Dow v. Chalmette Restaurant, Ltd.

193 So. 3d 1222, 2015 La.App. 4 Cir. 0336, 2016 WL 2910447, 2016 La. App. LEXIS 998
CourtLouisiana Court of Appeal
DecidedMay 18, 2016
DocketNo. 2015-CA-0336
StatusPublished
Cited by8 cases

This text of 193 So. 3d 1222 (Dow v. Chalmette Restaurant, Ltd.) 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
Dow v. Chalmette Restaurant, Ltd., 193 So. 3d 1222, 2015 La.App. 4 Cir. 0336, 2016 WL 2910447, 2016 La. App. LEXIS 998 (La. Ct. App. 2016).

Opinion

SANDRA CABRINA JENKINS, Judge.

1 ] Claimant/appellant, Catherine M. Dow, appeals the judgment of the Workers’ Compensation Judge (“WCJ”) rendered on August 5, 2014, which found that Ms. Dow [1225]*1225had a compensable work-related injury in August 2013, but which failed to award her attorney’s fees and penalties based on the Appellees’ alleged unreasonable denial of her request for surgery to treat that injury.1

Ms. Dow also challenges the WCJ’s decision to award temporary total disability (“TTD”) benefits to Ms. Dow beginning on December 2, 2013, and not August 19, 2013, the date of her alleged disability. Appellees answered the appeal, arguing that the WCJ érred in finding that Ms. Dow had a compensable work-related injury in August 2013, and in failing to find that Ms. Dow committed workers’ compensation fraud.

For the reasons set forth below, we affirm the WCJ’s finding that Ms. Dow had a compensable work-related injury in August 2013, and that Ms. Dow was entitled to TTD benefits beginning on December 2, 2013. We also affirm the |2WCJ’s finding that Ms. Dow was not entitled to penalties and attorney’s fees based on Ap-pellees’ denial of her request for surgery. Finally, we affirm the WCJ’s finding that Ms. Dow did not make willful misrepresentations in order to obtain workers’, compensation benefits.

PROCEDURAL HISTORY AND BACKGROUND FACTS

A. Ms. Dow’s Alleged January 2013 Work-Related Injury.

In 2013, Ms. Dow was employed as a shift supervisor at a Wendy’s franchise in Chalmette, Louisiana. Ms. Dow alleges that on January 18, 2013 she injured her right shoulder while lifting a 50-pound pot of chili at work. On that day, Ms. Dow sought medical treatment at Pelican Urgent Care, telling the physician that she had injured her shoulder while picking up a storage container. While at Pelican Urgent Care, Ms. Dow completed a Patient History Form in which she elected not to check a box indicating that her shoulder problem was related to a job injury. The physician gave Ms. Dow a sling and referred her to an orthopedist. On January 22, 2013, Ms. Dow was seen by an orthopedist, Dr. Alan Cracco. Ms. Dow told Dr. Cracco that she was hurt lifting at home. Dr. Cracco prescribed narcotic pain medication, and on March 6, 2013 Ms. Dow underwent an MRI of her right shoulder. The MRI report stated that Ms. Dow had osteoarthropathy and tendinopathy in her right shoulder.

On June 10, 2Ó13, Dr. Cracco diagnosed Ms. Dow’s injury as pericapsulitis, sometimes referred to as “frozen shoulder.” Two weeks later, Dr. Cracco performed a closed manipulation of Ms. Dow’s right shoulder. Dr. Cracco’s pre-band post-operative diagnosis was adhesive capsulitis of the right shoulder. Dr. Cracco noted that his post-operative plan was to have Ms. Dow actively move her arm and follow physical therapy intensively. He noted that if Ms. Dow still had difficulty with full abduction actively, then a repeat MRI might be needed to exclude rotator cuff pathology.

B. Ms. Dow’s Alleged August 2013 , Work-Related Iryury.

Ms. Dow alleges that on August 17, 2013, she was the only manager on duty at Wendy’s. She states that a customer at the drive-through window ordered. three large milkshakes. Ms. Dow contends, that while she was stirring the milkshake in the shake machine, “the center arm grabbed a hold of the cup when it happened, it jerked [1226]*1226[her] arm into it and' [she] a felt a bad shooting pain in [her] shoulder.” On August 26, 2013, Dr. Cracco examined Ms. Dow and again diagnosed her right shoulder injury as pericapsulitis or “frozen shoulder.”.

