STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
06-1442
TONI W. ODOM
VERSUS
KINDER NURSING HOME
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 03-03313 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and Glenn B. Gremillion, Judges.
AFFIRMED.
Robert T. Jacques, Jr. 1039 Common Street, Suite A Lake Charles, LA 70601 (337) 433-4674 Counsel for Plaintiff/Appellee: Toni W. Odom
Craig A. Davis 111 Mercury Lafayette, LA 70503 (337) 231-5351 Counsel for Defendant/Appellant: Kinder Nursing Home GREMILLION, Judge.
The defendant, Kinder Nursing Home, appeals the workers’ compensation
judge’s judgment finding the plaintiff, Toni Odom, permanently and totally disabled
and entitled to recommended psychological medical treatment. Odom was further
awarded penalties and attorney’s fees as a result of its improper reduction of her
indemnity benefits and its failure to properly investigate her claim. For the following
reasons, we affirm.
FACTS
Odom was employed as the night staff nurse for Kinder Nursing Home.
On July 24, 1997, she was leaning against a bed rail while hanging a feeding bag, when
it gave way causing her to fall and strike her head. As a result, she lost consciousness
for approximately twenty minutes and injured her right arm and wrist, head, neck, and
upper and lower back. She was treated at the Lake Charles Memorial Hospital
Emergency Room for a cervical strain and a closed head injury and told to follow up
with her primary care physician, Dr. Peggy Allemand. Dr. Allemand ultimately
referred her to Dr. Paul Mayes, a physiatrist, due to persistent musculoskeletal pain.
On May 7, 2003, Odom filed a disputed claim for compensation alleging
that Kinder Nursing Home had wrongly reduced her indemnity benefits from
temporary total disability benefits to supplemental earnings benefits on May 4, 2003,
had provided her with inadequate vocational rehabilitation, disputed her disability
status, and was liable for penalties and attorney’s fees on each issue. She amended her
disputed claim to later allege that it failed to authorize the EMG/nerve conduction
study and speech therapy recommended by its neurologist, Dr. Steven Zuckerman, and
1 her treating physicians. Odom further alleged that Kinder Nursing Home had provided
her with sham rehabilitation and that it should be liable for maximum penalties and
attorney’s fees.
Following a trial on the merits, the workers’ compensation judge rendered
written reasons finding that Odom was temporarily totally disabled from a pain
management standpoint. The workers’ compensation judge further stated that she did
not believe that Odom was malingering neuropsychologically, but appointed an
independent medical examiner to conduct a neuropsychological assessment to address
whether her current psychological condition was work-related. Thereafter, an
independent medical examination was performed on Odom by Dr. Lawrence Dilks, a
clinical neuropsychologist. In his September 9, 2005 report, he determined that she
met the criteria for cognitive impairment, secondary to post-concussion syndrome, pain
disorder, physiological and psychological features; moderate depression, secondary to
pain disorder; post-traumatic stress disorder; and insomnia, secondary to pain disorder.
Dr. Dilks further found that Odom’s cognitive impairment and post conversion
syndrome were a direct result of her work-related injury.
During the interim, Odom filed a third disputed claim for compensation
alleging that Kinder Nursing Home improperly altered her supplemental earnings
benefits back to temporary total disability benefits on June 20, 2005, without providing
proper notice of the alteration. She further sought penalties and attorney’s fees based
on this action.
Based on Dr. Dilks’ evaluation, the workers’ compensation judge
rendered oral reasons for judgment finding that Odom’s psychological problems were
2 compensable. Judgment was then rendered finding that Odom was temporarily and
totally disabled from a pain management standpoint, that her central pain disorder
resulted from her work-related injury, and that she was not malingering
neuropsychologically. The workers’ compensation judge further held that she gave
significant weight to Dr. Dilk’s evaluation and found Odom’s psychological problems
compensable. Following the rendition of this judgment, both Odom and Kinder
Nursing Home filed motions for new trial, which were granted.
After taking the matter under advisement, the workers’ compensation
judge rendered judgment finding that the medical evidence preponderated in Odom’s
favor from a pain management standpoint and that her psychological problems were
compensable injuries. The workers’ compensation judge further held that Kinder
Nursing Home failed to provide suitable vocational rehabilitation to Odom, that she
did not violate the La.R.S. 23:1208 fraud statute, and that she was permanently and
totally disabled. Finally, the workers’ compensation judge held that Kinder Nursing
Home improperly reduced Odom’s temporary total disability benefits to supplemental
earnings benefits, failed to reasonably investigate her claim, and awarded her $4,000
in penalties and $12,000 in attorney’s fees. This appeal by Kinder Nursing Home
followed.
ISSUES
On appeal, Kinder Nursing Home raises eight assignments of error. It
argues that the workers’ compensation judge erred in finding that:
1. Odom proved by clear and convincing evidence that she was permanently and totally disabled as a result of her work-related accident.
3 2. Odom’s psychological problems were related to her work- related accident.
