STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-936
KATINA HODGES
VERSUS
GOLDEN NUGGET LAKE CHARLES, LLC
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 3 PARISH OF CALCASIEU, NO. 15-02226 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.
AMENDED AND AFFIRMED AS AMENDED. Lance S. Ostendorf John G. Alsobrook Ostendorf, Tate, Barnett, LLP 650 Poydras Street, Suite 1460 New Orleans, LA 70130 (504) 324-2244 COUNSEL FOR DEFENDANT-APPELLANT: Golden Nugget Lake Charles, LLC
Justin T. Morales Todd A. Townsley Rex D. Townsley The Townsley Law Firm 3102 Enterprise Boulevard Lake Charles, LA 70607 (337) 478-1400 COUNSEL FOR PLAINTIFF-APPELLEE: Katina Hodges PICKETT, Judge.
The defendant employer appeals a judgment that awards the claimant
workers’ compensation benefits, penalties, and attorney fees. For the reasons that
follow, we amend the judgment and affirm it as amended.
FACTS
On January 6, 2015, Katina Hodges was working at the Golden Nugget
Casino as a security guard. While standing next to a podium at an entrance to the
casino where she performed identification checks, Ms. Hodges fainted and fell to
the floor. A surveillance video shows that she fell toward the podium and struck
her left shoulder on it. She continued falling, and her lower right leg and knee
struck the marble floor. The rest of her body followed, until the entire right side of
her body contacted the floor. The right side of her head then hit the floor, and Ms.
Hodges appeared to experience a seizure because her body continued moving, yet
witnesses reported that she was unconscious at the time.
Ms. Hodges was transported by ambulance to Christus St. Patrick Hospital
in Lake Charles where CT scans were performed and interpreted as showing that
she suffered a subarachnoid hemorrhage in the right frontal portion of her brain.
She was then transported to Our Lady of the Lake Hospital in Baton Rouge where
additional CT scans were interpreted as also showing a subarachnoid hemorrhage
in the right frontal portion of Ms. Hodges’ brain. Dr. Rebecca Whiddon, a
neurologist, treated Ms. Hodges at Our Lady of the Lake Hospital and agreed with
the radiologists’ interpretations of a subarachnoid hemorrhage. Ms. Hodges
treated with Dr. Whiddon until March 18, 2015. Thereafter, she treated with a
number of physicians for injuries and aggravations of pre-existing injuries or
conditions, including low back pain, right knee and leg pain, and depression that
she claims resulted from her fall. On January 30, 2015, Golden Nugget filed a Notice of Controversion,
denying it owed benefits and medical expenses to Ms. Hodges on the grounds that
her claim was not compensable because it was caused by a fainting spell. In April
2015, Ms. Hodges filed a Disputed Claim for Compensation wherein she alleged
that she passed out, fell, and hit her head while working. Golden Nugget denied
Ms. Hodges’ claim and asserted that her alleged injury was not compensable under
the Workers’ Compensation Act. It also alleged that she forfeited any benefits to
which she may be entitled under La.R.S. 23:1208 because of misrepresentations
she made during the course of her claim.
On March 6, 2017, the matter was tried before the Workers’ Compensation
Judge (WCJ). After taking the matter under advisement, the WCJ issued oral
reasons for ruling on May 30, 2017, holding that Ms. Hodges’ fall on January 6,
2015, was an accident. The WCJ further held that Ms. Hodges suffered injuries as
a result of the accident and ordered Golden Nugget to pay total temporary
disability benefits, supplemental earnings benefits (SEBs), medical benefits,
penalties in the amount of $2,000 for its failure to pay Ms. Hodges indemnity
benefits and $2,000 for its failure to pay her medical expenses, and attorney fees in
the amount of $25,000. On June 20, 2017, the WCJ signed a judgment conforming
to those reasons.
Golden Nugget appealed that judgment and urges that the WCJ erred in
awarding Ms. Hodges workers’ compensation benefits, penalties, and attorney fees.
STANDARD OF REVIEW
“Factual findings in workers’ compensation cases are subject to the manifest
error or clearly wrong standard of appellate review. In applying the manifest error
standard, the appellate court must determine not whether the trier of fact was right
or wrong, but whether the factfinder’s conclusion was a reasonable one.” Foster v. 2 Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160,
1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted).
