Mona Leblanc v. Walmart Distribution Center

• Court: Louisiana Court of Appeal
• Decided: September 4, 2024
• Docket: WCA-0023-0724
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

23-724 c/w 23-725

MONA LEBLANC

VERSUS

WALMART STORES, INC. AND CLAIMS MANAGEMENT, INC.

********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION #4 PARISH OF LAFAYETTE, No. 10-11529 c/w 13-05970 ANTHONY PALERMO, WORKERS’ COMPENSATION JUDGE

**********

JONATHAN W. PERRY JUDGE

Court composed of Shannon J. Gremillion, Jonathan W. Perry, and Sharon Darville Wilson, Judges.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS; AND JUDGMENT RENDERED. Keith J. Landry Parker & Landry 201 Johnson Street, Suite 200 Alexandria, Louisiana 71301 (337) 362-2600 COUNSEL FOR DEFENDANT/APPELLEE: Walmart Stores, Inc.

Jacqueline K. Becker Galloway Jefcoat, L.L.P. P.O. Box 61550 Lafayette, Louisiana 70596-1550 (337) 984-8020 COUNSEL FOR CLAIMANT/APPELLANT: Mona LeBlanc PERRY, Judge.

In this workers’ compensation case, Mona LeBlanc (“Ms. LeBlanc”) appeals

the judgment of the Workers’ Compensation Judge (“WCJ”) which granted the

motion of Walmart Stores, Inc. (“Walmart”)1 to modify her disability status, finding

she was capable of gainful employment in a sedentary capacity, rejecting her

contention that her stiff person syndrome (“SPS”) was related to her work accident,

and denying her claims for penalties and attorney fees. We affirm in part, reverse in

part, render, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

The facts of this case have their beginning in Ms. LeBlanc’s work accident at

Walmart on November 2, 2010, and her claim for temporary total disability benefits

(“TTDs”). Walmart contested Ms. LeBlanc’s workers’ compensation claim. After

hearing evidence on October 7, 2012, the WCJ orally ruled in favor of Ms. LeBlanc

on August 5, 2013. However, a signed judgment was not forthcoming until February

19, 2015.2 Following that determination, Walmart appealed that judgment. In an

opinion that affirmed the WCJ judgment, this court stated:

The parties stipulated that the November 2, 2010 accident, wherein Ms. LeBlanc was checking the seal on an eighteen wheeler when the truck suddenly backed up striking the left side of her body and her left knee, occurred in the course and scope of her employment with Wal-Mart. Ms. LeBlanc filed a disputed claim for compensation on December 15, 2010, alleging she was entitled to both TTD benefits and medical benefits, in addition to penalties and attorney fees. At the trial held on October 17, 2011, the main issue before the WCJ was the

1 The record shows the defendant as Walmart Stores, Inc. and Claims Management, Inc. Initially, this matter was consolidated on April 1, 2014, in the trial court with Lafayette Consolidated Government v. Claims Management, Inc. and Walmart Distribution Center, an action in which the plaintiff sought reimbursements for medical bills it paid on behalf of Ms. LeBlanc, one of its retirees. On July 14, 2021, Lafayette Consolidated Government voluntarily dismissed its reimbursement claims as well as its intervention. Nonetheless, because judgments were signed in this matter and the consolidated matter and Ms. LeBlanc appealed both judgments, we will render a separate decision in No. 23-725, Lafayette Consolidated Government v. Claims Management, Inc. and Walmart Distribution Center. 2 No explanation for this lengthy delay is contained in either the record or in the briefs filed in this matter. causal link between the accident and Ms. LeBlanc’s claimed injuries to her neck and back, and, if linked, Wal–Mart’s responsibility to pay TTD benefits, the amount of those benefits, unpaid medical costs, penalties, and attorney fees.

....

The WCJ found Ms. LeBlanc suffered a disability based on the causal connection between the accident and her claimed injuries to her neck and back largely due to its determination that Ms. LeBlanc was credible. The WCJ stated, “[T]his was pretty much a straightforward credibility decision.” The WCJ further stated:

“I thought Ms. LeBlanc was very credible. She appeared to be stiff. She appeared to be in pain. She answered all of her questions as directly as possible. She did not try to avoid any questions or dance around the issues. She was a police officer for twenty years. She was a good employee. She worked hard and she had no prior injuries. The only thing”—and this is still my handwritten note. “The only thing out of whack, so to speak, is that her complaints were all over the place.” And that was problematic. However, I believe her and I believe her complaints regardless of how odd they might have been and how discombobulated the reporting of the complaints might have been.

There was an immediate mention of back pain the first time she saw the doctor, but then there wasn’t another complaint of back pain for a long time. Then, I believe Mr. Landry sets out seven months for the first cervical complaint, but early on she was having numbness and tingling in her hands, and she pretty much consistently had problems with the shoulder, any of which could have been neck problems that weren’t previously or at that time diagnosed.... I do find that she has proven by a preponderance the connexity of those complaints. There’s really nothing else to explain it. I think it’s as simple as that.

To summarize, the WCJ indicated that this case and the finding of causation was “ultimately a credibility determination. There’s no other explanation for her problems.” We agree.

LeBlanc v. Wal-Mart Stores, Inc., 15-558, pp. 1, 11–12 (La.App. 3 Cir. 11/4/15),

177 So.3d 1125, 1127–28, 1133.

2 On October 14, 2015, just weeks before this court affirmed the WCJ

judgment, Walmart filed a motion in the Office of Workers’ Compensation to

modify Ms. LeBlanc’s disability status, contending that she had reached maximum

medical improvement (“MMI”) and that she could return to sedentary work.

Walmart’s motion was based on the second medical opinions from Drs. John Budden

(“Dr. Budden”), an orthopedic surgeon, and Seth Billodeaux (“Dr. Billodeaux”), a

pain management physician, conducted on May 19, 2015, and June 17, 2015,

respectively, as well as an independent medical examination (“IME”) performed by

Dr. Thad Broussard (“Dr. Broussard”), an orthopedic surgery specialist, on

September 15, 2015. Contrary to that, Dr. Michael E. Heard (“Dr. Heard”), Ms.

LeBlanc’s treating orthopedist, opined on August 13, 2016, that she was not at MMI,

and she was unable to work.

Subsequently, on November 9, 2015, Dr. James Domingue (“Dr. Domingue”),

Ms. LeBlanc’s treating neurologist, diagnosed Ms. LeBlanc with SPS after blood

tests showed positive GAD65 antibodies, the litmus test for SPS. After Ms. LeBlanc

fell at home and underwent left hip replacement surgery on January 11, 2016, she

was examined after she recovered from her hip surgery by Dr. Joseph Jankovic (“Dr.

Jankovic”), a board certified neurologist specializing in movement disorders at the

Baylor College of Medicine, for a second medical opinion regarding Dr.

Domingue’s SPS diagnosis. Once Dr. Jankovic reviewed Ms. LeBlanc’s medical

history, her history of high GAD65 antibodies, and completed his physical

examination, he agreed with Dr. Domingue’s SPS diagnosis. Dr. Jankovic also

opined that SPS is suggestive of the presence of an underlying autoimmune process.

Once Dr. Heard learned of Ms. LeBlanc’s SPS diagnosis, he wrote a letter to

her trial counsel on January 10, 2017. At that time, Dr. Heard opined that the trauma

of the 2010 work accident and anxiety after Walmart delayed approval of her 3 medical treatment probably precipitated the onset of her SPS. To the contrary, Dr.

Brobson Lutz (“Dr. Lutz”), a specialist in internal medicine and infectious disease

relied upon by Walmart, opined that SPS is an autoimmune disease that was not

caused or triggered by the work accident.

On January 23, 2018, Ms. LeBlanc underwent a Functional Capacity

Evaluation (“FCE”) at Rosewood Rehabilitation, LLC. After undergoing a five-

hour evaluation, the evaluator determined that Ms. LeBlanc, who relied upon a

walker to get around and who could not complete all the tests, demonstrated she was

able to perform sedentary work with the following specifications: avoidance of

lifting from floor height, carrying, crouching, kneeling, and stair climbing.

Additionally, the FCE concluded that Ms. LeBlanc could occasionally walk, stand,

and lift five pounds from the waist to shoulder height.

Subsequently, on March 24, 2021, Ms. LeBlanc filed a motion to modify the

judgment of February 19, 2015, which awarded her temporary, total disability

benefits. Relying on the opinion of Dr. Heard, her treating orthopedic physician, she

contended that her “physical condition had worsened and deteriorated to the point

that she is permanently incapable of performing any employment.”

Trial before the WCJ3 began on May 12, 2022, continued on July 25, 2022,

and concluded on September 15, 2022. After taking the matter under advisement,

the WCJ provided an oral ruling on April 25, 2023, and memorialized the ruling in

a written judgment signed and rendered on April 28, 2023.

The judgment stated that: (1) Walmart’s motion to modify was granted,

terminating Ms. LeBlanc’s temporary total disability benefits; (2) Ms. LeBlanc’s

3 The original trial on October 17, 2012, was held while Sharon Morrow (“Judge Morrow”) served as WCJ. Later, after Judge Morrow retired, Anthony Palermo was appointed as successor judge on August 29, 2018, and he presided over this matter thereafter as WCJ. 4 SPS was not related to the accident in 2010; and (3) concluded that Ms. LeBlanc

could engage in gainful employment in a sedentary capacity. With regard to Ms.

LeBlanc’s request for penalties and attorney fees, the judgment denied all those

requests including those related to: the denial of Dr. Heard’s billings in the amount

of $7,880.00; the denial of treatment by Dr. Daniel Hodges (“Dr. Hodges”); the

alleged failure to approve physical therapy; the failure to pay for Hydrocodone

medication; the failure to pay Dr. Heard’s medical bills for September 10, 2013, and

October 9, 2013; the rejection of requests to pay the charges of Pharmacy Partners;

the failure to approve treatment with Dr. Keith Mack; the failure to pay St. Thomas

Clinic; and the failure to pay Lafayette Consolidated Government. The judgment

further denied Ms. LeBlanc’s claim for penalties and attorney fees for mileage

reimbursement of December 12, 2014, and December 19, 2014, to attend physical

therapy because those claims were covered by the prior judgment. Finally, the

judgment denied Ms. LeBlanc’s claims for penalties and attorney fees for: the visits

of Ms. LeBlanc to Dr. Heard on December 14, 2016, and January 15, 2017; physical

therapy; and failure to approve the FCE because each of these were related to the

SPS treatment which was unrelated to the work accident.

Ms. LeBlanc then perfected the present appeal.

ASSIGNMENTS OF ERROR

1. The [WCJ] legally erred in not applying the legal presumption of causation and in finding Ms. LeBlanc’s injuries and condition were not causally related to her work accident of November 2, 2010.

2. The [WCJ] erred in excluding from evidence Ms. LeBlanc’s own testimony regarding her symptoms and condition prior to her accident of November 2, 2010 until the time of the [WCJ’s] oral ruling of August 2013, after denying an exception of res judicata as to causation and determining causation was an issue for trial.

