Jeanise v. Cannon

• Decision Date: 23 February 2005
• Docket Number: No. 04-1049.,04-1049.
• Citation: 895 So.2d 651
• Parties: Brenda JEANISE v. Tommy CANNON d/b/a Rental World, Inc.
• Court: Louisiana Supreme Court

895 So.2d 651

Brenda JEANISE v. Tommy CANNON d/b/a Rental World, Inc.

No. 04-1049.

Court of Appeal of Louisiana, Third Circuit.

February 23, 2005.

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Michael B. Miller, Crowley, LA, for Plaintiff/Appellee, Brenda Jeanise.

Thomas J. Solari, Woodley, Williams, Law Firm, L.L.C., Lake Charles, LA, for Defendant/Appellant, Tommy Cannon d/b/a Rental World, Inc. and Louisiana Workers' Compensation Corp.

Court composed of Chief Judge ULYSSES GENE THIBODEAUX, MARC T. AMY, ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

Defendant, Tommy Cannon d/b/a Rental World, Inc. (Cannon), appeals the judgment of the Workers' Compensation Judge (WCJ) reinstating workers' compensation and medical benefits of Claimant, Brenda Jeanise, and awarding her penalties and attorney fees. We reverse in part, affirm in part, and render.

FACTS AND PROCEEDINGS BELOW

After the February 4, 2004 hearing on this matter, the WCJ took the case under advisement to examine the medical records and depositions, and to view the video surveillance tape, which was the linchpin of Defendant's case. The tribunal was called back into session on March 15, 2004, and the WCJ issued the following oral reasons for judgment:

This claim originally arose as a result of an accident and an injury sustained by the plaintiff, Brenda Jeanise, on December the 22nd, 19[9]7 while employed by Rental World. There was a previous trial on the merits of this case some three years ago presided over by the late Judge Constance Handy who rendered a judgment on January the 30th, 2001, which, among other things, increased the claimant's weekly indemnity rate and awarded penalties and attorney's fees.

The current matter came before the court on February the 4th, 2004. The claimant asked for penalties and attorney's fees because of the defendant's alleged failure to approve certain injections, failure to pay mileage properly on three separate occasions, and primarily the insurer's termination of all medical and weekly benefits on December 17, 2003. The defendant, on the other hand, insists that the claimant has committed fraud under Louisiana Revised Statute 23:1208. Additionally, the defendant asks for a determination from the court as to whether they are obligated to supply a back brace which was prescribed by the claimant's treating orthopedic surgeon.

The issue upon most — the issue upon which most of the sum [sic] seven hours of live testimony focused was L.W.C.C.'s contention that Ms. Jeanise forfeited all benefits because of her alleged violation of 23: 1208. The defense cited in support of their position their interpretation of a prodigious amount of medical evidence which has been amassed during the more than six years since the date of injury as well as what they perceive to be inconsistent statements and inappropriate behavior by the claimant. The centerpiece of their evidentiary offerings was a video surveillance tape taken to pictorially prove the existence of fraud.

At the close of live testimony, the court went into recess in order to more carefully read the medical reports and to view and review the film. An analysis of the medical records and the video, coupled with an evaluation of the veracity of the live witnesses, forms the basis for the court's opinion which I am rendering today.

The medical reports are all over the map and are less than instructive. They were produced over a six-year period from experts in a wide variety of medical specialties, including but not limited to general practice, neurosurgery, psychiatry, psychology, orthopedic surgery and pain management. Some of the medical experts were hired by the claimant. Some were hired by the defendant and one was appointed.

The dates of the medical opinions range from relatively recent to many years old. They're from a doctor who treated the claimant for one reason or another more than 20 years ago and a physician who saw her only months ago. One orthopedic surgeon considers this woman to be in genuinely — to be genuinely in debilitating pain and another says that she is a malingering, lying fraud, period. One doctor terminated his relationship with her because he suspected she is abusing narcotics. Another expert says that the claimant shows a low probability for drug abuse, and he was adamant that he saw absolutely nothing in her behavior to enhance or even support the defense's claim that the claimant was engaging in symptom magnification. One doctor said her initial injury would have produced an injury which should have resolved itself in a few days. Others opine that it's difficult to see her returning to any gainful employment in the foreseeable future. A functional capacity evaluation produced results which were touted by both the defense and claimant as strong proof of their respective opposing positions. The administrator of the F.C.E. at some length categorized the findings of his study as "equivocal," a term which he attempted, with mixed success, to explain to anybody's satisfaction.

