STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-0380 C/W 09-0381 - WCA
IBERIA MEDICAL CENTER
VERSUS
WENDY WARD
************
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4 PARISH OF LAFAYETTE, NO. 06-06495 C/W 06-06990 HONORABLE SAM LOWERY WORKERS’ COMPENSATION JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.
AFFIRMED AS AMENDED AND RENDERED.
Christopher R. Philipp Attorney at Law P. O. Box 2369 Lafayette, LA 70502 (337) 235-9478 COUNSEL FOR PLAINTIFF/APPELLEE: Wendy Ward
C. Shannon Hardy Penny & Hardy APLC P. O. Box 2187 Lafayette, LA 70502-2187 (337) 231-1955 COUNSEL FOR DEFENDANT/APPELLANT: Iberia Medical Center PETERS, J.
These consolidated cases arise from a workers’ compensation claim by Wendy
Ward against her employer, Iberia Medical Center (Iberia Medical). Ms. Ward claims
to have injured her left hand in a work-related incident on Friday, February 3, 2006.
The matter is now before us because Iberia Medical has appealed a judgment in favor
of Ms. Ward awarding her indemnity benefits, medical treatment, penalties, and
attorney fees; and Ms. Ward has answered the appeal seeking an award of attorney
fees on appeal. For the following reasons, we affirm the judgment of the workers’
compensation judge (WCJ) as amended and render judgment in favor of Ms. Ward
for the additional sum of $5,000.00 as attorney fees associated with the work
performed on appeal.
DISCUSSION OF THE RECORD
Ms. Ward was displaced by Hurricane Katrina from the New Orleans,
Louisiana area to the New Iberia, Louisiana area in August of 2005. In December of
2005, she applied for work at Iberia Medical and was hired as a relief food service
worker. She claims to have suffered a work-related injury to her left hand on
February 3, 2006, while she and a co-worker, Joy Erikson, were attempting to move
a large food cart into the service elevator at the medical facility. According to Ms.
Ward, as she attempted to enter the service elevator, the cart’s wheels became stuck
in the gap between the sill at the opening of the elevator door and the sill of the
elevator car. She claimed in her pleadings that she injured her hand when it “got
caught in the elevator.” She immediately informed Ms. Erikson of her injury. Ms.
Erikson testified that she observed Ms. Ward’s swollen hand, and urged Ms. Ward
to report the accident and to seek medical attention at the emergency room. Ms. Ward took Ms. Erikson’s advice and immediately reported the incident to
her supervisor, Annie Hines. She and Ms. Hines completed an incident report the
same day.1 With regard to the question in the incident report as to how the accident
occurred, the following notation was made: “Pushing lunch cart and Shut Elevator
on hand.” Concerning the need for medical treatment, the report states that Ms. Ward
did not seek medical attention because she “[t]hought It would be okay.” Ms. Hines
testified that immediately after the accident, Ms. Ward’s hand had an abrasion and
appeared to be swollen. She encouraged Ms. Ward to go to the medical center’s
emergency room, but Ms. Ward declined to do so.
When Ms. Ward returned to work on Monday, February 6, 2006, her hand was
still swollen. She then sought evaluation by an emergency room doctor at Iberia
Medical. The emergency room record recorded Ms. Ward’s complaint as “LEFT
WRIST & HAND PAIN & SWELLING.” The examining physician concluded that
Ms. Ward had sustained a contusion to her left hand as a result of her hand being
caught between an elevator and a food cart. After administering a drug screen (which
was completely normal) and taking an x-ray of the wrist (which revealed no fracture
or dislocation), the emergency room physician released Ms. Ward with instructions
for her to follow-up with her personal physician and to take Tylenol for pain.
On Wednesday of that same week, Ms. Ward saw her personal physician, Dr.
Kimberly Smith. At the time of the office visit, Ms. Ward’s hand and wrist were
swollen and bruised. According to Dr. Smith’s records, the elevator struck Ms.
Ward’s hand while the palm of her hand was wrapped around the leg of the cart. Dr.
