Carriere v. Patient's Care Med. Supply
| Decision Date | 27 November 2013 |
| Docket Number | No. 13–580.,13–580. |
| Citation | 127 So.3d 115 |
| Parties | John CARRIERE v. PATIENT'S CARE MEDICAL SUPPLY. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Michael B. Miller, Miller & Miller, Crowley, Louisiana, for Plaintiff/Appellant, John Carriere.
Mark A. Ackal, Mark A. Ackal & Associate, Lafayette, Louisiana, for Defendant/Appellee, Patient's Care Medical Supply.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
The plaintiff, John Carriere, appeals from a judgment rendered by the workers' compensation judge (WCJ) finding that although he suffered an injury-producing accident in the course and scope of his employment with Patient's Care Medical Supply (PCMS), he was not entitled to receive any indemnity benefits or medical treatment, including physical therapy, after September 16, 2011. For the following reasons, we affirm in part, vacate in part, and remand.
Carriere began working for PCMS in March of 2011 as a driver and deliveryman of medical supplies and equipment. On Thursday, July 14, 2011, he and co-worker, Quy Kim, were replacing a customer's recliner/lift chair. Carriere testified that they had to move the old chair from the customer's living room to make space for the new chair. When they were about half way to the curb, they dropped the old chair because it was “very heavy” and he felt a “pull” in his lower back. They pushed the chair the rest of the way to the street with their feet. Carriere continued working that day, and he worked as usual the next day without mentioning the incident to his employer. However, after suffering increased pain over the weekend, Carriere notified PCMS of his injury on the following Monday, along with his intent to avoid returning to work until he could be examined by Dr. John Cobb, an orthopedic surgeon. PCMS opened a workers' compensation claim on Carriere's behalf at the time and began paying him weekly indemnity and medical benefits.
Dr. Cobb diagnosed Carriere with post-traumatic lumbar pain syndrome. He recommended that Carriere attend physical therapy and placed him on no-work status for one month. Dr. Cobb released Carriere to light duty on August 24, 2011. After returning to work for three weeks at light duty, Carriere called Dr. Cobb's office to report that he was unable to complete his job duties due to increased pain. Dr. Cobb placed Carriere back on no-work status on September 16, 2011, and PCMS reinstated Carriere's indemnity benefits at that time. Carriere had not returned to any employment when this matter went to trial on September 16, 2012.
Carriere filed a 1008 Disputed Claim for Compensation (1008) against PCMS in December of 2011, seeking an increase in his workers' compensation rate, authorization for continued physical therapy, and penalties and attorney fees for PCMS's improper payment of benefits and denial of medical treatment.
Following a trial, the WCJ rendered judgment, finding that Carriere was injured in a workplace accident in the course and scope of his employment with PCMS on July 14, 2011. She found, however, that because Carriere failed to prove that he suffered a continuing disability that rendered him unable to work and earn 90% of his pre-injury wages after September 16, 2011, PCMS was entitled to a credit for all indemnity benefits paid to Carriere after that date. The WCJ furtherdetermined that Carriere was not entitled to future medical treatment and that additional physical therapy was no longer medically necessary. Finally, Carriere was awarded a $2,000.00 penalty and $2,000.00 in attorney fees for PCMS's miscalculation of his average weekly wage. Carriere now appeals.
Carriere asserts that the WCJ erred:
1) in failing to award any weekly indemnity benefits and in awarding PCMS a credit against all indemnity benefits paid after September 16, 2011;
2) in finding that additional physical therapy ordered by Dr. Cobb was not medically necessary and in denying a penalty under La.R.S. 23:1201(F) for PCMS's denial of physical therapy;
3) in finding that Carriere was not entitled to further medical treatment;
4) in excluding a copy of the check stubs Carriere received from commissions paid to him by PCMS;
5) in finding that the average weekly wage was $469.86 and the workers' compensation rate was $313.26;
6) in only awarding $2,000.00 in attorney fees and in limiting the attorney fees based on the penalties upon which Carriere prevailed at trial; and
7) in failing to award any expenses.
Carriere further submits that because the WCJ committed several legal errors, a de novo review is proper.
