STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-599
LUCY JOHNSON
VERSUS
ST. FRANCES NURSING & REHABILITATION CENTER
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3 PARISH OF CALCASIEU, NO. 09-03832 SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges.
AFFIRMED IN PART AND REVERSED IN PART.
H. Douglas Hunter Misti Landry Bryant Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P. Post Office Drawer 1329 Opelousas, Louisiana 70571-1329 (337) 948-8201 Counsel for Defendant/Appellant: St. Frances Nursing & Rehabilitation Center Michael B. Holmes Hebert, Holmes & Bertrand Post Office Box 790 Kinder, Louisiana 70648-0790 (337) 738-2568 Counsel for Plaintiff/Appellee: Lucy Johnson KEATY, Judge.
In this workers’ compensation case, St. Frances Nursing & Rehabilitation
Center appeals a judgment in favor of its former employee, Lucy Johnson, ordering
Supplemental Earnings Benefits (SEBs), statutory penalties, and attorney fees, and
holding that Johnson did not violate the provisions of La.R.S. 23:1208(A). For the
following reasons, we affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
On July 5, 2006, in the course and scope of her employment as a nurse
employed by St. Frances, Johnson was injured by a patient who hit her in the back
of her head and neck. As a result of her injuries, Johnson sought treatment from
Dr. Clark Gunderson, an orthopedic surgeon, who performed a three-level cervical
disc fusion. He subsequently released her to return to work with restrictions in
November 2007. Following her initial release, Johnson maintained a part-time
schedule working light duty at St. Frances from November 2007 through February
2008. Johnson testified that she experienced pain while working part time
although it was controlled by pain medication prescribed by Dr. Gunderson.
In February 2008, after Dr. Gunderson released her to work full duty,
Johnson began working with restrictions on a full-time schedule until June 2008.
Johnson testified that during her transition from part-time, light-duty work to full-
time, full-duty work, her pain increased and “became very excruciating.” She
returned to Dr. Gunderson and advised that her increased pain was uncontrolled by
medication. As a result, Dr. Gunderson reduced her release to light duty in May
2008. Based upon Johnson’s continued subjective complaints of pain,
Dr. Gunderson changed his opinion to no-work status from June 5, 2008, through
November 2008. Dr. Gunderson subsequently released her to return to light-duty work with restrictions in November 2008, in her position with St. Frances.
Johnson returned to work that same month and worked only two days as she was
unable to perform the duties within the restrictions. Dr. Gunderson again placed
her on a no-work status. During a regularly-scheduled appointment with
Dr. Gunderson approximately eight months later on July 27, 2009, Dr. Gunderson
maintained Johnson’s no-work status. Dr. Gunderson also opined that Johnson
was not a surgical candidate and referred her to Dr. Stephen Katz, a pain
management physician.
On July 28, 2009, Johnson presented to Dr. Katz. Dr. Gunderson testified
that he was aware that Dr. Katz had taken over Johnson’s care as of July 28, 2009.
Dr. Gunderson testified that he deferred to Dr. Katz regarding Johnson’s
restrictions and/or ability to return to work as of the date of his referral. Johnson
testified that during her initial visit with Dr. Katz, she was never asked to
demonstrate any physical abilities related to work duties nor did he discuss with
her any ability to return to work. Johnson testified that she was not asked to walk
across the room, bend, stoop, reach up, or reach down. According to excerpts from
the employer’s adjuster’s file, dated August 14, 2009, Dr. Katz advised that he
would offer “only to monitor medications [with] no discussion of return to work
abilities.”
Buster Fontenot, a vocational rehabilitation consultant assigned to Johnson
in 2008, developed a modified licensed practical nurse (LPN) job analysis in order
to enable Johnson to return to work. Fontenot met with Dr. Katz on September 11,
2009, wherein Dr. Katz agreed that Johnson could return to work in a modified
LPN position. Despite the foregoing, Johnson testified that Dr. Katz never told her
that he believed that she was able to return to work. Approximately two months
2 later on November 9, 2009, Dr. Katz withdrew his opinion rendered on
September 11, 2009, when Johnson advised him that Dr. Gunderson placed her on
a non-return to work status. Dr. Katz’s medical record on that date states that in
order to avoid confusion, he would defer to Dr. Gunderson for determination of
Johnson’s return to work status.
