Nero v. Allied Waste Servs.

• Decision Date: 06 February 2019
• Docket Number: 18-501
• Citation: 265 So.3d 1129
• Parties: Ronald NERO v. ALLIED WASTE SERVICES, et al.
• Court: Court of Appeal of Louisiana — District of US

265 So.3d 1129

Ronald NERO

v.ALLIED WASTE SERVICES, et al.

18-501

Court of Appeal of Louisiana, Third Circuit.

February 6, 2019

Michael B. Miller, Jacqueline K. Becker, Miller & Associates, P. O. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLANT: Ronald Nero.

James R. Raines, Joseph J. Cefalu, III, Kelsey A. Clark, Breazeale, Sachse & Wilson, LLP, P. O. Box 3197, Baton Rouge, LA 70821-3197, (225) 387-4000, COUNSEL FOR DEFENDANT/APPELLEE/CROSS-APPELLANT: BFI Waste Services, LLC, d/b/a Allied Waste Services of Acadiana-Scott.

Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

GREMILLION, Judge.

In this protracted workers' compensation case, Mr. Ronald Nero appeals the judgment of the Workers' Compensation Judge (WCJ) that modified his 2010 workers' compensation award from temporary total disability (TTD) to supplemental earnings benefits (SEBs) and reduced the award by fifty percent retroactive to March 14, 2016 for his refusal to submit to vocational rehabilitation services. The employer answered the appeal and seeks forfeiture of benefits pursuant to La.R.S. 23:1208, restitution of all benefits paid after December 9, 2016 (the date of the hearing at issue), and sanctions against Mr. Nero's attorney. For the reasons that follow, we affirm the WCJ's judgment and deny the employer's motion for sanctions.

FACTS AND PROCEDURAL POSTURE

Mr. Nero was employed by Appellee, BFI Waste Services, LLC, d/b/a Allied Waste Services of Acadiana-Scott (Allied) as a driver. On February 15, 2008, Mr. Nero was injured when he was struck by a car while crossing a road on foot. Following the accident, Mr. Nero was treated by, among other physicians, Dr. Michael Holland, an orthopedic surgeon chosen by Mr. Nero. Dr. Holland opined on May 20, 2009, that Mr. Nero had reached maximum medical improvement (MMI) and could return to medium duty work. This opinion reinforced the opinion derived from a functional capacity evaluation Mr. Nero underwent in March 2009. Dr. Douglas Bernard, an orthopedic surgeon who saw Mr. Nero at the behest of Allied, reached the same conclusion. Nevertheless, on June 9, 2010, the WCJ awarded Mr. Nero weekly compensation indemnity of $ 522.00 per week on the basis of TTD status.¹

In late October 2014, Ms. Susan Davidson, a vocational rehabilitation counselor retained by Allied's insurer, wrote Mr. Nero's counsel advising of her retainer and requesting dates on which she could interview Mr. Nero for the purpose of providing vocational rehabilitation services to him and advising him that Allied wanted Mr. Nero re-evaluated by Dr. Holland. Mr. Nero's attorney wrote back on November 3, 2014 and asked her to complete a form containing thirteen questions or conditions and asking whether she would agree to abide by them.² Ms. Davidson wrote back and advised that she was bound by the Code of Professional Ethics for Licensed Vocational Rehabilitation Counselors and was not required to agree to the terms of the form. Mr. Nero's attorney then wrote back and advised that Ms. Davidson was not required to agree to the terms, but, until she did, she would not be allowed to interview Mr. Nero, and Mr. Nero would not return to see Dr. Holland.

Allied responded by filing a "Motion to Compel Vocational Rehabilitation and Medical Examinations and to Suspend and Reduce Benefits, and for Sanctions." Mr. Nero filed a "Motion and Order for Penalties and Attorneys Fees," in which he alleged that, on February 21, 2015, Allied had reduced his weekly indemnity from $ 522.00 per week to $ 261.00 per week (fifty percent); that on June 27, 2015, the benefits were again reduced to $ 186.43 per week; that on July 2, 2015, indemnity was terminated; and that on July 14, 2015, his medical treatment benefits were terminated. Mr. Nero requested attorney fees and penalties for these actions. Allied then filed an exception arguing that Mr. Nero's latest motion was an unauthorized attempt to utilize summary process to litigate a matter that should only be tried by ordinary process. On February 12, 2016, the WCJ heard Mr. Nero's motion and, on March 7, 2016, awarded Mr. Nero penalties and attorney fees.

