STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-615
NANCY ROBINSON
VERSUS
CALCASIEU PARISH SCHOOL BOARD
**********
APPEAL FROM THE OFFICE OF WORKERS‟ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 09-07555 CHARLOTTE A. L. BUSHNELL, WORKERS‟ COMPENSATION JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.
AFFIRMED.
Christopher M. Trahan Raggio, Cappel, etc. P. O. Box 820 Lake Charles, LA 70602 (337) 436-9481 Counsel for Defendant/Appellant: Calcasieu Parish School Board Marcus Miller Zimmerman Attorney at Law 4216 Lake Street Lake Charles, LA 70605 (337) 474-1644 Counsel for Plaintiff/Appellee: Nancy Robinson SAUNDERS, Judge.
This is a workers‟ compensation case wherein the claimant contended that
the employer‟s termination of her workers‟ compensation benefits was
unwarranted. Claimant, in the course and scope of her work, was attacked by a
student, who struck her in the head with a roasting pan. As a result of the attack,
claimant contends that she suffered both physical and mental injuries.
After receiving benefits for a period of time, based on medical evidence
from two physicians that claimant could return to work without restrictions, the
employer terminated workers‟ compensation benefits. Claimant was also treated
by various other physicians who opined that she could return, but with restrictions.
Claimant was never offered a job by the employer that adhered to those restrictions.
The workers‟ compensation judge (WCJ) found that claimant had a
preexisting condition due to her being subjected to domestic abuse some years
prior and that the incident with the student had exacerbated that condition. It
awarded claimant workers‟ compensation benefits, but did not award her penalties
and attorney‟s fees.
Both the employer and claimant assign errors. As an ancillary matter,
claimant requests attorney‟s fees for work done on this appeal. We affirm the
WCJ‟s judgment in its entirety and deny claimant attorney‟s fees for work done on
appeal.
FACTS AND PROCEDURAL HISTORY:
Claimant, Nancy Robinson (Ms. Robinson), is a tenured teacher who was
employed by the Calcasieu Parish School Board (CPSB) since 1977. On
December 1, 2008, Ms. Robinson was an acting principal at Pearl Watson
Elementary School in Lake Charles. She was injured on that date when struck on the forehead with a pot wielded by an emotionally disturbed student. Both Ms.
Robinson and the CPSB stipulated to the work accident.
Ms. Robinson received emergency room care on the date of the injury.
Thereafter, she was treated by Dr. Carolyn Hutchinson, a family practitioner, for
her physical and mental injuries. After treating Ms. Robinson, Dr. Hutchinson
recommended that she be evaluated by Dr. Reynard Odenheimer, a neurologist. Dr.
Odenheimer suggested that Ms. Robinson undergo several tests and opined that she
should not return to work until those tests were performed. Dr. Hutchinson
disagreed with Dr. Odenheimer regarding the necessity of the tests and opined that
Ms. Robinson could return to work, ideally at a new location with limited student
contact.
Ms. Robinson was also treated by Lloyd Kelley, a social worker, for her
mental injuries. Mr. Kelly opined that Ms. Robinson could return to work in an
administrative position with limited disciplinary function. Ms. Robinson was also
evaluated, at the CPSB‟s request, by Dr. Leonard Hershkowitz, a neurologist, and
Dr. Robert Davis, a neuropsychologist. Both Drs. opined that Ms. Robinson could
return to work. Dr. Davis also noted clears signs of symptom magnification or
exaggeration. Finally, Ms. Robinson was treated by Dr. Joseph Sesta, a
neuropsychologist of her choice. Dr. Sesta opined that Ms. Robinson could return
to work given that the work had limited contact with students.
The CPSB paid Ms. Robinson weekly workers‟ compensation benefits until
August 18, 2009. On that date, the CPSB ceased her wage benefits, but continued
to pay her medical expenses.
Ms. Robinson filed a disputed claim for compensation on September 3, 2009.
The CPSB answered on September 14, 2009.