Johnson returned to Dr. Gunderson on April 20, 2010, with complaints of
pain and trouble swallowing. Dr. Gunderson removed her fusion hardware on
May 9, 2011, in order to alleviate the pain she experienced when swallowing.
Johnson subsequently underwent a functional capacity examination (FCE) on
May 1, 2013, which was rendered by physical therapist David Regan. Johnson
testified that she was aware that Regan believed that she intentionally
misrepresented her physical capabilities during her examination. According to the
FCE, Regan opined that “the INVALID results identified in this assessment and
Functional Assessment Overview represent the levels Ms. Johnson chose to
demonstrate as her physical capabilities. The numbers do not represent her true
safe capabilities as Ms. Johnson intentionally manipulated the results of the
assessment.” According to Regan’s deposition testimony, he did not attempt to
determine whether the alleged misrepresentations during Johnson’s FCE were
willfully made. Regan testified that he deferred that issue to Dr. Gunderson for
investigation.
Johnson received medical and indemnity benefits from the onset of her
disability through the beginning of September 2009. St. Frances terminated
indemnity benefits from September 11, 2009, through May 7, 2011. Indemnity
benefits were reinstated and paid from May 9, 2011, through the date of trial which
3 began on October 23, 2013. Johnson’s indemnity benefits were based upon an
average weekly wage (AWW) of $413.13.
Following termination of benefits on September 11, 2009, Johnson filed the
instant claim for reinstatement of benefits, penalties, attorney fees, and a
psychological evaluation and/or care by a mental health professional. St. Frances
countered with the assertion that Johnson committed fraud, thereby forfeiting her
right to benefits pursuant to La.R.S. 23:1208(A), by misrepresenting her condition
to her treating physicians and by misrepresenting her physical capabilities during
the FCE.
After a trial on the merits, the workers’ compensation judge (WCJ) held that
Johnson did not commit fraud for purposes of La.R.S. 23:1208(A) forfeiture and
awarded her $35,723.53 in SEBs from September 11, 2009, through May 9, 2011,
utilizing an AWW of $413.33 per week. The WCJ awarded Johnson $4,000.00 in
statutory penalties, ordered St. Frances to authorize a mental health evaluation, and
awarded attorney fees.
St. Frances has appealed, asserting the following assignments of error:
1. The Workers’ Compensation Judge erred in failing to find that Ms. Johnson violated [La.R.S. 23:1208(A)] when she intentionally misrepresented her physical capabilities at her functional capacity examination.
2. The Workers’ Compensation Judge erred in finding that claimant, Lucy Johnson, was entitled to Supplemental Earnings Benefits for the period of September 11, 2009 through May 9, 2011.
3. The Workers’ Compensation Judge erred in finding that [Johnson] is entitled to an award of penalties and attorney fees.
4 STANDARD OF REVIEW
In Foster v. 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
(citations omitted), this court noted the standard of review applicable in workers’
compensation cases as follows: “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.” “The determination of coverage is a subjective
one in that each case must be decided from all of its particular facts.” Jackson v.
Am. Ins. Co., 404 So.2d 218, 220 (La.1981). Thus, “great deference is accorded to
the [workers’ compensation judge’s] factual findings and reasonable evaluations of
credibility.” Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663
So.2d 57, 61. “Where there is conflict in the testimony, reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed upon review,
even though the appellate court may feel that its own evaluations and inferences
are as reasonable.” Vidrine v. La-Tex Rubber & Specialties, Inc., 07-157, p. 4
(La.App. 3 Cir. 5/30/07), 958 So.2d 146, 149.
DISCUSSION
I. Fraud
In its first assignment of error, St. Frances contends that the WCJ erred in
failing to find that Johnson committed fraud, thereby forfeiting her right to benefits
pursuant to La.R.S. 23:1208(A), when she intentionally misrepresented her
physical capabilities during her FCE.
