STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
03-1241
DONNA M. PHILLIPS
VERSUS
DIOCESE OF LAFAYETTE
************
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4, PARISH OF LAFAYETTE, NO. 02-00693, SHARON M. MORROW, WORKERS’ COMPENSATION JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Jimmie C. Peters, Michael G. Sullivan, and Glenn B. Gremillion, Judges.
AFFIRMED AS AMENDED.
Christopher R. Philipp Attorney at Law Post Office Box 2369 Lafayette, Louisiana 70502-2369 (337) 235-9478 Counsel for Plaintiff/Appellee: Donna M. Phillips
Eric J. Waltner Allen & Gooch Post Office Drawer 3768 Lafayette, Louisiana 70502-3768 (337) 291-1400 Counsel for Defendant/Appellant: Diocese of Lafayette SULLIVAN, Judge.
In this workers’ compensation case, the Diocese of Lafayette (the Diocese)
appeals a judgment in favor of Donna Phillips rejecting its claim for forfeiture of
benefits under La.R.S. 23:1208 and awarding Ms. Phillips penalties and attorney fees
for a one-year delay in approving psychotherapy and biofeedback sessions
recommended by her treating psychiatrist. Ms. Phillips has answered the appeal,
seeking an additional penalty, as well as additional attorney fees for defending this
appeal. We affirm and amend as follows.
Factual and Procedural Background
Ms. Phillips was injured on October 11, 1997, as she lifted two food trays while
working in a school cafeteria. She was initially treated by Dr. Stanley Foster, an
orthopedic surgeon, for pain in her neck and between her shoulder blades that radiated
to the left hand and lower back. A cervical MRI indicated degenerative changes at
C4-5, C5-6, and C6-7 that Dr. Foster related to some of her pain, as well as a small
herniation at C6-7 that caused some compression of the thecal sac, but did not require
surgery at that time. In May of 1998, Dr. Foster referred Ms. Phillips to a physiatrist,
Dr. Thomas Laborde, who treated her with medication and steroid injections through
July of 2002 for chronic pain, diffuse tenderness, and intermittent spasm and trigger
points. During the course of his treatment, Dr. Laborde referred Ms. Phillips to a
psychologist, Dr. Jimmie Cole, and to a psychiatrist, Dr. Charles Bramlet.
Ms. Phillips had also been evaluated by Dr. John Cobb, an orthopedic surgeon.
After reviewing the cervical MRI and a thoracic MRI that showed spondylosis from
T6 through T9, Dr. Cobb recommended a cervical fusion and thoracic injections, with
a possible thoracic fusion from T6 through T9, should her pain in that area become
unacceptable. Dr. Thomas Montgomery, another orthopedic surgeon, did not
recommend surgery, as he found no evidence of a compressive neuropathy. The Office of Workers’ Compensation (OWC) then ordered an examination by a third
orthopedic surgeon, Dr. Angela Mayeux. 1 Dr. Mayeux saw no need for thoracic
surgery, and she believed that the cervical procedure recommended by Dr. Cobb
would have only a 50% chance of improving Ms. Phillips’ symptoms.
The Diocese disputed certain aspects of Ms. Phillips’ claim, which resulted in
a judgment of March 16, 2001, recognizing her entitlement to supplemental earnings
benefits (SEB) at a zero-earnings rate and declaring the reasonableness and medical
necessity of the surgical procedure recommended by Cobb. Ms. Phillips never
underwent that procedure, but she continued treatment for pain management with
Dr. Laborde and Dr. Bramlet.
Dr. Bramlet first saw Ms. Phillips in January of 2001, when she reported a high
level of cervical and lower back pain, which significantly limited her physical
abilities, and a significant amount of depression and anxiety symptoms, including the
loss of interest in pleasurable activities, crying spells, and problems with memory and
concentration. Although Dr. Bramlet noted that Ms. Phillips was “a little dramatic
with her presentation and detail,” he concluded that she met the criteria for chronic
cervical and lower back pain, with some radiculopathy and a myofascial component.
