Hill v. Fresenius Medical Care NA

183 So. 3d 590, 2015 La. App. LEXIS 2291, 2015 WL 7280681
CourtLouisiana Court of Appeal
DecidedNovember 18, 2015
DocketNo. 50,291-WCA
StatusPublished

This text of 183 So. 3d 590 (Hill v. Fresenius Medical Care NA) 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
Hill v. Fresenius Medical Care NA, 183 So. 3d 590, 2015 La. App. LEXIS 2291, 2015 WL 7280681 (La. Ct. App. 2015).

Opinion

GARRETT, J.

IrThe claimant, Shelia Hill, 'appeals from a judgment in which the workers’ compensation judge (“WCJ”) found that her employer, Fresenius Medical. Care NA (“FMC”), was entitled to a credit on supplemental earning benefits (“SEBs”) it owed to her because she had received long-term disability (“LTD”) benefits paid under a disability insurance policy funded solely by FMC. We affirm.

FACTS;

The claimant was hired by FMC in 2002, to work as a dialysis technician at its facility in Bossier City. In 2010, she began seeing Dr. Clint McAlister, an orthopedist, for tingling and numbness in her arms. He diagnosed severe bilateral carpal tunnel syndrome (“CTS”), which was caused or aggravated by her work duties, and recommended release surgery. On May 1, 2Ó12, another orthopedist, Dr. Michelle Ritter, was consulted for a second opinion. She concurred in Dr. McAlister’s diagnosis and treatment plan’ FMC accepted the claim as work-related and, on May 4, 2012, it began paying the claimant temporary total disability (“TTD”) benefits.

The claimant underwent carpal tunnel release surgeries in June 2012 and August 2012, which were performed by Dr, Michael Acurio. In January 2013, Dr. Acurio diagnosed her as suffering degenerative joint disease of the left basilar joint with metacarpal, phalangeal instability, along with ongoing residual CTS. Howeyer, the claimant’s medical records were reviewed by Dr. Eric George, who concluded that her basilar joint pain was degenerative and unrelated, to her employment. He and Dr. Ritter (who saw the claimant again in December 2012) opined that the claimant [592]*592could return |2to work with modifications. FMC denied that the basilar thumb arthritis was related to her employment. On March 1, 2013, the claimant proceeded with the basilar joint surgery through her private insurance.

On March 17, 2013, FMC terminated TTD benefit payments to the claimant. Effective March 17, 2013, the claimant began receiving LTD benefits at the rate of $1,352 per month under a Cigna disability plan funded entirely by FMC. The policy contained the following relevant provisions:

Other Income Benefits
An Employee for whom Disability Benefits are payable under this Policy may be eligible for benefits from Other Income Benefits. If so, the Insurance Company may reduce the Disability Benefits by the amount of such Other Income Benefits.
Other Income Benefits include:
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2. any Social Security disability benefits the Employee or any third party receives (or is assumed to receive*) on his or her own behalf or for his or her dependents; or which his or her dependents receive (or are assumed to receive*) because of his or her entitlement to such benefits.1
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4. any amounts received (or assumed to be received*) by the Employee or his or her dependents under any workers’ compensation, occupational disease, unemployment compensation law or similar state or federal law payable for Injury or Sickness arising out of work with the Employer, including all permanent and temporary disability benefits. This includes any damages, compromises or settlement paid in place of such benefits, whether or not liability is admitted.
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Recovery of Overpayment
The Insurance Company has the right to recover any benefits it has overpaid. The Insurance Company may use any or all of the following to recover an overpayment:
1. request a lump sum payment of the overpaid amount;
2. reduce any amounts payable under the Policy; and/or
3. take any appropriate collection activity available to it.
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Is Workers’ Compensation Insurance
The Policy is not in lieu of and does not affect any requirements for coverage under any Workers’ Compensation Insurance Law.

In August 2013, the claimant filed a disputed claim for compensation in which she asserted that, as a result of her employment, she had developed an occupational disease — severe CTS — due to repetitive and cumulative activities and became disabled in March 2012. She asserted that her wage benefits were terminated on March 18, 2013. The claimant also requested penalties, interest and attorney fees. In its answer, FMC disputed her claims and also pled the right to claim any offsets allowable by law.

In September 2013, Dr. Ritter found that the claimant did not require further treatment for her CTS, but concluded that she had residual symptoms which resulted in permanent work restrictions. On August 5, 2014, Dr. Acurio diagnosed her with degenerative joint disease of the right thumb and maintained her work restrictions.

[593]*593Trial on the merits was held on August 20, 2014. On September 24, 2014, the WCJ issued lengthy written reasons for judgment. At the outset, the WCJ noted that it was undisputed that the claimant developed severe bilateral CTS, a compen-sable occupational disease, as the result of her employment. The WCJ found that the claimant failed to prove a causal connection between her basilar joint arthritis and her employment; that she was entitled to SEBs at a weekly rate of $410.59 (based on stipulated average weekly wage of $615.88), retroactive to March 17, 2013, due to her residual CTS; that FMC was entitled to an offset pursuant to La. R.S. 23:1225 at the rate of $1,352 per month, based on the claimant’s receipt of 14employer-funded LTD benefits; and that the claimant was entitled to a penalty of $2,000 and attorney fees of $8,000, due to FMC’s arbitrary and capricious termination of her disability benefits.2

On the offset issue, the WCJ noted that the claimant testified that a representative of the LTD insurer told her that she had to reimburse the payments and forgo any future benefits due to her receipt of Social Security Disability benefits.3 He concluded that her testimony on this matter was not “competent evidence” required under La. R.S. 23:1317, and that FMC was entitled to the offset under La. R.S. 23:1225(C). In a footnote, the WCJ stated that, even if the claimant was ultimately required to reimburse the LTD benefits she received, FMC was still arguably entitled to the offset under La. R.S. 23:1225(0(3). Also arguably, if she should have to make reimbursement, that could be deemed a change in circumstances for purposes of modification under La. R.S. 23:1310.8. Since she had not reimbursed the LTD payments, the court found it unnecessary to address these issues. Judgment was signed on September 24, 2014.

On October 1, 2014, the claimant filed a motion for new trial on the issue of the employer-funded LTD benefits. Attached to her motion was a recently received letter from Cigna dated| September 22, 2014, which stated that she owed $17,676.10 in overpayments due to a retroactive award of Social Security Disability benefits, and requested repayment by October 22, | ¿2014. Based upon this new evidence, the claimant argued that FMC should receive no credit for the payments. FMC opposed the motion, citing the footnote in the WCJ’s written reasons for judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
183 So. 3d 590, 2015 La. App. LEXIS 2291, 2015 WL 7280681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-fresenius-medical-care-na-lactapp-2015.