C. Ms. Dow’s January 2013 and August 2013 Workers’ Compensation Claims.

Shortly after Ms. Dow’s alleged August 17, 2013 work-related accident, Appellees submitted a Form 1007 Employer Report of Injury/Illness to the OWC. In this Form, Appellees reported Ms. Dow’s injury date as August 17, 2013, and described her injury as a “shoulder sprain.” The report described Ms. Dow’s work activity at the time of the injury as “[m]aking a [milk]shake when the cup got caught up in machine injuring right shoulder.”

On September 5, 2013, Appellees filed a Form 1002 Notice of Payment of Compensation in which Appellees reported to the Office of Workers’ Compensation (“OWC”) that Ms. Dow was being paid TTD benefits for her | ¿August 2013 accident, effective August 27, ¿013. On September 13, 2013, however, Ms." Dow submitted á Notice of Disagreement stating that the date of her shoulder injury was not August 17, 2013, but January 18, 2013.

In October 2013, more than nine months after her alleged January 2013 accident, Ms. Dow filed a Louisiana Workers’ Compensation (“LWC”) Form 1008, Disputed Claim for Compensation. Ms. Dow claimed that on January 18, 20Í3, she injured her right shoulder while lifting a pot of chili during the course and scope of her employment. Ms. Dow demanded that Appellees pay penalties and attorney’s fees for their failure to pay compensation and medical benefits arising from this alleged January 2013 work-related accident.

In November 2013, Appellees- filed an Answer to Ms. Dow’s workers’ compensation claim arising from her alleged January 2013 accident. Appellees denied that Ms. Dow had a compensable injury, and asserted that between January 18, 2013 and July 31, 2013 Ms: Dow never reported a work-related accident.

Meanwhile, on November 12, 2013, Dr. Cracco submitted an LWC Form 1010 to Wendy’s workers’ compensation insurer, LUBA Corp. (“LUBA”), requesting authorization to perform a closed manipulation and arthroscopic debridement of Ms. Dow’s right shoulder. Dr. Cracco .stated that the recomm.ended surgery was associated with an August 17, 2013 work-related accident, in which Ms. Dow claimed she injured her shoulder while making milkshakes. Attached to the Form 1010 was a November 7, 2013. report from Dr. Cracco, as well as a report of the results of an MRI taken on November 5, .2013. | ¡¡Both of these medical reports concluded that a comparison between Ms. Dow’s March 2013 MRI and her November 2013 MRI revealed new findings of a tear of the supraspinatus tendon in her right shoulder.

In response to Dr. Cracco’s request for surgery, on November 14, 2013, LUBA returned the Form 1010 with the notation that the ^‘treatment is denied” because “the claim is being denied as non-compen-sable.” ■ In a separate letter dated November 14, 2013, a LUBA medical services nurse advised Ms. Dow that her request for surgical treatment was “non-.certified” because “the adjuster handling this claim has denied the claim as non-compensable.”

However, in a follow-up letter dated November 15, 2013, LUBA claims adjuster Teri Hoover advised Ms. Dow that her request "for "surgery was being denied because a LUBA physician and nurse had reviewed and compared Ms. Dow’s March 2013 and November 2013 MRIs, and had [1227]*1227concluded that there was “no noticeable difference” between the two.

In response to LUBA’s denial of her request for surgery, on December 10, 2013, Ms. Dow amended her Form 1008, Disputed Claim for Compensation arising from her January 2013 injury. Ms. Dow added a claim for penalties and attorney's based oil Appellees’ unreasonable denial of her request for surgery.

On December 30, 2013, Appellees answered Ms. Dow’s Amended Form 1008. Appellees admitted that they had denied the requested surgery as non-compensable because Ms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Damon W. Ryan v. Cajun Industries, L.L.C.
Louisiana Court of Appeal, 2021
Elizabeth Soileau v. Wal-Mart Stores, Inc.
Supreme Court of Louisiana, 2019
McCallon v. Key Energy Servs., LLC
271 So. 3d 249 (Louisiana Court of Appeal, 2019)
Michael McCallon v. Key Energy Services, LLC
Louisiana Court of Appeal, 2019
Lovas v. Gallagher Bassett Servs., Inc.
267 So. 3d 129 (Louisiana Court of Appeal, 2019)
Jackson v. Family Dollar Stores of La. Inc.
258 So. 3d 165 (Louisiana Court of Appeal, 2018)
Bradley v. St. Francis Med. Ctr.
244 So. 3d 722 (Louisiana Court of Appeal, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
193 So. 3d 1222, 2015 La.App. 4 Cir. 0336, 2016 WL 2910447, 2016 La. App. LEXIS 998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dow-v-chalmette-restaurant-ltd-lactapp-2016.