He also concluded that she exhibited an “anxiety disorder . . . chronic in nature from
trying to learn to deal with changes that goes [sic] along with dealing with this type
of injury.” To improve her chances of returning to gainful employment, Dr. Bramlet
believed it was necessary to be “extremely aggressive with her treatment” and to
“really manage her psychological factors.” He proposed several medication changes,
as well as ten individual therapy sessions and five biofeedback training sessions.
1 Dr. Mayeux’s report and deposition are not in the record before us, but a summary of their contents is contained in Dr. Anderson’s records.
2 On February 5, 2001, the Diocese’s managed care company denied
Dr. Bramlet’s request for continued psychotherapy as not “reasonable or necessary for
this claimant’s soft tissue injury.” This denial was affirmed on February 28, 2001 and
again on July 19, 2001, with the notation that “it is not reasonable to assume that a
soft tissue injury could have precipitated a major psychiatric illness.” In the
meantime, Dr. Bramlet, who continued to see Ms. Phillips for medication
management, believed that she had decompensated since her initial visit, leading him
to recommend a more intensive nine-week, half-day program to deal with the
worsening of her condition caused by the delay in treatment.
On September 26, 2001, Dr. James Anderson, also a psychiatrist, examined
Ms. Phillips at the Diocese’s request. Ms. Phillips reported that she experiences
tightness in her neck that makes it hard to turn her head, aching under the shoulder
blades, and pain around the mid-back and chest that “paralyzes” her. She stated that
she is in pain almost every day and that if she did not take her pain medication she
would be hurting all the time. Dr. Anderson noted that her MMPI-2 clinical profile,
indicating neurotic tendencies, was valid. He further stated that standardized testing
supported his clinical impression that a major component of Ms. Phillips’ pain is
related to psychological issues and functional in origin. He believed that she could
benefit from continued psychiatric treatment, including biofeedback, but he
considered her a poor candidate for surgical intervention to relieve her pain.
When the Diocese did not provide the requested medical treatment after
receiving Dr. Anderson’s report, Ms. Phillips filed this disputed claim for medical
benefits, penalties, and attorney fees on January 25, 2002. A mediation conference
was held on March 19, 2002, after which the Diocese agreed to approve the requested
treatment, but still contested the issues of penalties and attorney fees. On May 9,
3 2002, the Diocese asserted a claim for forfeiture of benefits based upon video
surveillance that allegedly “chronicles her ability to move in normal fashion and free
of pain.”
After a trial, the workers’ compensation judge (WCJ) rejected the Diocese’s
forfeiture defense. Although the WCJ noted that the surveillance was “somewhat at
odds with Ms. Phillips’ dramatic complaints,” the WCJ found that this disparity did
not warrant a finding of fraud, given corroboration at trial from Ms. Phillips’
neighbors and Ms. Phillips’ credible explanations for her conduct. The WCJ also
concluded that the severity of Ms. Phillips’ complaints to her physicians was based
upon unintentional exaggeration or neurotic tendencies as identified by Dr. Anderson
in the MMPI-2 profile, rather than wilful misrepresentation. In awarding penalties of
$2,000 and attorney fees of $5,000, the WCJ concluded that the Diocese could not rely
on surveillance obtained in July of 2001 to reasonably controvert a claim for medical
benefits that it initially denied in February of 2001.
Forfeiture of Benefits
In its first assignment of error, the Diocese argues that the WCJ erred in finding
that it did not meet its burden of proving that Ms. Phillips violated La.R.S. 23:1208.
That statute, in part, provides:
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
....
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.
(Emphasis added.)
4 In Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La.App. 2 Cir. 3/10/03),
839 So.2d 1231, 1238, writ denied, 03-1068 (La. 6/6/03), 845 So.2d 1093 (citations
omitted), the court explained the application of La.R.S. 23:1208 as follows:
La.R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions.
Concerning the standard of appellate review of a forfeiture claim, the court in
Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d
676, 680, writ denied, 03-2177 (La. 11/14/03), 858 So.2d 425 (citations omitted),
stated:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.
