Ricaud v. Holloway Sportswear

• Decision Date: 26 May 1999
• Docket Number: No. 98-1422.,98-1422.
• Citation: 741 So.2d 124
• Parties: Karen D. RICAUD, Appellant, v. HOLLOWAY SPORTSWEAR, INC., Appellee.
• Court: Court of Appeal of Louisiana — District of US

741 So.2d 124

Karen D. RICAUD, Appellant, v.HOLLOWAY SPORTSWEAR, INC., Appellee.

No. 98-1422.

Court of Appeal of Louisiana, Third Circuit.

May 26, 1999.

Writ Denied October 1, 1999.

COPYRIGHT MATERIAL OMITTED

George Arthur Flournoy, Alexandria, for Karen D. Ricaud.

Maurice Blake Monrose, Lafayette, for Holloway Sportswear, Inc.

BEFORE: SAUNDERS, AMY AND PICKETT, JUDGES.

SAUNDERS, Judge.

This case arises from a Workers' Compensation claim wherein an employee, Karen D. Ricaud(hereinafter "Plaintiff"), of Holloway Sportswear (hereinafter "Defendant") seeks compensation for injuries to her right arm allegedly sustained through repetitive motions performed during the course of her job.Plaintiff saw a series of doctors and made an unsuccessful attempt at returning to work.Plaintiff filed a "Disputed Claim for Compensation" form seeking resolution of the following:

Extent and duration of disability; nonpayment or incorrect payment of disability benefits; failure to provide authorization for medical treatment; non-payment or untimely payment of medical and travel related expenses; failure to furnish reports of treating physicians; failure to provide vocational rehabilitation; employer's failure to furnish plaintiff with copy of medical report within 30 days; penalties and attorney's fees.

After a trial, the hearing officer found: Plaintiff was injured by way of accident during the course and scope of her employment for Defendant; her average weekly wage at the time of injury was $226.74; Defendant was credited maintenance of plaintiffs fringe benefits of $28.74 per week (plus an additional $10.00 per week to maintain her health insurance from the date of the accident through September 30, 1997); Plaintiff was entitled to $125.40 per week disability benefits from date of accident to the end of Plaintiffs temporary total disability (TTD), February 11, 1997; as of February 12, 1997, Plaintiff became entitled to benefits per La.R.S. 23:1221(3), subject to the employers credit for fringe benefits, through September 30, 1997; all supplemental earnings benefits (SEB) between February 12, 1997 through February 13, 1998 shall be reduced by 50%; claimant's choice of orthopaedists were Doctors Genoff and Porubsky only, Plaintiff saw Dr.s' Brunet and Weisberg at her own initiative and expense; the ultimate treatment recommended by Doctors Brunet and Weisberg, being performed by Dr. Firmin at the time of trial, is reasonable and necessary hence Defendant is liable for costs; claimant is entitled to one follow-up with Dr. Weisberg for which Defendant is liable; Dr. Firmin is Plaintiffs choice of anesthesiologist/pain specialist; Defendant is liable for mileage except for the initial visits with Doctors Brunet and Weisberg; Defendant is liable for Dr. Po's 845.00 bill evaluating Plaintiff on February 24, 1997; Plaintiff's claim for attorney fees is denied; Defendant must pay all costs of proceedings, to wit: Plaintiffs filing fee, Doctors Firmin's and Po's expert witness fees, medical records certification costs and court reporter's fee for Dr. Porubsky's deposition; interest on any compensation to run from date of judgment, per La.R.S. 23:1201.3(A).

We amend the judgment and re-calculate the compensation benefits owed Plaintiff; we reverse the hearing officer's denial of penalties and attorney fees under La.R.S. 23:1201 and we now assess the same against Defendant for late and incorrect compensation payments; we also reverse the judgment disallowing Plaintiff follow up treatment with Doctors Brunet, Weisberg and Fermin as necessary.The remainder of the judgment is affirmed.

FACTS

Plaintiff began her employment with Defendant on December 10, 1993, working as a final inspector at the Holloway plant in Simmsport, Louisiana at a rate of $4.95 per hour with an average weekly salary of $226.74.Plaintiff received various fringe benefits, costing Defendant $28.74 per week.Defendant also maintained Plaintiffs health insurance for an additional $10.00 per week from the date of the accident until September 30, 1997.

