96 0263 La.App. 1 Cir. 11/8/96, Washington v. Lyons Specialty Co.

• Decision Date: 08 November 1996
• Citation: 683 So.2d 367
• Parties: 96 0263 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 367

683 So.2d 367

96 0263 La.App. 1 Cir. 11/8/96

Derrick D. WASHINGTON v.LYON'S ¹ SPECIALTY COMPANY.

No. 96 CA 0263.

Court of Appeal of Louisiana First Circuit.

Nov. 8, 1996.

Writ Denied Jan. 31, 1997.

Paul Matzen, Baton Rouge, for Plaintiff/Appellee, Derrick D. Washington.

Michael L. Hyman, Baton Rouge, for Defendant/Appellant, Lyons Specialty Co., Inc.

Before WATKINS, KUHN and GUIDRY, JJ.²

[96 0263 La.App. 1 Cir. 2] GUIDRY, Judge.

Defendant, Lyons Specialty Co., Inc., ("Lyons"), appeals from the decision of a workers' compensation hearing officer holding it liable for payment of supplemental earnings benefits ("SEB") to plaintiff, Derrick Washington("Washington").The decision also assessed Lyons with penalties and attorney's fees for arbitrary and capricious conduct and the failure to timely respond to discovery; with costs, including an expert witness fee; and with responsibility for payment of certain medical expenses, including the cost of a work hardening program for Washington.

FACTS

Washington was working in the course and scope of his employment with Lyons on April 21, 1994, when he injured his back, neck and ankle during a fall.Lyons sent him to see Dr. D.J. Scimeca who diagnosed a thoracic muscle strain.Because Washington's complaints of pain continued, Dr. Scimeca referred Washington to Dr. Stephen Wilson, an orthopedist with the Bone and Joint Clinic.

Dr. Wilson first examined Washington on May 10, 1994, and gave him an injection in his back for the pain.Dr. Wilson gave Washington another injection on May 17, 1994.At the next visit on May 20, 1994, Dr. Wilson released Washington to return to work on Monday, May 23, 1994.Washington became dissatisfied with Dr. Wilson's treatment and made an appointment with Dr. Lawrence J. Messina, also with the Bone and Joint Clinic.Dr. Messina examined Washington on June 7, 1994, and concluded that he could return to work in a couple of days.Lyons paid for the visits with Dr. Scimeca, Dr. Wilson and Dr. Messina.

Washington returned to work on June 10, 1994; however, he injured his back again on June 15, 1994, while lifting a box of candy.He received treatment by his family physician, Dr. Lon A. Boucvalt, the day after the second accident.³Dr. Boucvalt released Washington to return to work on June 20, 1994.

Washington contacted his attorney and was sent to the Metropolitan Health Group ("Metro") for treatment.His was first seen at Metro on June 23, 1994, by Dr. Arthur A. [960263 La.App. 1 Cir. 3] Mauterer, a general practitioner.Dr. Mauterer recommended Washington refrain from working until the next evaluation which was on July 21, 1994, with Dr. Gerdes.Dr. Gerdes continued the no-work restriction through two more visits, the last of which occurred on September 15, 1994.

In the meantime, Lyons sent Washington to see Dr. Wilson on August 3, 1994.After this visit, Dr. Wilson found no reason for Washington's continued complaints, and released him to continue his regular activities.

An independent medical examination ("IME") was conducted by Dr. W. Joseph Laughlin on October 5, 1994.Dr. Laughlin ordered an MRI to ensure nothing was wrong with Washington's back, as he could find no objective reason for the complaints.The MRI was conducted in January 1995 in New Orleans and the results were normal.

Prior to this time, Washington had returned to light duty work during the week of September 26, 1994, earning the same hourly rate of pay as he earned before the accident.However, he only averaged between two and four hours of work a day because he was in pain.

A functional capacities evaluation ("FCE") was conducted by Pamela Johnson on April 10-11, 1995.After the FCE, Ms. Johnson opined that Washington could return to light duty work for four hours a day with breaks.Ms. Johnson also recommended a work hardening program through which Washington could increase his tolerance to a normal work day.

Washington's expert, Louis Lipinski, a vocational rehabilitation counselor, conducted an on-site job analysis regarding Washington on April 27, 1995.After this analysis of Washington's duties and place of employment, Mr. Lipinski felt that the duties Washington was required to perform were more appropriately classified as medium duty, not light duty.He opined that Washington could work light duty on a frequent basis for four hours a day.When asked how Washington could increase the number of hours worked per day, Mr. Lipinski stated that the lifting requirements would have to decrease, [96 0263 La.App. 1 Cir. 4] support devices would have to be provided to Washington and he would have to participate in a work hardening program.