The Diocese contends that video surveillance of Ms. Phillips contradicts
statements that she made in her deposition and to her doctors concerning her
gardening activities and the severity of her complaints. In her deposition, taken in
April of 2002, Ms. Phillips admitted that she “piddles” with her flowers, including
“pull[ing] weeds and stuff,” but she denied that she moves her window flower boxes
around because, even though she can, she is “going to be hurting” or is “going to pay
for it.” On the surveillance tapes obtained in July of 2001, however, Ms. Phillips is
shown stepping through a large window several times onto her porch, where she
moved two window boxes. At trial, Ms. Phillips testified that she had forgotten about
5 that incident, explaining that she was moving the window boxes so that a neighbor
could water her flowers while she was out of town.
In her deposition, Ms. Phillips described pain in her neck that restricts her
ability to turn her head while driving; numbness in her hands, fingers, and feet; pain
in both arms, worse on the left; and a heaviness in her legs that prevents her from
walking at times. In July of 2001, about the time of the first surveillance taken,
Ms. Phillips reported to Dr. Cobb that she was not improving and that the pain at
times was so unbearable that she had to go to bed. During her individual therapy
sessions in March of 2002, she reported to Dr. Bramlet’s nurse that she was
overwhelmed by her chronic pain, which interferes with doing what she wants to do.
In those sessions, she was tearful at times, reporting numerous symptoms of
depression, including a low energy level, lack of sleep, low self-esteem, and social
isolation. The Diocese argues that these complaints are inconsistent with the activities
shown on the July 2001 surveillance tape, as well as surveillance obtained in January
and February of 2002. In the later videos, Ms. Phillips is seen bending forward while
rolling down a vehicle’s windows and while picking up something from the ground,
walking up and down stairs, entering and exiting the passenger side of a vehicle, and
covering the plants on her porch with a plastic bag.
The WCJ considered Ms. Phillips statement in her deposition that she had not
moved her window boxes to be a “clear ‘misrepresentation’” in light of the
surveillance taken in July of 2001, but she found that it did not amount to fraud.
“After establishing that a claimant has made a false statement or misrepresentation .
. . the [WCJ] must make a factual determination as to whether, based on the record,
the statement was willfully made specifically to obtain benefits, and thus defraud the
workers’ compensation system.” Harris v. Christus St. Patrick Hosp., 02-1502, p. 6
6 (La.App. 3 Cir. 10/22/03), 857 So.2d 1278, 1283, writ denied, 03-3193 (La. 2/13/04),
__ So.2d __ (quoting Marler v. New Orleans Area Council, Boy Scouts of Am.,
01-1167, pp. 7-8 (La.App. 5 Cir. 3/13/02), 815 So.2d 131, 135) (second alteration in
original). In the present case, the WCJ apparently accepted Ms. Phillips’ explanation
that she had forgotten about that occasion in July, in which she moved the window
boxes so that a neighbor could water the flowers while she was out of town. We find
no error in this credibility determination, given the corroboration of Ms. Phillips’
explanation at trial. In the video, Ms. Phillips is seen moving the window boxes from
an area that is only accessible from inside her apartment toward a common porch area,
which is consistent with her explanation that she moved them so that a neighbor could
water them while she was away. Jackie Cormier, who lives in the same complex as
Ms. Phillips, testified that she has seen Ms. Phillips tend to her flowers through her
window only once, just before Ms. Phillips left town at the beginning of August 2001.
Ms. Cormier also testified that she and other neighbors have moved Ms. Phillips’
large plants for her.
The WCJ next considered what she termed an “ambiguous ‘misrepresentation,’”
in that Ms. Phillips activities on the tapes were “somewhat at odds” with her dramatic
complaints to her doctors. However, the WCJ again found that Ms. Philips’ did not
commit fraud, considering that Dr. Anderson reported that her MMPI-2 profile
includes “neurotic” tendencies and that Ms. Phillips exhibited some movements on the
tapes that were “consistent with pain, age or deconditioning[.]” Again, we find no
error. First, we note that the surveillance tapes do not appear to show Ms. Phillips
performing activities that are inconsistent with the sedentary to light duty restrictions
placed on her by her doctors. We next point out that some of Ms. Phillips’ complaints
were corroborated by lay testimony at trial. Lisa Istre, who lived next door to Ms.