2 A trial was held on October 20, 2010. After taking the matter under
advisement, on March 10, 2011, the WCJ ruled that the CPSB improperly
terminated payment of weekly benefits because the medical evidence was such that
Ms. Robinson could return to work with restrictions but that the CPSB failed to
offer her a job fitting those restrictions. The WCJ also denied penalties and
attorney‟s fees holding that the CPSB‟s decision was based on medical evidence.
The CPSB appealed, alleging two assignments of error. Ms. Robinson responded,
alleged an assignment of error, and asked for attorney‟s fees for work done on
ASSIGNMENTS OF ERROR CPSB:
1. The WCJ failed to apply the heightened burden of proof required by La.R.S. 23:1021(8)(c) for a claimed mental illness caused by physical injury.
2. The WCJ committed manifest error in apparently concluding that Ms. Robinson proved she was suffering from a “disability” so as to be entitled to weekly workers‟ compensation benefits.
ASSIGNMENT OF ERROR ROBINSON:
1. The WCJ erred in failing to award Robinson penalties and attorney‟s fees given the arbitrary and capricious termination of indemnity benefits on August 18, 2009, and the employer‟s unreasonable denial of the request for the cervical MRI.
ASSIGNMENT OF ERROR CPSB NUMBER ONE:
The CPSB, in its first assignment of error, alleges that the WCJ failed to
apply the heightened burden of proof required by La.R.S. 23:1021(8)(c) for a
claimed mental illness caused by physical injury. We do not agree.
This assignment of error alleges that the WCJ committed an erroneous
application of the law, i.e. an error of law, which is subject to a de novo review.
Miller v. Blacktype Farms, 06-1202 (La.App. 3 Cir. 3/7/07), 952 So.2d 867.
3 The CPSB does not argue that the WCJ used the incorrect burden of proof.
Rather, its sole argument is that the WCJ, in her reasons for ruling, did not “ever
address the issue of whether Ms. Robinson had proven her case by „clear and
convincing evidence.‟”
The signed judgment in the case before us simply states, “the employer
improperly terminated Nancy Robinson‟s worker‟s [sic] compensation indemnity
benefits.” There is no evidence in this judgment or anywhere in the record that the
WCJ used the incorrect burden of proof.
Moreover, this court is not aware of, nor has the CPSB directed our attention
towards, any requirement that a lower court specifically reference what burden of
proof it required in order to reach its determination. Accordingly, we find no merit
to this assignment of error.
ASSIGNMENT OF ERROR CPSB NUMBER TWO:
In its final assignment of error the CPSB asserts that the WCJ committed
manifest error in concluding that Ms. Robinson proved she was suffering from a
disability so as to be entitled to weekly workers‟ compensation benefits. This
assertion is without credence.
Whether an employee is totally and permanently disabled is a question of
fact subject to the manifest error, clearly wrong standard of review. Landry v. City
of Scott, 10-47 (La.App. 3 Cir. 6/2/10), 40 So.3d 428.
After a thorough review of the record, we find ample evidence to support the
WCJ‟s conclusion that Ms.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-615
NANCY ROBINSON
VERSUS
CALCASIEU PARISH SCHOOL BOARD
**********
APPEAL FROM THE OFFICE OF WORKERS‟ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 09-07555 CHARLOTTE A. L. BUSHNELL, WORKERS‟ COMPENSATION JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.
AFFIRMED.
Christopher M. Trahan Raggio, Cappel, etc. P. O. Box 820 Lake Charles, LA 70602 (337) 436-9481 Counsel for Defendant/Appellant: Calcasieu Parish School Board Marcus Miller Zimmerman Attorney at Law 4216 Lake Street Lake Charles, LA 70605 (337) 474-1644 Counsel for Plaintiff/Appellee: Nancy Robinson SAUNDERS, Judge.
This is a workers‟ compensation case wherein the claimant contended that
the employer‟s termination of her workers‟ compensation benefits was
unwarranted. Claimant, in the course and scope of her work, was attacked by a
student, who struck her in the head with a roasting pan. As a result of the attack,
claimant contends that she suffered both physical and mental injuries.
