the law,
seeking to apply Hargrave’s preclusion of adding certain fringe benefits, without
applying Hargrave’s application of the forty-hour presumption under La.R.S.
23:1021(13)(a)(i). As indicated, Hargrave’s reason for precluding the addition of
certain fringe benefits is that they have already been included in the forty-hour
presumption. However, Hargrave does not prohibit the addition of fringe benefits
under La.R.S. 23:1021(13)(a)(ii), which Lexington purports to apply.
Lexington has provided no evidence of having controverted the claim
of withholding proper payments except its continuing insistence on appeal that Ms.
Turner should have the worst of both worlds, no presumption, and no consideration
of fringe benefits earned and received. We affirm the $2,000.00 penalty awarded
by the OWC under La.R.S. 23:1201(F) for Lexington’s failure to controvert Ms.
Turner’s claim that it paid TTD benefits at the wrong rate.
20 Reconstructive Plastic Surgery: The trial court awarded $2,000.00
for Lexington’s failure to authorize the plastic surgery to reconstruct the area
affected by the sinking of the incision and to repair the problems associated with
the point tenderness which is causing Ms. Turner continuing pain and disability.
We have already discussed Dr. Theunissen’s testimony and the medical necessity
and reasonableness of the surgery. Lexington has offered no medical evidence to
controvert the medical evidence supporting the surgery. Dr. Atchison approved the
surgery, and the defendant has failed to offer medical evidence that Dr.
Theunissen’s recommendation is unnecessary or unreasonable. As previously
discussed, the defendant has presented no legal authority to controvert the claim.
Accordingly, we find no merit in this assignment of error.
Medication: The OWC awarded $2,000.00 for Lexington’s failure to
authorize payment for anti-depressant medication. Lexington points to the
deposition of Dr. Dole, arguing that Dr. Dole actually reduced Ms. Turner’s
medication following the accident instead of increasing it. As previously
discussed, the dates used by Lexington’s attorney in deposing Dr. Dole were
inaccurate and misleading at times. For example, for several pages of the
deposition, the attorney told Dr. Dole repeatedly that Ms. Turner applied for the
job at Lexington in September of 2011, which is actually the date of the hip
replacement one year after going to work for Lexington. At one point Dr. Dole
asked him to slow down because he was “spinning dates” at him too quickly.
Moreover, the dates were often wrong.
On this particular issue regarding the anti-depressant medication,
Lexington mistakes the kind of medication being discussed. Lexington in its brief
points to two pages in the deposition and states that Dr. Dole said he actually
21 decreased her medication after the accident and that “there was no change at all
with respect to the dosage of her depression and anxiety medication.” This is
incorrect. On the first page referenced, Dr. Dole is asked to focus on December 7,
2011, the week before the accident, and he discusses, among other prescribed
medications, the anti-depressant Wellbutrin, and the muscle relaxer Zanaflex. On
the second page referenced, Dr. Dole is asked to discuss her next appointment,
which is March 6, 2012, three months after the accident. When asked if he
increased any medication at that time, Dr. Dole replied, “No. In fact, I
discontinued her Zanaflex.” When asked the reason, Dr. Dole responded that it
likely “was not helping.” Zanaflex was the muscle relaxer. There was no further
discussion of antidepressants. The remainder of the lines referenced by Lexington
discuss pain medication and pain scores.
We have already discussed in detail the Lexapro and its first
appearance in conjunction with increased depression in 2013. Lexington has not
controverted the claim for antidepressant medication. We affirm the penalty
awarded on this issue.
FCE: The OWC awarded a $2,000.00 penalty for Lexington’s failure
to authorize an FCE to determine Ms. Turner’s disability rating and what activities
she could perform. Lexington asserts that this award was made in error because
the FCE was not needed, as the claimant had already been released to sedentary
work, and as the FCE is not medical treatment to which a penalty will be attached.
We have already discussed the need for the FCE pursuant to the recommendations
of Dr. Atchison and Dr. Goodman, Lexington’s own choice of SMO. As to the
second assertion, the jurisprudence indicates that penalties may be awarded for
failure to authorize an FCE.
22 In Alpizar v. Dollar General, 13-1150 (La.App. 3 Cir. 3/5/14), 134
So.3d 99, where the claimant’s request for an FCE was rebuffed by the employer,
we affirmed the OWC’s award of a $2,000.00 penalty for the employer’s failure to
authorize the FCE. Likewise, the second circuit in Collins v. Patterson Drilling,
39,668 (La.App. 2 Cir. 5/11/05), 902 So.2d 1264, affirmed a penalty for failure to
authorize an FCE when requested by the IME (currently referred to as an SMO).
There, the court concluded that without the FCE and further evaluation of the
claimant’s limitations, “the IME report is incomplete.” Id. at 1269. Accordingly,
we affirm the OWC’s penalty award on this issue.
Attorney Fees
The trial court awarded $15,000.00 in attorney fees for the work done
by Ms. Turner’s attorney through trial. In her answer to the appeal, Ms. Turner
requests additional attorney fees of $7,500.00 for her attorney’s work on appeal:
responding to nine error assignments entailing three days of record review,
research, dictation, and editing; plus an additional two days preparing for and
traveling to oral argument. “An increase in attorney’s fees is awarded on appeal
when the defendant appeals, obtains no relief, and the appeal has necessitated more
work on the part of the plaintiff’s attorney, provided that the plaintiff requests such
an increase.” McKelvey v. City of Dequincy, 07-604, pp. 11-12 (La.App. 3 Cir.
11/14/07), 970 So.2d 682, 690. In McKelvey we awarded 3,000.00 for the work
done on an appeal involving multiple error assignments. Here, seven years later,
we find that attorney fees in the amount of $5,000.00 are warranted for the work
done on the appeal in this case.
23 V.
CONCLUSION
Based upon the foregoing, the judgment of the OWC awarding
penalties, indemnity benefits, and medical treatment, including the discussed
surgery and medication, is affirmed. We award attorney fees in the amount of
$5,000.00 for the work done on appeal. Costs of this appeal are assessed to the
defendant, Lexington House.