3. Kinder Nursing Home failed to provide Odom with suitable vocational rehabilitation.
4. Odom did not violate La.R.S. 23:1208.
5. From a pain management standpoint, the medical evidence preponderates in Odom’s favor.
6. Kinder Nursing Home improperly reduced Odom’s temporary total disability benefits to supplemental earnings benefits.
7. Kinder Nursing Home did not reasonably controvert Odom’s claims and in awarding penalties and attorney’s fees.
8. Kinder Nursing Home failed to reasonably investigate Odom’s claim.
Odom has filed an answer to appeal seeking additional attorney’s fees for work
performed on appeal.
STANDARD OF REVIEW
As in other civil matters, the standard of review applied to factual findings
in workers’ compensation matters is the manifest error standard. This standard, which
is based upon the reasonableness of the factual findings in light of the record reviewed
in its entirety, is well established in our jurisprudence following the seminal cases of
Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department
of Transportation and Development, 617 So.2d 880 (La.1993).
DISABILITY STATUS
In its first assignments of error, Kinder Nursing Home argues that the
workers’ compensation judge erred in finding that Odom proved by clear and
4 convincing evidence that she is permanently and totally disabled as a result of her
work-related accident. It further argues that the workers’ compensation judge erred
in finding that Odom’s psychological problems stemmed from her work-related
accident and that she satisfied her burden of proof with regard to her pain management
treatment.
An injured employee will be entitled to recover permanent and total
disability benefits if he or she proves their inability to engage in any type of
employment by clear and convincing evidence. La.R.S. 23:1221(2)(c). “The issue of
disability within the framework of the workers’ compensation law is a legal rather than
a purely medical determination. LeBlanc [v. Grand Isle Shipyard, Inc., 95-2452
(La.App. 1 Cir. 6/28/96)], 676 So.2d [1157,] 1161. The issue of disability is
determined with reference to the totality of the evidence, including both lay and
medical testimony. LeBlanc, 676 So.2d at 1161.” Walker v. High Tech Refractory
Servs., Inc., 03-1621, p. 4 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.
Moreover, before an injured employee may be found permanently and
totally disabled, La.R.S. 23:1226(D) requires the workers’ compensation judge to
consider the likelihood of the employee being rehabilitated through training or
education to the extent that he or she may become gainfully employed again. In
Comeaux v. City of Crowley, 01-0032, p. 13 (La. 7/3/01), 793 So.2d 1215, 1222, the
supreme court stated, “Obviously, the Legislature intended, by imposing in
La.Rev.Stat. 23:1226 a mandate that the prospects of rehabilitation be explored before
an employee is classified as permanently, totally disabled, that the results–negative as
well as positive–of such attempted rehabilitations be considered in ultimately
5 determining disability status.”
Dr. Mayes began treating Odom on October 15, 1997, and continued her
treatment up to and after the trial on the merits in this matter. Initially, he stated that
she suffered from post-concussive syndrome or a closed head injury and mild and
increased tone in her right arm. He felt that the pain in her arm was caused by a central
pain syndrome or thalmic pain syndrome, which he described as occurring in stroke
and head injury cases when:
[T]he effected side of the body is intertwined centrally in the brain with many mechanisms that control function and sensory and tone; and an environment is set up such that the brain reports pain in the effected limb and it’s modulated and controlled in the brain as opposed to in the limb.
Dr. Mayes testified that Odom’s condition has worsened over time. By
March 28, 2003, he stated that it had become static for a history of a closed head
injury, which led to the development of a central pain disorder, a right C6-7
radiculopathy, and an ulnar and medial neuropathy in her right arm. He stated that she
suffers from speech and cognitive impairment, mood disorder including depression and
anxiety, and generalized osteoarthritis. He said that she further has a gait disorder
requiring the use of a cane, and occasional spasticity, i.e. tics and clonus. In addition
to these work-related problems, Dr. Mayes testified that Odom suffers from various
other medical conditions, including coronary artery disease; diabetes mellitus, with its
likely accompanying peripheral neuropathy; peripheral vascular disease;
gastroesophegeal reflux disease; and obesity.
Dr. Mayes stated that although mild head injuries usually resolve within
three months, Odom developed the central pain disorder, which affects her right upper
and lower limbs. He described Odom’s right arm and shoulder as being practically
6 frozen, in that she holds her arm in a contracted position against her body and has
difficulty moving her elbow and shoulder. He related this to either the cervical
radiculopathy or the central pain disorder. He stated that the pain in her arm affects
her ability to grip and lift things and is chronic in nature. Dr. Mayes testified that the
C6-7 radiculopathy and the median and ulnar peripheral nerve injuries, alone, could
be disabling, but certainly would be a major contributor to her current disabilities. He
further stated that if these conditions are not addressed early on, they become
permanent.
Dr. Mayes further related Odom’s depression to her work-related injuries.
He stated that Kinder Nursing Home has refused to authorize psychological treatment
for Odom despite his request for such treatment early on in his treatment of her. While
Kinder Nursing Home finally approved a neuropsychological evaluation, he said that
it did not authorize any followup treatment, despite the finding that Odom was very
depressed, which he said was common in head-injury patients. He further said that it
was normal for a patient, such as Odom, who was questioned about the veracity of her
symptoms over a period of years, was examined in an adverse way, was not able to
work, and had suffered a loss of income, to be depressed.
