Conner v. Bridgefield Cas. Ins. Co.

• Decision Date: 09 December 2015
• Docket Number: No. 15–621.,15–621.
• Citation: 185 So. 3d 754
• Parties: Bonnie CONNER v. BRIDGEFIELD CASUALTY INSURANCE COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

185 So.3d 754

Bonnie CONNER

v.BRIDGEFIELD CASUALTY INSURANCE COMPANY, et al.

No. 15–621.

Court of Appeal of Louisiana, Third Circuit.

Dec. 9, 2015.

Rehearing Denied March 23, 2016.

Michael B. Miller, Jacqueline B. Manecke, Miller & Associates, Crowley, LA, for Plaintiff/Appellee, Bonnie Conner.

Matthew W. Tierney, Tierney and Smiley, LLC, Baton Rouge, LA, for Defendants/Appellants, Jennings American Legion Hospital Bridgefield Casualty Insurance Company.

Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.

PETERS, Judge.

The defendants in this workers' compensation matter are Jennings American Legion Hospital (Jennings Hospital) and its workers' compensation insurer, Bridgefield Casualty Insurance Company(Bridgefield Insurance).¹They appeal the judgment of the workers' compensation judge (WCJ) awarding the plaintiff, Bonnie Conner, workers' compensation benefits, penalties, attorney fees, and expenses associated with a September 4, 2010 accident.For the following reasons, we amend the WCJ judgment to decrease the expenses awarded to Ms. Conner from $2,247.25 to $419.26; affirm the judgment as amended; and render judgment awarding Ms. Conner $5,000.00 in attorney fees for work performed by her counsel on appeal.

DISCUSSION OF THE RECORD

On Saturday, September 4, 2010, Ms. Conner slipped on a wet floor while mopping an operating room.She immediately felt pain in her left leg from the thigh to the knee, immediately reported the accident, and was provided immediate medical attention by Jennings Hospital.The initial diagnosis was that Ms. Conner sustained a strained left hamstring.However, when her symptoms persisted, she was seen by Dr. Michael R. Holland, a Jennings, Louisiana orthopedic surgeon, who subsequently performed a left total knee replacement.Thereafter, when Ms. Conner later related her back and right knee pain to the accident, he refused to treat her for those complaints on the basis that they were not related to the initial injury.Finding that Ms. Conner had reached maximum medical improvement (MMI) for the left knee injury, Dr. Holland discharged her as a patient on March 22, 2012.At the time he discharged her from his care, he was of the opinion that she was capable of returning to work, but only in a sedentary capacity.

Ms. Conner then came under the care of Dr. Louis Blanda, a Lafayette, Louisiana orthopedic surgeon.Dr. Blanda concluded that Ms. Conner's back and right knee pain was caused by the accident of September 4, 2010, but Bridgefield Insurance initially limited his treatment authorization to her left knee.In June of 2012, Dr. Blanda concluded that Ms. Conner had reached MMI for the left knee, but that the knee replacement procedure resulted in a fifty percent impairment of the left leg.This impairment by itself, according to Dr. Blanda, limited Ms. Conner to sedentary work.

Dr. Blanda ultimately received authorization to evaluate and treat Ms. Conner's back and right knee complaints.X-rays of the right knee taken pursuant to that authorization, revealed a moderate degree of arthritic change in her knee's three compartments; x-rays of her lower back demonstrated diffuse degenerative changes, but no focal abnormalities.Dr. Blanda drained Ms. Conner's right knee and injected it with a steroid.At the time of trial, he had yet to obtain authorization for a lumbar MRI.

Jennings Hospital and Bridgefield Insurance (sometimes collectively referred to as "the defendants") initially paid weekly compensation benefits to Ms. Conner and paid for her medical treatment through Dr. Holland's discharge of her as a patient.However, once it became clear that the defendants were not going to recognize her back and right knee complaints as compensable, Ms. Conner filed a disputed claim for compensation asserting that they failed to authorize treatment by her choice of orthopedic surgeon; and for that failure, she sought penalties and attorney fees, together with legal interest on all amounts due.The defendants answered the claim, arguing that they had provided Ms. Conner with all of the workers' compensation benefits she was entitled to by law.

Subsequently, Ms. Conner filed a motion for partial summary judgment, seeking recognition that she suffered injuries to both knees and her lower back as a result of her September 4, 2010 work-related accident; and that she was entitled to $8,000.00 in penalties pursuant to La.R.S. 23:1201(F) and an award of attorney fees.The WCJ rendered a summary judgment finding that Ms. Conner sustained an injury while in the course and scope of her employment with Jennings Hospital on September 4, 2010, but denied summary judgment relief on the issues of causation, penalties, and attorney fees.

