Lee v. St. James Parish Council

864 So. 2d 736, 3 La.App. 5 Cir. 834, 2003 La. App. LEXIS 3668, 2003 WL 23025211
CourtLouisiana Court of Appeal
DecidedDecember 30, 2003
DocketNo. 03-CA-834
StatusPublished

This text of 864 So. 2d 736 (Lee v. St. James Parish Council) 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
Lee v. St. James Parish Council, 864 So. 2d 736, 3 La.App. 5 Cir. 834, 2003 La. App. LEXIS 3668, 2003 WL 23025211 (La. Ct. App. 2003).

Opinion

SOL GOTHARD, Judge.

Plaintiff, Laura Lee, appeals an adverse judgment from the Office of Workers’ Compensation that denied her request for reinstatement of indemnity benefits, along with related penalties and attorney fees, and dismissed her claim with prejudice at her cost.

The record shows that claimant, who was employed as a bus driver for St. James Parish, sustained a work-related injury to her lower back on July 16, 2001. A disputed claim for workers’ compensation was filed on March 27, 2002. At the time of the accident claimant was earning $8.00 per hour and working a forty-hour week. She received compensation benefits from July 2001 until September of 2002 in the amount of $426.66 every two weeks. The [738]*738matter came up for a hearing on March 27, 2003 and judgment was rendered on May 9, 2003.

In brief to this court, claimant assigns four errors for our review. She contends she is entitled to temporary total disability or supplemental earnings benefits, additional medical tests and procedures, and an award for penalties and attorney fees for defendant’s arbitrary and capricious termination of benefits.

At the beginning of the hearing, the parties stipulated that the accident on July 16, 2001 was work-related, and that compensation in the correct amount was paid every two weeks from July 18, 2001 until September 3, 2002. A further stipulation was made that Dr. Lucien Miranne is the claimant’s treating ^neurosurgeon and Dr. John Watermeier is her treating orthopedist. Dr. Chad Millet is defendant’s choice of orthopedist.

At the hearing the court heard testimony of claimant, Laura Lee, who stated that she is a forty-six year old mother of three grown children. Mrs. Lee was employed as a bus driver by St. James Parish since 1991. On the day of the accident, Mrs. Lee was dispatched as a bus driver for handicapped citizens. She had to pick up two individuals, who were confined to wheel chairs, from a nursing home. Mrs. Lee was required to push the wheel chair on the bus lift, wheel the person onto the bus and tie the chair down to prevent injury to the handicapped person. One of the individuals was an overweight man. As Mrs. Lee attempted to maneuver the chair in order to get it into position and tie it down, she felt something pull in her back. She experienced pain in her lower back, arms and legs. The next day, when the pain continued, she filed an accident report.

Mrs. Lee saw her personal physician first, who prescribed muscle relaxers and referred her to Dr. Lucien Miranne, a neurosurgeon. Dr. Miranne ordered an MRI for diagnostic purposes, and epidural injections of steroids. Because the pain continued, Dr. Miranne referred Mrs. Lee to Dr. John Watermeier, an orthopedic surgeon.

Mrs. Lee stated that, at the time of trial her main complaint was pain in her legs. She stated that the right leg is worse than the left, and is painful from the center of her back. She also stated that she has pain in both arms, making is difficult to hold anything. She is currently taking Ce-lebrex and Robaxin every day. Mrs. Lee stated that she was released by Dr. Water-meier to light duty. However, her job was not light duty.

She asserted that she attempted to return to her job, but the Parish would not re-hire her. She testified that the Parish gave her a “pink slip” because the Family Medical Leave Act time had expired. She stated that she can no longer perform 1¿her job as a bus driver, because since the accident she cannot sit in the same position for long periods of time and because of the pain in her arms.

Mrs. Lee also testified that she met with a vocational rehabilitation expert about possible jobs, and further that she has sought suitable employment on her own. She applied to the St. James Parish School Board, the Toddler House Daycare Center, a credit union and a bank in the area, but was unable to secure employment. Mrs. Lee also testified that Dr. Watermeier has recommended pain management therapy, which she would be willing to try, if she had the compensation.

On cross-examination Mrs. Lee explained that her job as a bus driver involved driving children to the local Head Start program in the mornings and driving handicapped people in the afternoons. [739]*739She also stated that normally the handicapped citizens were smaller than she. She also testified that there is nothing taxing about driving the children in the morning, because she is only the driver and there is another person on the bus to care for the children. In the middle of the day, she would pick members of the general public, who are not handicapped, but need to be transported to the hospital or doctor’s offices. She also explained that the bus is a small one with a hydraulic lift, lowered by the touch of a button. Nothing about the use of the lift or the opening or closing of the door is physically taxing.

She admitted that Dr. Chad Millet opined that she could return to her job as bus driver, but asserts she did not find out about that opinion until “later.” She maintained that she was unable to secure employment because prospective employers would not hire her based on the physical restrictions placed on her by the doctors.

She further conceded that the Parish only had to hold her job for twelve weeks under the Family Medical Leave Act, but it was held for her for ten months. She received notice from the Parish that her job was terminated because it was 1 Snecessary to fill her position. She stated that she received her retirement funds from the parish government retirement system, but denied that she requested the disbursement of the funds. She contends that when she was terminated from her employment, she was automatically retired. She acknowledged that she had the option to roll the funds over to a new retirement plan, but could not because she needed the money to survive. Mrs. Lee also verified that at the time she was terminated, she was still receiving workers’ compensation benefits. She stated that she reapplied to the Parish for employment in August 2002.

Allison Roberts, who handled the workers’ compensation claim, testified that when she took over the claim in May of 2002, claimant was being treated by Dr. Miranne. Dr. Millet was the defendant’s doctor who, after a review of medical records including diagnostic tests, reported that Mrs. Lee could return to work as a mini-bus driver for the parish.

Ms. Roberts forwarded Dr. Millet’s report to Dr. Miranne, who responded on July 1, 2002, that he did not disagree with Dr. Millet’s findings and had nothing further to offer Mrs. Lee.

Ms. Roberts contacted the employer and discovered that Mrs. Lee’s job was no longer available because someone had been hired to take her place. Ms. Roberts initiated vocational rehabilitation services in July of 2002, and continued paying benefits through September 3, 2002. On September 3, 2002 those benefits were terminated based on the doctors’ reports that claimant was able to go back to work. However, the vocational rehabilitation services continued.

After the termination of benefits, Ms. Roberts received a report from Dr. John Watermeier which indicated that a “new accident” changed her status to light duty work. The report did not specify the nature of the new accident, and Ms. Roberts understood that light duty included driving a bus, thus benefits were not reinstated.

LOn cross-examination, Ms. Roberts admitted she did not forward a job description of a school or handicapped bus driver to any of the treating physicians.

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Bluebook (online)
864 So. 2d 736, 3 La.App. 5 Cir. 834, 2003 La. App. LEXIS 3668, 2003 WL 23025211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-st-james-parish-council-lactapp-2003.