Rougeou v. St. Francis Cabrini Hospital

107 So. 3d 851, 12 La.App. 3 Cir. 854, 2013 WL 440820, 2013 La. App. LEXIS 177
CourtLouisiana Court of Appeal
DecidedFebruary 6, 2013
DocketNo. WCA 12-854
StatusPublished
Cited by4 cases

This text of 107 So. 3d 851 (Rougeou v. St. Francis Cabrini Hospital) 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
Rougeou v. St. Francis Cabrini Hospital, 107 So. 3d 851, 12 La.App. 3 Cir. 854, 2013 WL 440820, 2013 La. App. LEXIS 177 (La. Ct. App. 2013).

Opinion

CONERY, Judge.

Ifln this workers’ compensation case, Defendant, St. Francis Cabrini Hospital, (Cabrini) appeals a judgment of the workers’ compensation judge (WCJ) in favor of its employee, Martha Diana Rougeou (Rougeou). For the following reasons, we affirm and award Rougeou additional attorney fees.

FACTS AND PROCEDURAL HISTORY

Rougeou filed a LDOL-WC-1008 Disputed Claim for Compensation Form (1008) against Cabrini on August 8, 2011, seeking to receive the cost of a surgical procedure recommended by her neurosurgeon, Dr. Aril Nanda. Rougeou claimed the need for surgery resulted from an incident which occurred on February 8, 2011, while she was in the course and scope of her employment as a Registered Nurse with Cabrini at Central Louisiana Imaging Center. Rougeou was assisting Dr. William Long with a medical procedure on a patient who was undergoing a wrist arthrogram. The procedure required the patient to sit on a low stool with her wrist extended over the x-ray table. Dr. Long began to insert a needle into the patient’s arm in order to inject dye required for an MRI when the patient faint[854]*854ed and began falling from the stool. Rougeou and Dr. Long caught the patient and prevented her from hitting the floor and sustaining injury. At the time of the incident, Rougeou was wearing a twelve-pound lead-lined apron extending from her shoulders to her knees. Rougeou began to experience symptoms of pain in her neck and shoulders beginning that evening and becoming worse the next day.

The incident was reported and an initial report was made of the incident. Three days later, on February 11, 2011, Rougeou was referred by the Cabrini health nurse to her employer’s doctor, Dr. Gordon Webb at Louisiana Occupational Health Services. Dr. Webb diagnosed Rougeou with neck and shoulder strain. He prescribed Ibuprofen and Valium, restricted her from wearing |2the lead apron and transferring patients at work, and referred her to physical therapy three times a week.

Rougeou’s symptoms persisted, and, after a month of conservative treatment, Dr. Webb ordered an MRI of the cervical spine. Rougeou had previously undergone an MRI in 2007 (2007 MRI) in connection with an anterior cervical discectomy at C5-6. Upon review of the 2011 MRI, Dr. Webb observed that the 2011 MRI was significantly worse than the 2007 MRI at C6-7, and referred Rougeou to Dr. M. Lawrence Drerup, a neurosurgeon. Roug-eou, however, preferred to return to Dr. Nanda, the neurosurgeon who treated her in 2007.

On May 24, 2011, Dr. Nanda advised Rougeou to continue her physical therapy and also to undergo a series of epidural steroid injections (ESIs). He told Roug-eou that if her symptoms did not abate, he would recommend a surgical intervention. Dr. Nanda’s recommended conservative treatment of physical therapy and ESI injections provided only temporary relief. Rougeou sought the recommended surgery by Dr. Nanda, but the request for surgery was denied by Cabrini’s third-party administrator, FARA.1

In her 1008, Rougeou sought penalties and attorney fees in addition to the recommended surgical procedure by Dr. Nanda. Rougeou, however, had not missed any work due to the February 8, 2011 incident, and thus did not seek past indemnity benefits from Cabrini.

Cabrini answered and asserted the defense of fraud, pursuant to La.R.S. 23:1208. Cabrini claimed that Rougeou committed fraud during an April 1, 2011 telephone interview conducted by Joanne Cannatella of FARA on behalf of Cabrini. Specifically, Cabrini claimed Rougeou was not truthful in her responses to questions relating to Rougeou’s history of her cervical spine problems and her previous cervical discectomy at C5-6 some twelve to thirteen years earlier. It [ ^should be noted that the telephone interview, on April 1, 2011, came well after Dr. Webb’s treatment, which began on February 11, 2011 and continued for a month thereafter.

In connection with the line of questioning involving Rougeou’s cervical spine, Cannatella asked Rougeou whether she had “any other problems” with her neck “since that time.” Rougeou replied, “No, not really.” This appears to be the sole basis of the so-called “fraud” alleged by Cabrini. In its Answer, Cabrini further claimed the need for the recommended surgery by Dr. Nanda was not causally related to the February 8, 2011 incident, but was a pre-existing condition, which [855]*855was not aggravated by the on-the-job incident.

The matter was tried on February 29, 2012, and the parties were given an opportunity to file post-trial briefs with citations to the pages in the record supporting their positions. Additionally, counsel submitted Joint Exhibit 1 consisting of a timeline of Rougeou’s medical history dating back to 1997.

On April 30, 2012, the WCJ issued oral reasons for judgment. Counsel for Roug-eou was requested to prepare a written judgment in accordance with the ruling of the WCJ in favor of Rougeou. The Judgment was signed on May 9, 2012, and ordered: 1) Cabrini to authorize the medical treatment recommended by Dr. Nanda and to pay all past accident-related medical expenses that are outstanding and unpaid at this time; 2) Cabrini to pay indemnity benefits for any period of time Rougeou is required to miss her employment if, and when, surgery should take place; 3) Costs in the total amount of $2,232.00 for deposition fees and medical records; 4) $4,000.00 in penalties for Cabrini’s arbitrary and capricious failure to authorize the medical treatment of Roug-eou as recommended by her treating neurosurgeon, Dr. Nanda; and 5) $7,500.00 in attorney fees for prosecution of her claim, together with judicial interest on all amounts from date of judgment until paid.

UCabrini now appeals, asserting the WCJ committed manifest error in: 1) denying Cabrini’s defense of fraud pursuant to La.R.S. 23:1208; or 2), in the alternative, finding Rougeou was entitled to medical benefits and/or treatment with Dr. Nanda by meeting her burden of proof that she was injured or aggravated a previous medical condition in the on-the-job accident; and 3) finding that Cabrini was arbitrary and capricious in its denial of the recommended surgery, in awarding penalties and attorney fees, and in determining the amount of penalties and attorney fees.

DISCUSSION

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one.” Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citation omitted).

In Green v. National Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 358, we explained:

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir.

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Bluebook (online)
107 So. 3d 851, 12 La.App. 3 Cir. 854, 2013 WL 440820, 2013 La. App. LEXIS 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rougeou-v-st-francis-cabrini-hospital-lactapp-2013.