Franklin v. HealthSouth

940 So. 2d 83, 2006 WL 2686252
CourtLouisiana Court of Appeal
DecidedSeptember 20, 2006
Docket41,458-WCA
StatusPublished
Cited by7 cases

This text of 940 So. 2d 83 (Franklin v. HealthSouth) 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
Franklin v. HealthSouth, 940 So. 2d 83, 2006 WL 2686252 (La. Ct. App. 2006).

Opinion

940 So.2d 83 (2006)

Charline FRANKLIN, Plaintiff-Appellant
v.
HEALTHSOUTH, Defendant-Appellee.

No. 41,458-WCA.

Court of Appeal of Louisiana, Second Circuit.

September 20, 2006.

*84 Williams Family Law Firm, L.L.C., by Joe Payne Williams, for Appellant.

Rabalais, Unland & Lorio, by John J. Rabalais, Janice B. Unland, Robert T. Lorio, Covington, Brad O. Price, for Appellee.

Before STEWART, PEATROSS and MOORE, JJ.

MOORE, J.

Charline Franklin appeals a judgment finding that she forfeited all workers' compensation benefits for making false representations to obtain any benefit or payment in violation of La. R.S. 23:1208. We affirm.

Factual Background

Ms. Franklin was employed as a certified nurses' assistant ("CNA") at HealthSouth, a nursing home in Homer, Louisiana. Her average weekly wage was $349. In March 2004, she was working the graveyard shift, 6 p.m.-6 a.m. She described her duties as bathing, changing, turning, and generally keeping an eye on 17 or 18 patients overnight.

At trial, Ms. Franklin gave the following account of her injury. On the evening of March 25, 2004, she was turning over an uncooperative patient when suddenly her left ear "popped" and she lost her hearing (momentarily) in both ears. She promptly reported this to the duty nurse, Christy McNiel, and soon her neck started to hurt "real bad." The LPN on duty, Marcy Smith, gave her an Ibuprofen, and Ms. Franklin went home; it was the last night *85 she worked as a CNA. Three days later, March 28, she went to Homer Memorial Hospital, telling ER personnel that she hurt her back and her whole neck was hurting.

In the ensuing weeks, Ms. Franklin saw several physicians, including her family doctor, Dr. Scott Haynes, and a nurse, Denise Butler, at Claiborne Family Medical Clinic; Dr. Haynes referred her to an orthopedist, Dr. Edward Anglin, at Highland Clinic in Shreveport, and later to a "spinal interventionalist," Dr. William Whyte. On April 7, Dr. Haynes gave her a two-week work release, and she went to physical therapy. However, she continued to report pain in the neck and shoulders and would not return to work.

In July 2004, Dr. Whyte recommended nucleoplasty of the neck, which Ms. Franklin testified she was willing to undergo, as "nothing else has worked." In August 2004, she underwent an independent medical exam ("IME") from Dr. Bilderbeck at The Orthopedic Clinic in Shreveport; he felt she could work lifting 20 lbs. or less. Dr. Anglin later approved her to work lifting 10 lbs. or less 66% of the day. HealthSouth offered her a light-duty position, unit secretary, which she accepted on March 1, 2005, at her old rate of pay. At trial in August 2005, Ms. Franklin was still complaining of pain in her neck and across her shoulders, with weakness in her arms; of being unable to lift things; and of taking Lortab daily, on a prescription from Dr. Haynes.

HealthSouth presented a different version of Ms. Franklin's history. Its human resources director, Tonya Duggan, testified that Ms. Franklin did not orally report the incident until April 1, several days after it allegedly occurred, and did not fill out a written report of injury until April 13. Ms. Duggan phoned Ms. Franklin twice in early April, offering her light-duty work, but Ms. Franklin replied she had a doctor's excuse and could not work. HealthSouth forwarded the claim to ESIS, its third-party administrator, in mid-April; ESIS's claims adjuster, Mary Garcia, interviewed Ms. Franklin by phone on May 9. Ms. Franklin again insisted that she could not work and, in response to a specific question, denied that she had "a second job of any kind." HealthSouth issued her two weekly indemnity payments covering April 7-20, 2004.

On May 11, however, Ms. Duggan learned that a new restaurant called "Charline's Soul Food" had opened in Homer, and that Ms. Franklin was running it. Ms. Duggan relayed this information to Ms. Garcia, who suspected fraud and authorized a surveillance video. The video, taken on May 14 and 19, showed Ms. Franklin carrying pots of prepared food from house to car and then into the restaurant, where she performed light work such as running the cash register and handing to-go cups of iced tea to customers. It also showed her lifting her grandson by one arm and reaching across the roof of a car to pick up something.

HealthSouth further learned that in September 2003, Ms. Franklin had obtained an occupational license to run Charline's Soul Food in a vacant building on Hwy. 79 in Homer; in mid-February, about one month before the alleged injury, the Department of Health and Hospitals had notified her of site modifications that would be needed before she could serve food there. Ms. Franklin and various family members apparently completed the necessary work; on May 7, the location passed health inspection and they opened the restaurant. Notably, this was shortly before Ms. Franklin told Ms. Garcia that she had no second job of any kind.

HealthSouth contended that Ms. Franklin was not injured at work on March 25, *86 2004, but instead claimed an accident so she could get time off to fix up the building and run her diner. In addition to the facts outlined above, it showed that Ms. Franklin's written injury report described right-sided neck pain, while the ER report at Homer Memorial noted left-sided neck pain for the "past 2 to 3 days—no trauma." HealthSouth also urged that Ms. Franklin committed fraud by telling Ms. Garcia on May 9 that she had no second job, when in fact she was running a restaurant with her family.

The economics were not right for a lunch spot in Homer and Charline's Soul Food closed in a mere three weeks. When Ms. Franklin submitted her Form 1020 for the month of May, she reported earning a net total of $70 from the venture.

Trial Testimony and Action of WCJ

Ms. Franklin filed the instant disputed claim in July 2004. She demanded TTD benefits for March 26—April 6 and April 20-30, 2004, times she claimed to be under Dr. Anglin's work release; SEB for May 1, 2004—March 1, 2005; authorization for the surgery suggested by Dr. Whyte; and penalties and attorney fees for HealthSouth's failure to pay these benefits. HealthSouth contended that there was no work-related accident and that Ms. Franklin forfeited all benefits by making false representations to obtain any benefit or payment.

At trial, Ms. Franklin testified that the accident occurred as described above, and that she immediately reported it to her coworkers; however, she did not call any of these coworkers to testify, and admitted she did not file her written report until April 13. She also testified that she reported an accident to the doctor in the ER, but could not explain why that record said "no trauma." She admitted telling physicians, alternatively, that her neck and shoulder pain was mainly on the right or left side; she insisted that it really just hurt all over. She generally remembered talking to Ms. Duggan and Ms. Garcia in the weeks after the accident, but she could not recall any specifics of these conversations. She admitted telling Ms. Garcia on May 9 that she had no other job at the time.

Ms. Franklin also testified that although the restaurant bore her name, it was a family business that she, her mother, two sisters and daughter had been discussing for a long time. Her intent was for the whole family to run it, and for her to work when she was not on duty at HealthSouth. After the accident, however, her family decided to move ahead with the plan in order to get some cash flow for Ms. Franklin.

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Cite This Page — Counsel Stack

Bluebook (online)
940 So. 2d 83, 2006 WL 2686252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-healthsouth-lactapp-2006.