3. The [WCJ] erred in not giving greater weight to the opinion of Ms. LeBlanc’s treating physicians and in relying upon the opinion of a second

5 medical opinion doctor, a specialist in the field of infectious diseases rather than neurology.

4. The [WCJ] legally erred in granting Wal-Mart’s Motion to Modify Disability Status, in denying further indemnity benefits and in finding that Ms. LeBlanc is capable of gainful employment in a sedentary capacity.

5. The [WCJ] erred in not granting Ms. LeBlanc’s Motion to Modify the Judgment and in not awarding permanent and total disability benefits.

6. The [WCJ] erred in failing to award payment of Dr. Heard’s medical bills totaling $5,050.00.

7. The [WCJ] erred in denying Ms. LeBlanc’s claims for penalties and attorney’s fees, expenses, and legal interest on these awards.

DISCUSSION

At the heart of the opposing motions to modify disability status filed by Ms.

LeBlanc and Walmart is the question of her SPS diagnosis and its relationship to the

work accident. Although Ms. LeBlanc has been examined by many doctors, four

physicians specifically addressed the question of causation, namely, Dr. Heard, Dr.

Domingue, Dr. Jankovic, and Dr. Lutz; the first three physicians treated Ms. LeBlanc

and the remaining physician examined her at the request of Walmart for the sole

purpose of obtaining an opinion on whether her SPS was causally related to the work

accident. Because of this common thread and the parties’ varying arguments relative

to that diagnosis, we will first address this issue.

From the outset, however, we must first address two procedural questions.

First, we observe that the WCJ’s judgment does not reflect a specific rejection of

Ms. LeBlanc’s motion to increase her disability from temporary total to permanent

and total disability because of her SPS diagnosis. Although the judgment is silent

as to the WCJ’s adverse determination of her motion, the transcript shows the WCJ

rejected Ms. LeBlanc’s claim when it found “that the Stiff Person Syndrome is not

related to the accident, and that Walmart has proven by a preponderance of the

evidence that [Ms. LeBlanc] is capable of working, at least, in the sedentary 6 capacity.” Because of this determination in favor of Walmart, it is clear the WCJ

never had to address Ms. LeBlanc’s motion to increase her disability because of her

SPS diagnosis.4

Second, Ms. LeBlanc takes issue with Walmart’s motion to terminate her

temporary total disability, particularly because it was filed before the original WCJ

judgment was finalized by judgment in the appellate court.

Louisiana Revised Statutes 23:1310.8(A)(1) provides that the “jurisdiction of

the workers’ compensation judge over each case shall be continuing and he may,

upon application by a party and after a contradictory hearing, make such

modifications or changes with respect to former findings or orders relating thereto

if, in his opinion, it may be justified[.]” In Jeanise v. Cannon, 04-1049, pp. 6–7

(La.App. 3 Cir. 2/23/05), 895 So.2d 651, 660, writs denied, 05-785 and 05-788 (La.

5/13/05), 902 So.2d 1021, we stated:

Ordinarily, once a judgment becomes final and definitive, parties are bound by it regardless of a subsequent change in circumstances. Workers’ compensation judgments, however, are treated differently from ordinary judgments. This is due to the fact that if the rules of finality applied to ordinary civil judgments are applied to workers’ compensation judgments, the flexibility of the workers’ compensation system would be greatly restricted. Where the legislature has expressly provided that an award or judgment can be subject to a claim of modification, res judicata does not apply. Under LSA–R.S. 23:1310.8, a compensation award may be modified by either party because of change in disability after an award has been made.

The modification statute is to be liberally construed in favor of the claimant, and that through it, the Legislature did not intend that a judgment determining the extent of a claimant’s disability be res judicata, it having expressly provided that a compensation award can be subject to modification based on a change in the worker’ condition. The power of modification, while not a substitute for the 4 Regardless of the silence of the judgment in this respect, “it is well settled that when a trial court’s judgment is silent with respect to a party’s claim or an issue placed before the court, it is presumed that the trial court denied the relief sought.” Moore v. Moore, 12-959, p. 4 (La.App. 3 Cir. 4/10/13), 116 So.3d 18, 22, writ denied, 13-1065 (La. 6/21/13), 118 So.3d 421. 7 appellate process, exists for the purpose of modifying awards due to a change in the worker’s condition. [Jackson v. Iberia Par. Gov’t, 98–1810, p. 9 (La. 4/16/99), 732 So.2d 517, 524.]

Within the entire scheme [of worker’s compensation], the concept of modification is unique because it allows a case to be reopened and the award amended after the judgment becomes final. The purpose of the modification statute is to allow adjustments to be made after judgment “to insure that the employee will be paid compensation during the full period of his disability and that the employer will not be required to pay for any longer than this period of disability.” Where the legislature has expressly provided that an award or judgment can be subject to a claim of modification, res judicata does not apply.

Madere v. W.S. Life Ins. Co., 03–110, pp. 4–5 (La.App. 5 Cir. 4/29/03), 845 So.2d 1222, 1225 (footnotes omitted).

The very nature of workers’ compensation proceedings rarely allows the application of the res judicata principle. So long as the case is subject to being re-opened, the concept cannot apply. Only when the case has become final and no further proceedings are legally permissible will the concept be considered by our courts.

Considering that background, we find that Walmart’s motion to modify was

properly filed prior to our affirmation of the 2015 judgment. See also Broussard v.

Asco Venture Holdings, 17-90, 17-91 (La.App. 3 Cir. 10/4/17), 229 So.3d 80

(holding that the legislature allowed for modifications by the WCJ to afford the

needed flexibility to ensure that benefits correspond to changes in medical

conditions and disability status). Furthermore, the record shows that the WCJ did

not act on Walmart’s motion until after this court affirmed the judgment of the WCJ

and it became a final judgment.

Stiff Person Syndrome

It is undisputed that Dr. Domingue, Ms. LeBlanc’s treating neurologist,

diagnosed Ms. LeBlanc as having SPS on November 9, 2015. In an article published

8 by the National Organization for Rare Diseases at http:rarediseases.org/rare-

diseases/stiff-person-syndrome/,5 SPS is described and discussed, as follows:

Stiff person syndrome (SPS) is a rare acquired neurological disorder that most often causes progressive muscle stiffness (rigidity) and repeated episodes of painful muscle spasms. Muscular rigidity often fluctuates (i.e., grows worse and then improves) and usually occurs along with the muscle spasms. Spasms may occur randomly or can be triggered by a variety of different events or circumstances including a sudden noise or light physical contact. The severity and progression of SPS varies from one person to another. If left untreated, SPS can potentially progress to cause difficulty walking and significantly impact a person’s ability to perform routine, daily tasks. Although the exact cause of SPS is unknown, it is believed to be an autoimmune disorder and sometimes occurs along with other autoimmune disorders.

The characteristic findings associated with SPS are progressive, fluctuating muscular rigidity that occurs along with muscle spasms. The severity and progression of SPS can vary from one person to another. The symptoms usually develop over a period of months to years and may remain stable for many years or slowly worsen. In some cases, symptoms can be stabilized.

In many cases, SPS begins slowly over several months or a few years. Affected individuals may initially experience aching discomfort, stiffness, or pain, especially in the lower back or neck. Early on, stiffness may come and go, but it can gradually become fixed. The shoulders and hips may also be affected. As the disease progresses, stiffness of the leg muscles develops and is often more pronounced on one side than the other (asymmetrical). This leads to a slow, stiff manner of walking. As stiffness increases, affected individuals may develop a hunched or slouched posture due to outward curing of the spine (kyphosis) or an arched back due to inward curving of the spine (lordosis). In some individuals, stiffness may progress to involve the arms or face.

In addition to muscular rigidity, individuals with SPS also develop muscle spasms, which may occur for no apparent reason (spontaneously) or in response to various triggering events (i.e.,

5 This article was admitted into evidence as P-90. In his letter to Walmart on February 27, 2017, Dr. Lutz pointed out that when physicians are confronted with a rare disorder, it is common to refer to online databases. In this instance, Walmart did not object to the introduction of this item of evidence. We further note that this article was updated on July 11, 2023, and slightly differs from the printout entered into evidence. Nonetheless, we have quoted the document entered into evidence. 9 stimuli). Spasms can be triggered by unexpected or loud noises, minor physical contact, stress or situations that cause a heightened emotional response such anxiety-or fear-producing situations. Muscle spasms are often very painful and usually worsen existing stiffness. The spasms may involve the entire body or only a specific body region. The legs are often involved, which may lead to falls. Spasms of abdominal muscles may lead to individuals feeling full faster than normal (early satiety) and unintended weight loss.

In some cases, SPS becomes severe enough to affect an individual’s ability to perform daily activities and routines. Some individuals may need a walker or wheelchair. Some affected individuals experience uncontrollable anxiety when they need to cross large areas unassisted (agoraphobia) and become reluctant to go outside. If left untreated, SPS can potentially progress to cause significant disability or life-threatening complications such as respiratory compromise.

After reviewing the medical evidence, which will be more fully detailed later,

the WCJ concluded that Ms. LeBlanc’s SPS was an autoimmune disease that was

not related to her work accident in 2010. Ms. LeBlanc takes issue with that

conclusion and argues otherwise in this appeal.

APPELLANT’S ARGUMENT

Ms. LeBlanc argues that although her SPS was undiagnosed for years after

her work accident, her illness was there from the very beginning but had not

manifested itself prior to the work accident, and her symptoms appeared shortly

thereafter. She further argues that the record shows that immediately after her work

accident, she suffered stiffness in her back, neck, shoulders, left side, and left knee.

The WCJ at her initial trial found her credible and relied upon her testimony in

finding that she proved her injuries were associated with her work accident.

Although the WCJ could not explain how Ms. LeBlanc’s complaints “were all over

the place,” it believed her. Ms. LeBlanc argues that it is evident that her full

condition had not yet been diagnosed at that time, and that if her physicians had

diagnosed her SPS from the beginning, the WCJ would have had an explanation for 10 the symptoms she exhibited. Thus, she concludes that the original WCJ could have

ruled in her favor on more than just her credibility.

Ms. LeBlanc further argues that because her symptoms of SPS evidenced

themselves shortly after the work accident and she had not manifested disabling

symptoms of that illness prior to the work accident, she is entitled to a presumption

that her SPS was causally related to the work accident. For this reason, Ms. LeBlanc

argues that the WCJ legally erred when it disallowed her testimony to establish this

legal presumption. Moreover, Ms. LeBlanc argues that the record shows that even

if she did not have SPS at the time of her first trial, it developed and was triggered

later due to her stress from her injuries and/or lack of treatment for her injuries and

would still be causally related to the work accident. Simply stated, “but for” the

stress on her body due to her injuries from the work accident and/or lack of

treatment, SPS would not have been triggered. In support of her contention Ms.