Smith gave Ms. Ward an “EXCUSE SLIP” from work for the period from February
1 Although Ms. Ward signed the report, Ms. Hines provided the handwritten information in the report.
2 8, 2006, through February 13, 2006. She later issued a second and third “EXCUSE
SLIP” extending that period, first to February 24, 2006, and then to March 6, 2006.
When Ms. Ward’s condition failed to improve, Dr. Smith referred her to Dr.
Andre Cenac, a New Iberia, Louisiana orthopedic surgeon. Dr. Cenac first examined
Ms. Ward on March 15, 2006, and continued to follow her medically thereafter. In
his initial evaluation, Dr. Cenac observed that Ms. Ward had a deep contusion to her
left hand with swelling and limited range of motion. He recommended physical
therapy and pain medication. When he saw her again on April 12, 2006, Dr. Cenac
found that her condition had not changed and recommended continuing the
previously prescribed medical management. Because she continued to have no use
of her left hand, he released her for, at best, light duty. Nothing had changed in the
June 19, 2006 evaluation, and Dr. Cenac suggested that Ms. Ward undergo some
additional medical tests to further evaluate his determination that she was possibly
suffering from reflex sympathetic dystrophy, a nerve type of pain which can be
attributable to a trauma. At this time, Dr. Cenac still was of the opinion that Ms.
Ward was not employable in her prior position. However, the diagnostic tests
suggested by Dr. Cenac were never performed.
In a December 14, 2006 letter addressed to HSLI, Iberia Medical’s workers’
compensation administrator, Dr. Cenac had completely changed his mind concerning
Ms. Ward’s condition and stated that “I am in agreement with the recommendation
[by Dr. E. Scott Yerger] of positive maximum medical improvement and return to
regular duty.” Dr. Cenac last saw Ms. Ward on April 18, 2007. His report concluded
that, despite a continued history of persistent pain and swelling, Ms. Ward suffered
from no significant abnormalities.
3 In his testimony, Dr. Cenac acknowledged that his opinion changed between
June and December of 2006 because of a surveillance video he received from
representatives of Iberia Medical. This video was filmed over a period from March
2, 2006, through August 8, 2006, then reduced to the ten-minute segment and shown
to the doctor.2 It purported to show Ms. Ward performing tasks not consistent with
her medical complaints. Despite changing his mind concerning diagnosis and Ms.
Ward’s ability to return to work, Dr. Cenac still was of the opinion that Ms. Ward had
sustained a contusion to her left hand based on her objective signs of swelling of the
hand and wrist. He was also impressed with the fact that Dr. Smith had seen such
significant swelling as to refer Ms. Ward to him for evaluation. That, he explained,
gave credibility to the existence of a significant traumatic event causing an injury.
At the request of Iberia Medical, Ms. Ward was also seen by Dr. E. Scott
Yerger, a Lafayette, Louisiana orthopedic surgeon. Dr. Yerger first examined Ms.
Ward on August 2, 2006. Following his examination, he was provided by Iberia
Medical with not one, but two surveillance videos.3 Dr. Yerger found the content of
these videos to be “impressive” in that it showed Ms. Ward doing things with her left
hand that were “contraindicative” to what he saw in his office. Specifically, her
2 Despite the long period of time over which Ms. Ward was observed by the individual or individuals taking the surveillance video footage, that which was shown to the WCJ at trial begins with a July 13, 2006 segment at 6:34 p.m. that shows Ms. Ward at her apartment picking up a mop with her right hand and opening a door with her left hand; shows her leaving the apartment at 7:18 p.m. carrying a cup of coffee in her right hand and switching it to her left hand; a moment later returning to her apartment and, after shifting the coffee cup back to her right hand, swinging her left arm in a normal fashion without any guarding effort; then going to a store and ultimately exiting the store at 7:39 p.m. with a newspaper in her left hand. The next segment was filmed on July 24, 2006, beginning at 10:57 a.m., and initially shows Ms. Ward pushing the door of her apartment open with her left hand. She is next seen opening the door with her left hand at 11:01 a.m. Next, at 11:19 a.m., she is seen walking out of her apartment adjusting her robe with her left hand. Next, at 11:21 a.m. and 11:24 a.m., she is seen opening the door of her apartment with her left hand. Finally, at 11:26 a.m., she is seen sitting in a chair in front of her apartment with her left hand in her lap. 3 One was provided to him on July 13, 2006, and the other on July 24, 2006.