Waiver of Benefits Pursuant to La.R.S. 23:1208
Golden Nuggets first contends that the WCJ erred in rejecting its claim that
Ms. Hodges forfeited her right to workers’ compensation benefits, as provided by
La.R.S. 23:1208(A), because she made misrepresentations during the course of her
claim in response to discovery requests, to its vocational rehabilitation experts, in
her deposition, and to her treating physicians.
Louisiana Revised Statutes 23:1208(A) provides that it is “unlawful for any
person, for the purpose of obtaining . . . any benefit or payment . . . to willfully
make a false statement or representation.” An employee who violates this
provision “shall, upon determination by workers’ compensation judge, forfeit any
right to compensation benefits under this Chapter.” La.R.S. 23:1208(E). For an
employer to prove a claim for forfeiture of workers’ compensation benefits under
La.R.S. 23:1208, it must prove that (1) the claimant made a false statement or
representation, (2) the statement was willfully made, and (3) the statement was
made for the purpose of obtaining or defeating any benefit or payment. Resweber
v. Haroil Constr. Co., 94-2708, 94-3138 (La. 9/5/95), 660 So.2d 7. Inadvertent or
inconsequential false statements do not satisfy the employer’s burden of proof.
Rougeou v. St.Francis Cabrini Hosp., 12-854 (La.App. 3 Cir. 2/6/13), 107 So.3d
851. A WCJ’s finding that a claimant did not make a false statement to obtain
benefits is a finding of fact subject to the manifest error standard of review.
Gibson v. Resin Sys., Inc., 15-299, p. 8 (La.App. 3 Cir. 10/7/15), 175 So.3d 1141,
1147.
Golden Nugget asserts that Ms. Hodges denied any prior injuries, prior
incidents, or prior physical or mental impairments before the accident in her 3 Answers to Interrogatories and Responses to Request for Production it propounded
to her and when it deposed her on August 24, 2015. Golden Nugget also points out
that Ms. Hodges failed to report on physician questionnaires that prior to January
2015, she had complaints of and treatment for left shoulder pain, which was
diagnosed as a tear of the superior labrum, and low back pain. It also notes that
Ms. Hodges failed to report to physicians for more than four months that she
slipped and fell off her porch in April 2015, injuring her right ankle, right knee,
and back. Golden Nugget further asserts that admissions by Ms. Hodges that she
reported only the accident, but not the slip and fall off her porch, to Dr. Seth
Billiodeaux, her pain management specialist, and Drs. Robert Abramson and
Christina Notarianni, two neurosurgeons who also treated her, constitutes
misrepresentations that warrant forfeiture. It also points to Ms. Hodges’ denial of
working when she worked for Lofton Staffing & Security Services from October
2015 through May 2016 and to misrepresentations she made regarding the time
frame within which she worked, as well as the number of hours she worked, as
cause for forfeiting benefits.
Ms. Hodges defends this claim arguing that she suffered a brain injury as a
result of the accident which resulted in some memory loss that excuses her failure
to timely recall and report past events. She also argues that testing performed by
Golden Nugget’s vocational rehabilitation expert showed she has a 5.1 grade
equivalent in Reading Recognition, a 4.4 grade equivalent in Reading
Comprehension, and a 3.7 grade equivalent in Math is evidence that her brain
injury affected her memory because she graduated from high school and completed
some college.
Golden Nugget counters Ms. Hodges’ claims that she merely forgot to report
pre- and post-accident medical conditions with Lofton’s employment records. 4 Lofton’s records show that Ms. Hodges began working in October 2015 and that
before she began working, Ms. Hodges was administered (1) a Warehouse Safety
& Inventory Test on which she scored 80; (2) a Basic Skills test on which she
scored 100; (3) a Basic Arithmetic test on which she scored 90; and (4) a Grammar
& Spelling Industrial test on which she scored a 71. On January 28, 2016, she
attended a Security Training Class and scored 96 on a test administered at that time.
Lofton’s employment records also show that Ms. Hodges worked more than
she claims. Beginning in October 2015, she worked every month until June
2016. She worked during twenty-five of the thirty-five weeks in that period. Ms.
Hodges met with Golden Nugget’s vocational rehabilitation expert on March 8,
2016, and denied that she was working; however, Lofton paid her for work
performed during fourteen of the fifteen weeks immediately preceding that
meeting. During those weeks, she worked as little as four hours per week and as
many as forty hours per week. She worked 21.33 hours the week preceding the
March 8 meeting with the vocational rehabilitation expert, and she worked 37.33
hours the week ending February 29, 2016.