LeBlanc argues that the medical reports of Drs. Heard and Jankovic satisfy her duty

to show that there was a reasonable possibility that this is what occurred. Those

opinions coupled with her credibility and the testimony of her witnesses regarding

her condition prior to and after the accident establish and prove causation.

APPELLEE’S POSITION

Walmart argues that even though three physicians agreed as early as 2015 that

Ms. LeBlanc suffered SPS, those same three doctors found no support for her

contention that the onset of this autoimmune disease was caused by the trauma of

her work accident at Walmart. It contends that only Dr. Heard, Ms. LeBlanc’s

treating orthopedist, found she was permanently and totally disabled because of the

SPS and opined that this disability was caused by “the physical trauma of the

accident and the anxiety created by the nine-month denial of the evaluation of the

other areas probably played a role in precipitation of the onset of SPS.” It argues 11 that the WCJ was presented with differing testimony in this regard. Thus, it

concludes that under these facts, there can be no manifest error when the WCJ chose

to determine the case in favor of Walmart rather than Ms. LeBlanc.

STANDARD OF REVIEW

Considering Ms. LeBlanc’s argument, we must first determine the appropriate

standard of appellate review. Even though Ms. LeBlanc acknowledges that the

“[f]actual findings in workers’ compensation cases are subject to the manifest error

or clearly wrong standard of appellate review[,]” Banks v. Indus. Roofing & Sheet

Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556, she contends that

de novo review should be employed on appeal because the WCJ failed to apply the

legal presumption of causation, a legal error.

In Johnson v. Lofton Staffing Servs., Inc., 21-761, pp. 7–8 (La.App. 3 Cir.

5/4/22), 339 So.3d 663, 670, writ denied, 22-858 (La. 9/27/22), 347 So.3d 157, this

court stated:

This court, in Lenox v. Central Louisiana Spokes, LLC, 18-556, pp. 4-5 (La.App. 3 Cir. 2/13/19), 265 So.3d 834, quoted Welborn v. Thompson Const., 15-1217, pp. 4– 5 (La.App. 1 Cir. 2/26/16), 191 So.3d 1086, 1088–89 (emphasis in original), wherein our sister court stated the following:

The workers’ compensation laws provide coverage to an employee for personal injury received by accident arising out of and in the course of employment. LSA-R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme. He must establish that the accident was work- related, that the accident caused the injury, and that the injury caused the disability. See DeGruy v. Pala, Inc., 525 So.2d 1124, 1130 (La.App. 1st Cir.), writ denied, 530 So.2d 568 (La.1988). Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Holiday v. Borden Chem., 508 So.2d 1381, 1383 (La.1987). Next, he must establish a causal connection between the accident and the resulting disability by a preponderance of the 12 evidence. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979). Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the fact finder based on all credible evidence. DeGruy, 525 So.2d at 1132.

Even if the employee suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the reported accident aggravated, accelerated, or combined with the pre-existing condition to produce a compensable disability. Peveto v. WHC Contractors, 93-1402 (La. 1/14/94), 630 So.2d 689, 691. He may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident[,] he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and onset of the disabling symptoms. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320, 324-25 (La.1985).

Although procedural rules are construed liberally in favor of workers’ compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Buxton v. Iowa Police Department, 2009-0520 (La. 10/20/09), 23 So.3d 275, 283.

“[I]t is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover.” Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829, 831 (La.1982). “Furthermore, medical testimony ‘must be weighed in the light of other credible evidence of a nonmedical character, such as a sequence of symptoms or events in order to judicially determine probability’ ...” Schouest v. J. Ray McDermott & Co., 411 So.2d 1042, 1044-45 (La. 1982).” Id.

In the present case, the WCJ in the 2022 trial stated that the medical evidence

entered at the 2012 trial included the medical complaints Ms. LeBlanc experienced

because of her 2010 work accident that helped establish causation and could not be 13 readdressed by Ms. LeBlanc in this second trial. In justification for this ruling, the

WCJ stated:

But the only change after the [earlier] ruling is a new diagnosis. There wasn’t another accident. We have the accident. We have the injury. We have the course and scope. We have a disability status. The only new thing is the diagnosis of Stiff Person Syndrome.

The [earlier WCJ] already ruled that the accident and the symptoms were related. If the medical records say, Okay, look, she had these symptoms, and we’re now giving her a further diagnosis of Stiff Person Syndrome, then it’s related. Her testimony regarding what her symptoms were has already been covered in the first trial.

Ultimately, however, after taking the case under advisement, the WCJ rejected Ms.

LeBlanc’s contention that her SPS was causally related to the work accident.

Instead, the WCJ held that SPS is an autoimmune disorder, not related to the work

accident.

Ms. LeBlanc contends this constitutes a legal error because more detailed

testimony from her was necessary to establish the presumption of causation between

the work accident and the SPS diagnosis she received after that judgment was final.

Her argument regarding this legal presumption is twofold: first, she was required to

show that the disabling symptoms had not manifested themselves before the work

accident; second, these symptoms post-accident and prior to her SPS diagnosis

indicate a reasonable possibility of causal connection between the accident and the

onset of the disabling symptoms. For those reasons, Ms. LeBlanc preserved her

testimony regarding that line of questioning as a proffer that is included in the

appellate record.

After reviewing the jurisprudence, we agree with Ms. LeBlanc’s contention

that the WCJ legally erred when it did not allow her testimony that “before the

accident [she] had not manifested disabling symptoms, that such symptoms

commenced with the accident and manifested themselves thereafter[.]” This

14 testimony, the first prong needed to invoke the presumption of causation, was crucial

to Ms. LeBlanc’s burden of proof. Only with evidence of this first prong does

analysis proceed to the second element, namely that either medical or circumstantial

evidence indicates a reasonable possibility of causal connection between the

accident and onset of the disabling symptoms. Thus, we find that the WCJ’s decision

to limit Ms. LeBlanc’s testimony constituted legal error and necessitates our de novo

review of the record.

Dr. Luris Sanchez (“Dr. Sanchez”), Ms. LeBlanc’s family doctor, has treated

her since September 18, 2003. After reviewing Ms. LeBlanc’s medical record, Dr.

Sanchez stated that prior to the work accident in 2010, Ms. LeBlanc did not have

restricted mobility, whole body stiffness, problems with reflexes, weakness in her

legs, problems with falling, or muscles spasms. However, she did state that Ms.

LeBlanc did have epicondylitis in the right elbow, an inflammation of the elbow,

prior to 2010, but it resolved. Dr. Sanchez also stated that she treated Ms. LeBlanc

for leukocytopenia and that in 2010 she referred her to a hematologist for evaluation.

Dr. Molly B. Thomas “(Dr. Thomas”), a hematologist/oncologist, began

treating Ms. LeBlanc on September 1, 2015. She stated that prior to that time, Dr.

James L. Cole (“Dr. Cole”), her predecessor, first treated Ms. LeBlanc in 2010 for

neutropenia, a benign condition involving a low white blood count common among

African Americans, and thrombocytopenia (“ITP”), an immune mediated condition

in which her immune system destroys her platelets. Dr. Thomas said that she has

prescribed B-12 and iron pills to treat Ms. LeBlanc’s low white blood count. As to

her ITP, Dr. Thomas said it is mild,6 treatment is not called for, and she is simply

6 Dr. Thomas characterized Ms. LeBlanc’s ITP as mild. She noted that a normal platelet count is around 140. After reporting that Ms. LeBlanc’s platelet counts are around 100, 110s, Dr. Thomas said, “[W]e don’t even treat ITP until your platelets start getting around 30.” 15 watching it. When asked if Ms. LeBlanc’s ITP diagnosis was connected to her SPS,

an autoimmune disease, she stated:

[A] patient can have lupus and have ITP, which are both auto-immune conditions which . . . doesn’t mean necessarily that one causes the other or anything. It’s just that if a patient has one auto-immune condition, they may be prone to having others. It doesn’t mean they’re, you know, caused – one causes the other or anything.

In her proffered testimony, Ms. LeBlanc said that prior to her work accident

she was healthy, only taking medication for her blood pressure and receiving

Vitamin C injections for anemia;7 she further denied having received a diagnosis of

having diabetes and firmly stated that she did not take any medication to treat

diabetes.8 She also said that prior to her work accident, she was not suffering from

spasms or body stiffness, she did not need a cane or walker to walk, and she had no

problem with her reflexes. In stark contrast, Ms. LeBlanc stated that she now suffers

from falls and requires a walker. After the accident she had back spasms and

stiffness from the very beginning. She also noted that she began to have trouble with

weight loss within a month or two after the accident. Because of her work accident,

Ms. LeBlanc had to discontinue her Monday night bowling, bike riding, trail riding,

fishing, and dancing. When asked if she suffered stress post-accident, she said that

7 After reviewing Ms. LeBlanc’s medical history, Dr. Lutz summarized her pre-accident medical history as follows:

[Her] medical problems and diagnoses included cardiac murmur with moderate to severe mitral regurgitation, mild pulmonary hypertension, . . . hypertension, and uterine fibroids. Records prior to her job-related incident showed some laboratory hematologic abnormalities. She was even tested for lupus, an autoimmune disorder, in October 2006. She had an evaluation for left hand tingling in 2006.

In his medical report, Dr. Lutz noted that Drs. Domingue and Jankovic also observed several brain abnormalities on Ms. LeBlanc’s MRIs. Nevertheless, Dr. Lutz referred to them as “red herring brain abnormalities.” 8 Even though one of the many serology reports showed evidence of Type 1 diabetes, none of the doctors who treated Ms. LeBlanc ever diagnosed her with this disease and the record shows no evidence that she was prescribed medication for diabetes at any time.

16 she encountered stress because Walmart was not paying for her medical care

associated with the accident. Finally, Ms. LeBlanc testified that after the work

accident until the time she was diagnosed with SPS her symptoms never went away.

After concluding the proffered testimony, the WCJ heard Ms. LeBlanc’s

testimony beginning with August 5, 2013, the date the previous WCJ provided her

oral reasons for judgment. Ms. LeBlanc said she was still experiencing back spasms,

continued weight loss, and stiffness, particularly on the left side of the back; she also

stated that she began having balance issues and was treated for the first time for

vertigo. After she started falling, she first used a cane for balance; when the cane

proved inadequate, she began always using a walker. Her falling started suddenly

and has caused her to fracture both hips, one in 2016 and the other in 2018—both of

which required surgery.9

Kwanza LeBlanc (“Kwanza”), Ms. LeBlanc’s daughter, also testified about

how active her mother was prior to her work accident, to wit: she mowed her grass

over six acres; did weedeating; fixed leaking pipes underneath her house; drove her

own car; bowled in a league; lived independently; performed chores; swept and

mopped the floors; washed dishes; climbed ladders; tilled the garden; and enjoyed

traveling. None of this can she now do, including driving a car. Importantly,

Kwanza said that because her mother can no longer live alone, she has moved into

her mother’s home to take care of her.