7 Phillips from July of 1997 through October of 2000, testified that she has helped Ms.
Phillips with her heavy housecleaning, including moving the large plants, cleaning the
carpets, and mopping. Ms. Istre testified that she has seen Ms. Phillips grab her neck
in pain and complain about picking up a bag of sugar. According to Ms. Istre,
Ms. Phillips seems more mobile at some times, but worse at others. Ms. Cormier
testified that Ms. Phillips calls her whenever she needs help. She has rearranged
Ms. Phillips’ furniture and has moved her large plants. In her observation,
Ms. Phillips has become worse since their first meeting in March of 2001. Although
Ms. Cormier testified that she has seen Ms. Phillips tend to her flowers, she also stated
that Ms. Phillips can only do so for about an hour and that pain is evident on her face
when she is done.
In Bergeron v. Cajun Kwik Mart, Inc., 03-675, pp. 3-4 (La.App. 3 Cir. 11/5/03),
858 So.2d 748, 750, this court refused to disturb the WCJ’s rejection of a forfeiture
defense, stating: “While there is some discrepancy between [the plaintiff’s] testimony
and what is depicted on the surveillance video, we, as did the [WCJ], find that these
discrepancies do not equate to fraud, but rather reflect on the extent of her disability.”
Similarly, in Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir.
12/27/02), 834 So.2d 642, writ denied, 03-367 (La. 4/21/03), 841 So.2d 802, we found
that variances between the plaintiff’s testimony and video surveillance of his activities
did not support a finding of fraud, where the plaintiff testified that he has good days
and bad days and that he suffers great pain when he exceeds his physical limitations,
and where the video showed him walking slowly and tentatively, supporting his claim
that he could not walk, stoop, or bend for extended periods of time. In the present
case, we find no error in the determination that Ms. Phillips did not commit fraud,
given the WCJ’s credibility determinations; the corroboration, both lay and medical,
8 of her complaints; and the videotapes themselves, which do not depict Ms. Phillips
performing activities beyond her physical restrictions.
Penalties and Attorney Fees
In its second assignment of error, the Diocese argues that the WCJ erred in
imposing penalties and attorney fees, given its reliance on the utilization review
process in denying the claim and the video surveillance that supported its forfeiture
defense. The WCJ imposed these sanctions after determining that the Diocese could
not rely on the subsequently-obtained surveillance to justify its failure to approve
psychotherapy and biofeedback within sixty days of their request and that the
utilization review process was insufficient to reasonably controvert the claim. We
find no error.
In Harrington v. Coastal Construction & Engineering, 96-681, p. 3 (La.App.
3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-109 (La. 3/7/97), 689 So.2d
1375, we stated that “the employer must rely on competent medical advice when the
decision to deny the medical treatment is made.” Accordingly, we held that the WCJ
had erred in refusing to award penalties and attorney fees based upon the employer’s
decision to schedule an independent medical examination after it had already denied
treatment. As we explained: “The determination is erroneous because it looks to
actions taken after the denial of treatment to support the denial of treatment. . . . [T]he
[WCJ] was erroneous in utilizing post-denial actions to support a finding that Coastal
was not arbitrary and capricious.” Id. at 459-60.