In May 2016, Ms. Hodges received a favorable decision on a claim she had
filed for Social Security disability benefits in which she alleged that she was
disabled beginning December 31, 2011. She testified that she began receiving
those benefits in May or June 2016. She did not work for Lofton after receiving
Social Security disability benefits.
Ms. Hodges cites her own testimony and the testimony of her son as factual
support for her claim that her fall and brain injury have caused her to experience
memory loss. She also cites Keys v. Republic Services., 12-252 (La.App. 3 Cir.
10/3/12), 99 So.3d 734, writ granted, 12-2369 (La. 1/18/13), 107 So.3d 619, writ
denied as improvidently granted, 12-2369 (La. 5/7/13), 118 So.3d 342, where 5 medical evidence established that the claimant’s Huntington’s disease affected his
brain and excused his or her misstatements or misrepresentations as to his prior
medical history.
Our review of Ms. Hodges’ medical records does not show that any
physician reported her head injury caused or could cause her to suffer memory loss.
It does show, however, that Dr. Horatio A. Millin, Jr., a psychiatrist who began
treating Ms. Hodges after the accident, diagnosed her with major depressive
disorder, attention deficit disorder, general anxiety disorder, and insomnia. Dr.
Millin explained that his role in treating Ms. Hodges was to determine the impact
of chronic pain on her psychological symptoms. He testified it is well known that
depression can cause short-term memory deficit. He also pointed out that Dr.
Andrew Thrasher, a psychiatrist, reported in 2014 that Ms. Hodges had a short-
term memory deficit.
The WCJ denied Golden Nugget’s claim for forfeiture, stating:
“Considering the nature of the claimant’s injury, this court is unable to find that Ms.
Hodges possessed the required intent to defraud the workers’ compensation
system.” The discrepancies Golden Nugget relies on were detailed to the WCJ at
trial, and, despite those discrepancies, the WCJ concluded that Golden Nugget had
not established that Ms. Hodges had the requisite intent to justify forfeiture of her
benefits.
Golden Nugget had the burden of proving this defense; however, it did not
present evidence to establish what short-term memory loss or deficit is and how it
impacts a person’s ability to recall and report events. In light of the totality of the
evidence, especially the medical evidence, and the “great deference” owed to the
trier of fact, we cannot say that Golden Nugget carried its burden of proving
Ms. Hodges violated La.R.S. 23:1208. Rogel v. Dollar Gen. Corp., 13-792 6 (La.App. 3 Cir. 12/11/13), 132 So.3d 978, writ denied, 14-58 (La. 3/14/14), 135
So.3d 604 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Accordingly,
we find no manifest error in the WCJ’s denial of Golden Nugget’s La.R.S.
23:1208(A) defense.
The WCJ Erred in Holding that Katina Hodges’ Injuries are Compensable
Golden Nugget next argues that the WCJ erred in finding that Ms. Hodges
proved she was injured as the result of “an accident,” as defined by the Workers’
Compensation Act. Pointing to the testimony of its two experts, Dr. Curtis
Partington, a neuroradiologist, and Dr. James Domingue, a neurologist, it asserts
that Ms. Hodges suffered a blood clot in her brain that is not compensable under
the Workers’ Compensation Act.
The Workers’ Compensation Act defines a compensable injury to “include
only injuries by violence to the physical structure of the body and such disease or
infections as naturally result therefrom. These terms shall in no case be construed
to include any other form of disease or derangement, however caused or
contracted.” La.R.S. 23:1021(8)(a). The Act also provides that a “perivascular
injury . . . shall not be considered a personal injury by accident arising out of and
in the course of employment and is not compensable . . . unless it is demonstrated
by clear and convincing evidence that” the following two conditions are satisfied:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.
La.R.S. 23:1021(8)(e).
Ms. Hodges presented the video showing her fall of January 6, 2015, her
testimony, her son’s testimony, and the testimony of a radiologist, a neurologist, 7 and a neurosurgeon to establish that her fall was a compensable accident.
Dr. Whiddon confirmed Ms. Hodges’ diagnosis as a small right frontal
subarachnoid hemorrhage in her brain. Based on the events immediately preceding
Ms. Hodges’ fall, Dr. Whiddon related the hemorrhage to the fall because she
found no alternative explanation for it in the CT scans.
