Hill v. New Orleans EMS

116 So. 3d 41, 2012 La.App. 1 Cir. 1347, 2013 WL 1458098, 2013 La. App. LEXIS 729
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 2012 CA 1347
StatusPublished

This text of 116 So. 3d 41 (Hill v. New Orleans EMS) 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. New Orleans EMS, 116 So. 3d 41, 2012 La.App. 1 Cir. 1347, 2013 WL 1458098, 2013 La. App. LEXIS 729 (La. Ct. App. 2013).

Opinion

THERIOT, J.

1 ¡.This is an appeal from a final judgment by the Office of Workers’ Compensation (“OWC”) of a disputed claim for compensation between the appellant, New Orleans EMS (“EMS”) and the appellee, Janice Hill. For the following reasons, we partially modify, partially affirm, and partially reverse and vacate the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Ms. Hill was employed by EMS as an emergency medical technician (“EMT”) in 2007. One of her duties as an EMT was to lift a stretcher carrying a patient, as well as other necessary medical equipment, up and into the back of an ambulance. According to Ms. Hill, her job required her to lift a maximum of 300-400 pounds and to be able to step into and out of the back of the ambulance frequently.

On April 11, 2007, Ms. Hill suffered injuries to the left side of her body when she lost her footing and fell out the back of the stationary ambulance in which she was working. She was transported to the Ochsner Clinic in New Orleans, where she was diagnosed with a contusion on her left hip, strained neck, and a benign head injury. EMS investigated the accident, agreed Ms. Hill’s injuries were compensa-ble, and began paying her total temporary disability benefits (“TTD”) on April 19, 2007, in the amount of $881.22 biweekly.

For the next two years, Ms. Hill sought medical treatment at Tulane University Hospital, primarily from Dr. Gregory Stewart. On May 13, 2009, Dr. Stewart reported that Ms. Hill had reached maximum medical improvement (“MMI”), but restricted her to medium duty with no climbing, bending, squatting, twisting, or crawling. This restriction effectively prevented Ms. Hill from returning to work as an EMT. As a result, her TTD |swas converted to supplemental earnings benefits (“SEB”) on November 1, 2010, starting at $1909.31 monthly, decreasing to $243.37 monthly.

Upon her change to SEB, Ms. Hill consulted vocational rehabilitation counselor Ronnie Ducote on August 28, 2009. Although Mr. Ducote was able to recommend potential job positions in her immediate area that complied with her work restrictions, Ms. Hill on her own accepted a full-time position as an emergency room technician at Ochsner Baptist Medical Center in New Orleans in December of 2009, with a starting pay rate of $12.31 per hour. She resigned from that position one month later.

EMS then requested that Mr. Ducote continue vocational rehabilitation with Ms. Hill, and Mr. Ducote did so shortly after Ms. Hill’s resignation. After two months, Mr. Ducote found five positions suitable for Ms. Hill, which were approved by Dr. Stewart. EMS then terminated vocational rehabilitation and reduced Ms. Hill’s SEB to $643.96 monthly on April 1, 2010.1

[43]*43One month prior, Ms. Hill filed a disputed claim for compensation, alleging that an appointment with Dr. Stewart was not timely approved by EMS. EMS filed a motion for summary judgment in response, claiming the SEB should have been reduced further due to her employment at Ochsner Baptist, and that it was entitled to a credit for the SEB overpayment as well. OWC ruled on November 3, 2010, that the SEB should be adjusted to $486.74,2 beginning December 1, 2009, and that EMS was entitled to a credit of $6,627.84 for over-payments from December 1, 2009 to September 30,2010.

|4Ms. Hill continued to see Dr. Stewart for pain, and after he reviewed an MRI of her left hip and lower back, he concluded on August 23, 2011 that she was still “unable to work.” Dr. Stewart later clarified that statement in a letter to Ms. Hill’s counsel, dated September 29, 2011, by stating “Ms. Hill is unable to work at any job.” Although Ms. Hill had made some complaints about lower back pain, Dr. Stewart’s reports do not show that her inability to work was based on injury to her back, or whether any back injury was a result of the April 11, 2007 accident.

Ms. Hill had also been treated by Dr. Robert Steiner, an orthopedic surgeon, during the same span of time she had seen Dr. Stewart, although the visits with Dr. Steiner were less frequent. In Ms. Hill’s last recorded visit with Dr. Steiner on October 11, 2011, he concluded that she had sustained a contusion on her left hip, that the back pain she complained of was not related to her April 11, 2007 accident, and that she was not a candidate for surgery. He further concluded that she should be restricted to light duty and accordingly be referred to vocational rehabilitation.

Ms. Hill then saw a pain management specialist, Dr. Fred DeFrancesch, without EMS authorization, who could not determine if the pain in her hip came from an injury to her lower back. He therefore scheduled a discogram to aid him in the assessment, but EMS refused to authorize the procedure.

Ms. Hill filed a disputed claim for compensation on February 18, 2011, alleging that an MRI scheduled by Dr. Stewart was not timely authorized. The claim was amended on July 19, 2011, to include a claim for TTD and/or SEB without offset from September 30, 2010, onward, to authorize the evaluation by Dr. DeFrancesch, to change her disability status to TTD or partial SEB, and to award penalties and attorney fees against |sEMS. She also filed a motion to compel a medical examination by Dr. DeFrancesch on the same day.

On October 5, 2011, OWC issued an order on the motion to compel that Ms. Hill be granted her choice of physician, Dr. DeFrancesch, and awarded penalties in the amount of $2,000 and attorney fees of $1,500 against EMS. EMS filed a motion for new trial for reargument purposes only on the issue of the penalties and attorney fees, which were based on EMS’s failure to authorize Dr. DeFrancesch’s examination. The motion was denied on October 28, 2011. EMS gave notice of intent to seek supervisory writs, which was denied on November 15, 2011, for lack of timeliness.

Ms. Hill also filed a motion and order to hold EMS in contempt on November 9, 2011, for EMS’s failure to timely authorize a discogram ordered by Dr. DeFrancesch. Trial on the motion for contempt was heard on January 9, 2012. Judgment was rendered by OWC on April 4, 2012, where, among other things, Ms. Hill’s status was [44]*44changed to SEB with zero earning capacity from September 30, 2010, to September 29, 2011, and EMS was ordered to pay an additional $2,000 in penalties and $3,500 in attorney fees. It is these two specific points of the judgment that EMS has timely appealed.

ASSIGNMENTS OF ERROR

There are four assignments of error by EMS:

1) [OWC] erred by disregarding its previous judgment from November 3, 2010, when holding on April 4, 2012 that “[EMS] properly reduced [Ms. Hill’s] TTD benefits to SEB on September 30, 2010.” The November 3, 2010 Judgment held that [Ms. Hill’s] SEB rate as of December, 2009 was $486.74; therefore, [Ms. Hill] was not [receiving] TTD on September 30, 2010.
2) [OWC] erred in holding that [Ms. Hill] was entitled to SEB after September 30, 2011 based on a post injury earning capacity of zero.
3) [OWC] committed legal error when it applied the penalty provisions of [La. R.S.] 23:1201(G) to a partial judgment | (¡rendered on October 5, 2011, which was not final or immediately appealable.
4) Assuming that [OWC] did not commit legal error when applying La. R.S. 23:1201(G), [OWC] committed manifest error in awarding [Ms. Hill] $3,500 in attorney fees for [EMS’s] failure to timely pay the October 5, 2011 judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
116 So. 3d 41, 2012 La.App. 1 Cir. 1347, 2013 WL 1458098, 2013 La. App. LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-new-orleans-ems-lactapp-2013.