Dunn v. Lakewood Quarters Retirement Community

103 So. 3d 1185, 12 La.App. 3 Cir. 548, 2012 La. App. LEXIS 1425, 2012 WL 5417352
CourtLouisiana Court of Appeal
DecidedNovember 7, 2012
DocketNos. 12-548, 12-549
StatusPublished

This text of 103 So. 3d 1185 (Dunn v. Lakewood Quarters Retirement Community) 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
Dunn v. Lakewood Quarters Retirement Community, 103 So. 3d 1185, 12 La.App. 3 Cir. 548, 2012 La. App. LEXIS 1425, 2012 WL 5417352 (La. Ct. App. 2012).

Opinion

GREMILLION, Judge.

Ijn this workers’ compensation matter, the employer and its insurer appeal an adverse judgment condemning them to pay temporary total disability benefits, penalties in the amount of $16,000.00, and attorney fees of $15,000.00.1 Except to render judgment in favor of the employee, increasing the attorney fee award to reflect the work done in defending the judgment, we affirm.

FACTS

Ronald Dunn, Jr., was hired on October 8, 2008, to serve Lakewood Quarters Assisted, 8585 Tenant, LLC, in Baton Rouge, Louisiana, as maintenance supervisor. Late that same day, Dunn was helping other maintenance workers re-erect a very heavy sign that had been blown down in a storm. He claims that he attempted to pick his corner up before anyone else and felt intense pain in his lower abdomen. However, the pain subsided a short time thereafter, and Dunn testified that he felt that he had simply pulled a muscle. Dunn failed to report this incident to anyone at Lakewood. Indeed, the following day Dunn completed a Second Injury Fund Questionnaire in which he denied ever having a disability or other condition that limited him, as well as denying ever having had an on-the-job accident.

By the next day, Dunn had developed a knot in his right groin. He also had experienced symptoms of a sexually transmitted disease (STD). Therefore, he attempted to schedule a doctor’s appointment. The only physician with whom Dunn could arrange an appointment on short notice was Dr. Claude W. Gilbreath of Pontcha-toula, Louisiana. Dr. Gilbreath saw Dunn on October 10, 2008. Dunn completed a patient intake form and was specifically [1187]*1187asked whether his injury was 12work-reIat-ed, to which Dunn replied in the negative. Dunn explained this by virtue of the fact that by the time of the appointment, he was more concerned about the STD symptoms. Dr. Gilbreath examined Dunn and diagnosed him with an inguinal hernia. Dunn’s visit to Dr. Gilbreath was facilitated by Lakewood, whose Executive Director, Ms. Terry Atchetee, was told by Dunn that he had a doctor’s appointment but not that the visit was prompted in part by an on-the-job accident.

The fact that he had been injured at work was not communicated by Dunn to Lakewood until Monday, October 13. Dunn was referred to Concentra Medical Centers (LA) in Baton Rouge. On October 14, 2008, Dr. Katharine Rathburn at Concentra confirmed the diagnosis of right inguinal hernia, referred Dunn to a surgeon, and returned him to work with restrictions of no lifting, pushing, or pulling over thirty pounds.

On October 22, 2008, Dunn reported to the emergency room at Ochsner Medical Center West Bank in Gretna, Louisiana, complaining of increased abdominal pain, nausea, and difficulty urinating. The attending physician examined Dunn and noted that he, in fact, had bilateral inguinal hernias. Dunn was prescribed Ultram and told to follow up with his primary doctor.

Dunn next saw Dr. William S. Richardson, a surgeon affiliated with Ochsner Medical Center in New Orleans, on October 30, 2008. Dunn related a history to Dr. Richardson that was consistent with that given Dr. Rathburn and to the personnel at Ochsner West Bank. Dr. Richardson also noted bilateral hernias. According to Dunn, he was scheduled to undergo surgery, but his procedure was canceled.