Dr. Richard Martinez, a diagnostic and interventional radiologist, testified in
detail with regard to the CT scan taken at Christus St. Patrick Hospital shortly after
Ms. Hodges’ fall and also confirmed the diagnosis of subarachnoid hemorrhage.
Dr. Martinez and Dr. Whiddon opined that the mechanics of her fall, as depicted
on the video, provide the best explanation for her injury because her head came to
an abrupt stop when it hit the floor, causing her brain to slam against that side of
her skull then continue moving such that it bounced back and hit the opposite side
of her skull. Dr. William Brennan, a neurosurgeon, explained in detail the
pertinent anatomy of the brain and the manner in which blood flows to and from
the head and brain. He testified that the diagnosed subarachnoid hemorrhage is
easily demonstrated on Ms. Hodges’ CT scans and is “not surprising in light of
how she fell.”
Drs. Partington and Domingue testified that CT scans of Ms. Hodges’ brain
show a transverse sinus thrombosis or blood clot in one of the veins in her head
that drains blood from her brain which caused her to faint and have seizures. Dr.
Partington testified that he did not see any sign of traumatic injury to her brain. Dr.
Partington did not examine Ms. Hodges or view the video of her fall and testified
that CT scans of her brain provided him all the information he needed to diagnose
her problem. Dr. Domingue reviewed the video of Ms. Hodges’ fall and admitted
it is hard to say that the manner in which her head hit the floor when she fell did
not contribute to the hemorrhaging in her brain. 8 Dr. Whiddon found nothing in Ms. Hodges’ presentation that suggested a
blood clot as described by Drs. Partington and Domingue. She explained that the
type of bleeding and area of bleeding in Ms. Hodges’s brain was unusual for the
type of blood clot they diagnosed. Dr. Martinez also disagreed with the diagnosis
of a blood clot, explaining, in part, that a venous thrombosis is a latent
complication that occurs over time, which is not immediately seen. Dr. Brennan
further explained that a transverse sinus thrombosis is an extremely rare condition
that has catastrophic results in its victims that are not present here. Drs. Martinez
and Brennan both opined that the manner in which Ms. Hodges fell and hit her
head was integral to understanding her injury and why it is most likely that she
suffered a subarachnoid hemorrhage when she fell.
As is often the case in workers’ compensation matters, the WCJ was faced
with divergent medical opinions. She had the duty of considering the differing
opinions and determining which opinion was most credible. When evaluating
expert testimony, a WCJ is granted considerable discretion, and the acceptance of
one expert’s opinion over the conflicting testimony of another expert can never be
manifestly erroneous. Richard v. Vermilion Hosp., 10-385 (La.App. 3 Cir. 6/9/10),
41 So.3d 1219, writ denied, 10-1611 (La. 10/8/10), 46 So.3d 1269.
In accordance with the general rule that a treating physician’s opinion should
be given greater weight than consulting physicians, the WCJ reviewed the
testimony of each expert and accepted the findings of Dr. Whiddon, Ms. Hodges’
neurologist, that Ms. Hodges suffered a subarachnoid hemorrhage when she fell.
See Richardson v. Lil’ River Harvesting, 09-1090 (La.App. 3 Cir. 3/10/10), 33
So.3d 418). Golden Nugget argues that the WCJ erred in doing so because
Dr. Whiddon had much less experience reading CT scans than Dr. Partington and
acknowledged that when she reviewed the CT scans, she did not notice a blood clot 9 in Ms. Hodges’ right transverse sinus and it was possible there was a blood clot she
did not notice.
When determining the weight to be afforded a treating physician’s testimony,
the WCJ must also consider the physician’s qualifications and the facts upon which
his opinion is based; both have great bearing on this issue. Vidrine v. Teche Elec.
Supply, L.L.C., 08-1287 (La.App. 3 Cir. 4/1/09), 6 So.3d 1012, writ denied, 09-964
(La. 6/19/09), 10 So.3d 739. Dr. Whiddon thoroughly explained the basis for her
diagnosis, and her reasoning and conclusion were corroborated by the
interpretations of the Christus St. Patrick Hospital and Our Lady of the Lake
Hospital radiologists, Dr. Martinez, and Dr. Brennan. For these reasons, we find
the WCJ’s assessment of the expert testimony and opinions is reasonable and
supported by the evidence and, therefore, not manifestly erroneous.