5 Louisiana Revised Statutes 23:1208(A) provides that “[i]t shall be unlawful
for any person, for the purpose of obtaining or defeating any benefit or payment
under the provisions of this Chapter, either for himself or for any other person, to
willfully make a false statement or representation.” In order to prove that an
employee forfeited his or her rights under this statute, an employer must show
“that (1) there is a false statement or representation, (2) it is willfully made, and (3)
it is made for the purpose of obtaining or defeating any benefit or payment.”
Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 7 (La. 9/5/95), 660 So.2d 7,
12. The supreme court in Resweber, 660 So.2d at 16, further explained:
[T]he statute does not require the forfeiture of benefits for any false statement, but rather only false statements that are willfully made for the purpose of obtaining benefits. It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. . . . Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.
In the instant case, both parties cite Noel v. Home Health Care 2000, Inc.,
03-1280 (La.App. 3 Cir. 3/3/04), 867 So.2d 945, writs denied, 04-854, 04-871 (La.
5/14/04), 872 So.2d 520, 522. In Noel, the employer appealed the trial court’s
judgment in favor of the former employee ordering reinstatement of the
employee’s indemnity and medical benefits, awarding $9,000.00 in attorney fees,
and holding that the employee did not violate the provisions of La.R.S. 23:1208(A).
With respect to the FCE, the record revealed that the evaluator concluded that the
employee had multiple inconsistent test results and that the employee’s effort was
unreliable. This court stated: “Assuming, without deciding, that an FCE qualifies
for purposes of La.R.S. 23:1208(A) as a ‘statement’ or ‘representation,’ a false
statement or representation in that regard must be wilfully [sic] made for the
purpose of obtaining benefits.” Noel, 867 So.2d at 953.
6 In its analysis, this court in Noel, 867 So.2d at 953, stated that the employee
“testified that she performed the tests to the best of her ability,” and that she told
the evaluator that she was currently on medication. The employee testified that
although she was told what to do, she was not given any demonstrations. The
employee’s testimony revealed that she complained of pain while performing some
of the tests. Although the physical therapist did not perform the FCE, he testified
regarding the results and stated that given the employee’s unreliable effort, she
must have withheld some effort. The physical therapist admitted, however, that it
was difficult for him to state whether the employee made a conscious effort to not
perform to her full capabilities. The physical therapist explained that “‘[t]hese
things vary. The person’s subjective pain levels are involved. There’s an
emotional component that’s involved . . . .’” Id. at 953.
Although the record showed that the employee failed to give a reliable effort,
this court in Noel stated: “However, that fact alone does not result in the ultimate
conclusion that she wilfully [sic] gave a false representation for the purpose of
obtaining benefits.” Id. This court reasoned that the employee gave reasonable
explanations about factors that could have possibly affected her performance
during the FCE, and the WCJ accepted the employee as a credible witness.
Accordingly, this court held that there was no manifest error in the WCJ’s
determination that the employee did not violate the provisions of La.R.S.
23:1208(A) during her FCE.
We find that the facts in Noel are similar to the facts in the present case.
Specifically and with respect to the FCE in the instant case, the record reveals that
Johnson underwent a FCE which was administered by Regan, a physical therapist.
Regan opined that Johnson intentionally misrepresented her physical capabilities.
7 According to Regan’s deposition testimony, however, he did not attempt to
determine whether the alleged misrepresentations during Johnson’s FCE were
willfully made. Regan testified that he deferred that issue to Dr. Gunderson for
The record also contains the trial testimony of Monica Winn, Johnson’s
daughter. Winn testified that, in addition to accompanying Johnson to the FCE,
she accompanied her to multiple doctor visits following her injury. Winn stated
that Johnson was constantly experiencing pain, especially when she was working
full duty following her cervical disc surgery. Winn also testified that she had no
reason to believe that Johnson was not being truthful about the amount of pain she
was experiencing.
