Doane v. Omni Royal Orleans Hotel

204 So. 3d 615, 2016 La.App. 4 Cir. 0144, 2016 La. App. LEXIS 1949
CourtLouisiana Court of Appeal
DecidedOctober 26, 2016
DocketNO. 2016-CA-0144
StatusPublished
Cited by10 cases

This text of 204 So. 3d 615 (Doane v. Omni Royal Orleans Hotel) 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
Doane v. Omni Royal Orleans Hotel, 204 So. 3d 615, 2016 La.App. 4 Cir. 0144, 2016 La. App. LEXIS 1949 (La. Ct. App. 2016).

Opinion

JUDGE SANDRA CABRINA JENKINS

[, This is an appeal from an August 21, 2015 judgment of the worker’s compensation judge (“WCJ”) finding that appel-lee/employer, Omni Royal Orleans Hotel (“Omni”), satisfied its burden of proof at trial that appellant/employee, Alicia Doane, was no longer entitled to payment of supplemental earnings benefits (“SEBs”) because she was capable of earning greater than 90 percent of her pre-accident wage. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 9, 2010, Ms. Doane was injured in an accident while she was in the course and scope of her employment as a cook in the kitchen at the Omni in New Orleans. Ms. Doane reported that a large tray of meat fell from a cart and hit her head, causing her to fall backward and strike her head on the concrete floor, losing consciousness. At the emergency room, Ms. Doane complained of headaches, dizziness, nausea, and photophobia. CT scans of her brain/head and cervical spine were normal.

Ms. Doane was initially treated by a neurologist, Dr. Charles Fiore, who diagnosed Ms. Doane as suffering from a concussion resulting from the accident. Dr. [617]*617Fiore described Ms. Doane’s head injury as “relatively minor,” and reported that he expected Ms. Doane to reach maximum medical improvement within four |2months of the accident. On November 9, 2010, Omni began paying total temporary disability (“TTD”) benefits to Ms. Doane.

In June 2011, Ms. Doane reported to Dr. Fiore that she was feeling “much, much better.” Dr. Fiore then released Ms. Doane to light duty work, subject to certain restrictions such as working no more than 30 hours per week, and taking breaks and unscheduled absences. Ms. Doane returned to work at the Omni in June 2011, working at an omelet station three days per week with eight-hour days. As a result of her return to work, Omni terminated Ms. Doane’s TTD payments on June 10, 2011. On or about October 14, 2011, Ms. Doane left her employment at Omni, where she had been earning $12.30 per hour.

On October 25, 2011, Ms. Doane filed a Disputed Claim for Compensation with the Office of Workers’ Compensation. Ms. Doane disputed Omni’s calculation of her average weekly wage and her disability status. She also sought penalties and attorney’s fees for failure to provide benefits.

In January 2012, Ms. Doane began working as an independent contractor for Innovative Hospitality Services (“IHS”), earning $11.90 per hour as a banquet server. In February 2012, Ms. Doane was seen by another neurologist, Dr. Morteza Shamsnia, this time complaining of neck pain and pain in her - temporomandibular joint (“TMJ”). An MRI was normal except for some sinus issues. Dr. Shamsnia placed no work restrictions on Ms. Doane and made no diagnosis.

The trial of Ms. Doane’s workers’ compensation claim was held before the WCJ on May 11 and May 16, 2012. On August 17, 2012, the WCJ rendered a judgment (the “August 2012 Judgment”) awarding Ms. Doane: (1) back-due indemnity benefits of $935.68; (2) SEBs of $2,944.99 from June 10, 2011 through December 31, 2011; (3) $2,000.00 in penalties based on Omni’s failure to correctly | ¡¡calculate Ms. -Doane’s average weekly wage; (4) $2,000.00 in penalties based on Omni’s failure to pay Ms. Doane SEBs when it knew that her earning capacity was less than 90 percent of her pre-accident wage; and (5) $12,500.00 in attorney’s fees based on Omni’s failure to correctly calculate her average weekly wage and failure to pay SEBs. The WCJ found that Ms. Doane was entitled to payment of SEBs “until she [was] able to earn 90% of her pre-injury wage or as otherwise dictated by the Act.” The WCJ also found, however, that the “medical evidence demonstrate^] that any ongoing disability beyond those restrictions assigned by Dr. Fiore is unrelated to the work place accident and is therefore not compensable.”