Carriere asserts that the WCJ committed legal error: 1) in relying upon documents that had previously been excluded from evidence when rendering its decision in this matter; 2) in failing to exclude a letter written by him to his supervisor which was neither authenticated by him nor furnished to him prior to trial; and 3) in finding that the sedentary work offered to him by PCMS did not have to be approved by his treating physician. Based on those alleged errors, Carriere contends that this court should conduct a de novo review of the record rather than the manifest error/clearly wrong standard of review normally employed in appellate review of workers' compensation cases.
PCMS counters that while the WCJ did mention the excluded evidence in its ruling, such fleeting reference was nonconsequential given the overwhelming evidence of Carriere's lack of credibility. It further claims that although admitted into evidence, the letter objected to by Carriere was not crucial to the WCJ's ruling and actually bolstered rather than hurt Carriere's claims. Finally, PCMS contends that the WCJ committed no error in ruling that PCMS did not have to present a formal offer of sedentary work to Carriere's physician based on the WCJ's firm belief that Carriere was not credible and that the physician would have approved that work given his prior approval of light-duty work. In sum, citing Russell v. H & H Metal Contractors, Inc., 11–27, p. 8 (La.App. 3 Cir. 6/1/11), 65 So.3d 806, 814, PCMS submits that even if the WCJ committed any erroneous evidentiary rulings, a de novo review is not warranted in this case because such error was not “ ‘serious' and ‘consequential.’ ”
The documents that Carriere refers to in the first part of his argument were offers for sexual conduct that Carriere posted online on September 16, 2011, the same day Dr. Cobb returned him to no-work status. The WCJ found the documents inadmissible because they had not been provided to Carriere's attorney during discovery and because the potential prejudice outweighed the probative value. PCMS then proffered the documents and questioned Carriere about them out of the presence of the WCJ. In its oral ruling, the WCJ made the factual finding that despite his testimony to the contrary, Carriere did call Dr. Cobb's office on September 16, 2011 to request that he be taken off work. It then noted that “his actions of posting ... his interests in sexual activities” on the same day “were inconsistent with someone who is having so much trouble working[ ] that they can't go anymore.” Clearly, the WCJ erred in referring to evidence which it had previously ruled was inadmissible. Nevertheless, we are convinced that such error was not serious or consequential given the WCJ's finding that Carriere was simply not credible, a finding that was expressed several times during the trial and in oral reasons for ruling. See Russell, 65 So.3d 806. De novo review is not warranted on this basis.
The letter that Carriere refers to in the second part of his argument was introduced into evidence while Cindy Artello, PCMS's operations manager, was being questioned in PCMS's case-in-chief. The handwritten letter is dated November 8, 2011; it is addressed to “Ashley” 1 and signed “John.” According to the letter, Carriere was “still in pain off and on [,] sometimes worse days than others.” The letter referred to a “no-work” status from an interim doctor that Carriere had seen the day before and explained that the doctor was going to give him spinal injections to try to alleviate his pain. In allowing the letter into evidence, the WCJ stated that it did not think that the letter was the “type of statement covered by” La.R.S. 13:3732.2 In the absence of any case law interpreting that statute to the contrary, we conclude that the WCJ did not err in allowing the November 8, 2011 letter into evidence. Moreover, any error that the WCJ made in admitting the letter was harmless given the fact that the letter lends support to Carriere's claim that he was still experiencing pain when it was written.
Carriere next contends that de novo review is warranted because the WCJ ruled that his treating physician did not have to approve the sedentary job allegedly offered to him by PCMS. As Carriere acknowledges in his appellant brief, this court has held that “physician approval ... is not required for the employer to meet its burden” that it offered a claimant a suitable job. City of Jennings v. Doucet, 03–1099, p. 4 (La.App. 3 Cir. 2/4/04), 865 So.2d 1056, 1059–60. In the instant case, the WCJ found that PCMS offered Carriere a job “he was capable of doing[;] that was within his geographical area and within his physical restrictions.” The WCJ stated that it “ha[d] no question that the doctor would have approved sedentary duty had it been presented to him,” and that “any reluctance on the doctor's part to do that ... would have been based solely on Mr. Carriere's complaints which ... I don't find completely credible.” Given the law and the particular facts in this matter, we cannot say that the WCJ erred in finding that PCMS did not have to get physician approval for the sedentary job it offered to Carriere.
Because we have found no merit to Carriere's arguments that de novo review is proper, we will...
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