At trial, Johnson testified that she did not intentionally mislead Regan about
her pain level and physical capabilities. Johnson testified that she refused to
perform some things during the FCE as it would cause her more pain. Johnson
also testified that, the day following her FCE, she called Dr. Gunderson with
complaints of excruciating pain. She advised Dr. Gunderson that she was going to
call Dr. Katz to request pain medication as she could barely get out of bed.
Johnson’s testimony is confirmed by Dr. Gunderson’s medical records.
Based on the above and similar to Noel, we find that the record reveals that
Johnson failed to give a reliable effort during her FCE. “However, that fact alone
does not result in the ultimate conclusion that she wilfully [sic] gave a false
representation for the purpose of obtaining benefits.” Noel, 867 So.2d at 953. We
find that Johnson provided reasonable explanations about factors that could have
affected the FCE, and the WCJ accepted her as a credible witness. Despite
Regan’s unfavorable testimony regarding Johnson’s intentional misleading of her
8 physical capabilities during the FCE, Regan’s deposition testimony indicates that
he did not attempt to determine whether her alleged misrepresentations were
willfully made as he deferred that issue to Dr. Gunderson for investigation. Thus,
we find that there was no manifest error in the WCJ’s determination that Johnson
did not violate the provisions of La.R.S. 23:1208(A) concerning the FCE. This
assignment of error is without merit.
II. Indemnity Benefits
St. Frances contends that the WCJ erred in awarding Johnson SEBs from
September 11, 2009, through May 9, 2011. An award of SEBs is appropriate when
there is an “injury resulting in the employee’s inability to earn wages equal to
ninety percent or more of wages at time of injury.” La.R.S. 23:1221(3)(a)(i).
St. Frances argues that termination of SEBs was proper based on Dr. Katz’s
opinion rendered on September 11, 2009, wherein he opined that Johnson could
return to work in a modified capacity. St. Frances alleges that Dr. Katz further
opined that Johnson had reached maximum medical improvement (MMI). Despite
the availability of the modified position, St. Frances contends that Johnson failed
to return to work. We find that St. Frances’ reliance on Dr. Katz’s opinion for
terminating benefits is without merit for multiple reasons.
The evidence shows that Dr. Katz advised the employer’s adjuster that he
would offer “only to monitor medications [with] no discussion of return to work
abilities.” Despite the adjuster’s knowledge of this limitation, he ordered Fontenot,
the vocational rehabilitation consultant, to schedule a conference with Dr. Katz for
the purpose of obtaining his opinion about Johnson’s ability to return to work. It
was during this September 11, 2009 conference that Dr. Katz initially opined that
Johnson could return to work in a modified LPN position.
9 Importantly, Dr. Katz expressly withdrew his September 11, 2009 opinion
less than two months later on November 6, 2009. Despite knowing of this
withdrawn opinion, the employer’s adjuster failed to pay Johnson SEBs. We,
therefore, agree with the WCJ that “[a]t that point, there was no reasonable reason
for the defendant’s not at least discussing the matter of Ms. Johnson’s disability
with Dr. Gunderson.” We further agree with the WCJ that “defendant had virtually
no reason for withholding these payments but continued to do so.”
We note that Dr. Katz opined in his August 18, 2010 deposition that Johnson
was able to return to work at sedentary level duties with restrictions, thereby
reinstating his previously withdrawn opinion. His deposition testimony, however,
fails to justify the adjuster’s failure to pay benefits after November 6, 2009. As
correctly stated by the WCJ, “[t]he adjuster relied upon an initial favorable opinion
about Johnson’s ability to return to work and ignored the subsequent unfavorable
opinion.” We, therefore, agree with the WCJ that St. Frances “cannot justify its
2009 decision to terminate SEB payments based on information it received in
2010[, as] [St. Frances’] action must be gauged at the time of its initial decision to
terminate benefits.”