The WCJ Erred in Finding a Causal Relationship Existed between the Accident and Injuries to Katina Hodges’ Left Shoulder, Right Knee, and Low-Lying Conus
Ms. Hodges sought treatment for injuries to her left shoulder, low back, right
leg, and right knee that she asserts were caused or aggravated by the accident. The
WCJ held that she proved these claims and held that “[t]he accident caused,
aggravated, accelerated, or combined with injuries to her low back, right leg, right
knee, and left shoulder.” Golden Nugget asserts that Ms. Hodges’ medical records
and her treating physicians’ testimony show that her complaints regarding these
areas are not related to the accident because they either pre-existed the accident
and/or because she failed to report complaints of pain in these areas for four or
more months after the accident.
It has long been held that for purposes of workers’ compensation, an
employer takes the worker as he finds him and that an abnormally susceptible
worker is entitled to the same as a healthy worker. Fontenot v. Wal-Mart Stores, 10 Inc., 03-1570 (La.App. 3 Cir. 4/7/04), 870 So.2d 540, writ denied, 04-1131 (La.
6/25/04), 876 So.2d 843. Therefore, a claimant who suffers from a pre-existing
medical condition is entitled to benefits if she proves that a work accident
aggravated, accelerated, or combined with the pre-existing condition to produce
disability for which she seeks benefits. Sharbono v. Fire Safety Sales & Serv., 04-
265 (La.App. 3 Cir. 9/29/04), 883 So.2d 1066, writ denied, 04-2661 (La. 1/28/05),
893 So.2d 73.
The medical evidence established that Ms. Hodges had a pre-existing injury
to her left shoulder and that she had a congenital condition known as low-lying
conus or tethered cord syndrome. Low-lying conus results when the spinal cord
fails to develop normally.
Ms. Hodges saw Dr. Brett Cascio, an orthopedic surgeon, in early September
2015, complaining of left shoulder pain and right leg pain. Dr. Cascio performed
surgery on Ms. Hodges’ right knee to repair a torn meniscus. Based on the history
Ms. Hodges related to him, Dr. Cascio opined that her complaints of her knee pain
were triggered by the accident. Ms. Hodges reported to Dr. Cascio that she had
injured her left shoulder while working for FedEx where she was required to lift
and move packages but explained that she had increasing pain in left shoulder after
the accident. Dr. Cascio also performed surgery on her left shoulder and
acknowledged that the shoulder injury pre-existed the accident. He related the
aggravation of her left shoulder injury to the accident and testified that a direct
trauma to her shoulder could aggravate that pre-existing injury.
Due to complaints of chronic pain, Dr. Cascio referred Ms. Hodges to
Dr. Billiodeaux, an anesthesiologist who specializes in pain management.
Dr. Billiodeaux first saw Ms. Hodges in September 2015. Her chief complaints at
that time were back pain and neck pain. At that time, he documented, among other 11 things, weakness in her right lower leg, abnormal gait, stiffness in her back, and
painful extension of her lower back. After obtaining an MRI of Ms. Hodges’ back,
Dr. Billiodeaux diagnosed her as having tethered cord, also known as a low-lying
conus, which occurs when the spinal cord extends further down than normal and
connective tissue “tethers” the spinal cord. Dr. Billiodeaux explained that a low-
lying conus “can put extensive tension on the nerve roots . . . and can be
undiagnosed . . . until spontaneous or minor injury would occur.” He further
related that the condition can result in sensory motor deficits. Dr. Billiodeaux
explained that a person with tethered cord is more susceptible to injury and that
symptoms like those Ms. Hodges complained of, i.e., tingling in her right leg,
instability which causes falls, pain radiating into her right hip and down her right
leg, can occur spontaneously or following an injury. He opined that the accident
caused Ms. Hodges’ tethered cord to become symptomatic, causing her lower back
pain, pain radiating down her right hip and leg, and associated sensory deficits in
her right leg or “at the least” aggravated this pre-existing condition. Dr.
Billiodeaux referred Ms. Hodges to Dr. Abramson for further treatment of the
condition which was ultimately treated with surgery performed by Dr. Notarianni.
