Leonards v. Carmichael's Cashway Pharmacy, Inc.
| Decision Date | 18 May 2022 |
| Docket Number | 22-22 |
| Citation | 339 So.3d 741 |
| Parties | Angela LEONARDS v. CARMICHAEL'S CASHWAY PHARMACY, INC., et al. |
| Court | Court of Appeal of Louisiana — District of US |
Michael B. Miller, Attorney at Law, P.O. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLANT: Angela Leonards
Kristine D. Smiley, Matthew W. Tierney, Tierney and Smiley, LLC, 3535 S. Sherwood Forest Boulevard, Suite 233, Baton Rouge, LA 70816, (225) 298-0770, COUNSEL FOR DEFENDANTS/APPELLEES: Louisiana Retailers Mutual Insurance Company, Carmichael's Cashway Pharmacy, Inc.
Court composed of Shannon J. Gremillion, John E. Conery, and Gary J. Ortego, Judges.
The judgment of the Workers’ Compensation Judge (WCJ) is appealed by the employee, Angela Leonards. Her employer, Carmichael's Cashway Pharmacy, Inc., and its insurer, Retailers Casualty Insurance Company (collectively "Carmichael's"), answered the appeal and seeks judicial interest on the credit it was awarded. For the reasons that follow, we affirm as amended.
Ms. Leonards filed a Disputed Claim for Compensation (1008) with the Office of Workers’ Compensation (OWC) on July 3, 2007, asserting that she injured her neck in the course and scope of her employment with Carmichael's while bending and lifting some milk. Her neck injury required surgical intervention. On April 23, 2009, Ms. Leonards was awarded temporary total disability benefits. In 2011, Ms. Leonards’ benefits were converted to supplemental earnings benefits (SEBs) because it was demonstrated that she was capable of performing light-duty work.
In July 2014, Ms. Leonards underwent a second surgical procedure on her neck. Dr. John Sledge of Lafayette performed this surgery. On August 27, 2014, Ms. Leonards was seen by Dr. Nicole Lanclos, a psychologist, at the behest of the Social Security Administration, for the purpose of undergoing mental status and intellectual testing. Dr. Lanclos diagnosed Ms. Leonards with adjustment disorder with depressed mood, borderline intellectual functioning, lower limits, stress associated with diminished physical functioning, and physical limitations. Dr. Lanclos concluded, "Based on the results of the psychological evaluation of Angela Leonards, she will likely find it difficult to manage full-time employment due to chronic pain."
A functional capacity examination (FCE) was done in October 2015. As a result of the FCE, Dr. Sledge released Ms. Leonards for sedentary work. Dr. Steven Staires, Ms. Leonards’ pain management doctor, also released her for sedentary duty as a result of the FCE.
A second medical opinion was obtained by Carmichael's from Dr. Neil Romero, a Lafayette orthopedic surgeon. Dr. Romero opined that Ms. Leonards was capable of sedentary work.
Dr. Staires referred Ms. Leonards to a second psychologist, Dr. David Landry, in July 2018. Dr. Landry opined that "Ms. Leonards’ likelihood of success with long-term employment will be compromised by psychological factors such as poor self-awareness, low frustration tolerance, adjustment difficulties related to chronic pain, and borderline intellectual functioning." Returning to work, therefore, would be difficult for Ms. Leonards "without some other intervention that would improve her functioning."
Dr. Staires was asked in his 2018 deposition about non-physical factors that would affect Ms. Leonards’ ability to return to work. He opined that given the passage of time, Dr. Lanclos would need to re-evaluate Ms. Leonards to see whether she is still incapable of working. Dr. Staires admitted that he lacked the clinical expertise to render an opinion on the effects depression might have on Ms. Leonards’ testing performance. Dr. Staires also opined, though, that the close proximity of Dr. Lanclos's testing of Ms. Leonards was questionable:
Well not just that it's 3 or 4 years old, but that it was a month after surgery. She [sic] still in the subacute healing phase. So what she felt herself capable of, and how she may have completed that psychological evaluation at that moment, I think is not consistent with where she is now.
