Clifton v. RAPIDES REGIONAL MED. CENTER

689 So. 2d 471, 1996 WL 577464
CourtLouisiana Court of Appeal
DecidedOctober 9, 1996
Docket96-509
StatusPublished
Cited by9 cases

This text of 689 So. 2d 471 (Clifton v. RAPIDES REGIONAL MED. CENTER) 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
Clifton v. RAPIDES REGIONAL MED. CENTER, 689 So. 2d 471, 1996 WL 577464 (La. Ct. App. 1996).

Opinion

689 So.2d 471 (1996)

Sandra CLIFTON, Plaintiff-Appellant,
v.
RAPIDES REGIONAL MEDICAL CENTER, Defendant-Appellant.

No. 96-509.

Court of Appeal of Louisiana, Third Circuit.

October 9, 1996.

*472 W. Jay Luneau, Alexandria, for Sandra Clifton.

Samuel Newman Poole, Jr., Alexandria, for Rapides Regional Medical Center.

Before SAUNDERS, SULLIVAN and GREMILLION, JJ.

GREMILLION, Judge.

This is an appeal from a decision of the Office of Workers' Compensation. The employer, Rapides Regional Medical Center, appeals the imposition of attorney's fees and penalties while the employee, Sandra Clifton, appeals the hearing officer's decision that she was not entitled to disability benefits after April of 1994 and in not allowing the rebuttal testimony of her previous attorney to be admitted into the record. We affirm the decision of the hearing officer.

FACTS

On January 27, 1993, Clifton was employed by Rapides in the housekeeping department. While at work, she was told to report to the emergency room to clean a spill from a broken bottle. She was not told that the bottle contained the hazardous chemical Phenol and she proceeded to clean the spill without the use of any protective clothing. Approximately one and a half hours later, Clifton was told to bring the mop, the mop water, the towels, and any other materials she used to clean the spill back to the emergency room. When she returned to the emergency room, she found that fire fighters in protective clothing had been called to the scene to set up exhaust fans and evacuate the area. Later that day, Clifton was once again called to the emergency room to be examined by Dr. David Shepard. *473 She related to him that her eyes, mouth, and tongue were burning. After the examination, she returned to her normal duties. The next day, she noticed that she was developing a rash, and complained of having headaches and being able to still smell and taste the Phenol. She saw Dr. Jack Cappell at the Industrial Medicine Clinic and was prescribed medication for the rash. She continued to be treated at the Industrial Medicine Clinic and was then referred to Dr. Tunca Ertan, a pulmonary specialist at Rapides. Clifton was also referred to a psychiatrist, Dr. Harry Guiterrez, by the Employee Assistance Program at Rapides. After consultation with Dr. Guiterrez, Clifton decided to seek her own choice of treating physicians, Dr. Stuart Kutz, because she felt uncomfortable with Dr. Guiterrez.

Dr. Kutz treated Clifton for depression and anxiety and placed her on antidepressants and started her on a regiment of episodic supportive therapy. Clifton also saw Dr. Robert Rush for medical treatment. Relying on the results of a battery of tests, Dr. Kutz concluded that she was not malingering.

Dr. Kutz released Clifton from his treatment in March of 1994. She returned to see him in August of 1994 when she began having additional problems. Dr. Kutz actively treated Clifton and on March 6, 1995, he reported that Clifton was still having headaches, numbness in her hands, difficulty breathing, and mild insomnia. Dr. Kutz continued to treat her through the time of the trial.

Clifton was also seen by Dr. Thomas Hannie for an Independent Medical Examination as requested by Rapides. After reviewing the medical reports provided by Rapides and after one visit with Clifton, Dr. Hannie reported that "feigning was apparent" but that it could not be classified as malingering due to a lack of clearly purposeful behavior on Clifton's part. However, it was discovered at trial that Dr. Hannie was relying on incomplete data, primarily raw test scores.

Clifton filed a disputed claim for compensation due to Rapides refusal to approve her choice of psychologist, Dr. Kutz, and for attorney's fees. At a hearing on November 12, 1993, Rapides argued that Dr. Kutz was not a physician as defined by the Workers' Compensation Act and that Dr. Guiterrez was her choice of physician. The hearing officer found that Dr. Kutz was a physician under the act and that Dr. Guiterrez was not her chosen physician. However, the hearing officer did not rule on the issue of attorney's fees. On February 5, 1994, another hearing was held to determine if Clifton could prohibit Rapides from writing to her treating physicians with questions concerning her treatment. The hearing officer held that she could not. Also to be heard on that same date was the issue of penalties and attorney's fees for Rapides' failure to grant Clifton's choice of physicians. At this time, Rapides made the contention that Dr. Kutz services were not reasonable nor necessary. The hearing officer inquired whether utilization review had been completed and was told it had not. The hearing officer then ruled that this issue could not be addressed until review was completed and ordered Rapides to begin utilization review. More than one year later, on February 22, 1995, Clifton filed a motion and order to compel utilization review. On March 24, 1995, a hearing was held on that motion. By this time, Rapides had begun utilization review and the hearing officer determined that the issue was moot and that the issue of penalties and attorney's fees would be taken up during the hearing on the merits. That hearing was held on August 11, 1995, and the hearing officer requested post hearing briefs from both parties and took the matter under advisement. On September 14, 1995, written reasons for judgment were issued. The hearing officer found that Clifton had suffered a compensable injury; that her benefits were properly terminated in April of 1994; that the treatment of Dr. Kutz was reasonable; that Rapides was arbitrary and capricious in failing to approve Clifton's choice of psychologist and was required to pay $5,000.00 in attorney's fees; and that Rapides was arbitrary and capricious in delaying the commencement of utilization review and required it to pay attorney's fees of $8,500.00.

From this judgment, Rapides filed a motion for suspensive appeal on September 27, 1995, alleging that the hearing officer committed *474 two errors. Clifton filed a motion for a devolutive appeal on October 10,1995, and alleges four assignments of error.

STANDARD OF REVIEW

The standard for fact review in workers' compensation cases is provided in Freeman v. Poulan/Weed Eater, 93-1530, p. 4 (La. 1/14/94); 630 So.2d 733, 737:

In a workers' compensation case, as in other cases, the appellate court's review is governed by the manifest error or clearly wrong standard. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La. 1992). A court of appeal may not set aside a trial court's or a jury's finding of fact in absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State Through DOTD, 617 So.2d 880, 882 (La. 1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987); Rosell, supra; Stobart, supra. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Stobart, supra.

RAPIDES' ASSIGNMENTS OF ERROR

1.

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Cite This Page — Counsel Stack

Bluebook (online)
689 So. 2d 471, 1996 WL 577464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clifton-v-rapides-regional-med-center-lactapp-1996.