ANALYSIS: CAUSATION

The jurisprudence is well-settled that “an employer takes an employee as he

finds him and is liable to him for compensation even when the disabling accident

was such only because of a pre-existing disorder in the employee.” Williams v.

9 Ms. LeBlanc also testified about having a broken clavicle. She did not state when that occurred. 17 Liberty Mut. Ins. Co., 327 So.2d 462, 468 (La.App. 3 Cir. 1976); see also Crawford

v. Al Smith Plumbing & Heating Serv., Inc., 352 So.2d 669 (La.1977). It is also

well-settled “that workmen’s compensation is payable when an occupational

accident aggravates or accelerates a pre-existing condition and produces disability.”

Id. at 672.

The employee who is abnormally susceptible to disability may be so for a variety of reasons. A preexisting disease or condition may help to bring about the actual injury by accident to such a worker, when it would not do so to a worker without such a preexisting deficiency. The most frequent example of this kind of case is the worker with some form of heart deficiency or other cardiac problem which renders him particularly susceptible to a heart attack. Such an attack has been treated as the “accident” which disables him (if in fact he becomes disabled); a worker without such a deficiency might never suffer such an “accident” and would thus not become disabled.

There is another group of employees as to whom a preexisting disease or condition does not make them particularly susceptible to an accident, but does make the consequences of that accident disabling when this would not be the result for a normal worker. The typical example is a worker whose injury by accident aggravates a preexisting arthritic or diabetic condition, and the consequences of that disease— now aggravated—disable him.

There is yet another group of employees as to whom the preexisting condition or disease may retard their recovery, and thus prolong the period of temporary disability which they suffer. Recovery of employees without such a preexisting condition or disease would be more prompt, and this of course would have an effect on the amount of compensation actually paid to such employees. 13 H. Alston Johnson, III, La. Civ. L. Treatise, Workers’ Compensation Law and

Practice § 232 (5th ed.).

In the present case, it is undisputed that Ms. LeBlanc suffers from SPS. Dr.

Lutz (emphasis added) elaborated on Ms. LeBlanc’s SPS diagnosis in his medical

report:

a. Classic stiff person syndrome is . . . diagnosed more often in females and is often associated with other autoimmune disorders such as vitamin B12 deficiency, thyroid disorders, and diabetes. It is caused by the abnormal production of nervous system autoantibodies that disrupt neuronal pathways necessary for motor activity. Ms.

18 LeBlanc fits this category as she had a very high titer of anti-GAD antibodies (see below) as well as a B-12 deficiency.

3. Classic stiff person syndrome has the onset, history, physical findings, and clinical course that I addressed in my prior report.

a. Classic stiff person syndrome is a rare autoimmune-based neurological disease of insidious onset.

b. The earliest symptoms are usually painful involuntary episodes of back or thigh stiffness. Back and leg pain/discomfort usually slowly evolve over years.

c. Muscle spasms occur spontaneously or can be precipitated by certain movements, fright or sound.

d. Fright or loud noises can induce attacks of rigidity and freezing type activities much like a deer in the headlights. Other attacks are spontaneous.

e. Both before and after diagnosis, persons with stiff person syndrome are more prone to unexpected injuries because of their impaired mobility.

f. As the disease progress[es], spasm attacks that typically begin with paraspinal muscles from the lower back to the neck spread to involve the upper arms and thigh limb muscles. . . .

g. With disease progress, mobility difficulties become problematic. Over years gait and mobility become more and more impaired.

h. Actual diagnosis almost always follows initial onset of symptoms by years to decades.

4. Ms. LeBlanc’s history and medical records clearly show that she had signs and symptoms of stiff person syndrome for years before her definitive diagnosis. Indeed, it is likely that early manifestations of her disease process were responsible for delayed reflexes and played a part in her being nudged by the backing up truck in the first place.

5. Ms. LeBlanc’s lack of reflexive movement to avoid the backing- up slow moving truck is consistent with an occult underlying diagnosis of stiff person syndrome. As noted above, it is not unusual for persons with stiff person syndrome to go undiagnosed for years.

19 6. The diagnostic pieces of her picture started fitting together in 2015. For the first time, stiff person syndrome was considered a possibility. Laboratory testing included a very high anti-glutamic acid decarboxylase (GAD) antibody titer. GAD is an enzyme necessary to maintain normal muscle motor tone. Persons with impaired GAD activity do not have the normal ability to block muscle stimulation. When GAD is blocked by antibodies, certain muscles cannot relax, and stiffness takes over. High antibody levels against GAD can cause all the neuromuscular problems that Ms. LeBlanc had and more. Her diagnosis with stiff person syndrome was confirmed by [Dr. Jankovic,] a neurologist in Houston who specializes in movement disorders.

It cannot be denied that Dr. Lutz, the physician Walmart asked to provide an

opinion regarding causation, stated “[t]here are no medically accepted or peer

reviewed medical research or publications linking the causation of stiff person

syndrome to trauma[.]” On this point, it must be noted that Dr. Heard, Ms.

LeBlanc’s treating orthopedist, initially opined that the trauma of the accident and

stress caused her SPS; he would later emphasize stress and would not mention

trauma in his later medical reports. Neither Dr. Domingue nor Dr. Jankovic viewed

trauma as a cause for SPS. Dr. Jankovic stated, however, that “[i]t is quite likely the

stress of the accident triggered the onset of her SPS but the link is hard to establish

with certainty.” Dr. Domingue was never asked to offer an opinion on whether the

stress of the accident had anything to do with the manifestation of Ms. LeBlanc’s

SPS.

However, the jurisprudence on the presumption of causation does not require

proof with certainty. Rather, “the testimony as a whole must show that more

probably than not an employment accident occurred and that it had a causal relation

to the disability.” Johnson, 339 So.3d at 670.

Dr. Lutz’s in-depth analysis of Ms. LeBlanc’s medical history and his review

of the video of the work accident shows that it was likely that early SPS

manifestations of her disease process were responsible for her delayed reflexes at

the time of the work accident. He further opined that Ms. LeBlanc’s delayed reflexes 20 played a part in her being nudged by the backing-up truck in the first place and that

the lack of reflexive movement to avoid the backing-up, slow moving truck is

consistent with a hidden, underlying diagnosis of SPS.

In Buxton v. Iowa Police Department, 09-520, pp. 17–18 (La. 10/20/09), 23

So.3d 275, 286–87, the supreme court discussed Houghton v. Fireman’s Fund

American Insurance Cos., 355 So.2d 927, 929 (La.1978):

“If an accident causes a disability from which a workman would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job connected accident.” However, “[w]hen there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability.” Id. Haughton was employed as a common laborer. While on the job, he stumbled while carrying a heavy timber and fell, breaking his left thigh bone. He was hospitalized, and the fracture was surgically reduced and fixed with a steel plate and screws. Post-surgery tests suggested a bone marrow disorder, which was subsequently diagnosed as multiple myeloma. The break was thought to have been a “pathological fracture,” caused by weakening of the walls of the bone. In addition to the orthopedic treatment, Haughton was placed under the care of a hematologist for the control and treatment of the myeloma. The orthopedic surgeon ascribed a 25 percent residual disability to the left leg “as a result of the injury and subsequent surgery.” When the employer discontinued compensation benefits on the grounds that Haughton was totally disabled by the myeloma and not the broken leg, Haughton brought an action claiming workers’ compensation benefits for total disability allegedly caused by the work-related injury. The trial court judgment denying compensation was affirmed by the court of appeal. Haughton v. Fireman’s Fund American Ins. Companies, 349 So.2d 385 (La.App. 4 Cir.1977).

This court granted certiorari and reversed. Haughton, 355 So.2d 927. We noted that causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence. We found there was no evidence of an intervening cause. Nothing happened to Haughton after the accident except his failure to recover; he did not suffer a new accident or disease; the disease he had when the accident occurred contributed to the injury itself.

The same analysis and reasoning apply here. After reviewing the entirety of

the testimony and medical reports, the evidence supports not only that Ms. LeBlanc

likely had SPS at the time of the work accident but also, in Dr. Lutz’s opinion, it is 21 likely that her poorer reflexes associated with SPS played a part in the accident.

Accordingly, we find that Ms. LeBlanc established that there was a presumption that

the work accident caused her disability, including her SPS.

However, this presumption is not conclusive. Rather, it required Walmart to

come forward with sufficient contrary evidence to rebut it. La.Code Evid. arts. 304,

306; see also Hall v. Folger Coffee Co., 03-1734 (La. 4/1/4/04), 874 So.2d 90. In

Walmart’s argument against there being a presumption of causation, it stresses that

Ms. LeBlanc did not experience a flare-up of her SPS until 2015, almost five years

post-accident. For reasons which follow, we find no merit to its contention.

The Walton decision established that one of the essential elements of proof to

support the presumption is that it be shown that such symptoms commenced with

the accident and manifested themselves thereafter. Walton, 475 So.2d 320. Even

though it is true that Ms. LeBlanc did not suffer a full manifestation of SPS until

2015, the medical evidence shows immediate post-accident manifestation consistent

with SPS, which continued, namely: stiffness in the joints; tenderness and spasms in

the lumbar and paralumbar region; slow gait; lumbar spasms with occasional giving

way of the legs; and severe limitation of extension of the lumbar spine. In addition

to that, the WCJ who presided over that first trial commented: “I thought Ms.

LeBlanc was very credible. She appeared stiff. She appeared to be in pain.”

Likewise, the record is void of any finding of the succeeding WCJ that would cast

doubt on Ms. LeBlanc’s credibility.

Continuing along those same lines, the first WCJ stated: “The only thing out

of whack, so to speak, is that her complaints were all over the place. And that was

problematic. However, I believe her and I believe her complaints regardless of how

odd they might have been.” Armed with the knowledge later obtained through

research and testing by the various medical professionals, the ultimate SPS diagnosis 22 sheds light on those observations. The fact that Ms. LeBlanc may have had a yet-

to-be-diagnosed autoimmune disease does not eliminate her right to compensation,

even though her SPS may have made her more susceptible to injury. Bertrand, 221

So.2d 816; in accord Deason v. Allstate Ins. Co., 95-663 (La.App. 1 Cir. 12/15/95),

669 So.2d 445, writ denied, 96-1061 (La. 5/31/96), 673 So.2d 81.10

We find that the evidence establishes not only that Ms. LeBlanc likely had

SPS at the time of the work accident but also that her poorer reflexes because of SPS

played a part in the accident and the injuries that flowed from that accident.

Accordingly, we find that Ms. LeBlanc proved a causal relationship between her

work accident and the manifestation of her SPS after the accident. Therefore, with

that finding, we will address the two motions to modify Ms. LeBlanc’s disability

status.

THE MOTIONS TO MODIFY DISABILITY STATUS

Ms. LeBlanc argues that there was no merit to Walmart’s motion to modify

the prior award which had found her entitled to temporary total weekly workers’

compensation benefits. She further asserts that considering her SPS diagnosis, her

award should be modified to have her declared entitled to permanent and total

disability benefits. Walmart contends that there is no merit to Ms. LeBlanc’s

arguments and urges us to find Ms. LeBlanc is no longer qualified to receive

temporary total disability. We will first address Walmart’s motion to modify.

