Alexander v. Roy O. Martin Lumber Co.

• Decision Date: 09 May 2001
• Docket Number: No. 00-1344.,00-1344.
• Parties: Fuleasha ALEXANDER v. ROY O. MARTIN LUMBER COMPANY As Managing Partner of Martco.
• Court: Court of Appeal of Louisiana — District of US

784 So.2d 872

Fuleasha ALEXANDER v. ROY O. MARTIN LUMBER COMPANY As Managing Partner of Martco.

No. 00-1344.

Court of Appeal of Louisiana, Third Circuit.

May 9, 2001.

COPYRIGHT MATERIAL OMITTED

George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, Counsel for Appellee: Fuleasha Alexander.

Karen Julian King, Borne, Wilkes & Brady, Lafayette, LA, Counsel for Appellant: Roy O. Martin Lumber Company as Managing Partner of Martco.

Court composed of DOUCET, Chief Judge, THIBODEAUX, DECUIR, PETERS and AMY, Judges.

DOUCET, Chief Judge.

Roy O. Martin Lumber Company (Martco) appeals a judgment of the Office of Workers' Compensation (OWC) in favor of Claimant, Fuleasha Alexander, ordering it to provide vocational rehabilitation services to Claimant while she recovers from a work-related injury, plus penalties and attorney's fees for the employer's arbitrary discontinuance of vocational rehabilitation services and for its failing to timely approve recommended arthroscopic knee surgery. The employee answered the appeal requesting additional attorney's fees for the work necessitated by this appeal. We affirm the judgment of the OWC and award additional attorney's fees of $3,500.00.

FACTS

On September 11, 1997, Fuleasha Alexander was working as a shipping clerk for Roy 0. Martin Lumber Company (Martco) in Chopin, Louisiana, when a forklift backed into her, causing severe injuries to her right leg and foot. As a result of the accident, Ms. Alexander has undergone reconstructive surgery and plastic surgery on her right leg.

From the date of the accident, Martco provided Ms. Alexander with medical and total temporary disability (TTD) benefits. Thereafter, in February of 1998, Martco contacted Jus Mar Rehabilitation Services (Jus-Mar) to begin providing vocational rehabilitation services to Ms. Alexander. The record indicates that beginning in March of 1998, Mark Cheairs, the vocational rehabilitation consultant handling Ms. Alexander's file, began attempting to schedule appointments with Ms. Alexander and her attorney to conduct an initial vocational evaluation. Mr. Cheairs also began monitoring Ms. Alexander's scheduled appointments with her treating plastic surgeon, Dr. Seluck Sozen; her first orthopedic surgeon, Dr. Vanda Davidson; and with her treating orthopedic surgeon, Dr. Baer Rambach.

Although Mr. Cheairs did meet with Ms. Alexander and her attorney's secretary at a rehabilitation conference with Dr. Sozen in June of 1998, the parties were unable to coordinate a subsequent meeting in order to conduct the initial vocational evaluation. However, the record reveals that Mr. Cheairs sent numerous functional capacity evaluation (FCE) forms to Dr. Rambach in an attempt to determine her physical work limitations so that he could begin seeking employment opportunities for her.

Following his December 22, 1998, physical exam of Ms. Alexander, Dr. Rambach indicated on a FCE form that Ms. Alexander was neither homebound nor bedridden and listed her physical restrictions as standing and walking for twenty minutes at a time for a total of two to three hours per day; sitting one hour at a time for a total of four hours a day; and driving for thirty minutes at a time for a total of one hour per day.

Mr. Cheairs reviewed Dr. Rambach's report and decided he should meet with Martco's corporate manger of insurance, Terry Garrett, to discuss returning Ms. Alexander to work in a modified job position at Martco. In February of 1999, Martco offered Ms. Alexander a sedentary clerical position at the mill.

After attempting the job for several days, she indicated to her attorney, who, in turn, sent correspondence to Martco explaining that Ms. Alexander was having problems with her leg injury as a result of her work at the mill. Specifically, he explained that Ms. Alexander was having problems due to the length of time she spent driving from her home to the mill and having to walk up two flights of stairs to get to her work site within the mill. Ms. Alexander also stated that she was emotionally upset from having to work around forklifts again.

Ms. Alexander scheduled an appointment with Dr. Rambach for March 1, 1999, to reevaluate her physical abilities in light of her recent attempt to return to work. In his report of that examination, Dr. Rambach noted that Ms. Alexander presented with "increasing severe pain and discomfort in her right knee." He indicated that there was "exquisite tenderness palpable over the anterior aspect and particularly over the patella tendon which is exquisitely tender." Dr. Rambach suggested that Ms. Alexander be taken off the job because he did not believe she was able to drive the distance to and from work nor was she able to negotiate the required two flights of stairs. Dr. Rambach stated that he could not say when she would be able to return to work.

