Davis v. Tri-Parish Rehabilitation

112 So. 3d 983, 2013 WL 1319555
CourtLouisiana Court of Appeal
DecidedApril 3, 2013
DocketNo. 12-1292
StatusPublished

This text of 112 So. 3d 983 (Davis v. Tri-Parish Rehabilitation) 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
Davis v. Tri-Parish Rehabilitation, 112 So. 3d 983, 2013 WL 1319555 (La. Ct. App. 2013).

Opinion

GREMILLION, Judge.

liThe defendant, Tri-Parish Rehabilitation, appeals the judgment of the workers compensation judge (WCJ) in favor of the plaintiff-employee, Carolyn Davis. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Davis, a certified nursing assistant, injured her back while transferring a patient from a bed to a wheelchair in June 2003. She filed a disputed claim for compensation with the Office of Worker’s Compensation (OWC) on December 8, 2010, claiming that the employer failed to authorize a shower chair, a memory foam mattress, and an MRI of her left knee. Davis sought penalties and attorney fees. In an amended answer filed on March 1, 2012, Tri-Parish claimed Davis forfeited her [985]*985benefits pursuant to La.R.S. 23:1208. Following a trial on March 7, 2012, and May 8, 2012, the WCJ found in favor of Davis. It ordered Tri-Parish to provide a memory foam mattress and approve an MRI of Davis’ knee.1 It assessed Tri-Parish with a penalty of $6,000 and awarded attorney fees of $11,750. It further denied the defenses asserted by Tri-Parish under La. R.S. 23:1208.2 Tri-Parish now appeals. Davis answered the appeal seeking an increase in attorney fees associated with defending the appeal.

ISSUES

Tri-Parish assigns as error:

1. The Office of Workers’ Compensation was manifestly erroneous in ordering the defendant to authorize an MRI that is no longer necessary and assessing penalties and attorney fees for its failure to do so.
|a2. The Office of Workers’ Compensation was manifestly erroneous in ordering the employer to authorize the memory foam mattress and assessing the employer penalties and attorney fees for its failure to do so.
3. The Office of Workers’ Compensation was manifestly erroneous in assessing the employer penalties and attorney fees for failing to timely authorize the shower chair.
4. The OWC was manifestly erroneous in finding that Ms. Davis did not violate La.R.S. 23:1208 resulting in a forfeiture of her right to all benefits.

OPINION

The “manifest error-clearly wrong” standard is the well-settled standard of review applicable in workers’ compensation cases. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Accordingly, the finding of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander [v. Pellerin Marble & Granite, 93-1698 (La.1/14/94),], 630 So.2d [706,] 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

Id.

Davis testified on the first day of trial, March 7, 2012. She said that she was prescribed the mattress on August 31, 2009 as evidenced by the prescription submitted into evidence. Davis said that the mattress had yet to be approved as of the date of trial. The shower chair was prescribed on October 25, 2010. Davis could not remember exactly when she received it, but she said that it was more than two months (60 days) after she requested it.

|sThe MRI prescription is dated July 5, 2010. Davis testified that she has ongoing and worsening back and left knee pain. She walks with a cane due to the pain and because she sometimes loses balance. She said her left knee had been bothering her since the day of her injury. She testified that she uses the cane all of the time. She [986]*986said that she cannot stand or sit for too long.

Gary Williams, an adjuster with Risk Management Services, the third-party administrator for Louisiana Commerce and Trade Association, (LCTA), worker’s compensation fund, for sixteen years, testified that he began working on Davis’ claim in May 2010. He essentially testified that Davis’ claim for a shower chair was unwarranted as she could be seen on video standing for long periods of time. He further testified that he reviewed Dr. Gun-derson’s medical records and that a left knee injury was never documented as having resulted from the work-related accident. Williams stated that Davis only uses her cane when picking up her disability check at the social security administration office and for the FCE, but does not otherwise regularly use it. He described viewing the surveillance of Davis engaged in “quite vigorous activity” the day before her FCE.

Williams eventually approved the shower chair months after the prescription was written and after the dispute was filed. He said that he approved it based on his attorney’s recommendation, but that there was no medical reason to approve it.

Gene Sittig, a field investigator for Quality Investigative Group for the past seven years, testified that he conducted the video surveillance of Davis. He said that he recorded any movement whether it appeared to be helpful or hurtful. Sittig only videotaped Davis for two days in January or February of 2012.

14The April 12, 2012 deposition of David Regan, a licensed physical therapist, was submitted into evidence. Regan conducted the FCE of Davis on February 24, 2012. He described all of the detailed physical activities that Davis was required to perform and deemed the results “conditionally valid” finding that the “client has not intentionally manipulated the results but has demonstrated an early termination point.” Regan noted that Davis arrived and left using a cane, but did not use it during the assessment. As to her level of activities, Regan assigned her a sedentary level of capability based on what she demonstrated as her safe level of capabilities according to the assessments and the activities that she participated in. Davis stated that “she was capable of performing something a little bit greater than what she demonstrated.”

Dr. Clark Gunderson’s April 80, 2012 deposition was submitted into evidence.3 Dr. Gunderson, Davis’ treating orthopedic surgeon, stated that he performed a dis-cectomy on April 26, 2004, and a repeat discectomy and fusion on July 25, 2005. In January 2006, he referred Davis to Dr. Lopez, a pain management specialist. Dr. Gunderson’s January 2012 notes indicate that she complained of pain in left knee, “which she said was related to this injury.” Regarding whether the left knee pain was related to the work accident, Dr. Gunder-son stated, “when I first saw her, I had said she had pain going down her left leg to the knee and then I asked her about it later, more recently. And she said, Well, that’s when it all started.’ I don’t have anything in my file dating back to then.” Dr. Gunderson said that he could not really offer an opinion one way or the other.

| ^Regarding the video surveillance, Dr. Gunderson concentrated on the day before and after the FCE and stated:

A. Yes. They were basically of her standing outside, her bent forward pos[987]*987ture.

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Bluebook (online)
112 So. 3d 983, 2013 WL 1319555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-tri-parish-rehabilitation-lactapp-2013.