After receiving benefits for a period of time, based on medical evidence
from two physicians that claimant could return to work without restrictions, the
employer terminated workers‟ compensation benefits. Claimant was also treated
by various other physicians who opined that she could return, but with restrictions.
Claimant was never offered a job by the employer that adhered to those restrictions.
The workers‟ compensation judge (WCJ) found that claimant had a
preexisting condition due to her being subjected to domestic abuse some years
prior and that the incident with the student had exacerbated that condition. It
awarded claimant workers‟ compensation benefits, but did not award her penalties
and attorney‟s fees.
Both the employer and claimant assign errors. As an ancillary matter,
claimant requests attorney‟s fees for work done on this appeal. We affirm the
WCJ‟s judgment in its entirety and deny claimant attorney‟s fees for work done on
appeal.
FACTS AND PROCEDURAL HISTORY:
Claimant, Nancy Robinson (Ms. Robinson), is a tenured teacher who was
employed by the Calcasieu Parish School Board (CPSB) since 1977. On
December 1, 2008, Ms. Robinson was an acting principal at Pearl Watson
Elementary School in Lake Charles. She was injured on that date when struck on the forehead with a pot wielded by an emotionally disturbed student. Both Ms.
Robinson and the CPSB stipulated to the work accident.
Ms. Robinson received emergency room care on the date of the injury.
Thereafter, she was treated by Dr. Carolyn Hutchinson, a family practitioner, for
her physical and mental injuries. After treating Ms. Robinson, Dr. Hutchinson
recommended that she be evaluated by Dr. Reynard Odenheimer, a neurologist. Dr.
Odenheimer suggested that Ms. Robinson undergo several tests and opined that she
should not return to work until those tests were performed. Dr. Hutchinson
disagreed with Dr. Odenheimer regarding the necessity of the tests and opined that
Ms. Robinson could return to work, ideally at a new location with limited student
contact.
Ms. Robinson was also treated by Lloyd Kelley, a social worker, for her
mental injuries. Mr. Kelly opined that Ms. Robinson could return to work in an
administrative position with limited disciplinary function. Ms. Robinson was also
evaluated, at the CPSB‟s request, by Dr. Leonard Hershkowitz, a neurologist, and
Dr. Robert Davis, a neuropsychologist. Both Drs. opined that Ms. Robinson could
return to work. Dr. Davis also noted clears signs of symptom magnification or
exaggeration. Finally, Ms. Robinson was treated by Dr. Joseph Sesta, a
neuropsychologist of her choice. Dr. Sesta opined that Ms. Robinson could return
to work given that the work had limited contact with students.
The CPSB paid Ms. Robinson weekly workers‟ compensation benefits until
August 18, 2009. On that date, the CPSB ceased her wage benefits, but continued
to pay her medical expenses.
Ms. Robinson filed a disputed claim for compensation on September 3, 2009.
The CPSB answered on September 14, 2009.
2 A trial was held on October 20, 2010. After taking the matter under
advisement, on March 10, 2011, the WCJ ruled that the CPSB improperly
terminated payment of weekly benefits because the medical evidence was such that
Ms. Robinson could return to work with restrictions but that the CPSB failed to
offer her a job fitting those restrictions. The WCJ also denied penalties and
attorney‟s fees holding that the CPSB‟s decision was based on medical evidence.
The CPSB appealed, alleging two assignments of error. Ms. Robinson responded,
alleged an assignment of error, and asked for attorney‟s fees for work done on
ASSIGNMENTS OF ERROR CPSB:
1. The WCJ failed to apply the heightened burden of proof required by La.R.S. 23:1021(8)(c) for a claimed mental illness caused by physical injury.
2. The WCJ committed manifest error in apparently concluding that Ms. Robinson proved she was suffering from a “disability” so as to be entitled to weekly workers‟ compensation benefits.
ASSIGNMENT OF ERROR ROBINSON:
1. The WCJ erred in failing to award Robinson penalties and attorney‟s fees given the arbitrary and capricious termination of indemnity benefits on August 18, 2009, and the employer‟s unreasonable denial of the request for the cervical MRI.