Dr. Mayes further said that he could not separate Odom’s psychological
problems from her physical problems. Although he agreed that she had suffered from
depression prior to her work accident, he stated that she was working and functioning
prior to her fall. However, afterwards, he said that her condition worsened. With
regard to her speech impairment, Dr. Mayes testified that it was either caused by her
psychological problems or by “vascular problems in her brain with a speaking
7 mechanism in her throat.” He stated that he has recommended speech therapy to
address this problem, which Kinder Nursing Home has never authorized.
As of January 14, 2005, Dr. Mayes stated that Odom was still totally
disabled. He related this to the C6-7 radiculopathy, the peripheral neuropathy
involving her right arm, her chronic pain disorder, and her severe depression. He
further stated that he did not feel that she should undergo a functional capacity
evaluation.
Early on, Kinder Nursing Home had Odom examined by Dr. Gregory
Gidman, an orthopaedic surgeon. In his March 4, 1998 report, he said that he could
not explain the unusual presentation of her right upper extremity or her multiple
complaints. Although he noted that she had end-stage osteoarthritis in both knees, he
said that he could provide no orthopaedic explanation for her gait or her inability to
move her right upper extremity. As Odom had suffered a head injury and there was
a question of whether she had suffered a stroke, Dr. Gidman recommended that she see
a neurologist/neurosurgeon. He then suggested that she undergo an MRI of her
shoulder and then a psychiatric evaluation for possible psychosocial factors. If both
tests were negative, he opined that she would be at maximum medical improvement
and could return to work pursuant to a functional capacity evaluation.
Kinder Nursing Home next referred Odom to Dr. John Clark, a
physiatrist. In his February 22, 2001 report, he found that Odom had suffered a
significant brain trauma as a result of her accident, which caused her spastic right
hemiparesis, motor imbalance, speech and language deficits, as well as chronic
myofascial pain with superimposed thalmic pain syndrome. Dr. Clark opined that
8 Odom’s chronic pain stemmed from her increased tone with superimposed thalmic pain
condition and that she was incapable of returning to work due to her impairments. He
recommended that she undergo an MRI of the brain, a neuropsychological evaluation,
and speech therapy. He also suggested an occupational therapy evaluation of her home
in order to outfit it with grab bars and a tub bench.
Dr. Zuckerman examined Odom once at Kinder Nursing Home’s request.
In his April 18, 2001 report, he doubted whether any of her symptoms were
physiological and, although he found her report of a head injury to be very ambiguous,
he opined that a mild closed head injury would not cause the sort of persistent
problems suffered by her. He further felt that such an injury should have resolved
within three months. Dr. Zuckerman recommended that Odom undergo an MRI of the
brain to exclude the possibility that she had suffered a stroke. If it was negative, then
he recommended an EMG/nerve conduction study of the right arm to exclude any
nerve root or peripheral nerve dysfunction. Otherwise, he recommended a psychiatric
evaluation for an assessment of malingering. Subsequent to a normal June 8, 2001
MRI of the brain, Dr. Zuckerman found no physical basis for Odom’s ongoing
complaints; therefore, he opined that she could return to work at full duty with no
restrictions.
Dr. Rennie Culver, a psychiatrist, also evaluated Odom once at the request
of Kinder Nursing Home. In his October 1, 2001 report, he stated that Odom was
obviously depressed and he was unable to determine the onset of this condition due to
her reluctance to give him relevant information. However, he noted that Dr.
Allemand’s medical records documented that she was depressed prior to her work-
9 related accident, and he opined that the source of this depression was the declining
health and later deaths of her parents and the fact that she bore three illegitimate
children for the same doctor.
Dr. Culver felt that Odom was malingering or suffering from a factitious
disorder and indicated that she was positive for three of the four criteria for
malingering. He felt that she had suffered a very mild traumatic brain injury as a result
of her fall, which should have resolved within three months. He based a finding of
malingering on her inconsistent clinical presentation which he said had resulted in a
number of diagnoses over the years and with little improvement. He explained that
one of the hallmarks of malingering or factitious disorders is the failure of the patient’s
complaints to conform to any known medical problem or that the complaints are so
inconsistently presented that they result in a number of different diagnoses. Dr. Culver
recommended that Odom undergo a psychological evaluation to define the parameters
of her mental condition and a functional capacity evaluation to define the nature of her
problems.
Dr. Charles Robertson, a clinical psychologist, performed a
neuropsychological evaluation, which was authorized by Kinder Nursing Home based
on Dr. Zuckerman’s recommendation. In his extensive report, he summarized his
findings and recommendations as follows:
Toni Odom is a 49 year old, white female outpatient, referred by Dr. Paul Mayes for neuropsychological assessment. Current test results reflect problems in the cognitive domain with distractability, sustained attention, and speed of mental operations. There were no clear indications of lateralized impairments which would suggest a stroke. Language screening reflected dysarthria and dyscalculia but found adequate verbal fluency with no classic aphasic or apraxic disorders. Intellectual measures suggested greater non-dominant hemisphere
10 impairments in visual-spatial tasks with low-average overall functioning. Memory problems found were confounded by attention and concentration problems. Effort demanded by the tasks was a potent predictor of memory performance, suggesting a depression effect. Higher-order reasoning and problem solving was moderately impaired.