4 activities did not match with his provisional diagnosis. His summary of Ms. Ward’s
condition is as follows:
I do believe she suffered a contusion to the left hand and wrist when she had her left hand caught in the door of an elevator, between the elevator and the food cart that she was pushing in a hospital, but it would be difficult for her to have a Complex Regional Pain Syndrome of her left upper extremity involving the left hand and wrist and still be able to perform the activities that she was doing on these videos. In light of these surveillance videos, I think she’s able to return to work at her prior position as a food service worker and that she had likely reached maximum medical improvement.
In other words, both Dr. Cenac’s and Dr. Yerger’s final conclusion concerning Ms.
Ward’s physical condition rested solely on the credibility of the surveillance video[s]
and not on any medical findings associated with their individual examinations of their
patient.
Based on Dr. Yerger’s conclusion that Ms. Ward had reached maximum
medical improvement, Iberia Medical terminated her indemnity benefits as of
September 5, 2006. Ms. Ward never returned to her position with Iberia Medical.
On September 18, 2006, Iberia Medical filed a disputed claim for compensation
alleging not only that Ms. Ward was capable of returning to regular work duties, but
that she had forfeited her right to receive workers’ compensation benefits based on
her fraudulent actions in providing misleading information pertaining to her injury
and medical condition. On October 10, 2006, Ms. Ward filed a separate disputed
claim based on Iberia Medical’s failure to pay indemnity benefits, to authorize
medical treatment, to correctly calculate her workers’ compensation rate, and for the
premature termination of her indemnity benefits. The WCJ consolidated these two
claims for trial.
5 Following a trial on the merits, the WCJ rendered oral reasons in which he
found that Ms. Ward suffered a work-related accident, awarded her temporary total
disability (TTD) benefits for February 6 thorough 10, 2006, reinstated her TTD
benefits as of September 6, 2006, and awarded her $8,000.00 in penalties and
$14,667.65 in attorney fees based on Iberia Medical’s arbitrary and capricious
termination of her indemnity benefits.
Iberia Medical has suspensively appealed the WCJ’s judgment, raising five
assignments of error:
I. The trial court erred by determining that Ward sustained a work injury when her trial testimony was diametrically opposed to her prior sworn testimony and the physical evidence established that Ward’s testimony regarding how the accident occurred was an impossibility.
II. The trial court erred by determining that Ward was entitled to the reinstatement of temporary total disability benefits after September 6, 2006 when every doctor testified she was capable of returning to her prior employment by that date and there was no medical evidence submitted contradicting the doctor’s [sic] opinions.
III. The trial court erred in ruling that Iberia Medical acted in an arbitrary and capricious fashion and improperly terminated Ward’s benefits when the doctors provided opinions that Ward had misrepresented her physical and medical condition and was capable of returning to work prior to that date and there was no medical opinion or testimony that Ward was not capable of returning to work after that date.
IV. The trial court erred in awarding penalties and attorney’s fees.
V. The trial court erred in failing to find that Ward had willfully made a false statement or representation for the purpose of obtaining benefits or payments thereby entitling Iberia Medical to a judgment for the amounts previously paid.
Ms. Ward answered this appeal seeking additional attorney fees for work performed
on appeal.
6 OPINION
Assignments of Error Number I and V
Because both of these assignments of error relate to the particulars of the
accident itself and the factual record in general, they will be considered together.
