MOORE, J.
Horseshoe Casino appeals a judgment that awarded the claimant, Shellie Futch, supplemental earnings benefits ("SEB"), with a penalty and attorney fee in this workers' compensation claim arising from a January 2004 accident. We affirm in part and reverse in part.
Ms. Futch was employed as a dealer at Horseshoe, at an average weekly wage of $800 and a comp rate of $429 a week. On January 17, 2004, she was entering the casino through the tunnel when she tripped on an industrial mat that had wrinkled on the floor. She did not fall but stumbled forward, twisting her right foot. Horseshoe sent her to the Willis-Knighton Bossier emergency room, where doctors diagnosed a strain and put her in a splint. Three days later she selected Dr. Michael Acurio of Orthopedic Specialists in Bossier City as her treating physician. He found degenerative joint disease of the right foot and spurring of the bones — all preexisting conditions.
Ms. Futch felt she was not improving, and in May 2004 Dr. Acurio mentioned surgery to remove a Morton's neuroma in the front part of her foot. At Horseshoe's request, Ms. Futch was examined by Dr. Gordon Mead at Highland Clinic; he found that all her foot problems were preexisting and that she could work. In October 2004, Ms. Futch went to orthopedist Dr. James Lillich, who noted a "traumatic clawtoe deformity of the right second toe." She then obtained an independent medical exam ("IME") from Dr. Christopher Hebert in Lafayette. In November 2004, Dr. Hebert recommended extensive surgery to fuse several bones in her midfoot and extend her Achilles and other tendons; Ms. Futch then designated Dr. Hebert as her choice of physician. He performed the proposed operation on February 3, 2005, as well as a followup operation on April 28, 2005, to remove two pins from the surgery site. For the next several months, Ms. Futch attended therapy and paid regular visits to Dr. Hebert; in September 2005, he released her to return to work half-days, or two days a week, for four weeks, and then to full duty. At some point, Horseshoe asked her to return to Dr. Mead for reevaluation.
Ms. Futch filed this disputed claim on August 5, 2005, principally to quash the examination by Dr. Mead; she also sought authorization to see a psychologist. Horseshoe answered that it had been paying her full comp benefits of $429 a week since the accident and all medicals, including both of Dr. Hebert's surgeries; it also
Meanwhile, Ms. Futch returned to work at Horseshoe in late October 2005, but promptly went to Dr. Hebert, tearfully relating that standing up to deal caused "great pain" in her right foot; he told her to stay off work another six weeks. Pursuant to an order from the workers' comp judge ("WCJ"), Ms. Futch went back to Dr. Mead in November 2005; he found a permanent impairment from the surgeries. He stated, however, that she could work in a job where she could sit down.
In late 2005, owing to Ms. Futch's continued complaints, Dr. Acurio recommended a third operation, to remove another screw from her right foot. He performed this at Bossier Specialty Hospital on January 5, 2006. Ms. Futch then began a long period of almost weekly visits to various doctors — Dr. Acurio for followups, Dr. Letchuman at Pain Care Consultants for foot and other body pains, Dr. Baker for psychological counseling, and Dr. Sewell for depression, anxiety and respiratory issues.
In March 2006, Ms. Futch underwent a two-day functional capacity evaluation ("FCE") by Steve Allison at Tri-State Physical Therapy. This found that she was capable of restricted, light-duty work; she could return to work as a dealer with the accommodation that she could alternate between standing and sitting as needed.
Horseshoe discontinued Ms. Futch's weekly benefits on June 30; however, it continued paying her medical expenses, with the exception of visits to Dr. Baker, the psychologist.
On February 26, 2007, Ms. Futch filed the instant amended claim, alleging that the accident aggravated her preexisting psychological condition. She demanded temporary total disability or SEB effective July 1, 2006, and a penalty and attorney fee for Horseshoe's refusal to cover treatment by Dr. Baker. An Office of Workers' Compensation mediator held a phone status conference on May 29, 2007, declaring the matter "unresolved."
