Touchet v. Murphes of Florida, Inc.

832 So. 2d 367, 2002 La.App. 3 Cir. 0632, 2002 La. App. LEXIS 3314, 2002 WL 31475246
CourtLouisiana Court of Appeal
DecidedOctober 30, 2002
DocketNo. 02-0632
StatusPublished

This text of 832 So. 2d 367 (Touchet v. Murphes of Florida, Inc.) 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
Touchet v. Murphes of Florida, Inc., 832 So. 2d 367, 2002 La.App. 3 Cir. 0632, 2002 La. App. LEXIS 3314, 2002 WL 31475246 (La. Ct. App. 2002).

Opinion

LDECUIR, Judge.

Janelle Touchet, the claimant in this workers’ compensation suit, filed the instant appeal, contesting the decision of the hearing officer. The employer, Murphco of Florida, Inc. (incorrectly referred to in the caption of this suit as “Murphes”), and its insurer, Fireman’s Fund Insurance Company, answered the appeal. Both sides have raised several issues for our review. We amend in part and, as amended, affirm.

Touchet was employed as a housekeeper at the Jennings Holiday Inn, which is owned by Murphco. Touchet contends that she injured her back on November 1, 1999, while cleaning one of the rooms in the hotel. As she was making the bed in the room, she felt a pulling sensation in her shoulder. Touchet continued working that day, but she sought emergency medical treatment on the following day. On November 9, Murphco referred her to Dr. Mark Clawson, a general practitioner in Jennings.

Dr. Clawson’s office notes for November 9 indicate that Touchet complained initially of right shoulder and lower back pain. He found evidence of muscle spasm and prescribed medication and physical therapy. Touchet continued seeing Dr. Clawson for several weeks, and in late December, he ordered diagnostic testing. Before the testing was done, however, Dr. Clawson released Touchet to light duty work and specifically approved a position Murphco offered to her as a hostess for the Holiday Inn restaurant. Dr. Clawson noted that he had spoken to a Murphco representative about the position; he believed the position would fit within the light duty restrictions he imposed.

Subsequently, Touchet submitted to the testing ordered by Dr. Clawson. X-rays, two MRIs, and a CT scan were done. Mild to moderate degenerative changes with spurring were revealed. A moderate disc herniation at the L5-S1 level was noted, but no significant impingements on the nerve roots were shown. Dr. Clawson | ¡.discussed the test results with Touchet. While she was still complaining of pain in mid-January, he felt she could perform light duty work. He noted that she declined the light duty position offered to her because her attorney told her she should not go back to work.

Murphco then discontinued workers’ compensation benefits, and this suit followed. At some point prior to filing suit, Touchet requested approval from the employer to see an orthopedic surgeon, Dr. Dale Bernauer. In February, Touchet changed attorneys, and when suit was filed, her new counsel requested approval for Touchet to see Dr. John Cobb, also an orthopedic surgeon. The parties eventually agreed in a stipulated judgment that Touchet would see Dr. Cobb, but due to canceled appointments, and possibly also due to Touchet’s writ application to this court concerning that stipulated judgment, she did not see Dr. Cobb until March 26, 2001. He diagnosed a disc herniation and recommended a fusion of the L5-S1 level. The surgery was not approved by the insurer, and Touchet has not seen Dr. Cobb again.

The insurer then sent Touchet to see Dr. Gregory Gidman. Dr. Gidman agreed [370]*370that the previous MRIs. showed a herniation at the L5-S1 level, but he described the herniation as small and did not believe there was any resulting nerve root compression. He recommended further tests, home and physical therapy, exercise, and weight loss.

The case then proceeded to trial. The court determined that Touchet was injured in the course and scope of her employment with Holiday Inn and was entitled to benefits from the time of injury until released by Dr. Clawson, with benefits to be reinstated from the date of Dr. Cobb’s diagnosis. The court noted that Touchet did not respond to the employer's offer of light duty employment in January 2000. The record also shows that Touchet did not seek further medical care (except for one [¡¡emergency room visit in August 2000) or continue with therapy until she saw Dr. Cobb in March 2001. Judgment was rendered in Touchet’s favor awarding benefits from November 1, 1999 through December 27, 1999, and from March 26, 2001 until a court appointed independent medical examination is conducted, with further benefits to be determined later. The court declined to find the employer and insurer arbitrary and capricious in the handling of this claim, but did assess a statutory $250.00 penalty for the employer’s failure to provide Touchet with a copy of Dr. Clawson’s report within thirty days of her requesting same. The court denied the employer and insurer’s motion for sanctions against Touchet for reissuing subpoenas which had previously been quashed by the court.

In this appeal, Touchet contends the hearing officer erred in failing to award benefits for the period between Dr. Clawson’s release and Dr. Cobb’s assessment. We disagree. There is medical evidence showing that Touchet could perform light duty work during this time, yet she made no attempt to work and there is no contrary medical evidence indicating she could not work.

We also find no merit to Touchet’s contention that penalties and attorney’s fees should be awarded due to the “defendant’s numerous violations of the Workers’ Compensation Act.” Touchet first complains of the insurer’s failure to guarantee medical treatment, suggesting that she had three appointments with Dr. Bernauer, all of which had to be canceled because the insurer would not approve the visit. The only evidence of this is Touchet’s self-serving testimony which the hearing officer found unconvincing. There is no evidence of when Touchet may have first requested to see Dr. Bernauer, but she had diagnostic testing with Dr. Clawson in January of 2000, and her new attorney requested approval to see Dr. Cobb on February 4, 2000. The delay in seeing Dr. Cobb is likewise undocumented. Dr. Cobb’s office record |4shows that Touchet canceled one appointment and the insurer canceled a second appointment before she finally saw him in March 2001. We do not find these facts demonstrate an arbitrary refusal to guarantee medical treatment.

Touchet further contends the defendants violated the compensation act by failing to pay medical bills and failing to properly pay weekly benefits. The record shows that weekly benefits were paid until Dr. Clawson released Touchet to return to work. The hearing officer did not fault the defendants for failing to resume the payment of benefits upon Dr. Cobb’s evaluation because of the conflicting medical evidence available at that time. We find no error in this conclusion.

Concerning the medical bills, Tou-chet argues the hearing officer should have ordered the defendants to pay all outstanding medical bills in the judgment ren[371]*371dered in Touchet’s favor. Specifically, Touchet lists five bills which she contends have not been paid. One of those bills is a $108.00 charge from Dr. Cobb, which Plaintiffs Exhibit # 1 shows conclusively was paid by Fireman’s Fund. The defendants suggest that Touchet has the burden of proving the bills have-not been paid, while Touchet argues that payment is an affirmative defense that must be proved by the defendants.

Our review of the record indicates the payment of medical bills was technically at issue based on the pleadings. However, it is also apparent that neither the court nor opposing counsel regarded the payment of medical bills to be at issue at the hearing. While a handful of bills were introduced into evidence, no evidence was adduced on the question of whether those bills remain outstanding.

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Bluebook (online)
832 So. 2d 367, 2002 La.App. 3 Cir. 0632, 2002 La. App. LEXIS 3314, 2002 WL 31475246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/touchet-v-murphes-of-florida-inc-lactapp-2002.