Dr. Mark Zimmerman, a third psychologist, examined Ms. Leonards in 2019. Dr. Zimmerman found that Ms. Leonards functioned cognitively in the normal range. Her problem insight and judgment were normal. She exhibited no gross behavioral abnormalities or indications of hyperactivity or attention difficulties. Dr. Zimmerman found that Ms. Leonards was capable of performing arithmetic and abstract thinking.
Mr. Burt Ashman was Ms. Leonards’ vocational rehabilitation counselor. He evaluated Ms. Leonards with a wide-range achievement test and a Slossen Intelligence Test.
Mr. Ashman assessed Ms. Leonards’ academic and work histories. Ms. Leonards graduated high school. She was not enrolled in special education programs or remedial classes. Ms. Leonards also completed a secretarial training program at Southern Technical College and a three-year computer technology program at Acadian Technical College.
Ms. Leonards previously worked as a shipping clerk for Body Masters. She was also employed as a dispatcher for the Acadia Parish Sheriff's Office. Ms. Leonards has assembled computers for Computer Mark.
Utilizing the results of the wide range achievement test, the Slossen Intelligence Test, and Ms. Leonards’ academic and work histories, Mr. Ashman identified several jobs suitable for her and within her geographic area. Mr. Ashman received approval from Drs. Sledge and Staires for four of those jobs.
Carmichael's filed a motion to terminate Ms. Leonards’ SEBs on January 3, 2017, on the grounds that Ms. Leonards had been paid 520 weeks pursuant to La.R.S. 23:1221(3)(d). Carmichael's also asserted that it was entitled to a credit for SEBs paid beyond the allowed 520 weeks. In April 2017, Ms. Leonards filed a motion to modify her SEBs to either temporary total disability or permanent total disability benefits. These motions were heard on July 1, 2021. The WCJ ruled in favor of Ms. Leonards and ordered that she be paid temporary total disability benefits from July 17, 2014, through November 8, 2015, which totaled $25,590.60. That judgment terminated Ms. Leonards’ SEBs and awarded Carmichael's a credit of $4,435.83 for overpayment of SEBs to apply against the temporary total disability benefits.
Ms. Leonards appealed the judgment, and Carmichael's has answered it.
Ms. Leonards asserts:
Carmichael's asserts that the WCJ erred in not awarding it judicial interest on the credit it received for overpayment of SEBs.
Burdens of proof
The burdens of proof of disabilities and entitlement to compensation in workers’ compensation cases are set forth in La.R.S. 23:1221. Subparagraph (1)(c) provides for the burden of proof in cases alleging temporary total disability (TTD):
For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
Permanent total disability is governed by Paragraph (2). As in TTD cases, permanent total disability must be proven by clear and convincing evidence. Entitlement to SEBs must likewise be proven by clear and convincing evidence. The distinction between TTDs, permanent total disability, and SEBs is that an employee can receive SEBs while able to work but not able to earn ninety percent of her pre-injury wages. La.R.S. 23:1221(3).
The clear and convincing burden of proof represents "an ‘intermediate’ standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard." Hatcherson v. Diebold, Inc. , 00-3263, p. 4 (La. 5/15/01), 784 So.2d 1284, 1288. "To prove a matter by clear and convincing evidence means to demonstrate that the existence of the disputed fact is highly probable or much more probable than its nonexistence." Daniels v. State Through Dep't of Transp. & Dev. , 52,750, p. 5 (La.App. 2 Cir. 7/17/19), 275 So.3d 998, 1004, writ denied , 19-1321 (La. 10/21/19), 280 So.3d 1173.
Assignment of Error 1:
In her first assignment of error, Ms. Leonards asserts that the WCJ applied an inappropriate legal standard in adjudicating her case in failing to consider both physical and non-physical factors in determining whether she is disabled. This legal error, she claims, mandates that this court review the case de novo. A second legal error Ms. Leonards asserts is the alleged failure of the WCJ to address her demands for temporary and permanent disability.
"Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer...
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