Dr. Brennan testified that he agreed with Drs. Cascio and Billiodeaux that
the mechanics of Ms. Hudson’s fall could have caused her to suffer left shoulder
pain, back pain, and right leg and knee pain.
Central to the trial of this matter was the aggravation of Ms. Hodges’ pre-
existing left shoulder injury and her delay in seeking treatment for her complaints
of pain in her back, right leg, and right knee. The parties presented extensive
medical evidence on these conditions and the issue of causation. Golden Nugget
argues Ms. Hodges’ failure to complain of pain in the areas earlier than she did and
not reporting a slip and fall on her front porch evidences that her complaints do not 12 relate to the accident. Dr. Cascio noted that he believed Ms. Hodges had some
cognitive issues that may have caused the delay in her seeking treatment. He also
observed that financial constraints may have been an issue. Ms. Hodges explained
at trial that she did not report the slip and fall because she did not experience any
new complaints of pain after it occurred.
In our view, the WCJ’s opportunity to hear and see Ms. Hodges’ live
testimony and assess her credibility was essential to her evaluation of the totality of
the evidence. Undoubtedly, the WCJ found Ms. Hodges to be credible. Based on
the record before us, we cannot say that a reasonable fact finder would not accept
Ms. Hodges as credible. Accordingly, we do not find that the WCJ manifestly
erred in holding that a causal relationship between the accident and her complaints
of pain in her left shoulder and her right knee, as well as her complaints of pain in
her low back and pain and instability in her right leg, attributed to her low-lying
conus.
The WCJ Erred in Holding that the Accident Aggravated or Caused Katina Hodges’ Depression
Golden Nugget contends that Ms. Hodges failed to prove that her depression
was caused or aggravated by the accident. It points to the fact that she suffered
from pre-existing severe depression when the accident occurred and was found to
be disabled by the Social Security Administration beginning December 31, 2011.
Golden Nugget cites Dr. Millin as denying that the accident aggravated her
depression to support this claim.
As discussed above, Dr. Millin treated Ms. Hodges for the impact of her
chronic pain on her psychological symptoms. He acknowledged that she suffered
with depression for ten or eleven years before the accident but explained that a
significant fall, such as the one she experienced, can aggravate pre-existing
13 depression. Dr. Millin further testified that he did not consider Ms. Hodges
disabled prior to January 6, 2016, from a purely psychiatric or psychological point
of view. He added that “the additional layer of chronic pain” she began suffering
after the accident is “something completely different,” indicating that he
considered her disabled after the accident. Dr. Millin denied that if Ms. Hodges
had chronic pain before the accident she was disabled prior to that time.
The medical evidence clearly shows that Ms. Hodges had severe depression
before the accident; however, Dr. Millin’s testimony relates an increase in her
depression and associated symptoms to the severity of the chronic pain she
experienced after the accident. Accordingly, we cannot say the WCJ’s holding that
Ms. Hodges’ depression was aggravated by the accident is unreasonable.
The WCJ Erred in Assessing Penalties Against Golden Nugget
Golden Nugget next complains that the WCJ erred in assessing it with
penalties, $2,000 each for failing to pay Ms. Hodges indemnity and medical
benefits. Ms. Hodges counters with the testimony of Golden Nugget’s claims
adjuster who testified that Ms. Hodges was not entitled to workers’ compensation
benefits because her fainting at worked caused the accident. Sampson v. Avoyelles
Parish School Bd., 11-1248 (La.App. 3 Cir. 3/7/12) 86 So.3d 118
When an employer refuses to authorize medical treatment for an eligible
workers’ compensation claimant, the claimant is entitled to penalties and attorney
fees unless the employer reasonably controverts the claim. La.R.S. 23:1201(F);
Leonards v. Carmichael’s Cashway Pharmacy, Inc., 09-1424 (La.App. 3 Cir.
5/5/10), 38 So.3d 571, writ denied, 10-1738 (La. 10/29/10), 48 So.3d 1094. A
claim is reasonably controverted if the employer establishes that it had “some valid
reason or evidence” for denying the claim. Trahan v. City of Crowley, 07-266, p. 5
(La.App. 3 Cir. 10/3/07), 967 So.2d 557, 561, writs denied, 07-2462, 07-2471 (La. 14 2/15/08), 976 So.2d 185, 187, respectively. Penalties are stricti juris and should
only be imposed when the evidence shows the employer’s refusal to authorize
medical treatment was without just cause and not in good faith. Mouton v.