A hearing was held on May 10 and May 23, 1995.After the presentation of all of the evidence, the hearing officer took the matter under advisement.On September 6, 1995, another hearing was held wherein her decision was recited in open court.A final decision was signed on September 25, 1995.The decision provided as follows:

1.Claimant sustained an accident and injury in the course and scope of employment on 4/21/94 which was subsequently aggravated by another work-related accident on or about 6/14/94.

2.Employer did not authorize treatment with claimant's choice of orthopedist following the initial accident and Claimant is awarded $1,000.00 in penalties and $1,000.00 in attorney's fees for the denial of this right.

3.Claimant's choice of general practitioner was Dr. Lon Boucvalt.Claimant later changed to Metropolitan Health Group without seeking the approval of the Employer or the Court.Claimant is responsible for payment of his appointments with the doctors at Metropolitan Health Group.

4.The physical therapy and treatment provided at Metropolitan Health Group is considered reasonable and necessary and Employer is ordered to pay for and/or reimburse claimant for payment of these expenses.

5.Claimant is capable of performing light duty work for at least three hours per day.He may take as many breaks as needed and Employer is ordered to provide a place for him to rest as necessary.In the event that he is not able to work at least three hours per day, he must communicate this to his supervisor and/or company nurse.

6.Employer is ordered to pay supplemental earnings benefits in the full amount less a credit for those hours actually worked up until May 23, 1995.Following May 23, 1995, Employer may take a credit for three hours per day at Employee's regular hourly rate of pay.

7.Employee's average weekly wage shall be based upon the four weeks prior to April 21, 1994.

8.Employer was arbitrary and capricious in failing to pay supplemental earnings benefits and is assessed with a penalty of $1,500.00 and attorney's fees of $1,500.00.

9.Claimant is entitled to his choice of treating orthopedist.

10.A work hardening program was recommended by Pamela Johnson and is found to be reasonable and necessary.

[96 0263 La.App. 1 Cir. 5] 11.Employer is assessed with all costs of these proceedings, including but not limited to the deposition fees of Dr. Gerdes and Dr. Laughlin and the expert witness fees of Louis Lipinski.

12.Employer failed to promptly answer the discovery requests of the claimant, in particular those concerning his wage records and work duties.Employer is assessed with attorney's fees in the amount of $1,000.00.

Lyons appealed from the decision asserting the following twelve assignments of error:

1.The hearing officer erred in her findings that an employer denied an employee his choice of physician because the employee presented no evidence to support that finding and in fact testified that he chose Dr. Messina.

2.The hearing officer's modification of her oral judgment as rendered in open court was a substantive modification of a final judgment that renders her modification null.

3.The hearing officer erred by finding that Derrick Washington's work realted (sic) injury precluded him from earning 90% or more of his pre-accident average weekly wage and awarding SEB benefits (sic).

4.The hearing officer committed legal error by awarding SEB benefits (sic) post-judgment.

5.The hearing officer erred by awarding penalties and attorneys' fees for the non-production of updated wage records because the records were never requested during the discovery period.

6.The hearing officer committed legal error by not applying the formula set out in La.R.S. 23:1021(10)(a)(i) to calculate the average weekly wage of an hourly employee.

7.The hearing officer erred by ordering Lyons to pay for the Physical Therapy and treatment provided at Metropolitan Health.

8.The hearing officer committed legal error by ordering Lyons to pay for physical therapy that was not performed by a licensed physical therapist.

9.The hearing officer erred by finding that the claimant is entitled to see another orthopaedist.

10.The hearing officer erred by finding the work hardening program was reasonable and necessary.

11.The hearing officer erred by awarding costs to Derrick Washington.

12.The proper appellate standard of review to apply to conclusions of an office of workers' compensation hearing officer is the standard of review found in the Louisiana [960263 La.App. 1 Cir. 6]Administrative Procedure Act and not the Rosell Manifest Error Standard of review (sic) currently being used by Apellate Courts(sic).

STANDARD OF REVIEW

Initially, we will address Lyons' last assignment of error regarding the proper appellate standard of review.Lyons contends that the standard of review set forth in the Louisiana Administrative Procedures Act should govern this court's review of the hearing officer's finding.We disagree.

Louisiana jurisprudence is clear that in a workers' compensation case, as in other cases, the appellate court's review is governed by the manifest error or clearly wrong standard.Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94);630 So.2d 733, 737;Bruno v. Harbert...