ASSIGNMENT OF ERROR CPSB NUMBER ONE:
The CPSB, in its first assignment of error, alleges that the WCJ failed to
apply the heightened burden of proof required by La.R.S. 23:1021(8)(c) for a
claimed mental illness caused by physical injury. We do not agree.
This assignment of error alleges that the WCJ committed an erroneous
application of the law, i.e. an error of law, which is subject to a de novo review.
Miller v. Blacktype Farms, 06-1202 (La.App. 3 Cir. 3/7/07), 952 So.2d 867.
3 The CPSB does not argue that the WCJ used the incorrect burden of proof.
Rather, its sole argument is that the WCJ, in her reasons for ruling, did not “ever
address the issue of whether Ms. Robinson had proven her case by „clear and
convincing evidence.‟”
The signed judgment in the case before us simply states, “the employer
improperly terminated Nancy Robinson‟s worker‟s [sic] compensation indemnity
benefits.” There is no evidence in this judgment or anywhere in the record that the
WCJ used the incorrect burden of proof.
Moreover, this court is not aware of, nor has the CPSB directed our attention
towards, any requirement that a lower court specifically reference what burden of
proof it required in order to reach its determination. Accordingly, we find no merit
to this assignment of error.
ASSIGNMENT OF ERROR CPSB NUMBER TWO:
In its final assignment of error the CPSB asserts that the WCJ committed
manifest error in concluding that Ms. Robinson proved she was suffering from a
disability so as to be entitled to weekly workers‟ compensation benefits. This
assertion is without credence.
Whether an employee is totally and permanently disabled is a question of
fact subject to the manifest error, clearly wrong standard of review. Landry v. City
of Scott, 10-47 (La.App. 3 Cir. 6/2/10), 40 So.3d 428.
After a thorough review of the record, we find ample evidence to support the
WCJ‟s conclusion that Ms. Robinson is entitled to workers‟ compensation benefits.
The WCJ found that Ms. Robinson was able to return to work with restrictions and
that she was not offered any employment in a capacity that met those restrictions.
Dr. Hutchinson initially treated Ms. Robinson. Dr. Hutchinson, felt that Ms.
4 Robinson could return to work, “at another location, ideally with limited student
contract.”
Thereafter, upon referral by Dr. Hutchinson, Ms. Robinson was seen by Dr.
Odenheimer. He recommended that Ms. Robinson undergo several tests and that
she should not return to work absent the performance of those tests. Many of those
tests where not approved by the CPSB based on the recommendation of Dr.
Hutchinson. Thus, Dr. Odenheimer has not released Ms. Robinson to return to
work to date.
Thereafter, Dr. Sesta became Ms. Robinson‟s treating physician and opined
that the stipulated to work-related accident exacerbated Ms. Robinson‟s preexisting
condition. Dr. Sesta stated that Ms. Robinson could return to work with the caveat
that her contact with students be restricted.
Finally, Mr. Kelly saw Ms. Robinson. He recommended that she return to
work with limited contact with students, preferably in an administrative position
with no disciplinary role.
The CPSB did not offer Ms. Robinson any position that took these
recommendations into consideration. Rather, it simply told Ms. Robinson to apply
for teaching positions.
Given this evidence in the record, we find the WCJ‟s determination that Ms.
Robinson is entitled to workers‟ compensation benefits is reasonable. Accordingly,
we affirm the WCJ‟s judgment.
We note that the assignment of error questions Ms. Robinson‟s entitlement
to weekly workers‟ compensation benefits and does not address which type of
workers‟ compensation benefits, i.e. supplemental earnings benefits versus other
types of benefits, to which Ms. Robinson is entitled. As such, the opinion is silent
on this matter. 5 ASSIGNMENT OF ERROR MS. ROBINSON NUMBER ONE:
Ms. Robinson contends that the WCJ erred in failing to award her penalties
and attorney‟s fees given the arbitrary and capricious termination of indemnity
benefits on August 18, 2009, and the employer‟s unreasonable denial of the request
for the cervical MRI. We find no merit to this contention.