Problems in the psychological domain include severe depression and anxiety with likely conversion of psychological stress to physical complaints. A history of psychological instability is reflected. She has complaints consistent with a diagnosis of pain disorder.
Overall results from neuropsychological assessment are more suggestive of severe psychiatric problems than brain injury. She would not be expected to have her current level of difficulty with attention and concentration four years after a mild brain injury. This is not to say she did not sustain a brain injury in her fall 4 years ago, however. The level of impairment found suggests a more acute problem such as a response to medication, psychiatric illness, or more recent brain injury. No clear pattern of lateralized brain injury was found to account for her appearance of hemiparesis. Her language problems are atypical. A more detailed assessment by a certified speech pathologist is warranted. She does not present as someone malingering neuropsychological impairment, however. Validity measures were all passed. She appears more to be convinced she has severe medical problems and is quite worried about her health. She may convert psychological stress to physical symptoms and completely lack insight into doing so.
While neuropsychological syndromes are not clearly present, her psychiatric profile is less ambiguous. A severe major depression with anxiety is present and probably related to her chronic pain complaints. She also matches diagnostic criteria for somatoform disorder. A history of personality disorder is also likely.
I advise prompt referral for aggressive psychiatric treatment of depression and anxiety. She may respond to medical reassurance about her physical complaints. She should be scheduled for an evaluation by a certified speech pathologist. I can arrange this through my office if needed. She should continue in pain management care with Dr. Mayes. He can determine her readiness to return to work based on limitations from chronic pain and medication. However, I believe her severe psychiatric illness presently prevents her from returning to work. A combination of psychiatric medical management and cognitive behavioral therapy by a neuropsychologist is advised. Once her depression and anxiety resolve, a repeat neuropsychological evaluation may be more revealing.
11 After performing his court-ordered neuropsychological evaluation, Dr.
Dilks opined that Odom was suffering from a mild post-concussion syndrome, along
with impairments in her memory, judgment, and reasoning. He further found that her
profile was indicative of major depression. Based on his findings, he recommended
the following actions: 1) psychiatric consultation and follow-up treatment; 2)
neurological consultation and follow-up treatment; 3) physical therapy consultation;
4) driving evaluation; 5) individual counseling for depression; 6) group counseling for
post-traumatic stress disorder; 7) vocational evaluation; 8) sleep study; 9) speech and
language evaluation and follow-up treatment; and 10) re-evaluation in one year.
Finally, Dr. Dilks related Odom’s findings directly to her on-the-job injury.
Odom testified that her condition worsened progressively after her fall
until she was unable to use her right arm and had to use a cane due to the pain in her
right leg and her problems with balance. Although she suffered from preexisting
arthritis in her right knee, she said that the fall increased her arthritis. She further
stated that her arthritis medication affected her kidneys so she no longer took it. As
a result, she stated that she suffered greater pain and increased difficulty in walking.
Odom further testified that she now has difficulty speaking and suffers
from increasing depression since her accident. She said that she feels depressed and
frustrated because of her loss of independence and her inability to do things for herself
since the accident. She stated that she lives alone, but said that her daughter visits her
and she has hired someone to clean her house. She said that she lacks stamina and is
no longer able to vacuum, sweep, or make her bed; however, she stated that she can
load her dishwasher, cook, and wash and fold clothes using one hand.
12 Odom testified that she is able to drive her car, which is an automatic, in
Kinder and to Eunice, which is twenty-five miles away. However, she said that she
requires a driver to go anywhere else, as she is not as confident driving as she was
prior to her fall. She stated that this is especially true when she is driving on the
interstate, as she does not believe that she would think or react quickly enough in an
emergency.
Britaney Bogard, Odom’s daughter, testified that she has noted
tremendous declines in her mother’s mental and physical capabilities since her fall.
Prior to that, she stated that Odom worked a ten-day shift for Kinder Nursing Home,
raised her three children singlehandedly, and did practically everything for herself.
However, afterwards, she stated that Odom began experiencing problems with her
speech, the use of her right arm and leg, and increasing depression. Now, she stated
that Odom’s speech comes and goes and that she uses a four-legged cane to walk.
Bogard testified that she and her husband both left well-paying positions in Orlando,
Florida to return to Kinder in order to care for her mother.
Bogard stated that Odom’s inability to use her right arm prevents her from
drawing and painting. She said that her mother was an accomplished artist, but now
she uses her left arm for writing and eating. Although she stated that Odom is able to
drive and visit her friend, who lives ten miles away, she said that she requires a driver
to go anywhere else. She further testified that she and her husband purchased a scooter
for Odom to get her out of the house and do things.
Although Bogard admitted that Odom was depressed due to the illnesses
and later deaths of her parents, she stated that her depression increased after her fall.