In an attempt to accommodate Ms. Alexander further, Martco offered to move the clerical position to the ground floor of its administrative building. However, since the driving element of the job was still present, Ms. Alexander did not attempt to return to Martco. At this point, Jus-Mar placed Ms. Alexander's file on hold until further notice from Martco.

On August 24, 1999, Ms. Alexander filed a Workers' Compensation 1008 Disputed Claim Form asserting that she was entitled to penalties and attorney's fees due to Martco's alleged "failure to pay medical and retraining expenses" and for "discontinuance of voc-rehab." Ms. Alexander alleged that from March until August, Martco had failed to offer any vocational rehabilitation services to her. Additionally, Ms. Alexander had begun taking classes at Northwestern State University in the Fall of 1998, and she alleged that Martco was obligated to pay her college tuition, books, and travel expenses, claiming that these expenses were necessary retraining expenses as a part of her vocational rehabilitation.

During the pendency of Ms. Alexander's claim, Jus Mar sent a letter to Ms. Alexander on November 20, 1999, suggesting that she apply at the job placement office at Northwestern State University, which she did. Next, Mr. Cheairs conducted a labor market survey in Natchitoches to see if there was sedentary work available in that area that would be applicable to Ms. Alexander's vocational profile and would entail a limited amount of driving. By December 14, 1999, Mr. Cheairs had identified four sedentary job possibilities in the Natchitoches area and forwarded the job analyses to Ms. Alexander and to Dr. Rambach for his approval. Mr. Cheairs testified that he never received a response from either person regarding the acceptability of the job possibilities, and, thus, he again placed Ms. Alexander's case on hold until further notice.

Dr. Rambach testified that he found it to be useless to review the job analyses at that time because he had determined after Ms. Alexander's examination on October 15, 1999, that the pain in her knee had worsened throughout the year which had limited her physical ability to perform essentially any sedentary work. Moreover, Dr. Rambach stated that due to Ms. Alexander's increase in pain, he recommended that she undergo arthroscopic surgery on her knee. Thus, he stated that he would reserve any recommendation for work until after the surgery was complete.

Upon receiving Dr. Rambach's recommendation for surgery, Martco requested a second opinion and scheduled an appointment for Ms. Alexander to be examined by a second orthopedic surgeon, Dr. David Pope. While the appointment was originally scheduled for January 10, 2000, it did not take place until January 24, due to a delay in the forwarding of Ms. Alexander's medical records from Dr. Rambach's office to Dr. Pope. Nevertheless, after his examination, Dr. Pope concurred in Dr. Rambach's recommendation for surgery, and it was eventually authorized by Martco on February 16, 2000.

A hearing on Ms. Alexander's workers' compensation claim was scheduled for May 23, 2000. In her pretrial statement to the OWC, Ms. Alexander reasserted the claims she had originally listed in the 1008 Disputed Claim Form for retraining expenses and for sanctions and attorney's fees arising out of Martco's discontinuance of vocational rehabilitation services. Ms. Alexander also added a claim for penalties and attorney's fees due to Martco's alleged failure to timely authorize Ms. Alexander's requested knee surgery.

In response, Martco contended in its pretrial statement that all workers' compensation benefits had been paid timely and that all medical treatment had been furnished to Ms. Alexander within the time allowable by law, and, thus, it was not responsible for penalties and attorney's fees arising out of these claims. Additionally, it asserted that Ms. Alexander was no longer entitled to TTD benefits and that she had failed to cooperate with the vocational rehabilitation efforts provided by Martco.

Prior to the hearing on the merits, Martco filed a motion for summary judgment as to Ms. Alexander's claim that she was entitled to college tuition and related costs as retraining expenses. The workers' compensation judge (WCJ) agreed with Martco and granted the summary judgment dismissing that specific claim. The remaining disputed issues were heard on May 23, 2000. On June 1, the WCJ signed a written judgment ordering Martco to provide vocational rehabilitation services to Ms. Alexander; awarded $2,000.00 in attorney's fees for the discontinuance of vocational rehabilitation, $2,000.00 in penalties and $2,000.00 in attorney's fees for Martco's failure to timely authorize surgery; and $250.00 in penalties and $750.00 in attorney's fees for Martco's failure to timely provide Ms. Alexander with Dr. Pope's written medical report of his examination of Ms. Alexander.

Martco appealed the judgment assigning error to all findings of the WCJ as well as his failure to reduce Ms. Alexander's TTD benefits. Ms. Alexander appealed asserting a claim...