Louisiana Revised Statutes 23:1021(1) provides that an accident is “an
unexpected or unforeseen actual, identifiable, precipitous event happening suddenly
or violently, with or without human fault, and directly producing at the time objective
findings of an injury which is more than simply a gradual deterioration or progressive
degeneration.” La.R.S. 23:1021(1). Proof on this issue is by a preponderance of the
evidence. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). Additionally, an
employee’s testimony alone may be sufficient to discharge this burden, provided that
(1) no other evidence discredits or casts serious doubt upon his or her version of the
incident, and (2) his or her testimony is corroborated by the circumstances following
the alleged incident. Id. In determining whether the employee has discharged his or
her burden of proof, the WCJ should accept as true a witness’s uncontradicted
testimony, even though the witness is a party, absent circumstances that cast
suspicion on the reliability of that testimony. Id. Further, the WCJ’s determinations
on whether the employee’s testimony is credible and on whether she met her burden
of proof are factual findings not to be disturbed on appeal absent manifest error. Id.
Louisiana Revised Statutes 23:1208(A) provides in pertinent part that “[i]t shall
be unlawful for any person, for the purpose of obtaining or defeating any benefit or
payment under the provisions of this Chapter, either for himself or for any other
person, to willfully make a false statement or representation.” In order to prove fraud
as defined by this provision, an employer must prove: (1) a false statement or
7 misrepresentation by the employee, (2) willfully made, and (3) that it was made for
the purpose of obtaining workers’ compensation benefits. Campbell v. City of
Leesville, 07-1061 (La.App. 3 Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La.
4/25/08), 978 So.2d 366.
The food cart involved in the claimed accident was described in testimony as
a five-foot high, heavy stainless steel box on four wheels, with doors at the front and
back and a long rod-like handle extending from top to bottom on each corner of the
cart. It is wide enough to hold two food trays side by side, and, when loaded, holds
approximately thirty trays. At trial, Ms. Ward described how the accident occurred
in the following manner:
Me and another co-worker, which is Joy Erickson, we were going to deliver food trays to the patients because we had to get them out for a certain time, and she and I was pushing the food cart to the elevators. We got to the second floor, and we had delivered all the trays to the second, third, and fourth floor of the hospital. And upon returning back to the first floor where we had to bring the cart back until it was time to go pick up the trays, she and I was pushing the elevator – pushing the food cart into the elevator, and the wheels got stuck in the groove of the elevator. And as we were trying to get it out, the door closed on my hand, on the corner of the food cart and my hand.
Iberia Medical argued at trial, and argues before this court, that Ms. Ward’s
numerous versions of how the accident occurred precludes any trier of fact from
finding that she established the occurrence of an accident by a preponderance of the
evidence. Admittedly, her testimony on this point is less than clear. As seen from the
testimony set forth above, Ms. Ward testified at trial that she was pushing the cart
onto the service elevator when the accident occurred. However, in her June 2007
deposition, Ms. Ward testified that the accident occurred while she and Ms. Erikson
were retrieving trays from either the second or third floor— not while loading the cart
on the first floor—and that she was pulling the cart inside the elevator, not pushing
8 the cart. Because the elevator door opened and closed from the left side, Iberia
Medical contends that the elevator door would not have struck her left hand had she
been pulling the cart instead of pushing it and that she changed her testimony to
comport with the physical evidence. When questioned at trial about these conflicts
in her testimony, Ms. Ward acknowledged that for her left hand to have been struck
by the elevator door, she would have had to have been pushing the cart into the
elevator, but she claimed that when she gave her deposition testimony, she was not
really thinking about the details of the accident.
Ms. Erikson’s testimony did not support Ms. Ward’s trial testimony on the
pushing/pulling issue. According to Ms. Erikson, when the accident occurred, Ms.
Ward was pulling the cart into the elevator as she [Ms. Erikson] pushed it from
behind. Additionally, Ms. Erikson did not observe the cart’s wheels becoming stuck
in the elevator door gap and suggested that this was not possible given the large size
of the wheels when compared to the narrow gap. Ms. Erikson also questioned
whether the elevator door could have jammed Ms. Ward’s hand given the fact that the
elevator had a safety sensor which caused the door to stop when someone crosses the
threshold. She was unaware of any instance where the sensor malfunctioned.
