Holmes v. Nursecare Nursing & Rehabilitation Center

121 So. 3d 720, 2013 WL 3816388, 2013 La. App. LEXIS 1493
CourtLouisiana Court of Appeal
DecidedJuly 24, 2013
DocketNo. 47,999-WCA
StatusPublished
Cited by1 cases

This text of 121 So. 3d 720 (Holmes v. Nursecare Nursing & Rehabilitation Center) 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
Holmes v. Nursecare Nursing & Rehabilitation Center, 121 So. 3d 720, 2013 WL 3816388, 2013 La. App. LEXIS 1493 (La. Ct. App. 2013).

Opinion

STEWART, J.

|! Plaintiff/Appellant, Angela Holmes, is appealing the judgment of the workers’ compensation judge (“WCJ”), denying her benefits subsequent to September 27, 2009. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In August of 2008, Angela Holmes was hired as a nurse’s assistant at Nursecare Nursing and Rehabilitation Center (“Nursecare”). On May 15, 2009, Ms. Holmes sustained an injury while working within the course and scope of her employment at Nursecare. She sustained this injury by slipping on a puddle of water and falling on her back in a shower room while she was putting up some dirty laundry. She did not seek medical attention that day, and went on to complete her regular shift. Ms. Holmes was treated for lower back pain at a Quick Care Clinic the following day, May 16, 2009. Soon thereafter, she sought treatment from the physician of her choice, Dr. James Dossey. Dr. Dossey determined that Ms. Holmes suffered from a back contusion and recommended physical therapy and medication for her condition. He restricted her to light duty and continued to treat her for the next several weeks.

A lumbar MRI was performed on July 7, 2009. It showed multiple degenerative changes, particularly at the L4-5 disc on the left. Dr. Dossey recommended that Ms. Holmes seek an orthopedic consultation. On August 13, 2009, she sought treatment from an orthopedic surgeon of her choice, Dr. Eubulus Kerr. Dr. Kerr identified a small herniation at L4-5. He diagnosed Ms. Holmes with lumbar radicu-lopathy, and recommended that she receive physical therapy, along with epidural steroid injections. She |2opted not to follow Dr. Kerr’s recommendations, and did not return to him until September 6, 2009. She testified at trial that she did not seek the recommended treatment because she was “depressed.” However, she visited the emergency room on April 8, 2010, July 15, 2010, September 16, 2010, November 8, 2010, and December 31, 2010, each time complaining of back and leg pain related to the May 15, 2009, work incident.

After missing four days of work, Ms. Holmes returned to Nursecare on May 19, 2009, in a light duty job. On August 31, 2009, she was terminated from her employment at Nursecare for insubordination. During the next two years, she sought employment with between 144 and 180 prospective employers, either by phone or in person.

Ms. Holmes initially began receiving unemployment benefits during the week of [723]*723October 3, 2009. Louisiana Workforce Commission records show that she received benefits for 72 weeks from October 2009 through June 2011.

On May 30, 2010, Ms. Holmes filed Form LDOL-WC-1008 with the Louisiana Office of Workers’ Compensation, arguing that “no wage benefits have been paid” and requesting to choose Dr. Carter Boyd as her treating physician. She was denied workers’ compensation benefits.

Trial on the merits was held on April 23, 2012. WCJ Patrick Robinson rendered judgment partially in favor of Holmes, and assigned the following written reasons:

• Holmes sustained an accident on May 15, 2009, in the course and arising out of employment with Nursecare, causing the injuries for which she was treated through September 27, 2009.
Is* Nursecare’s motion for involuntary dismissal in reference to Holmes’ motion to choose Dr. Boyd as her treating physician is granted.
• Any injuries claimed by Holmes subsequent to September 27, 2009, are not causally related to the May 15, 2009, incident.
• All medical benefits subsequent to September 27, 2009, are denied.
• All indemnity benefits subsequent to September 27, 2009, are denied.
• Holmes was entitled to supplemental earnings benefits, based upon a zero wage earning capacity, from September 1, 2009, through September 26, 2009, based upon a pre-injury average weekly wage of $341.50, which corresponds to a weekly indemnity rate of $227.28, plus judicial interest thereon from the date that each payment was due until paid.
• Nursecare failed to reasonably controvert Holmes’ claim for supplemental earning benefits from September 1, 2009, through September 26, 2009, and therefore is liable to her for a penalty in the amount of $2,000.00 and attorney fees in the amount of $2,000.00, plus judicial interest thereon from June 5, 2012, until paid.

LAW AND DISCUSSION

We note that Holmes is appearing before this court in proper person. Her brief simply sets forth a recitation of the facts surrounding the alleged work-related accident, and does not address the issue of whether the WCJ’s judgment was proper. This pro se brief does not comply with the requirement of Uniform Rules, Court of Appeal, Rule 2-12.4. It contains no assignments of error, no record references, and no jurisdictional statement. However, the courts of this State have considered briefs in improper form in instances when it is filed by pro se claimants. See Cheatham v. Luberski, 43,603 (La.App.2d Cir.9/17/08), 996 So.2d 373. In light of Holmes’ pro \ 4se status, this court will attempt to discern the substance of her argument and treat it as though properly raised.1

Holmes’ pro se brief challenges the WCJ’s judgment that denied her benefits subsequent to September 27, 2009. More specifically, the tone of her brief suggests that she contends that the WCJ erred in determining that she was not entitled to workers’ compensation benefits for the complained of symptoms after September 27, 2009. She highlights her October 27, 2011, appointment with Dr. Kerr, who concluded that “her pain was most likely exacerbated” by the May 15, 2009, incident.

[724]*724 Compensable Injury

It is well settled that the factual findings of the WCJ are subject to manifest error review. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275; Kinchen v. City of Shreveport, 46,490 (La.App.2d Cir.9/21/11), 73 So.3d 1011, writ granted, (La.12/2/11), 76 So.3d 1161. Under this legal standard, the reviewing court does not decide whether the fact finder was right or wrong, but only whether its findings are reasonable. Id.; Stobart v. State, 617 So.2d 880 (La.1993). The manifest error standard applies even when the decision of the WCJ is based upon written reports or depositions. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Alexander v. Brookshire Grocery Company, 42, 855 (La.App.2d Cir.1/9/08), 975 So.2d 100, writ denied, 08-0503 (La.4/25/08), 978 So.2d 367. Where there are two permissible views of the evidence, the fact | ^finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Johnson v. Bossier Parish Sch. Bd., 43, 817 (La.App.2d Cir.1/21/09), 3 So.3d 580, writ denied, 2009-0676 (La.5/15/09), 8 So.3d 586. Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Taylor v. Hollywood Casino, 41,196 (La.App.2d Cir.6/28/06), 935 So.2d 293; City of Shreveport, 43,132 (La.App.2d Cir.3/26/08), 980 So.2d 203.

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course of employment. La. R.S. 23:1031.

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121 So. 3d 720, 2013 WL 3816388, 2013 La. App. LEXIS 1493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmes-v-nursecare-nursing-rehabilitation-center-lactapp-2013.