On February 16, 2016, Mr. Nero filed a "Motion to Review the Need for and Quality of Services Provided by Defendants for Vocational Rehabilitation Services," in which he alleged that no vocational rehabilitation counselor had provided services to him and that Allied had not demonstrated a need for such services. In his prayer, Mr. Nero requested that Ms. Davidson be removed or be ordered to "comply with reasonable conditions to assure adherence to [La.R.S.] 23:1226." On March 16, 2016, Allied filed an amended motion to modify the 2010 judgment to reduce or terminate Mr. Nero's benefits on the bases of his refusal to submit to medical examination with Dr. Holland, his refusal to participate in vocational rehabilitation, and the fact that he had been released to return to work. These motions were heard on December 9, 2016, and the WCJ ruled on December 14, 2017 as follows (record references omitted):

For all of the contentiousness of the parties, the evidentiary record was decidedly lacking. Allied Waste Services introduced various letters regarding vocational rehabilitation attempts, the records of Dr. Michael Holland, the treating orthopedic surgeon, the Functional Capacity Evaluation ordered by Dr. Holland that took place March 17-18, 2014, reports from Dr. Douglas Bernard, the employer's choice of physician, and multiple Facebook posts that were received as impeachment evidence. Nero introduced 3 exhibits. Plaintiff exhibit I is a copy of the Defendant's Amended Motion to Modify Judgment to Retroactively Reduce, Suspend and/or Terminate Benefits, and for Sanctions. Plaintiff exhibit 2 is a copy of Answers to Plaintiff's Third Set of Interrogatories. Plaintiff exhibit 3 is a copy of the June 2010 judgment. An affidavit by the adjuster was not received except as a Proffer, and subsequently the deposition of the adjuster, Evelyn Crawford, was introduced in place of the affidavit. Plaintiff's counsel was not allowed to question Susan Davidson, the employer's choice of vocational counselor, beyond her actual activities on the file and plaintiff's counsel was given the opportunity to offer her proffered testimony either via deposition or subsequent courtroom availability, but neither option was provided to this office, and therefore that proffered testimony has not been received into the record. The attorneys and WCJ did discuss the submission of the records of Dr. Neal J. Duhon of Acadiana Family Medical Associates, and those records were received under 5 separate face sheets (not all technically certifications). No one submitted the records of Dr. Korim, a neurologist, or the records of Dr. Bowie, a urologist, who saw him for potential kidney issues. Some of the reports of those physicians can be found in the records of Dr. Duhon[.]

Essentially, while Nero had extremely serious contusions and abrasions after his accident, the only surgery required was an arthroscope for the right knee. Pain in his shoulder resolved on its own. A disc herniation was seen on MRI but with no compression on any nerves and associated with no narrowing and no treatment was identified as necessary for that condition. Dr. Holland released him to medium duty as of May 20, 2009. Dr. Duhon re-certified him for his CDL ^[3] as of January 8, 2009. There has been no treatment with either Dr. Korim or Dr. Bowie since 2009-2010. The adjuster testified that no medical treatment for Nero has been refused or not approved. She testified that she has not received a request for treatment with Dr. Hodges.

Dr. Duhon's records reflect that Nero is treated for erectile dysfunction, hip pain, anxiety, BPH ^[4], chronic low back pain, Type 2 diabetes, HTN ^[5], mixed hyperlipidemia, acute alcoholic hepatitis, hyperlipidemia, obesity, CAD ^[6] and carotid artery stenosis, without cerebral infarction. Nero has been treating with Dr. Duhon as his family physician for many years, being seen on about a quarterly basis for some of these health conditions before the accident of 2008. The list referred to from February 29, 2016 is referred to because it is typed, not handwritten, so easier to understand. The WCJ found no work restriction from Dr. Duhon for the complaints from the work accident. In fact, the only disability opinion is Dr. Holland's medium duty restriction from May 2009.

With respect to the allegations by both parties regarding the provision of vocational rehabilitation services, Allied's exhibits 1-10 document the attempts of Susan Davidson to provide vocational services. She also testified to these contacts and a telephone conference she had with Nero's counsel. Nero's counsel refused to schedule a vocational interview until she agreed to his conditions. This issue has been ruled upon and is settled law. Ms. Davidson had no obligation to agree to the request of plaintiff's counsel.

Nero's counsel demonstrated no irregularity of any sort to justify withholding his client from an initial vocational evaluation. Nero's counsel was offered the opportunity to cross examine Ms. Davidson at a later time, either via deposition or additional court time scheduled (without the presence of the WCJ) but nothing was proffered. All the evidence available on vocational rehabilitation is the exhibits of Allied and the testimony in the record from Ms. Davidson.

Based upon the actual evidence in hand, as briefly summarized above, and due to the lack of other evidence, the WCJ finds as follows:

• Nero's request for penalties and attorney fees based upon the alleged failure of the employer to provide certain medical treatment is denied. Those sanctions are only due after written request, and there is no evidence that Nero made written request upon Allied for additional treatment with any of his doctors or written request for treatment with Dr. Hodges, a

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