Dr. Katz’s opinions contained in his deposition taken on August 18, 2010,
also lack credibility and support. Specifically, Dr. Katz defined sedentary duty in
his deposition testimony as “a sitting position with little, if any, movement.” His
testimony conflicts with Fontenot’s September 30, 2008 job analysis regarding the
modified LPN position. In this job analysis, Fontenot noted that “[a]lthough the
majority of the tasks of this position are at sedentary level, this position will be
classified sedentary to light.” The job analysis stated that Johnson would
occasionally be standing, walking, pushing, and pulling. The job analysis also
10 showed that she would be reaching frequently. This was confirmed by Fontenot’s
and Johnson’s trial testimony.
Dr. Katz further testified that Johnson was tolerating her pain “quite nicely”
given the minimal amount of medication he was prescribing. Dr. Katz testified
that he asked Johnson whether her pain medication was helping, and his
“assumption is since she is using it and not complaining that it is, in fact, helping
her.” Dr. Katz’s medical record dated July 28, 2009, however, shows that she
complained of significant pain and rated her pain level an eight out of ten.
Dr. Katz’s medical records further show that Johnson complained of pain at
subsequent follow-up visits. Despite Dr. Katz’s deposition testimony that he did
not know the degree of pain she was experiencing, his own medical records
contradict his testimony. Dr. Katz’s testimony is also discredited by Johnson’s
testimony that she advised Dr. Katz at almost every visit that the pain medication
was not alleviating her pain.
Finally, the position of the employer and its adjuster on payment of SEBs
and/or refusal to re-institute payment of SEBs ignores Dr. Gunderson’s opinion
that Johnson cannot work. Specifically, Dr. Gunderson’s medical records dated
July 27, 2009, show that Johnson was disabled since her work status was listed as
“[n]o [d]uty.” Dr. Gunderson’s subsequent deposition testimony taken on May 13,
2010, reveals that his opinion regarding her disability remained unchanged.
Fontenot testified that during his meetings with Dr. Gunderson, Dr. Gunderson
refused to approve Johnson’s return to any level of duty with the employer.
Based on the WCJ’s evaluation of Johnson’s credibility and the record
before this court, there is a reasonable basis for the WCJ’s award of SEBs. Thus,
this assignment or error is without merit.
11 III. Penalties and Attorney Fees
In its third assignment of error, St. Frances contends that the WCJ erred in
awarding penalties and attorney fees when it had a reasonable basis to deny
benefits. St. Frances contends that the WCJ erred with respect to its two awards of
$2,000.00, one for improper termination of benefits and one for non-approval of a
mental health evaluation. St. Frances further alleges error in the WCJ’s attorney
fee award in the amount of $21,120.00.
Louisiana Revised Statutes 23:1201(I) provides, in pertinent part:
Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.
In order to determine whether an employer improperly acted when discontinuing
workers’ compensation benefits, thereby entitling a claimant to attorney fees and
penalties, “courts look to facts known by the employer or insurer at the time
benefits are denied.” Aultman v. Wal-Mart Stores, Inc., 01-623, p. 3 (La.App. 3
Cir. 10/31/01), 799 So.2d 803, 805.
Johnson’s benefits were terminated on September 11, 2009, based upon
Dr. Katz’s opinion that Johnson could return to work in a modified LPN position.
The evidence shows that Dr. Katz was her only treating physician during this time.
Specifically, in his deposition, Dr. Gunderson confirmed that he was “not involved
in [Johnson’s] care from . . . July 29th, 2009 until she reappeared on
[Dr. Gunderson’s] door step on April 20, 2010.” When benefits were terminated,
Johnson testified that she was aware that Dr. Katz was her treating physician, as
she was referred to him by Dr. Gunderson.
12 Two months later, however, Dr. Katz withdrew his previous opinion based
upon the erroneous belief that Dr. Gunderson was still treating Johnson.
Specifically, Dr. Katz’s November 6, 2009 medical record reveals that confusion
regarding her return to work status occurred when Johnson advised him that she
was still treating with Dr. Gunderson. Dr. Katz noted that:
There is some question with regards to her return to work status. According to the patient, it appears that Dr. Gunderson has placed her at a non-return to work status and I will have to clarify this. I will have to defer to Dr. Gunderson for determination of her return to work status so that there is no confusion with regards to that situation.