In Deason, 669 So.2d at 450, the appellate court addressed a pre-existing autoimmune 10

disease and its impact on injuries suffered in an accident. There, it stated:

The jury may have reasonably found, after hearing all the testimony, Deason’s suffering was related only marginally to the accident and was more related to her other health problems. Nevertheless, the testimony and medical documentation demonstrate Deason clearly suffered acute distress as a direct result of the accident, and her other problems, whether a nondescript autoimmune disease or degenerative arthritis, appear to have been exacerbated by the stress of this event. . 23 Walmart’s Position

Relying on the medical reports generated in 2015 by Dr. Budden, Dr.

Billodeaux, and Dr. Broussard,11 all of whom concluded Ms. LeBlanc was at MMI

and able to return to work, Walmart contends the prior workers’ compensation award

should be modified. In further support of its contention, Walmart relies on a 2018

FCE which found Ms. LeBlanc was able to perform at least sedentary work duties.

Finally, Walmart points out that Dr. Lutz, who examined Ms. LeBlanc in 2019 after

she had been diagnosed with SPS, agreed with the opinions of Drs. Budden,

Billodeaux, and Broussard regarding her being at MMI and that any injury from the

work accident would have been resolved.

Ms. LeBlanc’s Argument

Ms. LeBlanc contends that Walmart failed to show any change in her medical

condition which would allow the discontinuation of her prior disability award. She

argues that Dr. Broussard, who performed an IME, was provided incorrect facts, did

not have all the medical records, was not informed of her SPS diagnosis, and was

unable to explain the severity of her symptoms.

Ms. LeBlanc further points out that although she attended a FCE on January

29, 2018, the physical therapist reported that she had to use a rolling walker through

the evaluation, demonstrated a slow cadence with decreased left single leg stance,

and intermittently dragged her left toe during swing phase. Thus, she argues that her

11 “Louisiana Revised Statutes 23:1122 allows for the submission of a medical report in lieu of testimony as prima facie evidence of the facts contained therein.” Lemoine v. Hessmer Nursing Home, 94-836, p. 10 (La.App. 3 Cir. 3/1/95), 651 So.2d 444, 450. “Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes the report or any statement therein, shall notify the other of that fact within six days, otherwise the report shall be prima facie evidence of the facts therein stated in subsequent proceedings under this Chapter.” La.R.S. 23:1122. “Something considered ‘prima facie,’ as is this statutory presumption, is defined, in part, as ‘a fact presumed to be true unless disproved by some evidence to the contrary.’” City of Jennings v. Deshotel, 99-1232, p. 6 (La.App. 3 Cir. 2/2/00), 758 So.2d 269, 273, writ denied, 00- 663 (La. 4/20/00), 760 So.2d 1157 (quoting, in part, BLACK’S LAW DICTIONARY 825 (abr. 6th ed. 1991). 24 inability to stand for more than ten minutes and that she was always required to use

the rolling walker when standing and walking, showed that she is unable to work in

a sedentary capacity.

Contrary to Walmart’s medical evidence, Ms. LeBlanc argues that Dr. Heard,

her treating orthopedic physician, relying on the change in her living environment

and the heavy doses of muscle relaxants and Valium she takes, has opined that not

only has her medical condition not improved, but she is also permanently and totally

disabled. In support of that opinion, she further relies upon the like opinion of Dr.

Sanchez, her family physician.

THE LAW

In Broussard v. Asco Venture Holdings, 17-90, 17-91 pp. 7–8 (La.App. 3 Cir.

10/4/17), 229 So.3d 80, 86–87, we stated:

As noted in Gabriel v. Lafourche Parish Water District, 12-797[, p. 6] (La.App. 1 Cir. 2/25/13), 112 So.3d 281, 285, writ denied, 13-653 (La. 4/26/13), 112 So.3d 848 (footnote omitted):

The modification power of LSA–R.S. 23:1310.8(A) and (B) exists for the purpose of modifying awards due to a change in the worker’s condition. Because changes in medical condition and disability status are dynamic and ongoing by their nature, the legislature enacted LSA–R.S. 23:1310.8(A) and (B) to afford needed flexibility to ensure that benefits correspond to such changes. Res judicata thus cannot preclude litigation seeking a change in the amount of compensation benefits based upon a change in disability. Chaisson v. Central Crane Service, 2010–0112 at p. 944 So.3d at 888 n. 6.

A judgment of the workers’ compensation judge can only be modified “on the ground of a change in conditions.” La.R.S. 23:1310.8(B); See Anzalone v. Allstate Ins. Co., 97-866 (La.App. 1 Cir. 4/8/98), 714 So.2d 18, writ denied, 98-2180 (La. 11/13/98), 730 So.2d 939; Gabriel, 112 So.3d 281.

“A party who seeks modification of a workers’ compensation judgment must

prove by a preponderance of the evidence that the worker’s disability has increased

or diminished.” Lormand v. Rossclaire Const., 01-515, p. 2 (La.App. 3 Cir. 25 12/12/01), 801 So.2d 675, 676. “The modification statute is to be liberally construed

in favor of the claimant[.]” Jackson v. Iberia Par. Gov’t, 98-1810, p. 9 (La. 4/16/99),

732 So.2d 517, 524.

Walmart’s Motion to Discontinue Temporary Total Disability Benefits

Louisiana Revised Statutes 23:1221(1)(a) provides that “[f]or any injury

producing temporary total disability of an employee to engage in any self-

employment or occupation for wages,” the injured employee shall receive TTDs

“during the period of such disability.” The statute provides, however, that such

benefits

shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

La.R.S. 23:1221(1)(d). “[W]hen the claimant no longer requires treatment and his

physical condition has stabilized, an award for TTD benefits is no longer appropriate

and a determination regarding the extent of the Claimant’s disability must be made.”

Numa C. Hero & Son v. Leleux, 15-305, p. 6 (La.App. 3 Cir. 10/28/15), 178 So.3d

595, 600 (quoting Navarre v. K-Mart, 01-753, p. 6 (La.App. 5 Cir. 11/27/01), 803

So.2d 206, 209. This is further supported by La.Admin. Code. tit. 40, Pt. I, § 2115

which states that “MMI is declared when a patient’s condition has plateaued and the

authorized treating physician believes no further medical intervention is likely to

result in improved function.”

To support its motion to modify Ms. LeBlanc’s disability rating, Walmart

relied upon the medical reports of Drs. Budden, Billodeaux, Broussard, and Lutz, as

well as the FCE she underwent in 2018 at Rosewood Rehabilitation.

Dr. Budden examined Ms. LeBlanc on June 10, 2015, for a second medical

opinion concerning the injuries she sustained on November 2, 2010. After he 26 reviewed her medical records and conducted a physical examination, he opined that

Ms. LeBlanc reached MMI within months of her work related accident and

specifically observed that she had not been evaluated by her treating physicians in

more than a year. He further stated that she could immediately return to her

employment without any limitations based on her work related injury.

Shortly thereafter, on June 17, 2015, Dr. Billodeaux examined Ms. LeBlanc

for a second medical opinion. After making similar findings to that of Dr. Budden,

Dr. Billodeaux opined that Ms. LeBlanc reached MMI within six weeks following

the work related accident. He, too, advised that Ms. LeBlanc could return to full

duty work without limitation because he could not find any medical reason why her

employment should be limited.

Later, on September 15, 2015, Dr. Broussard performed an examination of

Ms. LeBlanc pursuant to a court-ordered IME. He supported the opinions of Drs.

Budden and Billodeaux and stated that Ms. LeBlanc “has long reached maximum

medical improvement.” Finding no objective evidence or physical findings to

indicate that Ms. LeBlanc was unable to return to work, he concluded that she could

have returned to work within a few months of the work accident.

After Ms. LeBlanc’s motion to compel an FCE was granted, she was evaluated

at Rosewood Rehabilitation on January 23, 2017. In the evaluation it was noted that

Ms. LeBlanc had been referred with “diagnoses of cervical pain and lumbar pain,

and . . . left knee pain since the work-related incident in 2010.” No mention of her

SPS diagnosis was made. It was also noted that she underwent a left total hip

replacement in 2016 after falling and fracturing the hip. Ultimately, the FCE advised

that Ms. LeBlanc could perform sedentary work.

On February 27, 2017, Dr. Lutz reviewed selected medical records at the

request of Walmart to offer an opinion as to whether Ms. LeBlanc’s on-the-job 27 accident that occurred on November 2, 2010, caused or could have triggered stiff

person syndrome. After reviewing Ms. LeBlanc’s medical records, Dr. Lutz

provided three major opinions: (i.) she has classic SPS, an autoimmune disorder; (ii.)

her SPS was in no way caused or triggered by being hit during her on-the-job

incident of November 2, 2010; and (iii.) there are no medically accepted or peer

reviewed medical research or publications linking the causation of SPS to trauma.

Later, on October 22, 2019, Dr. Lutz examined Ms. LeBlanc for a second

medical opinion. After reviewing Ms. LeBlanc’s medical records and conducting

his examination, Dr. Lutz maintained the three major opinions he made earlier on

February 27, 2017, which addressed causation. In addition, Dr. Lutz agreed with the

three physicians who evaluated Ms. LeBlanc in 2015, Dr. Budden, Dr. Billodeaux,

and Dr. Broussard, regarding the causation of her initial injuries and that she had

long achieved MMI from those injuries.

It is well accepted that “[a]n IME’s medical conclusions are given significant

weight because the IME is an objective party;” however evaluation of all the

evidence presented should be used in deciding a claimant’s medical condition.

Numa C. Hero & Son, 178 So.3d at 602; see also Richardson v. Lil’ River

Harvesting, 09-1090 (La.App. 3 Cir. 3/10/10), 33 So.3d 418.

In the present case, Dr. Broussard provided an initial IME report in June 2015.

Dr. Broussard’s report that Ms. LeBlanc had reached MMI, a determination like that

reached by Drs. Budden and Billodeaux, was made months before Ms. LeBlanc was

diagnosed with SPS and only encompassed her initial injuries. Thus, it is evident

that their opinions on this critical issue must be understood considering that fact.

The record also shows that Dr. Broussard supplemented his June 2015 report

with one rendered on September 7, 2016, after Ms. LeBlanc’s SPS diagnosis.

Despite the timing of that supplementation, it is evident that Dr. Broussard was 28 unaware of the SPS diagnosis and appears to have based his opinion on unspecified

notes of Dr. Heard, Ms. LeBlanc’s treating orthopedist. Dr. Broussard’s letter to the

OWC supports that finding. There he stated:

I had the opportunity to see Ms. Le[B]lanc one year ago and at that time I felt that her findings were nonorganic [,] and I think is consistent with the report Dr. Heard wrote. As you know [,] now she is 6 years status post the injury. She has chronic complaints of pain. As you know pain is strictly subjective. There were no objective findings on the physical exam forwarded to me of a pathological nature. The x-ray studies reported in Dr. Heard’s notes are consistent with chronic degenerative disease.