Other instances in the record that Iberia Medical suggests give cause to
question Ms. Ward’s credibility include the following:
# Ms. Ward testified that she learned of the position at Iberia Medical from her cousin while her job application states that she became aware of the position through the food stamp office.
# Ms. Ward, who was hired as a relief worker on an as-needed basis, asserted in her testimony that she thought she had been hired on a part- time basis and only learned of her relief worker status at trial. However, she checked on her job application that she was seeking a “relief” position.
9 # Ms. Ward failed to list her most recent employment on her job application—an eight-year employment with Wendy’s Old Fashioned Hamburgers.
# Ms. Ward testified that she was attending courses to complete her high school education at the time of trial. Yet, in her deposition, she testified that she had graduated from New Iberia Senior High School in 1986 and had attended some college.
# When asked in her deposition about prior arrests, she testified that she had been arrested for a domestic disturbance in either 2004 or 2005. However, she admitted at trial that she had been arrested in 2006 for aggravated battery.
# Ms. Ward received unemployment benefits while working for Iberia Medical.
With regard to how she came to know about the job vacancy, Ms. Ward
acknowledged that she stated in her job application that she had heard about the job
through the food stamp office rather than through her cousin, but did so at the
instruction of her cousin who, at the time, was an employee of Iberia Medical. When
questioned concerning the discrepancy in her education status, Ms. Ward testified that
she did not recall telling anyone in her deposition that she had graduated from high
school. She again stated that she had gone to college, explaining that she had
attended Baytown Technical College in Waco, Texas. In explaining her failure to
mention her 2006 aggravated battery arrest, Ms. Ward stated “I mean, I don’t
remember everything that goes on in the past thirty, forty years of my life. I don’t
think anyone does remember every detail of their life.” With regard to her receiving
unemployment benefits while working for Iberia Medical, Ms. Ward testified that an
employment office employee had described the benefits as supplemental pay for the
hours she did not work in New Orleans because of Hurricane Katrina.
We must agree with Iberia Medical that Ms. Ward’s testimony is filled with
contradictions. However, that fact alone does not defeat her claim. Before simply
10 reversing the judgment based on the existence of these contradictions, we must first
consider the WCJ’s reasons for his decision and apply the manifest error standard to
his factual findings. In that regard, it is necessary to reproduce the pertinent
provisions of the WCJ’s reasons for judgment.
Mrs. Ward was a food service worker at the medical center when on February 3, 2006, a service elevator door shut on her left hand as she was loading a large food cart. She contends that the accident has caused serious, disabling problems to her hand ever since. She asked the Court to find that her injuries arose out of this alleged accident, and as such is entitled to not only reasonable and necessary medical care, but also penalties and attorney’s fees for what she terms her employer’s improper handling of her claim.
The employer counters with the rather unambiguous argument that Mrs. Ward has either concocted or exaggerated her injuries in an effort to commit fraud. It says it was perfectly justified in terminating her indemnity payments and medical treatment and wants back all of the money it has spent on this matter.
The testimony suggests that after Mrs. Ward allegedly hurt her hand, that she reported the injury to her supervisor, was subsequently treated by a series of physicians, including an orthopedic surgeon, Dr. Cenac, who began seeing her the next month, in March of 2006.
The tipping point seems to have occurred in August 2006, when the insurance adjuster showed Dr. Cenac, the treating physician, and Dr. Yerger, the employer’s choice of physician, a video surveillance tape of Mrs. Ward. Apparently, the video had the intended result. Dr. Yerger, who had earlier opined that the elevator door accident had caused Mrs. Ward to develop Complex Regional Pain Syndrome of her left hand and wrist, recommended that Mrs. Ward return to her job. Dr. Cenac agreed.
The insurance company at this juncture took the view that Mrs. Ward never had an accident in the first place; and in any event, she needed to return to work. Workers’ Compensation benefits were terminated.