Gulfstream Servs., 08-1186 (La.App. 3 Cir. 5/6/09), 11 So.3d 1135. A WCJ has
great discretion when considering a claim for penalties and attorney fees. Ducote v.
La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843. We will not
reverse an award of penalties or attorney fees unless we determine it to be
manifestly error or clearly wrong.
The WCJ awarded Ms. Hodges penalties and attorney fees because Golden
Nugget failed to pay her indemnity benefits and medical benefits and failed
comply with its continuing duty to investigate. Golden Nugget’s claims adjuster
testified that she denied the claim after being informed by Ms. Hodges’ co-workers
that she experienced a seizure when she fell. In Fontenot, 870 So.2d 540, the court
rejected Golden Nugget’s defense, citing our supreme court’s opinion in Guidry v.
Serigny, 378 So.2d 938 (La.1979), and reversed the trial court’s denial of
compensation benefits to a cook who had fallen as she walked from the storage
area of a restaurant to its kitchen because the evidence showed that the claimant
had fallen due to a fainting spell instead of as a result of a waxed floor. The
supreme court awarded benefits, finding that the accident was the claimant’s fall,
regardless of what caused her to fall.
In spite of the medical evidence available immediately after the accident that
diagnosed Ms. Hodges as having suffered a subarachnoid hemorrhage and
Dr. Whiddon’s refusal to release her to return to work until she was evaluated for
hallucinations and depression that Ms. Hodges reported, Golden Nugget refused to
pay Ms. Hodges workers’ compensation benefits. Golden Nugget did not
reconsider its position when Ms. Hodges continued to seek medical treatment 15 thereafter and did not seek justification for its continued denial of benefits until
almost a year after the accident when it finally sought the opinions of Drs.
Partington and Domingue. Under these circumstances, we cannot say that the
WCJ erred in finding Golden Nugget’s failure to timely pay indemnity and medical
benefits was arbitrary and capricious and awarding penalties against it.
Alternatively, the WCJ erred in awarding SEB’s at $0 Earnings
The WCJ awarded Ms. Hodges temporary total disability benefits for the
period January 6, 2015, through October 11, 2015, and SEBs thereafter “based on
zero earnings, until and unless she has been cleared by all of her treating
physicians, not just Dr. Brett Cascio.” Pointing to her work for Lofton, Golden
Nugget argues that the WCJ erred in awarding Ms. Hodges SEBs but assigning her
$0 in earnings.
The supreme court discussed SEBs in Poissenot v. St. Bernard Parish
Sheriff’s Office, 09-2793, pp. 4-5 (La. 1/9/11), 56 So.3d 170, 174 (alterations in
original) (footnote omitted), explaining:
“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or
16 the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.
Ms. Hodges first argues that she is entitled to SEBs based on $0 wages
because she only worked nineteen days during the period of October 12, 2015,
through June 13, 2016, and she never worked full time. As discussed above,
Lofton’s payroll records reflect Ms. Hodges worked more than she claims;
however, she did not work full time. Ms. Hodges contends that she only worked
because Golden Nugget was not paying her indemnity benefits and she had no
other source of income. Ms. Hodges also cites Dr. Millin’s opinion that she should
have been on a no-work status beginning November 18, 2015, and the fact that he
never approved any of the jobs Golden Nugget’s vocational rehabilitation expert
submitted to him for approval as support for the WCJ’s award.
Dr. Millin initially testified the Ms. Hodges could not work but later testified
it was hard to deny Ms. Hodges could work if she actually was working.
Furthermore, Dr. Millin testified that he does not get involved in work status
assessments and disability applications and explained that if Ms. Hodges’
orthopedist and neurologist approved jobs that she could perform, he would not
disagree with those decisions.
The WCJ qualified the award of SEBs at $0 per week “until and unless she
has been cleared by all of her treating physicians, not just Dr. Brett Cascio.” By
August 15, 2016, Drs. Cascio, Domingue, and Notarianni approved various jobs
that Ms. Hodges could perform. Moreover, Dr. Whiddon testified that the only
reason she did not release Ms. Hodges to return to work on her last visit in March
2016 was that she wanted her evaluated by a psychiatrist because of Ms. Hodges’
reports of hallucinations and depression. Ms. Hodges did not return to Dr.