Finally, I do not believe that the report forwarded to me changes my original opinion.

Unlike the reports of Drs. Budden, Billodeaux, and Broussard, which did not

reference her SPS diagnosis, Dr. Lutz’s medical reports show that he was keenly

aware of the SPS diagnosis when he examined Ms. LeBlanc. Although Dr. Lutz

embraced the opinion on MMI reached by Drs. Budden, Billodeaux, and Broussard,

we recognize that Walmart utilized him to support its contention that there was no

causal link between the work accident and the SPS diagnosis. Because of that we

find it necessary to take a closer look at the record because it is difficult to reconcile

that simple statement with Dr. Lutz’s other comments in his two medical reports.

In his 2017 report Dr. Lutz provided this background information about SPS:

Initial therapy is symptomatic with benzodiazepine muscle relaxants such as Valium, but progressive muscle stiffness and rigidity is the rule. Various experimental treatments including plasmapheresis or intravenous immunoglobulins are sometime tried. The disorder usually progresses with chronic pain, postural deformities, impaired mobility with a rigid gait, and spine abnormalities. This leads to a wide-based and unsteady walking described as the “Frankenstein gait”. The inability to walk safely[] leads to increased falls, another common complication of this order. In extreme cases, persons become unable to bend over or even walk. As would be expected with such a symptomatic chronic disease, psychological problems also abound.

On October 22, 2019, almost four years after Ms. LeBlanc’s SPS diagnosis,

Dr. Lutz recorded the following symptoms when he examined her: 29 Her symptoms include multiple pain sites and difficulty walking. The primary sites of her pain are her back, arms, and legs. She describes limb stiffness and rigidity. She has difficulty in changing position. She is unable to walk without a cane and uses a walker to get around.

Dr. Lutz also provided the following notation concerning his examination of Ms.

LeBlanc: “MUSCULOSKELETAL: ambulatory w walker, reports tenderness to

palpation arms, legs, and spine from neck to sacrum, I did not observe any muscle

spasms (she is on medications).”

As indicated earlier, MMI is premised on two elements—the patient no longer

requires treatment, and her physical condition has stabilized. Numa C. Hero & Son,

178 So.3d 595.

Dr. Domingue was the first medical professional to definitively diagnose Ms.

LeBlanc with SPS. After Dr. Domingue used increased doses of diazepam (Valium)

to help control Ms. LeBlanc’s SPS, he found that it had limited effectiveness and

caused her to sleep most of the day. He then obtained authorization from Ms.

LeBlanc’s private insurance carrier to begin intravenous immunoglobulin therapy

(“IVIG”), a therapy which continued through the latest trial. Even though Dr.

Domingue has not commented on whether Ms. LeBlanc has reached MMI, his

observations of his patient since 2015 are illuminating. Among his many medical

notes on Ms. LeBlanc are the following observations: her gait is slow and stiff; she

has complaints of unsteadiness and falling; “[w]hen she walks she has a very short

step and slow gait and a left tilt of the trunk”; “[s]he is very unstable and requires

support in order to stand”; her “[p]ostural reflexes are poor and she struggles but

does not fall”; “[s]he had diffuse tremors when her IVIG treatment was delayed to a

six-week interval instead of four”; “[t]he Valium makes her sleepy but efforts to

drop the dose to 5 mg 3/day led to an increase in spasms in her back and inability

30 for the patient to care for herself.” And in one of the latest notes in 2019, even after

at least twenty-five IVIG infusions, Dr. Domingue commented:

She is quite rigid in the trunk and has normal tone in the limbs. She walks only with a walker and very slowly. She is still quite stiff and has low back and right lower extremity pain. Because of the Valium and Robaxin her memory is poor. She takes 25 mg of Valium/day.

The medications Ms. LeBlanc was taking are identified in Dr. Lutz’s medical

reports; among those medications were Valium, Robaxin, Gabapentin, and IVIG

infusions monthly. After reviewing Ms. LeBlanc’s medical records, including the

medical reports of Dr. Domingue and Dr. Heard, it appears that all these medications

are being used on an ongoing basis to address her SPS.12 Additionally, the records

from Reliant Healthcare, the healthcare provider which oversees her infusions, also

show that Ms. LeBlanc’s IVIG infusions are administered twice monthly over a three

to four hour period; the record further establishes that these infusions began on

August 31, 2018, and were still continuing as of May 14, 2021. There was no

testimony that these infusions would no longer be needed at some point. Likewise,

even though the dosages of Valium and Robaxin have been adjusted at various times

because of the drowsiness they caused and their impact on Ms. LeBlanc’s memory,

there, too, was no indication that these medications would become unnecessary.

We further note the observation of Dr. Domingue, “[Kawanza,] the daughter

[of Ms. LeBlanc,] informed me that Dr. Jankovic recommended a trial of

12 According to PDR.Net by ConnectiveRX, www.pdr.net (accessed July 31, 2024): Valium (diazepam) is used for anxiety, skeletal muscle spasm, and seizure disorders; Robaxin is a muscle relaxant used for the treatment of musculoskeletal conditions associated with acute, painful musculoskeletal conditions; Gabapentin is used for restless legs syndrome, posthererpetic and other neuralgias, and adjunctively for partial seizures. From Ms. LeBlanc’s daughter, it was testified that Ms. LeBlanc takes 10 mg of Valium at 10 a.m. and 500 mg of Robaxin at 2 p.m. and again at 7 p.m.

31 rituximab.[13] I am not impressed that we have helped a lot. Hopefully the rituximab

will help.”

Dr. Heard, the orthopedist who has treated Ms. LeBlanc since January 25,

2011, first opined on March 20, 2017, after Ms. LeBlanc’s SPS diagnosis, that she

was unable to work, and she had not reached MMI. He has maintained that opinion

throughout his treatment of her.14 Even though he readily admitted that he had never

treated SPS, it cannot be denied he is very familiar with Ms. LeBlanc’s physical

condition, including her SPS diagnosis, her physical deficiencies, whether she no

longer needs treatment, and whether her physical condition has stabilized.

After carefully reviewing the record de novo and considering the

jurisprudence, we find that the evidence preponderates that Ms. LeBlanc needs

longer treatment, and her physical condition has not stabilized. For these reasons,

we find no merit to Walmart’s motion to modify Ms. LeBlanc’s disability status.

Ms. LeBlanc’s Motion to Increase Benefits to Permanent and Total Disability

Ms. LeBlanc contends that her disability should be increased to permanent

and total disability status. Alternatively, Ms. LeBlanc further argues that if we find

that a full evidentiary hearing was not held below, she requests that we remand the

matter to the WCJ for a full evidentiary hearing on her motion to allow the court to

address the requisite non-physical factors that have to be addressed, including, but

13 The use of Rituximab for the treatment of SPS is still being studied. According to the National Institute of Neurological Disorders and Stroke,

Preliminary experience in some non-malignant antibody-mediated disorders has shown that Rituximab was beneficial in improving the patient’s symptoms and reducing antibody level. SPS is an antibody-mediated autoimmune disease affecting GABA-ergic transmission resulting in incapacitating stiffness and spasms.

“Rituximab to Treat Stiff Person Syndrome,” https://www.ninds.nih.gov/health- information/clinical-trials/rituximab-treat-stiff-person-syndrome (accessed on 7/8/2024) 14 Dr. Heard has also added his opinion that Ms. LeBlanc is permanently and totally disabled. We will address that issue in the next portion of this opinion. 32 not limited to, her rehabilitation and whether she is capable of retraining in

connection with a claim for permanent and total disability.

In Stelly v. CNA Insurance Co., 15-379, pp. 5–6 (La.App. 3 Cir. 10/21/15),

177 So.3d 159, 163, writ denied, 15-2080 (La. 1/8/16), 184 So.3d 697, (emphasis in

the original), we stated:

A finding of permanent total disability status requires a consideration of two statutes, La.R.S. 23:1221 and La.R.S. 23:1226. Our supreme court has instructed that when considering such claims, these statutes are to be read in pari materia. Comeaux v. City of Crowley, 01-32 (La.7/3/01), 793 So.2d 1215.

Louisiana Revised Statutes 23:1221(2) sets forth the burden of proof that an employee seeking an award of permanent and total disability benefits must satisfy. When, as in the instant matter, an employee is not currently employed, La.R.S. 23:1221(2)(c) (emphasis added) is the controlling statutory provision, which provides as follows:

For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self- employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Louisiana Revised Statutes 23:1226(D) (emphasis added), provides in relevant part:

Prior to the workers’ compensation judge adjudicating an injured employee to be permanently and totally disabled, the workers’ compensation judge shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.

33 See also Odom v. Kinder Nursing Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956

So.2d 128, 132, which further stated that “[t]he issue of disability is determined with

reference to the totality of the evidence, including both lay and medical testimony.”

Proof by clear and convincing evidence requires more than “a preponderance

of the evidence,” the traditional measure of persuasion, but less than “beyond a

reasonable doubt,” the stringent criminal standard. Succession of Bartie, 472 So.2d

578 (La.1985). Proof by a preponderance requires that the evidence, taken as a

whole, shows that the fact sought to be proved is more probable than not.

Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976). To prove a matter by

clear and convincing evidence means to demonstrate that the existence of a disputed

fact is highly probable, that is, much more probable than its nonexistence. Louisiana

State Bar Ass’n v. Edwins, 329 So.2d 437 (La.1976). The distinct standard,

persuasion by clear and convincing evidence, is usually applied “where there is

thought to be special danger of deception, or where the court considers that the

particular type of claim should be disfavored on policy grounds.” McCormick on

Evidence, § 340(b), p. 798 (2d Ed.1972).

We have outlined Ms. LeBlanc’s physical state earlier in this opinion. We

have also referenced Kwanza’s firsthand observations of her mother’s physical state.

Because the testimony of Ms. LeBlanc’s physical limitations has been well

documented, we will not rehash them at this juncture.

In the present case, the WCJ never reached the issue of Ms. LeBlanc’s

permanent and total disability because it found her SPS was not causally connected

with her work accident. Because we have concluded that the WCJ erred in finding

no causal connection between Ms. LeBlanc’s SPS and the work accident, we find it

necessary to remand this case to the WCJ to adjudicate Ms. LeBlanc’s permanent

and total disability claim under the provisions of La.R.S. 23:1221 and 23:1226(D). 34 In doing so, the WCJ may entertain updated information on Ms. LeBlanc’s physical

limitations, as well as her medical condition since the time of this last hearing.