At the beginning of the trial on the merits, Jennings Hospital acknowledged its employer status; Bridgefield Insurance acknowledged its status as Jennings Hospital's workers' compensation insurer; and Ms. Conner acknowledged that she had received weekly compensation benefits at the rate of $204.83 per week since the accident.Upon completion of the evidentiary phase of the trial, the WCJ took the matter under advisement.On April 6, 2015, the WCJ rendered both a written judgment and written reasons for judgment, finding that Ms. Conner was entitled to supplemental earnings benefits (SEBs) calculated at zero earnings; her lower back and right knee complaints were causally related to her September 4, 2010 work-related accident; and she was entitled to $8,000.00 in penalties based on the defendants' failure to timely reimburse her mileage on four separate occasions.The WCJ also awarded Ms. Conner $22,925.00 in attorney fees and $2,247.25 in expenses.

The defendants perfected this appeal from the judgment, raising three assignments of error:

1.The trial court was manifestly erroneous in finding that the Appellee's back condition and right knee are causally related to the work accident and compensable;

2.The trial court abused its discretion in awarding excessive attorney fees and costs; and

3.The trial court erred in relying on improper evidence and refusing to allow counsel to question opposing counsel as to attorney fee submission.

Ms. Conner answered the defendants' appeal, arguing that the WCJ legally erred by not awarding her legal interest on all amounts awarded by the judgment.She further requested additional attorney fees for work performed by her counsel in defending this appeal.

OPINION

It is well settled that the factual findings of a WCJ are reviewed pursuant to the manifest error standard of review.Bourque v. Transit Mix/Trinity Ind., 13–1390(La.App. 3 Cir.4/1/15), 162 So.3d 690.

In Tate v. Cabot Corp., 01–1652, pp. 5–6(La.App. 3 Cir.7/3/02), 824 So.2d 456, 461(alteration in original), writ denied, 02–2150 (La.11/22/02), 829 So.2d 1044, as recently quoted in Turner v. Lexington House, 14–1264, p. 5–6(La.App. 3 Cir.4/15/15), 176 So.3d 1071, 1077, writ denied, 15–952 (La.8/28/15), 176 So.3d 405, this court stated:

Because an employer takes his employee as he finds him, a preexisting condition does not prevent recovery through workers' compensation.Curtis v. Wet Solutions, Inc., 98–789 (La.App. 3 Cir. 12/9/98);722 So.2d 421.Aggravation of a preexisting injury may constitute a disabling injury when, for example, the plaintiff begins to suffer new symptoms after the second workplace accident.Howell v. Service MerchandiseCo., Inc., 95–79 (La.App. 3 Cir. 8/9/95);663 So.2d 96.To be compensable, the aggravation of a preexisting injury must result from an identifiable and discernable incident.City of Eunice v. Credeur, 99–302 (La.App. 3 Cir.10/13/99);746 So.2d 146, writ granted in part, judgment vacated in part, 99–3249 (La.1/28/00);753 So.2d 226.Moreover, there must be a causal link between the aggravation and a work related incident.As we have recently explained,

[a] pre-existing disease or infirmity does not disqualify the claimant from receiving benefits if the workplace accident aggravated, accelerated, or combined with the disease to produce the disability for which compensation is claimed.Thus, the element of causation is satisfied if the employee's work-related accident was a factor in bringing about the employee's disabled status.Whether a causal relationship exists between the disability and the employment is a question of fact.The hearing officer's determination in this regard cannot be reversed unless it is manifestly erroneous based on examination of the record as a whole.

The employee's workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition.Once an employee establishes the presumption of a causal relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.

Rideaux v. Franklin Nursing Home, 95–240, p. 5(La.App. 3 Cir.11/22/95);664 So.2d 750, 755, writ denied, 95–3093 (La.2/16/96);667 So.2d 1058(citations omitted).In Rideaux,we went on to explain that "[t]he presumption of causation may attach to a claimant who exhibited symptoms of her allegedly disabling illness in the distant past provided that she had suffered no such symptoms immediately prior to her workplace accident."Id. at 756.

This is an extremely fact-intensive matter, but most of the facts are not in dispute.The dispute is primarily over the interpretation of the medical evidence.

Post–Accident Factual and Medical History

After the accident occurred, Ms. Conner immediately reported it to her supervisor and was escorted to Jennings Hospital's emergency room for evaluation and treatment.The physician on duty in the...