The Court reviewed the video with both counsel and encouraged both to make comments on the record to explain the pictorial evidence. The video surveillance sequences began about 5:30 in the morning on March 2, 2005, and continued sporadically for some seventeen months or so until around 12:00 noon on August 8, 2006. This some year and a half was condensed into about ten minutes of snippets, clips and random shots. Now, I suppose that if any of these flashes in time had
11 shown Mrs. Ward throwing a shot put, operating a jackhammer or something to that effect, it might be a different matter. But instead, we see Mrs. Ward’s left hand carrying a newspaper, holding a coffee cup and lifting – not sweeping, just lifting – a broom. That’s about it.
The purely unilateral use of video surveillance video, especially one as disjointed, ill-conceived and poorly produced as the one in open court to justify termination of medical treatment and indemnity payments to an injured worker flies squarely in the face of any sense of fair play.
I am hard-pressed to comprehend, much less agree with, the defense’s position that it is literally physically impossible for the elevator door to have injured her hand the way she described. The photos submitted into evidence show a very large metal food cart being pushed into an under-sized service elevator door with virtually no visible clearance between the side of the elevator and the cart. Mrs. Ward, who is not particularly articulate, did not describe the mechanics of the accident with any degree of precision; however, she’s not required by law to show the exact manner in which her hand was caught. The fact is that her left hand was remarkably functional before she pushed the cart in and was decidedly not thereafter, and she reported this immediately to her supervisor. There’s a reasonable presumption here that somehow, someway, the small door and the large cart somehow caused her left hand to get smashed.
Thus, as to the occurrence of an accident, the WCJ concluded that regardless
of whether Ms. Ward was pushing or pulling the food cart, or whether she was struck
by the closing elevator door or the side of the elevator itself, she sustained a work-
related injury. We find no manifest error in that factual finding. No evidence points
to a pre-existing injury as hinted to by Iberia Medical. Ms. Ward had worked a
significant part of the work day without complaint and immediately complained upon
sustaining the injury. Her co-worker had not observed any disability or evidence of
traumatic injury prior to Ms. Ward’s complaint, but immediately observed that Ms.
Ward’s hand and wrist had begun to swell. Ms. Ward immediately reported the
accident to her supervisor, who also testified that she observed an abrasion on, and
swelling of, Ms. Ward’s hand. Both specialists who treated her testified that Ms.
12 Ward had sustained a traumatic injury to her hand. The comparative negligence of
an employee does not play any part in a workers’ compensation claim and, therefore,
the mechanics of how the accident occurred, other than for credibility purposes as
argued by Iberia Medical herein, are less important than the mere fact that an accident
occurred.
With the exception of the surveillance video, the WCJ made no mention of
the other inconsistencies complained of by Iberia Medical. Apparently, the WCJ
found that either these inconsistences were adequately explained away by Ms. Ward,
or they were not relevant to the accident or forfeiture issues. While we might have
reached a different conclusion concerning Ms. Ward’s credibility given the
inconsistencies, we find no error in the WCJ’s opposite conclusion in that regard.
Assuming for purposes of argument that the inconsistencies were not adequately
explained away by Ms. Ward, we do note that all except her criminal history relate
to Ms. Ward’s attempt to obtain her job in the first place and, except for the
credibility issue, do not relate to her workers’ compensation claim. Even her
inconsistent criminal history statements relate only to credibility.
The one credibility issue that does relate to Ms. Ward’s workers’ compensation
claim is the surveillance video. Despite maintaining surveillance of Ms. Ward for a
period of almost six months4 beginning in March of 2006, the most Iberia Medical
could produce was an approximate ten minute segment taken on July 13, 2006 and
July 24, 2006, revealing her performing minimal activities and not wearing her
4 The WCJ erroneously concluded in his reasons for judgment that surveillance had begun in March of 2005, not March of 2006. However, this error does not change the WCJ’s characterization of the video.
13 compression glove.5 While obviously impressive to Drs. Yerger and Cenac, the WCJ
found the video to be less than convincing. We find no error in the WCJ’s conclusion
in this regard. See Fabre v. ICF Kaiser Int’l, 01-2734 (La.App. 1 Cir. 11/8/02), 835
So.2d 724. Reaching that conclusion, it follows that we find no error in the WCJ’s
conclusion that Ms. Ward sustained a work-related injury and that Iberia Medical
failed to establish that Ms. Ward willfully made false statements for the purpose of
obtaining workers’ compensation benefits and would, thus, have forfeited her right
to receive benefits pursuant to La.R.S. 23:1208(E).
