Fontenot v. Wal-Mart

5 So. 3d 298, 8 La.App. 3 Cir. 158, 2009 La. App. LEXIS 345, 2009 WL 529855
CourtLouisiana Court of Appeal
DecidedMarch 4, 2009
Docket08-158
StatusPublished
Cited by8 cases

This text of 5 So. 3d 298 (Fontenot v. Wal-Mart) 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
Fontenot v. Wal-Mart, 5 So. 3d 298, 8 La.App. 3 Cir. 158, 2009 La. App. LEXIS 345, 2009 WL 529855 (La. Ct. App. 2009).

Opinions

THIBODEAUX, Chief Judge.

| iThis case involves the workers’ compensation claims of the claimant-appellant, Joseph H. Fontenot, Jr., against the employer-appellee, Wal-Mart. The Office of Worker’s Compensation (“OWC”) granted [300]*300judgment partially favoring Wal-Mart and partially favoring Mr. Fontenot. The OWC found that Mr. Fontenot’s back and knee injuries were caused by his work-related injury in February 2003 and ordered Wal-Mart to pay all outstanding medical expenses incurred on or before September 28, 2004.

The OWC further found that Mr. Fonte-not’s subsequent wound complications were the result of intentional self-injury under La.R.S. 23:1081(l)(a) and decided in favor of Wal-Mart’s termination of medical and wage benefits on September 28, 2004. However, finding that Mr. Fontenot was not a malingerer, the OWC denied Wal-Mart’s fraud claim against Mr. Fontenot.

Mr. Fontenot appealed the portions of the judgment that favored Wal-Mart. Having determined upon review that Wal-Mart did not meet its burden of proving intentional self-injury, we reverse the portions of the OWC Judgment favoring a termination of benefits and order Wal-Mart to pay medical and wage benefits as explained below.

I.

ISSUES

We must decide:

(1) whether the OWC manifestly erred in its reliance upon Wal-Mart’s psychiatrist rather than Mr. Fontenot’s treating wound specialist in terminating benefits under La.R.S. 23:1081(l)(a); and,

(2) whether the OWC manifestly erred in finding no arbitrary and capricious behavior on the part of Wal-Mart.

J2II.

FACTS AND PROCEDURAL HISTORY

In February 2003, Joseph H. Fontenot, Jr., a thirty-three-year-old manual labor employee, twisted and injured his back when he fell after lifting an eighty-pound pallet at the Wal-Mart Distribution Center in St. Landry Parish. Two weeks later, he underwent a discectomy at L4-5 for the repair of the ruptured disc. Mr. Fontenot continued to have back and leg pain and was re-admitted to the hospital in March 2003. While hospitalized, Mr. Fontenot fell on his right knee, apparently hitting a metal bed rail and the floor. Mr. Fontenot was diagnosed with a medial meniscus tear in his right knee. He had also suffered a bruise and collection of blood under the skin, or hematoma, in his right thigh about five inches above his knee. The hematoma in his thigh became stagnant and clotted; the blood had nowhere to go. Eventually, Dr. Toby Broussard opened up the area and drained it, which should have resulted in healing. However, healing was delayed. Mr. Fontenot underwent knee surgery with Dr. Malcolm Stubbs in June of 2003, and the operation site also experienced delayed healing.

In July of 2003, Mr. Fontenot reported that the sutures from the knee surgery had come out during physical therapy. Mr. Fontenot developed an infection and re-entered the hospital. Dr. Stubbs irrigated the knee and closed the wound, remarking that he had never seen such complications with post-operative healing. Mr. Fontenot’s wounds kept opening back up instead of healing. Mr. Fontenot was treated for wound care in Lafayette and at his home through home health, and he continued to experience complications. He was put on vai’ious antibiotics, experienced allergic reactions, developed a clot in his arm, and was put on Coumadin. Even his intravenous (IV) sites became inflamed with redness and swelling.

|aIn August of 2003, Mr. Fontenot’s family physician since 2001, Dr. Michael Bur-[301]*301nell, recommended wound care at the Opelousas General Hospital Wound Care Center (Opelousas General), which happened to be in Mr. Fontenot’s hometown. Wal-Mart’s case manager at Corvel, the case management company, insisted that Mr. Fontenot be sent to Baton Rouge for wound care. There were complications, and the wounds continued to resist healing. Mr. Fontenot was sent to numerous specialists and several medical facilities between July 2003 and July 2004. Even the Mayo Clinic was discussed at one point. He saw a total of approximately seventeen physicians during the course of his treatment following the February 2003 injury at the Wal-Mart Distribution Center.