In short, the medical evidence produced a reservoir which contained information, inferences, and opinions which both defense and claimant counsel used to support their respective positions. It is impossible to point to a single medical expert who provided a diagnosis which is clearly dispositive of the issue of fraud.

Now, taking a broad look at the medical picture as a whole, I find the depositions of Dr. Bernauer, Dr. Boutte, Dr. Lew, Dr. Shirley, and Dr. Yadalam all to be consistent in showing that the claimant does indeed have substantial problems, both physically and psychologically. I also note that the I.M.E. physician placed substantial restrictions on Ms. Jeanise. The records of Dr. Perry, the defendant's physician who was the most adamant about Ms. Jeanise's commission of fraud, all predate the first trial in this matter which was held years ago.

Dr. Yadalam, a psychiatrist to whom the patient was referred by her pain management physician, treated the patient for about five years; and he seemed to be conversant with her and he was unwavering in his assessment that during his treatment of her there was nothing to indicate she was malingering or that she was abusing medication. He was just as clear on his assessment of her ability to work. He said, quote, if she didn't have the physical problems she has, then she could probably do some jobs, end of quote. He added that, quote, she has some psychological problems because of her physical limitations. Dr. John Boutte, a psychologist who specializes in patients with chronic pain, to whom she was referred by one of her treating physicians, saw the claimant from January the 17th, 2002 to April the 17th, 2003. He testified that the claimant suffered chronic pain and that he saw her — and he saw her to determine how much of a problem her depression and anxiety played with that pain. Dr. Boutte conducted a battery of tests to determine what he called a, quote, pain profile, the results of which he said indicated clearly that the claimant was experiencing above average depression, anxiety, and pain complaints when compared to other pain patients. He said that based on the extensive tests he administered, she was having a great deal of difficulty coping with her level of pain; and he was absolutely insistent that she was neither malingering nor exaggerating. When asked that question directly by the defense counsel, Dr. Boutte replied that there were, quote, no red flags. When he — when asked pointedly, he replied directly that she showed low probability of drug abuse. In sum, he said nothing to enhance or even support the defense's claim that the claimant is malingering or committing fraud in this process.

Dr. Dale Bernauer has treated the claimant for years. The first time for a knee injury in @83; and he was her treating physician for the injury she received, which is the genesis of this particular litigation. Dr. Bernauer agreed with the defense counsel that it might be difficult to say that more probably than not her present back complaints were related to her injury. However, he took pains to say he would not say that the lumbar complaints are not related, simply that he could not relate them given the circumstances. He made a point to agree with the plaintiff['s] counsel that during her treatment he never saw anything that she did or complained of that was inconsistent with the type of injury she was complaining she had.

Much was made of Dr. Gorin's termination of the treatment of Ms. Jeanise because of his suspicion that she was abusing drugs he prescribed and that she was engaging in physical activities which suggested she was being less than honest with him. Dr. Gorin, whose memory of the circumstances upon which the suspicion was based, appeared to be less than precise as he explained that a pharmacist had called his office several years ago and told the clerk that Ms. Jeanise tried to work out an arrangement with the pharmacy to get money instead of her prescription. The story is not all that clear, owing partly to the fact that all of this has occurred more than two years ago and the fact that the pharmacist is now deceased. The claim[ant's counsel] made a well-founded objection that this entire line of testimony was hearsay but it was admitted over his objection.

From the beginning of the trial, the defense counsel promoted and advertised the video as definitive, irrefutable, black-and-white evidence that the claimant was capable of doing more than what she stated in her deposition. For that reason, I watched the video twice, once right after the testimony ended so I would have the facts clear in my mind, and again the next day to ensure I didn't miss anything. Succinctly, and charitably put, this video is a less-than-one-hour compilation of snippets and anecdotal situations covering a span of more than six years of the...