Related to that determination is Ms. LeBlanc’s contention that Dr. Heard’s

continued treatment of her is required because her medical condition has not

resolved. Considering her need for continuing treatment, she argues that she is

entitled to payment of Dr. Heard’s medical billings for treatment incurred since the

original trial. Because the WCJ rejected Ms. LeBlanc’s SPS causation argument, it

never reached her contention that she was entitled to have Dr. Heard’s outstanding

balance of $5,050.00 paid.15 In accord with that determination, the WCJ’s judgment

is silent on this issue. Even though Ms. LeBlanc’s documentation of that outstanding

balance was presented at trial and is in the appellate record, the WCJ did not address

whether Dr. Heard’s treatment was reasonable and necessary. On remand, the WCJ

is instructed to make this determination as to those sums and any other like medical

billings that have occurred subsequently, and to make an award accordingly.

PENALTIES AND ATTORNEY FEES

Ms. LeBlanc has raised several allegations that penalties and attorney fees are

owed for various failures to timely pay medical expenses. Included in her brief to

this court, are specific arguments involving: (1) Dr. Mack; (2) Dr. Heard; (3)

Laborde Physical Therapy; (4) Dr. Hodges; and (5) Walmart’s denial of an FCE.16

15 The record is confusing in this regard. Ms. LeBlanc entered two sets of billings from Dr. Heard. Plaintiff’s Exhibit 4 (“P-Ex. 4”) in the amount of $7,880.00 covers medical charges from May 20, 2011, through July 27, 2015. In its judgment, the second WCJ denied Ms. LeBlanc’s “claim for penalties and attorney fees related to Dr. Michael Heard’s bills totaling $7,880.00[.]” Later, Plaintiff’s Exhibit 105 (“P-105”), showing an outstanding balance of $5,050.00, duplicates the charges outlined in P-Ex. 4, and adds charges from November 2, 2016, through December 22, 2021. Even though Ms. LeBlanc has briefed the unpaid $5,050.00 balance reflected in P-Ex. 105, she has not briefed the WCJ’s rejection of penalties and attorney fees as to the $7,880.00; see footnote 15 infra. Nevertheless, Ms. LeBlanc has requested payment of Dr. Heard’s medical billings totaling $5,050.00. 16 The WCJ judgment also rejected penalty claims for failure to pay: (a) for Hydrocodone medication; (b) the medical bill from St. Thomas Clinic for May 23, 2012; (c) Laborde Diagnostics for service on August 11, 2011; (d) Pharmacy Partners for services on May 26, 2012 and June 4, 35 We will group those where there is a common basis and individually address the

others. Applicable to each of these claims is the well-established principle that

workers’ compensation statutes providing for penalties and attorney fees are penal

in nature and must be strictly construed. McCallon v. Key Energy Servs., 20-635

(La.App. 3 Cir. 12/15/21), 342 So.3d 1059, writ denied, 22-324 (La. 4/12/22), 336

So.3d 89.

The following facts are essential to the resolution of some of the claims. Ms.

LeBlanc sustained a work accident on November 2, 2010. From the outset Walmart

approved treatment of the injuries to Ms. LeBlanc’s left shoulder and both knees as

compensable. Ms. LeBlanc then filed a disputed claim for compensation seeking

further medical treatment and indemnity benefits for the disability associated with

her neck and back. When Walmart did not approve treatment for the neck and back,

this matter proceeded to trial on October 17, 2012. In an oral ruling on August 5,

2013, later reduced to writing in a judgment on February 19, 2015, the WCJ ordered

weekly indemnity benefits, finding the neck and back injuries to be causally related

to the accident. It then ordered Walmart to reimburse Ms. LeBlanc for out-of-pocket

expenses to Dr. Domingue and Laborde Diagnostic; it further ordered Walmart to

pay outstanding medical bills from Dr. Mack, Dr. Heard, Laborde Diagnostic, and

Physician’s Partner. As noted earlier, this court affirmed that judgment on

November 14, 2015.

2012; (e) Laborde Physical Therapy; and (f) Dr. Heard’s bills totaling $7,880.00; and the failure to approve: (i) physical therapy recommended by Dr. Mack and Dr. Heard; and (ii) treatment with Dr. Mack. Uniform Rules—Courts of Appeal, Rule 2–12.4 requires all specifications or assignments of error to be briefed. Where a party advances no argument whatsoever for one of his alleged specific assignments of error, the court may consider that assignment of error abandoned. LeBlanc v. LeBlanc’s Auto. & Glass Center, LLC, 22-564 (La.App. 3 Cir. 4/12/23), 363 So.3d 1240. Since Ms. LeBlanc has failed to address these other claims, we deem them abandoned. However, we will address those which have been briefed. 36 Payments related to the initial judgment of February 19, 2015

Ms. LeBlanc contends that Walmart failed to timely pay the outstanding bills

of Dr. Mack, a family medicine specialist, and Dr. Heard within thirty days of

December 4, 2015, the date the original judgment became final.17

Louisiana Revised Statutes 23:1201(G) states, in pertinent part:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. . . . The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

Subsection G applies to the actions of the employer after a final judgment/settlement.

Fontenot v. Sonnier, 09-1215 (La.App. 3 Cir. 4/7/10), 34 So.3d 473. Commenting

further, the Fontenot court stated, “a plain reading of Subsection G raises two

questions: (1) was the payment timely, and (2) if not, did the delay result from

conditions beyond the employer’s control. The first question results in a straight yes

or no answer. The second question delves into the reasons behind the employer’s

late payment[.]” Id. at 476–77.

Regarding the first question, “Was the payment timely,” the payments to Drs.

Mack and Heard were untimely. Dr. Mack’s payments were made on February 9,

2017, approximately fourteen months after the final judgment. Dr. Heard’s

payments were made on March 23 and 24, 2016, approximately three months after

the final judgment.

17 In its reasons for judgment, the WCJ rejected both claims, stating simply that they had been paid. No mention was made of whether those payments were untimely. 37 Dr. Mack treated Ms. LeBlanc in 2010 and 2011, shortly after the work

accident. Larissa J. Sabatini (“Ms. Sabatini”), a case manager for Claims

Management, Inc. (“CMI”), testified that she wrote Dr. Mack on December 16,

2015, asking him to submit a UB92 or a HCFA 1500 for all outstanding dates of

service from November 2, 2010. Specifically, the certified letter stated, “In order to

pay these bills Claims Management, Inc. must have the following: Complete medical

records, which should include an outline of onset and history of patient’s condition

along with the bill on a UB92 or HCFA 1500 form.” Dr. Mack refused the certified

mail on December 21, 2015.

Ms. Sabatini further stated that she did not receive the bills she requested until

January 27, 2017, when counsel for Ms. LeBlanc sent the requested forms to her

requesting that Dr. Mack’s medical bills for the treatment of Ms. LeBlanc “be

submitted in line for payment.” On February 9, 2017, within thirty days of counsel’s

letter, CMI issued a check to Dr. Mack for $2,504.60.

Based upon these facts, we find that the nonpayment resulted from conditions

over which CMI had no control. Accordingly, we find that no penalties and attorney

fees are due.

Regarding Ms. LeBlanc’s claim for penalties and attorney fees for the

untimely payment of Dr. Heard’s medical expenses, the record shows that on

December 21, 2015, Ms. LeBlanc’s counsel sent a letter to Walmart’s counsel with

an updated, itemized billing statement from Dr. Heard showing treatment to her from

2011 to 2014. The record further shows that Dr. Heard also later provided Walmart

with health insurance claim forms dated March 3, 2016, for the same period.

In her deposition, Ms. Sabatini did not mention the December 21

correspondence from Ms. LeBlanc’s counsel to Walmart’s counsel. She did say that

after the judgment was final, without specifying a date, she requested that Dr. Heard 38 provide her with the outstanding billing, and it took him a while to get them to her.

This would seem to correspond with the claim forms dated March 3, 2016.

Accordingly, Ms. Sabatini said she processed this later payment within thirty days

of receipt of those forms even though it probably resulted in an overpayment to Dr.

Heard.

Walmart argues that Dr. Heard failed to code and bill for services to assure

the services were not bundled or duplicated, and the fees were not excessive. It also

argues that the timely submission of proper claim forms would have avoided this

confusion. Thus, considering Dr. Heard’s filings dated March 3, 2016, it argues that

its payments were timely made. We find no merit to Walmart’s argument.

After reviewing the Workers’ Compensation Act, we find that although the

Act refers to the Louisiana Administrative Code regarding the reimbursement

schedule, it does not provide for a specific procedure for how employers receive

medical billings. See Perron v. St. Landry Par. Econ. Indus. Dev. Dist., 03-1061

(La.App. 3 Cir. 3/3/04), 867 So.2d 86, writ denied, 04-1502 (La. 10/1/04), 883 So.2d

1009; Nuzum v. TCI Turner Corp., 02-1232 (La.App. 1 Cir. 3/28/03), 857 So.2d 520

(commenting on La.R.S. 23:1201(E)).

We also observe that the billing submitted to Walmart’s counsel on December

21, 2015, included Ms. LeBlanc’s full name; her telephone number; the ICD codes;

the service rendered; the dates of the visits, the service provided, and the charges for

the medical service; and Dr. Heard’s complete name and address. Additionally, we

also note that Walmart already had Ms. LeBlanc’s address, her social security

number, and the date of injury from the case file. Even though Walmart contends

that having the proper claims form from Dr. Heard would have allowed it to ascertain

that the care was covered and consistent with the treatment guidelines, it admits that

it probably overpaid Dr. Heard even though it eventually had the proper forms. We 39 find that Walmart failed to show that its late payment of the medical billings of Dr.

Heard ordered in the original judgment was the result of conditions over which it

had no control. Thus, we order Walmart to pay a penalty of $3,000.00 and an

attorney fee of $5,000.00 for its untimely payment of Dr. Heard.

Mileage reimbursements for treatment post-judgment

On December 12 and 19, 2014, Ms. LeBlanc submitted mileage

reimbursement forms for travel expenses she incurred for roundtrips from her home

to Laborde Physical & Occupational Therapy for treatment of her neck and back.

The 2014 dates involved were August 18, 19, 25, and 28, September 3, 4, 8, 9, 15,

17, 29 and 30, and October 1, 6, and 8. As justification for not paying these requests

for reimbursements, Walmart contended that Ms. LeBlanc’s injuries to her back and

neck were not causally related to her work accident.

The record shows that Walmart’s justification prior to trial was because Ms.

LeBlanc’s initial complaints were of injuries to her left knee and shoulder, not her

neck and back. Notwithstanding, after hearing testimony and reviewing the

evidence, the original WCJ found, in oral reasons stated on the record in August

2013, that Ms. LeBlanc’s neck and back injuries were causally related to her work

accident. Despite that finding, when Ms. LeBlanc made demand in 2014 for mileage

reimbursement for treatment she received after her original trial and before written

judgment was forthcoming on February 19, 2015, Walmart continued its refusal to

pay these reimbursement requests. Subsequently, Walmart would maintain that

argument because it perfected a suspensive appeal of the 2015 judgment.

Ultimately, however, this court rejected Walmart’s argument as to causation and

affirmed the WCJ judgment that found Ms. LeBlanc’s neck and back injuries were

related to her 2010 work accident.