Assignment of Error Number II
In this assignment of error, Iberia Medical argues that the WCJ erred in
reinstating Ms. Ward TTD benefits as of September 6, 2006, when both Drs. Cenac
and Yerger testified that she was at maximum medical improvement (MMI), and she
failed to present any medical evidence contradicting these opinions.
An employee who proves, by clear and convincing evidence, unaided by any
presumption of disability, that they are physically unable to engage in any
employment as a result of a work-related injury will be awarded TTD benefits.
La.R.S. 23:1221(1). Disability can be proven by both medical and lay testimony, and
the WCJ must weigh all of the evidence in order to determine whether the employee
has satisfied her burden of proof. Jack v. Prairie Cajun Seafood Wholesale, 07-102
(La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 07-2388 (La. 2/15/08), 976
So.2d 178. Whether the employee has proven disability is a factual determination
that is subject to a manifest error analysis. Id.
5 During her August 2, 2006 appointment with Dr. Yerger, Ms. Ward wore a compression glove on her left hand, complained of pain while making a fist and with flexion and extension of her fingers and wrist, and complained of significant pain upon light palpation of her hand.
14 Ms. Ward testified that she suffers from hand symptoms a majority of the time,
and that her hand is very sensitive to hot and cold temperatures. Following her
accident, she began wearing a compression stocking glove, but was told by her
physical therapist that she did not have to wear it all the time. In fact, she claimed
that sometimes wearing the glove makes her hand hurt worse.
According to Ms. Ward, since injuring her hand, much of her daily activity is
hindered because of the limitation of use of her left hand. While she used to work in
the kitchen, she now has difficulties because she cannot handle pots or dishes with
her left hand. At best, she can carry a saucer-sized plate with her left hand. Ms.
Ward further testified that she is able to carry a broom, a cup of coffee, and a
newspaper, as was shown in the surveillance video. However, she explained that she
was encouraged by both Dr. Cenac and her physical therapist to use her hand as much
as possible. She stated that she is not capable of performing her position with Iberia
Medical because she cannot carry a tray with her left hand and she felt that the heat
from the tray would affect her hand.
Ms. Ward also called as a witness Sheila Jacquette, a life-long friend who had
grown up with her. Ms. Jacquette testified that between childhood and late 2007, she
had no contact with Ms. Ward, but became reacquainted after she found that Ms.
Ward had moved into the same neighborhood following Hurricane Katrina. Since
their reacquaintance, Ms. Jacquette testified that she has heard Ms. Ward complain
of being unable to carry heavy items with her left hand and that her hand is
susceptible to hot and cold temperatures. She stated that she actually saw Ms. Ward’s
left hand swell up on one occasion when Ms. Ward was sitting in a car. Ms. Jacquette
testified that she has also seen Ms. Ward shake her hand and complain of stiffness or
15 discomfort in her fingers, and she observed Ms. Ward wearing a compression glove
on several occasions.
In this instance, both Drs. Cenac’s and Yerger’s determination that Ms. Ward
had reached MMI and was capable of returning to work was based on the surveillance
video and not on an actual physical examination of her hand. Prior to viewing the
video, both doctors had restricted Ms. Ward from working. On June 16, 2006, Dr.
Cenac noted that Ms. Ward was complaining of continuing swelling in the dorsum
of her hand, which caused problems with the flexibility of her hand and the
movement of her fingers. Dr. Cenac, based on the fact that Ms. Wards’ condition had
not improved over time, ordered an EMG and nerve conduction test to determine if
she was suffering from reflex sympathetic dystrophy. He restricted her from working.
On April 18, 2007, he ordered a triple phase bone scan in order to definitively
diagnose her condition. Neither of these tests were conducted.