On March 27, 1996, Plaintiff reported an injury to her right arm stemming from the repetitive motions involved in performing her job.Plaintiff saw a series of doctors including her family doctor and more than six specialists.After an elaborate series of evaluations, referrals and self-initiated visits, Plaintiff attempted to return to work in a modified position that would minimize the use of her left arm.This position was described by Defendant and approved by Plaintiffs specialist.Meanwhile, Plaintiffs attorney revoked her medical release authorization as to Defendant's Vocational Rehabilitation Counselor on February 12, 1997.When Plaintiff returned on February 12, 1997, to work in a "modified cuff position,"she could not perform the task and was sent home.Plaintiff never again returned to work.

Objective tests were administered to Plaintiff by the several doctors she visited including: a neurological examination, EMG/NCV, conducted by Dr. Riad Haj Murad, a Dexter Hand Evaluation at St. Francis Cabrini Hospital requested by Dr. Robert Po and a Functional Capacity Evaluation authorized by Dr. Gary Porubsky.Plaintiff ignored much of the recommended treatments until she finally, at the time of trial, began receiving, not the stellate ganglion blocks recommended by previous doctors (which she refused), but regional sympathetic blocks under the recommendation of yet another specialist, Dr. Melanie Fermin.

On May 8, 1996, Plaintiff first received temporary total disability benefits at a rate of $119.46 per week, and she received back payments for benefits owed.On May 29, 1996, Plaintiffs benefits were corrected to $130.76 per week and she received a single payment of $101.70, to cover the difference between the corrected and the old rate.These benefits were terminated on February 12, 1997.

On February 13, 1997, Plaintiff brought suit over her disputed claim for compensation benefits for injuries she allegedly sustained—particularly, injuries to her right arm involving pain and discoloration.Trial was held on August 26, 1997, and on December 12, 1997, written reasons for judgment were filed.On March 17, 1998, additional reasons were issued.

LAW AND ANALYSIS

"It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of `manifest error' or unless it is `clearly wrong,' and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable."Rosell v. ESCO,549 So.2d 840, 844(La.1989), reh'g denied,561 So.2d 105(La.5/11/90), citingArceneaux v. Domingue,365 So.2d 1330(La.1978);Canter v. Koehring,283 So.2d 716, (La.1973).The role of an appellate court is not to review factual issues de novo.Id.Virgil v. American Guarantee and Liability Insurance,507 So.2d 825, 826(La.1987), on remand,512 So.2d 1235(La.App. 5 Cir.1987), remanded,514 So.2d 1169(La.1987), on remand,520 So.2d 1259(La.App. 5 Cir.1988), writ denied,522 So.2d 569(La.1988), explains:

Louisiana's three-tiered court system allocates the fact finding function to the trial courts.Because of that allocation of function (as well as the trial court's normal procedure of evaluating live witnesses), great deference is accorded to the trial court's factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court's judgment.

I.Assignment of Error No. 1

In the first of Plaintiffs seven assignments of error, she argues that the lower court erred in finding that Plaintiff refused to cooperate with Defendant's vocational rehabilitation efforts and so erred when it reduced Plaintiffs SEB from February 12, 1997, through February 13, 1998, by 50%.The trial judge concluded that when Defendant terminated her benefits on February 12, 1997, Defendant had good reason to believe that Plaintiff was not making a good faith effort to return to work.The trial judge expressly stated that he found Defendant's witnesses, supervisors and rehabilitation experts to be credible and that they genuinely intended to either offer a lighter duty job or if not, would have reinstated her indemnity benefits.When findings are based on determinations regarding the credibility of witnesses, the manifest error, clearly wrong, standard demands great deference to the trier of fact's findings; only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.Id. at 826.The trial judge found, as do we, that Plaintiff did not put forth a genuine effort to perform a modified job.The lower court also noted testimony and objective evidence, including Dr. Genoff's report and the Dexter Hand and Functional Capacity evaluations, which indicated Plaintiff was engaging in symptom magnification.Of particular interest are the Additional Written Reasons for Judgment rendered by the trial judge in which he explained:

In the February 10, 1997, letter to Ms. Frederick (rehabilitation specialist), claimant's counsel did not offer (as would be the accepted practice) to have himself or claimant present when Ms. Frederick was to meet with the physicians or for her and claimant to share records; he simply demanded that she not meet with claimant's doctors or review their medical records on claimant.

Additionally, the trial judge emphasized that Plaintiffs attorney did not at any time mention Dr. Po's note that stated claimant could not work and that the one-lined query posed doctors Brunet and Weisberg, which failed to ask whether Plaintiff could perform a lighter duty job, was indicative of Plaintiffs lack of interest in...