In Harrington, 685 So.2d at 460, we also addressed the reliance on utilization
review to controvert a claim as follows:
In a letter dated November 10, 1995, and signed by a registered nurse, Harrington was informed that his request for physical therapy was denied based upon his “current medical status” and “the information obtained.” In Dozier [v. Garan’s, Inc., 94-1363 (La.App. 3 Cir. 4/5/95), 653 So.2d
9 137], this court held that simply producing a different opinion from a nurse and a doctor who had not examined the claimant did not, at that stage, reasonably controvert the claimant’s entitlement to the disputed medical expenses. Dozier, 653 So.2d 137. Furthermore, this court found, in Ramsey v. Cash and Carry Foods, Inc., 95-544 (La.App. 3 Cir. 11/2/95), 664 So.2d 511, that a lone report of questionable basis does not constitute “competent medical advice.” In the present case, Harrington’s request for physical therapy was denied by a nurse who had not examined him, based upon information which is, at best, questionable. The denial letter does not state what the employer thought Harrington’s “current medical status” to be, nor does it state what “information obtained” supported this decision. Based upon the jurisprudence established in Dozier and Ramsey, such evidence does not constitute “competent medical advice” sufficient to avoid the imposition of penalties and attorney fees.
In the present case, the request for psychotherapy and biofeedback was initially
denied on February 5, 2001, after a managed care company determined that it was not
“reasonably or necessary for this claimant’s soft tissue injury.” This decision was
affirmed on February 28, 2001 and again on July 19, 2001, based upon a
determination that “it is not reasonable to assume that a soft tissue injury could have
precipitated a major psychiatric illness.” On July 25, 2001, Dr. Bramlet disputed this
basis for denial, stating: “I am not suggesting that she has a major psychiatric illness.
I am reporting that she has an adjustment disorder with both symptoms of depression
and anxiety related to a chronic illness, such as a chronic pain disorder, which is
clearly indicated from the history gathered from Mrs. Phillips that occurred in October
of 1997.” (We also note that Ms. Phillips’ medical records, including two MRIs
showing degeneration in three cervical discs and spondylosis at T6 through T9,
indicate that she has more than a soft tissue injury.) The Diocese did not schedule an
independent medical examination until September of 2001, six months after its initial
denial of the claim, and that physician found that Ms. Phillips could benefit from the
requested treatment. Additionally, the surveillance of Ms. Phillips did not take place
until July of 2001. Based upon the above, we agree with the WCJ that the Diocese did
10 not rely on competent medical advice or otherwise reasonably controvert the claim
when it was denied in February of 2001. Accordingly, the imposition of penalties and
attorney fees was not in error.
In her answer to the appeal, Ms. Phillips asks that we impose an additional
penalty for the Diocese’s refusal to approve the requested treatment after it received
Dr. Anderson’s report in October of 2001, indicating that psychotherapy and
biofeedback would be beneficial to her. Although the supreme court concluded in
Fontenot v. Reddell Vidrine Water District, 02-439, 02-442, 02-478 (La. 1/14/03), 836
So.2d 14, that multiple penalties are recoverable under La.R.S. 23:1201, we find that
a second penalty is not appropriate in this case. As the WCJ noted in her reasons for
judgment, “[t]he videotaped surveillance would have constituted a reasonable
controversion of Ms. Phillips’ request for Dr. Bramlet’s recommended treatment had
those tapes been ‘in hand’ six months or so previous to when they were obtained.”
However, the Diocese did have that surveillance by the time it received Dr.
Anderson’s report. We agree with the WCJ that the surveillance sufficiently
controverted the claim, notwithstanding Dr. Anderson’s report. We, therefore, decline
to award a second penalty for the denial of Dr. Bramlet’s recommended treatment.
In her answer, Ms. Phillips also requests additional attorney fees for work
performed on appeal. In Stacks v. Mayflower Transit, Inc., 95-693 (La.App. 3 Cir.
11/2/95), 664 So.2d 566, we held that an appellee who successfully defends a trial
court judgment should not be denied additional attorney fees on appeal, even when the
relief sought in his answer is denied. In the present case, Ms. Phillips successfully
defended the judgment of the OWC in her favor. We, therefore, award her $2,000 in
additional attorney fees.
Decree
11 For the above reasons the judgment of the Office of Workers’ Compensation
is amended to award Plaintiff, Donna Phillips, additional attorney fees of $2,000. In
all other respects, the judgment is affirmed. Costs of this appeal are assessed to
Defendant, the Diocese of Lafayette.