13 She testified that Odom becomes more depressed if she is unable to leave her home
and that she feels okay as long as she remembers to take her medication. However, she
said that she can tell when Odom forgets to take her medication. She stated that Odom
will start crying just from watching a commercial on television. Now, she testified that
they cannot watch any movie which has a sad ending and that her mother tries to focus
only on good things.
Ronnie Smith, an independent nurse case manager, testified as a friend
of Odom’s. He stated that he was the administrator of Kinder Nursing Home from
1978 through 1991, and that he hired Odom as the night LPN. Prior to her accident,
he testified that Odom was an excellent employee, who supervised 100 patients and
four nurses’ assistants as the night nurse. While he worked for Kinder Nursing Home,
he stated that he never noticed that Odom was depressed to such an extent that she was
unable to work. He further admitted that she was slightly overweight and that she
walked with a slight abnormality as a result of arthritis in her legs. However, he said
that neither problem hindered her in any way. He did testify that the way she walks
has changed since her fall.
Smith said that he has seen a drastic change in Odom since her fall. He
stated that her thought process has become much slower and that her speech has
deteriorated. He said that her speech is better on some days than others, but that
sometimes she speaks very slowly and does not make complete statements or
sentences. He said that she occasionally speaks clearer when she is aggravated, but
that her speech slows down again when she becomes calmer.
14 Karen Pelican and Helen Daniels both work for Kinder Nursing Home;
Pelican as secretary and Daniels as Odom’s relief nurse. Both testified that Odom
walked with a limp prior to her accident and that they noticed no difference in how she
walked prior to her fall than how she walked afterwards. Daniels testified that Odom
did not use a cane prior to her fall.
In her written reasons for judgment, the workers’ compensation judge
held that Odom carried her burden of proof with regard to the issue of pain
management based on the testimony from Drs. Mayes and Clark. The workers’
compensation judge recalled that Dr. Mayes opined that Odom was suffering from a
central pain disorder as a result of her brain injury, while Dr. Clark found that she
suffered from a “spastic right hemiparesis, motor imbalance, speech and language
deficits, as well as chronic myofascial pain with superimposed thalamic pain
syndrome.” Both doctors felt that Odom was incapable of returning to work as a result
of her impairments. The workers’ compensation judge further held that Odom’s
psychological problems were work-related based on Dr. Robertson’s and Dr. Dilks’
neuropsychological assessments. Although Drs. Zuckerman and Culver found no
relationship between Odom’s psychological condition and her work-related injury, the
workers’ compensation judge held that Odom proved by clear and convincing evidence
that they were a direct result of her work-related accident.
On the issue of disability, the workers’ compensation judge stated in her
written reasons for judgment:
It is undisputed that Dr. Mayes, claimant’s treating physician and Dr. Clark, defendant’s choice of physician, opined that claimant in (sic) not capable of returning to work. Notwithstanding the fact that claimant has
15 other non-work related medical concerns, the fact remains that she has not been released to work by her treating pain management physician, Dr. Mayes, as well as by defendant’s pain management physician, Dr. Clark. The court appointed psychologist, Dr. Dilks, does not believe claimant is capable of working. In addition, Dr. Dilks indicates that Ms. Odom’s neuropsychological assessment suggests cognitive impairment and post- concussion syndrome that directly relate to her job injury.
Based on the evidence presented, the court finds that the totality of the evidence demonstrates that it will be impossible due to claimant’s mental instability and physical limitations for claimant to work. The fact that Ms. Odom can do limited activities at certain times for limited periods of time does not equate to employment capability. Reeves v. International Maintenance Corporation, [05-1149 (La.App. 3 Cir. 4/5/06)] 926 So.2d 105 (La.App. 3 Cir. 4/5/06). Accordingly, this court finds that claimant is permanently and totally disabled.
After reviewing the record in its entirety, we find no error in the workers’
compensation judge’s finding that Odom is permanently and totally disabled. Dr.
Mayes, who has treated Odom continuously from two months post- accident, said that
she was totally disabled as a result of her C6-7 radiculopathy, the peripheral
neuropathy involving her right arm, her chronic pain disorder, and her severe
depression. In finding this, he did not take into account Odom’s additional health
problems such as her cardiac problem, diabetes, and peripheral vascular disease.
Moreover, Dr. Clark, Kinder Nursing Home’s choice of physiatrist, and Dr. Robertson
both felt that Odom was incapable of returning to work.
Although Drs. Zuckerman and Culver found no relationship between
Odom’s fall and her psychological problems and felt that she was malingering and was
capable of returning to work at full duty, we find no error in the workers’
compensation judge’s decision to instead credit the testimony of Drs. Mayes,
Robertson, and Dilks. Both Drs. Robertson’s and Dilks’ reports indicate that Odom
16 passed all tests for validity and that she was not seen as malingering. Accordingly, the
workers’ compensation judge’s judgment, finding that Odom proved by clear and
convincing evidence that her psychological and pain management problems resulted
from her work-related accident and that she is permanently and totally disabled, is
VOCATIONAL REHABILITATION
In its next assignments of error, Kinder Nursing Home argues that the
workers’ compensation judge erred in finding that it failed to provide Odom with
suitable vocational rehabilitation services.