Dr. Yerger examined Ms. Ward only once, on August 2, 2006. At that time,
she complained of pain in her left hand and wrist, numbness in her left long finger,
and swelling within her hand and wrist. She stated that her hand felt cool to the touch
and was hypersensitive to light touch. On exam, Dr. Yerger noted that Ms. Ward
seemed to lack terminal flexion of the PIP and DIP joint of the fingers when making
a fist with her left hand. She complained of pain along the dorsal aspect of the wrist
and hand while making a fist. Dr. Yerger noted a decrease in the light touch in the
tip of the long finger as compared to the other four fingers of her left hand, decreased
skin turgor on the left hand and wrist, and the skin of her left hand was duskier in
appearance, paler, and cooler to touch than her right hand. Based on his examination
and a review of her medical records, Dr. Yerger felt that Ms. Ward had developed a
16 complex regional pain syndrome in her left hand and wrist, which he stated was
another name for reflex sympathetic dystrophy.
Unfortunately, both Dr. Cenac’s and Dr. Yerger’s medical impartiality has been
compromised as a result of viewing Iberia Medical’s surveillance video. As of the
October 15, 2008 trial date, no further medical examination of Ms. Ward had been
conducted. Thus, we have no evidence concerning her physical condition past April
18, 2006.
After reviewing the record, we find that it was reasonable for the WCJ to find
that Ms. Ward was entitled to TTD benefits as a result of this injury. This is based
on the fact that Dr. Cenac found objective signs of swelling in Ms. Ward’s hand on
a couple of occasions and because he emphasized the fact that Dr. Smith found the
swelling significant enough to refer Ms. Ward to him for a consultation. Moreover,
until he viewed the surveillance video, Dr. Yerger concurred with Dr. Cenac’s
findings and recommended that Ms. Ward undergo evaluation by a pain management
specialist.
Our difficulty lies in the fact that we are now approximately three years and
eight months post-injury and two years and seven months past the last examination
of Ms. Ward’s hand. However, barring any evidence to the contrary, we find that Ms.
Ward is entitled to TTD benefits for eighteen months past February 3, 2006. This
period of time accords with Dr. Cenac’s testimony that this condition only lasts an
average of eighteen months. Should Ms. Ward be able to prove otherwise, she is
entitled to revisit this issue before the WCJ. Accordingly, the judgment of the WCJ
is amended to reduce the period of time Ms. Ward is entitled to TTD benefits to
eighteen months past February 3, 2006.
17 Assignments of Error Numbers III and IV
In these assignments of error, Iberia Medical asserts that the WCJ erred in
concluding that it was arbitrary and capricious and in awarding Ms. Ward penalties
and attorney fees pursuant to La.R.S. 23:1201(1) based on the termination of her
benefits. Specifically, Iberia Medical asserts that it acted pursuant to medical
opinions that “[Ms.] Ward had misrepresented her physical and medical condition and
was capable of returning to work prior to [the date it ceased paying benefits] and
there was no medical opinion or testimony that [Ms.] Ward was not capable of
returning to work after that date.”
In making this argument, Iberia Medical ignores the fact that the medical
opinions relied upon to terminate Ms. Ward’s benefits were based on its own
surveillance video and not any medical evaluation. Additionally, in considering
Iberia Medical’s attitude toward Ms. Ward’s claim from the beginning, we note that
she was never paid disability benefits for the week of February 6 through 10, 2006,
and Iberia Medical instituted surveillance activities less than one month after the
accident without any evidence to suggest Ms. Ward did not sustain a work-related
injury. In other words, Iberia Medical seems to have immediately begun a campaign
to terminate Ms. Ward’s benefits without any basis for such a campaign. We find no
merit in this assignment of error.
DISPOSITION
For the foregoing reasons, we amend the judgment of the WCJ to reduce the
period of time Ms. Ward is entitled to TTD benefits to eighteen months past February
3, 2006. We affirm the judgment in all other respects. We render judgment in favor
of Wendy Ward and against Iberia Medical Center in the amount of $5,000.00 as
18 attorney fees for the prosecution of this appeal. We assess all costs of this litigation
to Iberia Medical Center.