For reasons not apparent in the record, Dunn relocated from Independence, Louisiana, to Alexandria, Louisiana, sometime between October 30 and December 8, 2008, when Dunn first saw Dr. Gerald J. Leglue, Jr., an Alexandria physical | ^medicine specialist. The history given by Dunn to Dr. Leglue was consistent with the previous histories. Dr. Leglue sought approval from SUA, Lakewood’s workers’ compensation insurer, to refer Dunn to Dr. David M. Remedios, an Alexandria surgeon. He also recommended that Dunn undertake physical therapy.

On December 18, 2008, Dr. Remedios performed a hernia repair procedure on Dunn’s right-sided hernia. Dr. Remedios placed Dunn on lifting restrictions for six weeks, with instructions that after six weeks he could lift over twenty pounds with caution and was to immediately stop if he felt any pain. That six-week restriction proved academic, as Dr. Remedios performed a hernia repair procedure on the left side on January 8, 2009.

The results of the left-side surgery were less than Dunn expected. He testified that following the January surgery he experienced more intense pain than the hernia had caused. Lakewood referred Dunn to Dr. J. Michael McGinty, an Alexandria surgeon, for an evaluation of these complaints. Dr. McGinty opined that Dunn’s pain was secondary to the hernia repair surgery. However, he also opined that because the pain was not associated with activity, there was no need to restrict Dunn’s activities.

Dr. Remedios attempted several times to refer Dunn to neurophysiologists and other specialists before finally sending him to Dr. Charles ' Ugokwe, an Alexandria neurologist. Dr. Ugokwe prescribed Lyri-ca, a medication used to treat neuropathic pain. Unfortunately, Dunn proved allergic to Lyrica, and its use was halted.

[1188]*1188On September 14, 2009, Dr. Remedios injected a mixture of an anesthetic and a steroid directly into the area of Dunn’s left groin that was in pain. Dunn experienced an 80% to 90% relief from his pain following that injection. Dr. Remedios then referred Dunn to a pain management specialist, Dr. Melanie Firmin, [4of Alexandria. Dr. Firmin diagnosed Dunn with left iliol-inguinal neuralgia and started him on Cymbalta.

In February 2010, Lakewood terminated Dunn’s weekly indemnity benefits. Dunn had initially filed a disputed claim for compensation with the Office of Workers’ Compensation in February 2009, because Lakewood had refused to authorize a CT scan Dr. Remedios had ordered. He amended his complaint to add his demand for reinstatement of his weekly indemnity benefits and to recover several medical bills Lakewood failed to pay. He also sought penalties and attorney fees.

Dunn’s claim was heard by the workers’ compensation judge (WCJ) on October 11, 2011. By reasons orally delivered on December 5, 2011, the WCJ found that Dunn proved by clear and convincing evidence that he sustained bilateral inguinal hernias in an October 8, 2008, accident. The WCJ also found that Dunn was temporarily and totally disabled as a result of the hernias, entitling him to weekly indemnity benefits of $453.33. Lakewood was ordered to provide reasonable medical treatment with Drs. Ugokwe and Firmin and to pay medical bills incurred by Dunn on February 1, 2009 and March 5, 2009, at Christus St. Francis Cabrini Hospital. Dunn was awarded a $2,000.00 penalty for Lakewood’s failure to pay the February 1, 2009 bill; a $2,000.00 penalty for failing to pay the March 5 bill; a $2,000.00 penalty for failing to authorize treatment with Dr. Ugokwe; a $2,000.00 penalty for failing to authorize treatment with Dr. Firmin; an $8,000.00 penalty for arbitrary and capricious termination of Dunn’s weekly indemnity benefits; and $15,000.00 in attorney fees. The judgment awarding these items was signed on February 2, 2012. Lakewood then appealed. Dunn answered the appeal and has requested additional attorney fees for his counsel’s work on appeal.

^ASSIGNMENTS OF ERROR

Lakewood asserts that the WCJ erred in the following respects:

1) In finding that Dunn proved the occurrence of an unwitnessed accident on October 8, 2008;

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103 So. 3d 1185, 12 La.App. 3 Cir. 548, 2012 La. App. LEXIS 1425, 2012 WL 5417352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-lakewood-quarters-retirement-community-lactapp-2012.