An employee, who suffers a work-related injury rendering her incapable
of earning wages equal to or in excess of her pre-injury wages, is entitled to prompt
rehabilitation services from a licensed vocational rehabilitation counselor chosen by
the employer. La.R.S. 23:1226(A) and (B)(3). The goal of rehabilitation is to return
the disabled worker to employment as quickly as possible, with as little retraining as
possible.
In this instance, the workers’ compensation judge held that Kinder
Nursing Home failed to provide Odom with suitable vocational rehabilitation services,
as it failed to meet the standard for proving job availability as set out in Banks v.
Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551.
There, the supreme court stated:
[A]n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or
17 reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.
Id. at 557 (footnote omitted).
Marcy Holmes was hired by Employer’s Risk Management Services to
provide vocational rehabilitation services to Odom. She stated that she received
Odom’s file on April 17, 2002, but closed it in September 2002, without completing
her evaluation as Dr. Mayes would not release Odom to return to work.
In her July 25, 2002 report, Holmes noted the following barriers to
Odom’s successful rehabilitation: 1) secondary conditions-arteriosclerotic vascular
disease, diabetes mellitus, and peripheral vascular disease; 2) observed and reported
inability to use her right arm for functional activity; 3) evidence of dysarthrimic
speech-difficulty with word finding and expression; 4) obvious physical disability as
evidenced by use of a cane and dysarthrimic speech; and 5) prescribed medications
affecting cognition and her ability to drive-Vicodin, Xanax, and Ambien.
Holmes testified that she completed a generic labor market survey in
which she located seven sedentary positions. She admitted that the positions did not
necessarily match Odom’s qualifications or vocational background, but described the
survey as a snapshot of the positions available between August 8-18, 2002. The
18 positions were 1) slot clerk at Island Gold, Isle of Capri Casino; 2) reservation clerk,
Isle of Capri Casino; 3) c.b.x. operator at Lake Charles Memorial Hospital; 4) r.v.
guest services representative, Grand Casino Coushatta; 5) registrar position, Women
and Childrens Hospital; 6) counter sales representative, AAA Cleaners; and 7) revenue
auditor, Isle of Capri Casino.
Holmes testified that she did not feel that there was anything more she
could offer Odom until she knew what her physical capabilities were. However, she
said that Dr. Mayes indicated that he would not order a functional capacity evaluation
for Odom due to her secondary diagnosis of peripheral vascular disease and peripheral
neuropathy. Holmes further stated that Dr. Mayes never differentiated as to whether
Odom was disabled as a result of her work-related accident or due to her peripheral
vascular disease or neuropathy.
Crystal Younger, the owner and manager of Younger and Associates,
testified that her company was hired by Employer’s Risk Management Services to
provide vocational rehabilitation services to Odom. She stated that her former
employee, Shelly Brantley, performed the actual work on Odom’s file, but has since
left the vocational rehabilitation field. In reviewing the file, Younger testified that
Odom’s counsel would not let her meet with Brantley because he complained that
Kinder Nursing Home was shopping around for vocational rehabilitation services. She
further stated that the file indicated that a June 26, 2002 report by Holmes said that Dr.
Mayes placed Odom at maximum medical improvement for her mild brain injury, but
that she was not at maximum medical improvement for her unrelated physical
problems of peripheral vascular disease and depression.
19 Younger testified that Brantley performed a labor market survey based on
Dr. Mayes’ finding that Odom was at maximum medical improvement for her brain
injury. However, she described it as being hypothetical as Brantley was limited to
Holmes’ information from her initial meeting with Odom. She stated that five
positions were found which were approved by Drs. Culver and Zuckerman.
Younger identified the five jobs in the survey. The first job was for a pit
clerk at Harrah’s Casino in Lake Charles. She stated that this job was situated in a
high volume environment and entailed key wording and the use of a computer
terminal. The second job was a c.b.x. operator at Harrah’s Casino in Lake Charles.
The job description required the employee to provide professional, courteous, and
efficient service at all times; to present oneself as a credit to Harrah’s; required
dexterity to perform several functions at the same time; and possess a pleasant and
easily comprehensible voice. The third position was for a cashier checker at Piccadilly
in Lake Charles. This entailed using a cash register and interacting with customers.
The fourth job was for a front desk clerk at Motel Six in Lake Charles. The fifth job
was a direct care position with Robinswood School in Lake Charles, which entailed
supervising and observing developmentally disabled adults. This position was a light
duty job and required occasionally lifting of ten to twenty pounds, frequent sitting,
standing, occasional walking, and rare bending, twisting, and reaching above the
shoulder.
Dr. Mayes felt that Odom was incapable of performing all of these
positions, as she lacked the physical dexterity to perform most of the positions’
functions and would be hindered by her balance problems. When questioned, Dr.
20 Mayes stated that he did not believe it was reasonable to think that Odom could
perform any of these jobs.