Then followed a long period of relative inactivity. Between June 7, 2007, and February 11, 2011, the parties filed 11 motions to continue, all routinely granted by the WCJ.
On February 13, 2013, Horseshoe filed the instant motion to dismiss under La. R.S. 23:1209 D, on grounds that the claimant had not, in good faith, requested a hearing and final determination within five years of the amended petition. The WCJ denied this, holding that Ms. Futch had complied with 23:1209 D "on multiple occasions * * * via multiple joint requests that the trial date be continued and set."
The matter was tried on April 4, 2013. At the top of the hearing, the WCJ reiterated that the joint motion to continue filed August 8, 2008, included a motion to reset, and this qualified as a request for hearing under 23:1209 D. The parties stipulated the date of the injury, Ms. Futch's weekly comp rate, and that Horseshoe had discontinued weekly benefits on June 30, 2006. The only live witness was Ms. Futch, whose testimony was limited to verifying her medical expenses and mileage to Shreveport to see the psychologist, Dr. Baker (she had moved to Farmerville and was driving to Shreveport to see him). There was no live testimony about her injury, pain, disability or attempt to return to work.
The parties introduced Ms. Futch's unusually large medical records, very briefly outlined above. By deposition, Dr. Mead testified that Ms. Futch had serious preexisting arthritis, flat feet and subluxation; he felt that the accident could have aggravated these. He also noted her history of fibromyalgia, psoriasis and depression, which were unrelated to the accident, and said most of her current condition was due to arthritis and foot surgeries. Based on the FCE, he thought she should be able to work if she could sit down.
Dr. Acurio testified by deposition that the accident exacerbated her preexisting condition. He admitted there was nothing objective to show that her current pain was a result of the accident, but if she was working before and complaining after, he accepted it. His records showed that he performed yet another surgery, in September 2012, to fuse a bone in Ms. Futch's right fourth toe.
The WCJ issued written reasons, laying out the lengthy facts and finding that Ms. Futch's treatment with Dr. Baker was not related to the accident — a ruling not contested on appeal. The WCJ next found that although she was not entitled to TTD, she proved her right to SEB effective July 1, 2006; he distinguished the restrictive reading of SEB in Poissenot v. St. Bernard Parish Sheriff's Ofc., 2009-2793 (La.1/9/11), 56 So.3d 170, and explicitly accepted Dr. Acurio's view that even the modified, sit-down job required her to "pivot on her injured right foot," resulting in severe pain that prevented her from performing the job. Finally, the WCJ found that despite earlier reports that she could do sedentary work, Horseshoe unreasonably refused to pay SEB after receiving Dr. Acurio's report of June 13, 2006. He assessed a penalty of $2,000 and attorney fee of $7,500.
Horseshoe has appealed, raising three assignments of error.
By its first assignment of error, Horseshoe urges the WCJ erroneously ruled that Ms. Futch requested a final determination of her claim by motions or orders to continue, in contravention of La. R.S. 23:1209 D. Horseshoe shows that she filed her amended petition on February 26, 2007, and argues that she did not request a trial setting until October 18, 2012, over five years later. It concedes that during this time she requested or acquiesced in at least 15 continuances, but argues that the motions to continue did not include good faith requests for trial settings: she merely attached an order with a blank setting date, in compliance with OWC Hearing Rules,
Ms. Futch responds that all motions to continue included a prayer to reset the trial, and specifically cites the motion of August 8, 2008,
The dismissal of claims for want of prosecution is governed by La. R.S. 23:1209 D, which provides:
Although there is little jurisprudence applying this subsection,
On this record, we do not find that the WCJ abused his discretion in refusing to declare the claim abandoned. We agree that the motion to continue filed August 18, 2008, is dubious in that it does not actually pray for a trial setting, merely attaching a pro forma order with a blank space in which the WCJ can write a new setting date. Taken alone, this probably would not support a finding of good faith request for a hearing and final determination. However, the persistence of these motions, including motions to stay after the WCJ began denying motions to continue, along with the joint representations that the parties were in settlement discussions, convince us that Ms. Futch did not intend to abandon her claim. There is simply too much activity on both sides to support the opposite conclusion. We therefore find no abuse of discretion. This assignment of error lacks merit.