40 On de novo review of the record and considering the provisions of La.R.S.

23:1201(F), we find that when Walmart denied the mileage reimbursement requests,

at a time when no judgment had yet been signed, it relied on medical evidence to

dispute the WCJ’s finding that the neck and back injuries were related to the work

accident. This argument would then form the basis for Walmart’s suspensive appeal

in 2015. Although we would later reject Walmart’s argument and even though it

may now be liable for the mileage reimbursement requests, we find that no penalties

and attorney fees are due because the record supports that Walmart has reasonably

controverted this claim.

Denial of treatment and untimely payment of Dr. Hodges

Ms. LeBlanc first argues that she is entitled to a penalty for Walmart’s failure

to authorize treatment by Dr. Hodges, a specialist in physical pain and rehabilitation,

for treatment of her neck and back scheduled for June 5, 2014.

The record shows that the medical record for Ms. LeBlanc’s initial visit with

Dr. Hodges includes a history of her 2010 work accident which describes injuries to

her shoulder and knee, injuries Walmart has always admitted as compensable.

Nevertheless, Dr. Hodges’s overall assessment and plan of treatment focuses on the

cervical and lumbar regions. Shortly afterwards, on August 11, 2014, although Dr.

Hodges noted that Ms. LeBlanc had restricted range of motion of the left shoulder,

her major complaints were of aching and shooting pain radiating to the right leg, and

Dr. Hodges noted that she returns with symptoms of neck and back pain.

Even though Walmart’s refusal to authorize treatment appears after the

original WCJ orally ruled that Ms. LeBlanc’s neck and back pain was related to the

work accident, it is equally clear that such finding would not be reduced to judgment

until the first months of 2015. Moreover, once the judgment was signed, Walmart

suspensively appealed that judgment. 41 Against that factual background, we find that when Ms. LeBlanc first sought

this treatment, Walmart had reasonably controverted the claim of causation for the

back and neck injuries, and it maintained that argument throughout the appellate

process.

Ms. LeBlanc next contends that she is entitled to a $2,000.00 penalty because

Walmart paid Dr. Hodges more than sixty days after the bill was sent. See La.R.S.

23:1201(E)(1). The record shows that Walmart paid Dr. Hodges on January 28,

2016, February 29, 2016, and March 23, 2016. Ms. LeBlanc has failed to direct us

to record evidence which would establish when the sixty-day period would have

begun. In the absence of that, we find no merit to her contention.

In further argument, Ms. LeBlanc contends that if the sixty-day payment

window commenced on December 4, 2015, the date the appellate court decision

became final, Walmart’s payments to Dr. Hodges which culminated on March 23,

2016,18 were untimely under the provisions of La.R.S. 23:1201(E)(1).

From the outset, we observe that Dr. Hodges’s involvement in Ms. LeBlanc’s

medical treatment commenced after the original hearing on her workers’

compensation claim. As a result, no aspect of his treatment and the cost associated

with that are encompassed in the judgment of December 4, 2015. We find, as did

the original WCJ, that Walmart reasonably controverted the claim of causation for

the neck and back injuries, the basis of the medical treatment Dr. Hodges provided

during that period. Thus, we find no merit to Ms. LeBlanc’s argument that a penalty

is due for this claim.

Denial of the medically recommended FCE

18 Although our review shows that the payment on February 29, 2016, would also have been untimely, Ms. LeBlanc has not also included that date in her argument. 42 Ms. LeBlanc contends that although an FCE was ultimately authorized and

conducted on May 16, 2018, Walmart denied her request dated August 21, 2017, to

order an FCE that Dr. Broussard, the independent medical examiner, did not oppose

on September 15, 2015, and Orthopedic and Sports Physical Therapy (“OSPT”)

recommended on August 17, 2017. Accordingly, she asks that a penalty and attorney

fees be imposed.

In Authement v. Shappert Engineering, 02-1631, p. 11 (La. 2/25/03), 840

So.2d 1181, 1188 (emphasis added), the supreme court instructed:

As stated in Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99), 737 So.2d 41, 46, awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature. The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers. The crucial inquiry in determining whether to impose penalties and attorney fees on an employer is whether the employer had an articulable and objective reason to deny benefits at the time it took action.

From the outset, we note that although Dr. Broussard did not oppose an FCE in 2015,

Ms. LeBlanc did not urge such action until 2018, almost two years later. We also

observe that OSPT’s recommendation was made after noting that Ms. LeBlanc had

SPS. At that time, Walmart, relying on Dr. Lutz’s medical report, contested that the

SPS was the result of Ms. LeBlanc’s work accident. The record supports that

Walmart reasonably controverted the claim for FCE. Thus, we find that no penalty

and attorney fee are due.

SUMMARY: PENALTIES AND ATTORNEY FEES

Attorney fees: Penalty Setting

As provided in La.R.S. 23:1201(G), any award payable under the terms of a

final, nonappealable judgment not paid within thirty days after it becomes due

subjects the employer to a penalty not to exceed $3,000.00 and reasonable attorney

fees if the nonpayment resulted from conditions over which it had control. Earlier, 43 we found Walmart made untimely payment of Dr. Heard’s medical billings ordered

by a final judgment, and it alone had control of payment.

The underlying reason for the Workers’ Compensation statutes in allowing

the imposition of penalties and attorney fees for the withholding of benefits is to

combat indifference by employers and insurers toward injured employees. Hood v.

C.J. Rogers, Inc., 94-1162 (La.App. 3 Cir. 3/8/95), 654 So.2d 371. Penalty and

attorney fee provisions of the Workers’ Compensation Act are specifically designed

to deter employers and their insurers from unjustified failure to alleviate suffering

of workers injured in their employment. Thibodeaux v. L.S. Womack, Inc., 94-1375

(La.App. 3 Cir. 4/5/95), 653 So.2d 123.

The only limitation on the amount of attorney fees in the penalty setting is that

it should be reasonable. La.R.S. 23:1201. The restriction on attorney fees embodied

in La.R.S. 23:1141(B), discussed later, that may be charged as to the recovery of the

benefits themselves is inapplicable here.

We found Walmart liable for its untimely payment to Dr. Heard and ordered

it to pay a penalty of $3,000.00 and an attorney fee of $5,000.00. We further find

that Walmart owes legal interest on the penalty and attorney fee awards from the

date of judgment. See Sharbono v. Steve Lang & Son Loggers, 97-110 (La. 7/1/97),

696 So.2d 1382; Day v. Superior Derrick Servs., 11-749 (La.App. 3 Cir. 12/7/11),

80 So.3d 654.

Attorney fees: Recovery of benefits

The fees of an attorney who renders service for an employee in a workers’

compensation controversy are limited to twenty percent of the amount of benefits

recovered. See La.R.S. 23:1141(B). The fees must be reviewed and approved by

the WCJ and are to be paid from the amount awarded to the plaintiff/claimant in the

manner prescribed by the WCJ. See La.R.S. 23:1141(A); see also La.R.S. 23:1143. 44 It is well-settled that the amount of attorney fees due an attorney for

representation in a workers’ compensation matter is based on the attorney’s time,

skill, and effort to recover the benefits owed. Miller v. Gaspard, 95-861 (La.App. 3

Cir. 12/6/95), 664 So.2d 810. Moreover, it is well settled that a determination of an

attorney’s compensation under this analysis is necessarily predicated upon a

thorough evaluation of the record facts and application of the criteria set forth under

Rule 1.5 of the Louisiana Rules of Professional Conduct. Id.

Louisiana Rules of Professional Conduct, Rule 1.5(a) provides, in pertinent

part, as follows:

The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

In the present case, the WCJ never reached the question of whether attorney

fees were due because it did not find Ms. LeBlanc’s SPS was causally related to the

work accident and, thus, was not compensable. As stated above, on de novo review

45 we have found that Ms. LeBlanc’s SPS was causally related to the work accident.

Accordingly, the issue of attorney fees comes into play.

Counsel for Ms. LeBlanc has introduced an affidavit itemizing 258 hours

spent through the time of the last trial date and expenses in the sum of $10,997.75.

Because we find it necessary to remand this matter to the WCJ to address Ms.

LeBlanc’s claim for permanent and total disability and her request for the payment

of Dr. Heard’s billings incurred after the conclusion of the first trial to date, counsel

for Ms. LeBlanc will devote additional hours of representation. Accordingly, we

find it most efficient to refer Ms. LeBlanc’s request for attorney fees for the recovery

of benefits to the WCJ along with her claim for permanent and total disability and

Dr. Heard’s latest medical billings.

Notwithstanding, Ms. LeBlanc’s attorney has requested attorney fees for work

done on appeal. For work done on the appellate level, we award Ms. LeBlanc’s

attorney $5,000.00.

DECREE

For the foregoing reasons: IT IS ORDERED, ADJUDGED, AND DECREED that the judgment of the

Workers’ Compensation judge which found that Mona LeBlanc’s stiff person

syndrome was not related to the work accident of November 2, 2010, is reversed and

set aside.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the

judgment of the Workers’ Compensation Judge which found Mona LeBlanc capable

of engaging in gainful employment in a sedentary capacity and which granted

Walmart Stores, Inc.’s motion to modify judgment is reversed and set aside.

46 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that those

portions of the Workers’ Compensation Judge’s judgment which denied penalties

and attorney fees are affirmed in all respects but one, namely, the untimely payment

to Dr. Michael E. Heard of outstanding medical payments after our judgment of

November 14, 2015, became final.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that for its

untimely payment of the outstanding medical billings due to Dr. Michael E. Heard

after our judgment of November 14, 2015, became final, Walmart Stores, Inc. is

required to pay Mona LeBlanc a penalty of $3,000.00 and an attorney fee of

$5,000.00, together with legal interest on the penalty and attorney fee award from

the date of judgment.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that for

legal work done by counsel for Mona LeBlanc on this appeal, we award her an

attorney fee of $5,000.00.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this

matter is remanded to the Workers’ Compensation Judge to address Mona LeBlanc’s

motion to modify the judgment of February 19, 2015, to increase her disability from

temporary and total disability to permanent and total disability. In doing so, the

Workers’ Compensation Judge is to entertain updated information on Mona

LeBlanc’s physical limitations, as well as her medical condition since the time of

her last hearing in the trial court. Furthermore, the Workers’ Compensation Judge

is instructed to consider Mona LeBlanc’s request for the payment of Dr. Michael E.

Heard’s medical billings, determine those sums and other like charges from his

office that have occurred subsequently, address whether Dr. Michael E. Heard’s

treatment as reflected in those medical billings was reasonable and necessary, and

47 make an award accordingly. On remand, the Workers’ Compensation Judge is

further instructed to determine Mona LeBlanc’s counsel’s request for attorney fees

for the recovery of benefits sought at the trial level.

The costs of this appeal are assessed one-half to Walmart Stores, Inc. and one-

half to Mona LeBlanc.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS; AND JUDGMENT RENDERED.