Melissa Vaughn, a claims representative for Employer’s Risk
Management Services, handled Odom’s claim as the third party administrator for
Kinder Nursing Home. She testified that she hired Holmes to conduct a labor market
survey for Odom, but removed her from the file when she failed to do so based on Dr.
Mayes refusal to release Odom to return to work. She stated that she wanted the labor
market survey because Drs. Culver and Zuckerman had released Odom to work based
on her work-related problems. Vaughn testified that she never attempted to obtain Dr.
Mayes approval for the jobs and she never sent the job descriptions to any other
treating physician. Finally, she admitted that Odom was never provided any vocational
rehabilitation services, other than the labor market survey conducted by Younger.
In her reasons for judgment, the workers’ compensation judge held that
Kinder Nursing Home failed to satisfy the standards set out in Banks. Specifically, she
stated that the vocational rehabilitation counselor failed to identify any actual position
that was within Odom’s physical capabilities and her reasonable geographic region of
Kinder.
After reviewing the evidence, we find no error in this finding. The labor
market survey was, by Younger’s own admission, hypothetical in nature and contained
positions that Dr. Mayes described as being beyond Odom’s capabilities. All of these
positions required physical dexterity in the use of her hands and interaction with the
public. Based on Dr. Mayes’ testimony, Odom has very limited use of her right arm
and hand and would be incapable of using this, her dominant hand, to perform the
21 described functions. She also has speech difficulty, so interacting with the public
would be very difficult for her. Moreover, all of the positions listed were located in
Lake Charles. We agree with the workers’ compensation judge that this is outside of
Odom’s reasonable geographic area, as she requires a driver to go anywhere beyond
Kinder or Eunice, especially if she is required to drive on the interstate. Based on the
foregoing, the judgment of the workers’ compensation judge finding that Kinder
Nursing Home provided Odom with insufficient vocational rehabilitation services is
affirmed. This assignment of error is dismissed as being without merit.
PENALTIES AND ATTORNEY’S FEES
In its next assignments of error, Kinder Nursing Home argues that the
workers’ compensation judge erred in awarding Odom penalties and attorney’s fees.
The workers’ compensation judge held that Kinder Nursing Home failed to reasonably
controvert her claim prior to reducing her weekly indemnity benefits and that it failed
to properly investigate her requests for various medical therapies and handicap bars
prior to denying them. As a result, she awarded Odom $4,000 in penalties and $12,000
in attorney’s fees.
Dr. Mayes testified that Kinder Nursing Home’s failure to approve testing
early on prevented him from making a proper diagnosis in this matter. He stated that
it was slow in responding and would not provide diagnostic testing until after its own
consultants examined Odom and requested the same tests. Dr. Mayes said that
although he requested a test of the brain to rule out neuropathy versus a stroke, the test
was not authorized until Dr. Zuckerman requested it in 2001. He further said that he
requested an EMG/nerve conduction study as early as 1998 and 2001, which was not
22 approved until Dr. Zuckerman requested it. This test was not performed until 2004.
He testified that he has consistently requested psychological treatment for Odom, but
that it was not approved by Kinder Nursing Home until after she was seen by Dr.
Culver in 2001. He further stated that his requests for a utility cart, cervical pillow,
and grab bars for her shower and hallway were never approved.
Vaughn admitted that she relied strictly on her own physicians’ opinions
in approving medical tests and in reducing Odom’s benefits, even though she was
aware that Drs. Culver and Zuckerman had each seen her only once. Although Dr.
Clark was her choice of physiatrist, she testified that she refused to authorize the
neuropsychological and occupational therapy evaluations and speech therapy
recommended by him, even though he confirmed Dr. Mayes’ findings on Odom.
However, she approved a brain MRI and a neuropsychological evaluation after Dr.
Zuckerman recommended them.
Vaughn stated that she did not approve any further treatment for Odom,
even after Dr. Robertson recommended that she undergo aggressive psychiatric
medical management and treatment for depression, cognizant behavior therapy, and
speech therapy. She further admitted denying numerous requests from Odom’s
counsel for her to see physicians in various other specialities, and she denied Dr.
Clark’s request for handicap bars based on her determination that Odom had walked
with a limp prior to the accident.
Vaughn testified that she reduced Odom’s temporary total disability
benefits to supplemental earnings benefits after Younger conducted a labor market
survey based on Drs. Culver’s and Zuckerman’s opinions that Odom was at maximum
23 medical improvement. This reduction took effect on May 4, 2003. Vaughn further
admitted that she reduced Odom’s benefits even though she was unsure that Odom
could actually perform the jobs identified in the survey.
An employer avoids the imposition of penalties and attorney’s fees by
satisfying its continuing obligation to investigate, assemble, and assess factual
information prior to it denying benefits. Wright v. Cypress Gen. Contractors, Inc.,
05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526, writ denied, 06-0238 (La. 4/24/06),
926 So.2d 553. Furthermore, the decision to award penalties and attorney’s fees is
factual in nature and will not be reversed on appeal absent manifest error. Bigge v. The
Lemoine Co., 04-1191 (La.App. 3 Cir. 3/2/05), 896 So.2d 269. Based on our review
of the record and our finding that Odom is permanently and totally disabled, we find
no error in these awards. The judgment awarding $4,000 in penalties and $12,000 in
attorney’s fees is affirmed.