When questioned regarding the above medical record during his deposition,
Dr. Katz testified that despite his belief that Johnson was able to return to work in a
modified capacity, he did not want to release her only to have Dr. Gunderson
declare that she was unable to return to work. Dr. Katz testified that his decision
“was just a point of clarification more than anything else.” We find that Dr. Katz’s
opinion contained in his November 6, 2009 medical record was based on Johnson’s
inaccurate statement given to him on that same date regarding Dr. Gunderson’s
continued involvement in her care.
In the present case, the WCJ determined that termination of SEBs was
properly based upon Dr. Katz’s November 6, 2009 medical record. The WCJ,
however, should have looked to the facts known by St. Frances or its insurer when
benefits were initially denied two months earlier on September 11, 2009. When
benefits were terminated on September 11, 2009, St. Frances possessed Fontenot’s
report indicating that Dr. Katz agreed that Johnson could return to modified work
with restrictions. Since Dr. Katz was the only treating physician at that time,
St. Frances had a reasonable basis to rely on his opinion regarding her work status.
Its action was not arbitrary and capricious; therefore Johnson is not entitled to
13 penalties. We reverse the WCJ’s award of $2,000.00 for improper termination of
benefits.
As for the WCJ’s award arising out of St. Frances’ failure to approve a
mental health evaluation, the evidence presented at trial shows, more likely than
not, that Johnson is entitled to evaluation and treatment, if necessary, by a mental
health physician of her own choosing. The record shows that Dr. Katz made such
a recommendation on August 31, 2010, after he initially stated in his deposition of
August 18, 2010, that such referral was not necessary. Dr. Katz’s medical records
and deposition testimony support Johnson’s need for mental health treatment for
conditions arising from her work-related injury.
The evidence further shows that St. Frances’ actions, through its adjuster,
were arbitrary, capricious, and without probable cause as the adjuster failed to
consider Dr. Katz’s changed opinion. Specifically, the record shows that demand
was made upon St. Frances on September 1, 2010, asking that a “[m]ental [h]ealth
evaluation for anxiety and coping” be performed by Dr. James Blackburn. The
demand was based upon Dr. Katz’s August 31, 2010 referral which was attached to
the demand. Despite this demand, there is no evidence showing that the adjuster
conducted any investigation or recognized that Dr. Katz changed his mind about
the referral. This indifference was arbitrary and capricious. Thus, the trial court
did not err in awarding $2,000.00 for non-approval of a mental-health evaluation.
Finally, the evidence shows that Johnson was forced to hire an experienced
workers’ compensation attorney. According to his brief, he spent approximately
eighty-eight hours preparing for trial, participating in trial, and preparing a post-
trial brief. The attorney was also required to participate in multiple depositions.
Considering that St. Frances contested this case at every stage of the proceedings
14 which encompassed four years, we find that the trial court did not err in awarding
attorney fees in the amount of $21,120.00.
IV. Additional Attorney Fees Arising From Appeal
In his brief, Johnson’s counsel seeks additional attorney fees for the time
spent on preparing the appeal. “However, he did not file his own appeal nor
answer the appeal, so he is not entitled to additional attorney’s fees for the work
performed on the appeal.” Dugas v. Aaron Rents, Inc., 02-1276, p. 4 (La.App. 3
Cir. 3/5/03), 839 So.2d 1205, 1208; La.Code Civ.P. art. 2133.
DECREE
The judgment rendered by the WCJ in favor of Lucy Johnson is affirmed in
part with respect to its finding that she did not violate La.R.S. 23:1208(A), that she
was entitled to SEBs for the period encompassing September 11, 2009, through
May 9, 2011, that she be awarded attorney fees, and that she be awarded $2,000.00
for the failure to approve a mental health evaluation. The judgment is reversed in
part with respect to the WCJ’s award of $2,000.00 representing penalties for
improper termination of benefits. All costs of this appeal are assessed against
St. Frances.