Although Ms. Doane earned $5,849.81 in wages from IHS between January 2012 and April 2013, in June 2013, Ms. Doane stopped working for IHS and began to report a zero earning capacity. In July 2013, Omni filed a Petition to Modify the August 2012 Judgment on the grounds that Ms. Doane’s disability status had changed, that she was capable of earning greater than 90 percent of her average weekly wage, and that any current disability was not causally related to her workplace injury. Omni also filed a Notice of Suspension of Benefits. In response, Ms. Doane filed a Motion to Enforce the August 2012 Judgment awarding her SEBs.

The trial of Omni’s Petition to' Modify Judgment and Ms. Doane’s Motion to Enforce Judgment was held on August 21, 2013, December 19, 2013, January 6, 2014, and April 17, 2014.

[618]*618On August 21, 2015, the WCJ rendered a judgment granting Omni’s Petition to Modify the August 2012 Judgment. The WCJ concluded that Omni carried its burden of proving that Ms. Doane’s medical condition had changed since the August 2012 Judgment, and that Ms. Doane was capable, of earning greater than 90 |4percent of her pre-accident wage. Accordingly, the WCJ declared that Ms. Doane was no longer entitled to SEBs.1

DISCUSSION

As an initial matter, we note that Ms. Doane’s pro se brief does not comply with the requirements of Uniform Rules, Courts of Appeal, Rule 2-12.4. Ms. Doane’s two-page, handwritten brief contains no assignments of error, no briefing of arguments, no record references, and no jurisdictional statement. Despite this noncompliance, this court has considered briefs in improper form when filed by a pro se party. See Carsice v. Empire Janitorial, 08-0741, p. 3 (La.App. 4 Cir. 12/17/08), 2 So.3d 553, 555; Williams v. Orleans Parish Sch. Bd., 10-1441, p. 3 (La.App. 4 Cir. 2/9/11), 61 So.3d 48, 50. Accordingly, in light of Ms. Doane’s pro se status, we consider the merits of her appeal.

In her brief, Ms. Doane states that, as of March 2016, she is still experiencing heady aches and dizziness caused by her work-related accident on November 9, 2010, and that she believes that she should still be receiving workers’ compensation benefits. As far as can be ascertained from Ms. Doane’s pro se brief, the sole issue is whether the WCJ erred in finding in August 2015 that Omni was no longer obligated to pay SEBs because Ms. Doane .was capable of earning greater than 90 percent of her pre-accident wage.2

Standard of Review

On appellate review, the WCJ’s findings as to whether an employer carried its burden of proving that SEBs should be reduced or terminated is governed by the | ^manifest error or clearly wrong standard of review. Bastoe v. Burger King Distribution Serv., 96-0021, 96-0023 p. 5 ( La.App. 4 Cir. 3/19/97, 691 So.2d 274,277. In applying the manifest error standard, we must review the entire record and determine whether the factual conclusions of the WCJ are reasonable, not whether the fact-finder was right or wrong. Russell, 15-0380 at p. 13, 187 So.3d at 101. When legal error interdicts the fact-finding process, however, our review of those findings is conducted de novo, Aisola v. Beacon Hosp. Mgt., 13-1101, p. 8 (La.App. 4 Cir. 4/2/14), 140 So.3d 71, 77. We likewise review the WCJ’s legal conclusions de novo. Id., 13-1101 at pp. 8-9,140 So.3d at 78.

Shifting Burdens of Proof: Entitlement to SEBs

“The purpose of SEBs is to provide compensation to an injured employee for [her] lost wage-earning capacity.” Bas-toe, 96-0021 at p. 3, 691 So.2d at 276.

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Bluebook (online)
204 So. 3d 615, 2016 La.App. 4 Cir. 0144, 2016 La. App. LEXIS 1949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doane-v-omni-royal-orleans-hotel-lactapp-2016.