FRAUD
In its final assignment of error, Kinder Nursing Home argues that the
workers’ compensation judge erred in failing to find that Odom forfeited her right to
workers’ compensation benefits based on La.R.S. 23:1208 fraud. It bases its argument
on the following facts: 1) that Odom sued for a motorized scooter which was not
prescribed by Dr. Mayes; 2) that she lied in her deposition about previously being
diagnosed with depression; and 3) that she lied about why she was unable to attend an
examination by Dr. Culver.
In order for an employer to prove forfeiture pursuant to La.R.S. 23:1208,
it must prove that a false representation was willfully made by the employee for the
24 purpose of obtaining compensation benefits. Resweber v. Haroil Constr. Co., 94-2708,
94-3138 (La. 9/5/95), 660 So.2d 7; La.R.S. 23:1208(A). An inadvertent or
inconsequential false statement does not result in the forfeiture of benefits. Jim Walter
Homes, Inc. v. Prine, 01-116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818.
Louisiana Code of Civil Procedure Article 1005 further provides that all
affirmative defenses must be pled in a defendant’s answer. The fraud provision found
in La.R.S. 23:1208 is an affirmative defense; therefore, Kinder Nursing Home was
required to plead this defense in its answer. However, it failed to do so. The first
mention that it makes of fraud is in its post-trial brief to the workers’ compensation
judge.
In Richey v. Vanliner Insurance Co., 97-121 (La.App. 3 Cir. 6/4/97), 696
So.2d 190, writ denied, 97-1799 (La. 10/13/97), 703 So.2d 620, we noted an exception
to Article 1005 when the first knowledge of the alleged fraudulent statements occurred
during cross-examination; thereby depriving the defendant of the right to seek relief
pursuant to La.R.S. 23:1208. In that instance, we held that “we [would] not support
claimant’s fraud by technical applications of rules related to pleadings.” Id. at 193.
However, we find that the facts in Richey are clearly distinguishable, in part, from the
facts present here.
The second and third statements that Kinder Nursing Home complains
about were known by it for several years. These were not facts which first came to
light during the trial on February 9, 2005. Kinder Nursing Home claims that Odom
lied in her deposition when she testified that she had not taken any medication for
depression prior to her fall. Although it failed to introduce Odom’s deposition into the
25 record, Kinder Nursing Home obviously had this information prior to the trial.
Kinder Nursing Home further claims that she lied about the reason she
could not attend a 2001 appointment. It had scheduled the appointment with Dr.
Culver on June 28, 2001, but was informed by her counsel that her father had died and
she would be unable to attend it. Vaughn testified that they normally scheduled
appointments approximately a month and a half in advance of the actual appointment.
When she was told that Odom would be unable to attend, she stated that she hired a
private investigator, who learned that Odom’s father actually died on May 19, 2001,
and that she was in Mississippi with her daughter on June 28, 2001. As Kinder
Nursing Home knew about Odom’s alleged lie in June 2001, it cannot claim that it
suddenly learned about her statements during the trial.
The third allegedly fraudulent statement concerning Odom’s request for
a motorized scooter presents the closest question. Dr. Mayes’ records reveal that he
received a telephone message from Odom’s counsel on October 4, 2001. The message
simply asks if she could have a prescription for a scooter. In his deposition, Dr. Mayes
testified that he thought she may have asked for one, but, as far as he could recall, he
did not feel that she needed it at the time. However, no mention of a request for a
scooter is made in Odom’s several disputed claims. During the trial on the merits, she
testified that Dr. Mayes prescribed the scooter, but said that it was paid for by her
daughter and son-in-law. Bogard simply testified that she was surprised to learn that
Dr. Mayes never prescribed the scooter.
In reviewing this evidence pursuant to the manifest error standard of
review, we find that the workers’ compensation judge evidently decided that Odom’s
26 statement about the scooter was not made willfully for the purpose of obtaining
workers’ compensation benefits. The fact that Odom never sought repayment for the
scooter from Kinder Nursing Home would support this finding. Accordingly, we find
no error in the workers’ compensation judge’s finding that Odom did not commit
La.R.S. 23:1208 fraud as a result of her testimony concerning the scooter.
ANSWER TO APPEAL
In her answer to the appeal, Odom requests that we award her additional
attorney’s fees for work performed in defense of Kinder Nursing Home’s appeal.
Based on our decision affirming the judgment in her favor, we award her an additional
$5,000 in attorney’s fees for work performed on appeal. Cannon v. Hamilton Transp.,
06-1302 (La.App. 3 Cir. 2/7/07), 948 So.2d 1250.
CONCLUSION
For the foregoing reasons, the judgment of the workers’ compensation
judge is affirmed in all respects. Additional attorney’s fees of $5,000 are awarded to
Odom for work performed on appeal. The costs of this appeal are assessed to the
defendant-appellant, Kinder Nursing Home.