17 Billiodeaux for treatment after he referred her to Dr. Abramson and did not return
to Dr. Abramson or Dr. Notarianni after she had surgery on her back.
Having considered the WCJ’s rulings in light of Ms. Hodges’ work from
October 11, 2015, through June 2016 and the medical evidence, we find that the
WCJ erred in awarding SEB’s based on $0 earnings. We amend that award to
award Ms. Hodges SEB’s beginning October 11, 2015, based on earnings of $150
earnings per week from that date until August 15, 2016, the date on which the last
of her treating physicians approved jobs that she could perform. Earnings of $150
per week are assessed after consideration of Ms. Hodges’ actual weekly earnings
with Lofton, which ranged from $36 per week to $360 per week and the actual
hours she worked each week, which increased steadily beginning in February 2016.
Ms. Hodges only worked 4.5 hours during one week in June 2016; however, she
began receiving Social Security disability benefits that month. Therefore, we do
not consider this as evidence that she could not continue working part-time as she
had since October 2015.
Ms. Hodges also argues that she cannot work because she has continuing
issues with pain and swelling in her right leg. Golden Nugget established that her
physicians approved employment positions that are primarily sedentary in nature,
which will allow her to make postural changes from sitting to standing and vice
versa during the workday. It also presented evidence of such positions being
available in Lake Charles which pay $8 - $15 per hour. Golden Nugget paid
Ms. Hodges a base pay of $11.50 per hour; 90% of $11.50 is $10.35. Golden
Nugget argues that because three of the cited positions pay more than $12 per hour,
its obligation to pay Ms. Hodges SEBs ceased on August 15, 2016. We agree.
Accordingly, Golden Nugget’s obligation to pay Ms. Hodges SEBs ceased on
August 15, 2016. 18 The WCJ Erred in Allowing Drs. Richard Martinez and William Brennan to testify in violation of La.R.S. 23:1124.1
Golden Nugget urges that the trial court erred in allowing Dr. Martinez and
Dr. Brennan to testify at trial on behalf of Ms. Hodges because she submitted the
deposition testimony of Dr. Whiddon, her treating neurosurgeon, for trial purposes
and it had submitted the testimony of Drs. Partington, a neurosurgeon, and
Domingue, a neurologist for trial purposes. At trial, counsel for Golden Nugget
objected to the testimony of Drs. Martinez and Brennan, arguing he was not aware
the doctors would testify at trial and the doctors’ testimony would be cumulative.
Counsel for Ms. Hodges noted these doctors were listed as witnesses on her Pre-
Trial Statement. The WCJ overruled the objection and allowed the doctors to
testify.
Louisiana Revised Statutes 23:1124.1 prohibits the claimant and employer
from introducing “the testimony of more than two physicians where the evidence
of any additional physician would be cumulative testimony.” In Carter v. Iberia
Parish School Board, 17-594, p. 11 (La.App. 3 Cir. 12/13/17), __ So.3d __, 2017
WL 6349414, another panel of this court found no error with the WCJ allowing the
employer to present the testimony of more than two physicians, finding “The trial
court could find this testimony provided additional perspectives necessary to aid
the factfinder under La.R.S. 23:1124.1.” The panel further observed that although
cumulative evidence should not be allowed, it is within the trial court’s discretion
to decide what expert testimony it wishes to hear. The panel also explained:
“While it is our duty to scrutinize trial court rulings, judgments, and factual
findings, we are also mindful that an appellate court must not unduly micromanage
those functions.” Id., pp. 11-12, __ So.3d at __.
19 Golden Nugget’s reliance upon the opinions of Drs. Partington and
Domingue, which were diametrically opposed to the opinions of Ms. Hodges’
treating physicians, clearly warranted the WCJ’s allowance of these witnesses live
testimony. Moreover, Dr. Brennan’s in-depth testimony of the head and brain
more likely than not provided the WCJ a better understanding of the experts’
opposing opinions regarding Ms. Hodges’ CT scans. We find no error by the WCJ.
DISPOSITION
For the reasons discussed herein, we amend the judgment in favor of Katina
Hodges and against Golden Nugget to award supplemental earnings benefits for
the period October 11, 2015, through August 15, 2016, based on earnings of $150
per week. The judgment is affirmed in all other respects. All costs are assessed to
Golden Nugget Lake Charles, LLC.
AMENDED AND AFFIRMED AS AMENDED.