A WCJ‟s has great discretion in choosing whether to award penalties and
attorney‟s fees. Gradney v. Louisiana Commercial Laundry, 09-1465 (La.App. 3
Cir. 5/12/10), 38 So.3d 1115. This determination is not to be disturbed absent
manifest error. Id.
Here, the WCJ chose not to award Ms. Robinson penalties or attorney‟s fees.
It denied them because the CPSB terminated Ms. Robinson‟s benefits based upon
medical evidence from Dr. Davis, who opined that Ms. Robinson could return to
work with no restrictions. Dr. Davis found no evidence of a severe, disabling
depressive or anxiety disorder and also noted clear signs of symptom magnification
or exaggeration. Given the great discretion given to the WCJ and the solid basis
for its determination, we find no error by the WCJ in denying penalties and
attorney‟s fees.
ANCILLARY MATTER:
Ms. Robinson asked this court for attorney‟s fees for work done on this
appeal. We deny this request.
As a general rule, attorney fees are not allowed in Louisiana unless they are authorized by statute or provided for by contract. Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 7 (La.7/1/97), 696 So.2d 1382, 1386. An award of attorney fees is a type of penalty imposed not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party. Id. Awards of attorney fees in workers‟ compensation cases are essentially penal in nature, and are intended to deter indifference and undesirable conduct by employers and insurers toward injured employees. J.E. Merit Constructors, Inc. v. Hickman, 00-0943, p. 5 (La.1/17/01), 776 So.2d 435, 438; Williams v. Rush Masonry, Inc., 98-2271, p. 8-9 6 (La.6/29/99), 737 So.2d 41, 46; Sharbono at p. 7, 696 So.2d at 1386. Although the benefits in the Workers‟ Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Williams at p. 9, 737 So.2d at 46.
Langley v. Petro Star Corp. of La., 01-198, pp.3-4 (La. 6/29/01), 792 So.2d 721,
723.
“When an award for attorney‟s fees is granted at a lower court level, the
recipient of those fees is entitled to additional fees for work done on appeal. This
keeps the appellate judgment consistent with the underlying judgment.”
McFadden v. Import One, Inc., 10-952, p. 16 (La.App. 3 Cir. 2/9/11), 56 So.3d
1212, 1223 (citing Brookshire Grocery Store v. Wilczewski, 08-718, p. 18 (La.App.
3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La. 4/13/09), 5 So.3d
170.)
Here, the WCJ found that the CPSB reasonably controverted Ms.
Robinson‟s disputed claim for workers‟ compensation under La.R.S. 23:1201(F)(2).
We upheld this discretionary finding in Assignment of Error Robinson Number
One above. Thus, while Ms. Robinson‟s attorney has performed additional work
on appeal, we are not authorized by any applicable statute or contract to award
attorney‟s fees, nor are attorney‟s fees necessary in order to be consistent with the
judgment below. Accordingly, we deny Ms. Robinson‟s request for attorney‟s fees
for work done on appeal.
CONCLUSION:
The Calcasieu Parish School Board raises two assignments of error. It
contends that the WCJ failed to apply the heightened burden of proof required by
La.R.S. 23:1021(8)(c), for a claimed mental illness caused by physical injury and
that the WCJ committed manifest error in apparently concluding that Nancy
7 Robinson proved she was suffering from a “disability” so as to be entitled to
weekly workers‟ compensation benefits. We found no merit to these assignments.
Further, Nancy Robinson raises one assignment of error and one ancillary
matter. She contends that the WCJ erred in failing to award her penalties and
attorney‟s fees given the arbitrary and capricious termination of indemnity benefits
on August 18, 2009, and the Calcasieu Parish School Board‟s unreasonable denial
of the request for the cervical MRI and that she is also entitled to attorney‟s fees
for work done on appeal. Again, we found no credence to these arguments.
Accordingly, we affirm the WCJ‟s judgment in its entirety. Each party is to
pay its own costs for these proceedings.