On July 12, 2004, while being treated at Promise Health Care in Baton Rouge by plastic surgeon Dr. Anthony Stephens, Dr. Stephens’ skin graft became dislodged when Mr. Fontenot pulled up his bed covers. Dr. Stephens re-attached the skin graft onto the thigh wound with instructions to remain very still so that the graft could take. The next day, on July 13, 2004, Mr. Fontenot was discharged after his benefits were terminated by Corvel. The benefits were reinstated for the purpose of sending Mr. Fontenot for a psychological evaluation. On July 30, 2004, Mr. Fontenot returned to Dr. Stephens who reported that Mr. Fontenot’s wound had healed, that he had reached maximum medical improvement, and that he had no work limitations with regard to the thigh wound. However, the wound, which had experienced tunneling deep into the groin area, subsequently opened back up.

In August of 2004, Wal-Mart had Mr. Fontenot examined by a psychiatrist, Dr. Rennie Culver. Dr. Culver reported on September 21, 2004 that Mr. Fontenot was malingering and had a factitious/psychological disorder with evidence of self-inflicted injury for the purpose of remaining in the role of a patient.

DOn September 28, 2004, Wal-Mart terminated Mr. Fontenot’s medical and wage benefits, even though no functional capacity evaluation had been done to determine Mr. Fontenot’s limitations due to the back and knee surgeries. In October 2004, Mr. Fontenot filed a disputed claim form, seeking reinstatement of the medical and wage benefits and alleging arbitrary and capricious conduct on the part of Wal-Mart in terminating his benefits.

Taking control of his own care, Mr. Fon-tenot went to the specialist recommended by his family physician over a year prior. From October 11 through November 22, 2004, Mr. Fontenot was treated in his hometown of Opelousas by Dr. Kerry Thi-bodeaux, director of the Wound Care Center of Opelousas General Hospital. Dr. Thibodeaux reported that the thigh wound was as large as thirty-five square centimeters at the first visit on October 11. By October 26, after treating Mr. Fontenot with special dressings, Dr. Thibodeaux had reduced the size of Mr. Fontenot’s wound by fifty percent. After six weeks of treatment, Dr. Thibodeaux discharged Mr. Fon-tenot with a ninety-eight percent reduction in the size of his wound. Wal-Mart did not pay for this treatment with Dr. Thibo-deaux and Opelousas General.

The matter proceeded to trial and was heard by OWC Judge Sharon Morrow in February 2006. Subsequently, Judge Morrow recused herself due to conflict issues. The case was reassigned to Judge Elizabeth Warren. Judge Warren decided the case upon her review of the record, without benefit of live testimony. While finding the back and knee injuries causally related to the work injury, Judge Warren found the wound complications a result of self-inflicted injury and upheld Wal-Mart’s termination of benefits under La.R.S. [302]*30228:1081(l)(a). This finding was largely the result of Judge Warren’s reliance upon the testimony of Wal-Mart’s |psychiatrist, Dr. Culver, and the judge’s apparent disregard of the testimony of Mr. Fontenot’s family physician, Dr. Burnell, and his wound specialist, Dr. Thibodeaux, who actually cured Mr. Fontenot in a matter of weeks. Judge Warren also found credibility issues with Mr. and Mrs.

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Fontenot v. Wal-Mart
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Bluebook (online)
5 So. 3d 298, 8 La.App. 3 Cir. 158, 2009 La. App. LEXIS 345, 2009 WL 529855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontenot-v-wal-mart-lactapp-2009.