Rogel v. Dollar General Corp.

132 So. 3d 978, 13 La.App. 3 Cir. 792, 2013 WL 6492355, 2013 La. App. LEXIS 2545
CourtLouisiana Court of Appeal
DecidedDecember 11, 2013
DocketNo. WCA 13-792
StatusPublished
Cited by3 cases

This text of 132 So. 3d 978 (Rogel v. Dollar General Corp.) 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
Rogel v. Dollar General Corp., 132 So. 3d 978, 13 La.App. 3 Cir. 792, 2013 WL 6492355, 2013 La. App. LEXIS 2545 (La. Ct. App. 2013).

Opinion

EZELL, Judge.

| ,In this workers’ compensation case, Dollar General appeals the decision of the workers’ compensation judge (WCJ) below awarding Christy Rogel supplemental earning benefits (SEB), medical expenses, a second medical opinion, as well as penalties and attorney fees. For the following reasons, we hereby affirm the decision of the WCJ in part, reverse in part, and render judgment.

Ms. Rogel was the store manager at Dollar General in Starks, Louisiana. On June 17, 2010, she was moving a rolltainer loaded with 600 pounds of charcoal to the store’s sidewalk when the rolltainer tipped, pinning her. As a result, her ankle suffered a chip avulsion. She continued to work until July 6, 2010, when her ankle was surgically repaired by Dr. Geoffrey Collins. She was placed on total disability benefits from this date until she returned to work on September 2, 2010. Ms. Rogel returned to work on light-duty status; however, because she was often alone at the store, she continued to perform duties that required her to labor beyond the light-duty work she was restricted to.

In December 2010, Ms. Rogel again presented to Dr. Collins with complaints that her ankle pain was getting worse and affecting her work. Eventually, a functional capacity evaluation was ordered which [981]*981found swelling, tenderness, decreased mobility, and an abnormal gait and standing mechanics. The functional capacity evaluation and Dr. Collins recommended limitations on standing and walking. Dr. Collins ultimately decided that a second surgery was needed to remove hardware placed on the ankle during Ms. Rogel’s first surgery. This surgery was delayed when Ms. Rogel suffered chest pains during her pre-sur-gery physical and she was taken via ambulance to the hospital. She was cleared, but could not be anesthetized until a complete cardiac work-up was performed. | ¾While Dollar General sought to authorize this work-up, an error by Dr. Collins’ office delayed this for several months. Ms. Ro-gel eventually resigned her position in April 2011. After that, the second surgery was performed.

Ms. Rogel filed the current workers’ compensation action seeking SEB, medical expenses, and penalties and attorney fees. The WCJ awarded her SEB, medical expenses related to her hospitalization for chest pain, and penalties and attorney fees for Dollar General’s failure to timely pay those claims. The WCJ also rejected Dollar General’s allegations that Ms. Rogel committed fraud under La.R.S. 23:1208 and approved a second medical opinion for her continuing ankle pain. From that decision, Dollar General appeals.

Dollar General asserts six assignments of error on appeal. It claims:

1. The [WCJ] clearly erred in awarding SEBs;
2. The [WCJ] clearly erred in authorizing a second choice of orthopedic surgeon;
3. The [WCJ] clearly erred in ordering defendant to pay medical bills which were not related to the work accident;
4. The [WCJ] clearly erred in finding that defendant did not timely approve the cardiac clearance, when the uniform evidence shows that in fact the employer did just that and;
5. The [WCJ] clearly erred in refusing to apply La. R.S. 23:1208 forfeiture in the face of numerous deliberate misrepresentations made by the plaintiff in order to obtain workers’ compensation benefits; and
6. The [WCJ] clearly erred in awarding penalties and attorney’s fees and in finding that defendant did not reasonably controvert the plaintiffs claims.

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. 6/27/03), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

[982]*982 Supplemental Earnings Benefits

Dollar General first claims that the WCJ erred in awarding Ms. Rogel SEB after she was able to return to part-time work.

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 28:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.

Poissenot v. St. Bernard Parish Sheriffs Office, 092793, pp. 4-5 (La.1/9/11), 56 So.3d 170, 174 (alterations in original)(footnote omitted). “In determining whether a [workers’ compensation judge’s] finding that an employee has met his initial Lburden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166

Ms. Rogel clearly suffered a workplace accident when the rolltainer fell on her ankle. Dollar General does not dispute that. It is further clear that she is limited to light to medium-duty work with limited time on her feet, prolonged stooping, and in the amount of weight she is to lift. This is supported by both her testimony and Dr. Collins’ medical records. Ms.

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Bluebook (online)
132 So. 3d 978, 13 La.App. 3 Cir. 792, 2013 WL 6492355, 2013 La. App. LEXIS 2545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogel-v-dollar-general-corp-lactapp-2013.