Pardee v. Forest Haven Nursing Home

960 So. 2d 1216, 2007 La. App. LEXIS 1329, 2007 WL 1760680
CourtLouisiana Court of Appeal
DecidedJune 20, 2007
Docket42,321-WCA
StatusPublished
Cited by11 cases

This text of 960 So. 2d 1216 (Pardee v. Forest Haven Nursing Home) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pardee v. Forest Haven Nursing Home, 960 So. 2d 1216, 2007 La. App. LEXIS 1329, 2007 WL 1760680 (La. Ct. App. 2007).

Opinion

960 So.2d 1216 (2007)

Laura PARDEE, Plaintiff-Appellee,
v.
FOREST HAVEN NURSING HOME, Defendant-Appellant.

No. 42,321-WCA.

Court of Appeal of Louisiana, Second Circuit.

June 20, 2007.

*1218 Gold, Weems, Bruser, Sues & Rundell by Samuel N. Poole, Jr., Alexandria, for Appellant.

Gary D. Nunn, for Appellee.

Before CARAWAY, MOORE and LOLLEY, JJ.

LOLLEY, J.

Forest Haven Nursing Home appeals a judgment from the Office of Workers' Compensation, District 1-E, Parish of Ouachita, State of Louisiana in favor of Laura Pardee. For the following reasons, we reverse in part and affirm in part.

FACTS

Medical History

Laura Pardee was working as a certified nurse's assistant ("CNA") at Forest Haven Nursing Home ("Forest Haven"), where she injured her left wrist while transferring a patient from a bed to a wheelchair on March 19, 2002. That same day she obtained treatment for her injury from Dr. John Overby. Her x-rays showed no evidence of fracture, dislocation, or soft tissue abnormality. She was then referred to Dr. Richard Ballard who treated her for pain and swelling to her wrist. After a CT scan was performed, Dr. Ballard diagnosed her condition as tendinitis of the wrist. Pardee had returned to Forest Haven on light duty, but Dr. Ballard later took her off work due to swelling in her left hand.

Pardee continued to complain regarding her wrist, so she was referred to Dr. Marion Milstead in September 2002. The diagnostic tests ordered by Dr. Milstead all came back negative, and he prescribed pain medication as well as anti-inflammatories to treat her symptoms. Additionally, he gave her a steroid shot and put her wrist in a brace. In December 2002, when Pardee's wrist was still swollen and tender, Dr. Milstead ordered another battery of tests to look for rheumatoid arthritis, lupus, vascular disease, and diabetes. All of her lab work returned as normal, which ruled out the possibility of metabolic origin, leaving irritation solely from a sprain type activity as the source of Pardee's problem. Pardee was referred to Dr. Larry Broadwell, a rheumatologist, to examine other potential causes for her complaints; however, Dr. Broadwell did not find any cause for Pardee's wrist ailment. He recommended that she continue treatment with Dr. Milstead, who continued Pardee on the same course of treatment—mainly anti-inflammatories.

*1219 By May 22, 2003, Dr. Milstead believe that Pardee had reached maximum medical improvement, and he recommended a Functional Capacity Evaluation and a possible disability rating. He also recommended arthroscopic inspection of the wrist so as to evaluate Pardee's joint visually. In July 2003, Pardee was seen by a physician chosen by Forest Haven, Dr. Joe Morgan, an orthopaedic surgeon. He reviewed her medical history in connection with her wrist treatment and examined her. Dr. Morgan determined Pardee to be at maximum medical improvement from her on-the-job injury. He further did not find her in need of medication, bracing, splinting, or any type of surgery to her wrist. He did not assign any physical impairment rating to Pardee, and he did not place any functional restrictions on her. In fact, Dr. Morgan advised that Pardee could "resume her usual occupation of CNA without restriction based on any injury she may have sustained. . . ."

On August 27, 2003, Forest Haven terminated Pardee's temporary total disability ("TTD") benefits on the basis of Dr. Morgan's report. On September 9, 2003, Dr. Milstead prepared a letter report acknowledging his agreement with Dr. Morgan's recommendations, except as to Dr. Morgan's employment recommendations for Pardee. Dr. Milstead reported that because Pardee worked ". . . as a Nurse Assistant with the strenuous type activities required as a Nurse Assistant, I would recommend restrictions that would limit her to no lifting over approximately 5 to 10 pounds and avoid repetitive flexion and extension of her fingers." Dr. Morgan again mentioned the possibility of arthroscopic inspection of the joint, but had no other recommendations for other treatment.

Procedural History

On December 19, 2003, Pardee filed her Disputed Claim for Compensation. Due to the differing opinions of Drs. Morgan and Milstead, the third-party administrator for Pardee's compensation claim requested an independent medical examination. Pursuant to that request, Pardee was examined by Dr. Carl Bilderback in March 2004, who was unable to find the cause of Pardee's pain and reported no objective findings consistent with her complaints. He did not believe that arthroscopic surgery would be helpful, and he opined that she was at maximum medical improvement. Further, he did not believe she was in need of further medical or surgical treatment for her injury. Dr. Bilderback felt that Pardee could return to work as a CNA, even though it might cause her pain.

At the trial of the matter, the parties stipulated as to the work-related nature of Pardee's injury, as well as her receipt of compensation benefits through August 27, 2003, at the rate of $160.00 per week, based on an average weekly wage of $240.00. Following the trial, the workers' compensation judge ("WCJ") entered judgment in favor of Pardee, awarding her TTDs from August 27, 2003 through October 30, 2003. Forest Haven was also determined to have acted arbitrarily and capriciously for failing to reinstate Pardee's benefits following Dr. Milstead's September 9, 2003 letter, and it was assessed a penalty in the amount of $2,000.00. Pardee was also awarded attorney fees in the amount of $3,500.00. The trial court further determined that Pardee was entitled to arthroscopic surgery and continuing medical treatment for her injury. Finally, Forest Haven was ordered to pay for all costs of the proceedings, including Pardee's deposition costs. This appeal by Forest Haven ensued.

DISCUSSION

Standard of Review

Factual findings in workers' compensation cases are subject to the manifest *1220 error or clearly wrong standard of appellate review. The issue to be resolved by the appellate court is not whether the workers' compensation judge was right or wrong, but whether the factual conclusion was reasonable. Accordingly, where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 1996-2840 (La.07/01/97), 696 So.2d 551; Nelson v. City of Grambling, 31,303 (La.App.2d Cir.12/09/98), 722 So.2d 358, writ denied XXXX-XXXX (La.02/26/99), 738 So.2d 588. The question of whether the claimant is entitled to compensation benefits is ultimately a question of fact, and the workers' compensation judge's resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Nelson, supra. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Lee v. Heritage Manor of Bossier City, 41,828 (La. App.2d Cir.03/14/07), 954 So.2d 276.

Indemnity Benefits

In its first assignment of error, Forest Haven argues that the trial court erred in finding Pardee entitled to TTD benefits from August 27, 2003 through October 30, 2003.

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Bluebook (online)
960 So. 2d 1216, 2007 La. App. LEXIS 1329, 2007 WL 1760680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pardee-v-forest-haven-nursing-home-lactapp-2007.