By its second assignment, Horseshoe urges the WCJ erred in awarding SEB despite Ms. Futch's failing to prove by clear and convincing evidence that she was unable to work in an offered position due to substantial pain from her work injury. Horseshoe shows that the claimant's initial burden is a preponderance of the evidence, La. R.S. 23:1221(3)(a); the burden then shifts to the employer to prove that she could work a certain job that was offered or available to her, R.S. 23:1221(3)(c)(i); and then it shifts back to the claimant to prove by clear and convincing evidence that she could not perform that job "solely as a result of substantial pain," R.S. 23:1221(3)(c)(ii). Poissenot v. St. Bernard Parish Sheriff's Ofc., supra. It argues that to meet the clear and convincing standard, Ms. Futch cannot rely solely on her self-serving testimony, Duhon v. Holi Temp. Servs. Inc., 97-0604 (La.App. 4 Cir. 10/1/97), 700 So.2d 1152; Scott v. Lakeview Regional Med. Ctr., 2001-0538 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, writ denied, 2002-1712 (La.10/4/02), 826 So.2d 1127. Subjective complaints notwithstanding, Horseshoe contends, all experts said she could do a sit-down job; Dr. Acurio's deposition did not address whether foot pain kept her from working; she tried the mini-bac position for a mere five hours; the evidence was overwhelming that she had a preexisting foot injury, plus a multitude of other physical conditions; and her psychological condition may have increased her perception of pain, as in Maurer v. Dillard Dept. Stores Inc., 96-1608 (La.App. 1 Cir. 5/9/97), 693 So.2d 1290, writ denied, 97-1494 (La.9/19/97), 701 So.2d 175. It concludes
Ms. Futch responds that her complaints of pain when trying to work the mini-bac table were uncontradicted. She submits that the WCJ's "thorough and well-reasoned" opinion was not plainly wrong.
The purpose of SEB is to compensate an injured employee for the wage-earning capacity she has lost as a result of her work-related accident. Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551; Patterson v. General Motors Co., 46,559 (La.App. 2 Cir. 9/21/11), 73 So.3d 465. An employee is entitled to receive SEB if she sustains a work-related accident that results in her inability to earn 90% or more of her average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Banks v. Industrial Roofing, supra at 556. In determining if an injured employee has made a prima facie case of entitlement to SEB, the court "may and should take into account all those factors which might bear on an employee's ability to earn a wage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). A claimant's disability is presumed to have resulted from the accident if, before the accident she was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterward, providing that the medical evidence shows a reasonable possibility of causal connection between the accident and the disabling condition. Doucet v. Baker Hughes Prod. Tools, 93-3087 (La.3/11/94), 635 So.2d 166; J.P. Morgan Chase v. Louis, 44,309 (La.App. 2 Cir. 5/13/09), 12 So.3d 440.
Only when the employee makes this initial showing does the burden shift to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in her or the employer's community or reasonable geographic area. La. R.S. 23:1221(3)(c)(ii). Implicit in R.S. 23:1221(3)'s requirement that the employee show that a work-related injury resulted in her inability to earn 90% of her pre-injury wage is a showing that the injury, and not some other cause, resulted in her inability to retain her pre-injury job. Poissenot v. St. Bernard Parish Sheriff's Ofc., supra.
Finally, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, she cannot perform employment offered, tendered or otherwise proven to be available to her, then the employee is deemed incapable of performing such employment. La. R.S. 23:1221(3)(c)(ii); Poissenot v. St. Bernard Parish Sheriff's Ofc., supra.
The factual findings of the WCJ are subject to the manifest error standard of appellate review. Dean v. Southmark Const. Co., 2003-1051 (La.7/6/04), 879 So.2d 112. The appellate court does not determine whether the WCJ's factual findings and credibility calls are right or wrong, but only whether they are reasonable. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275.
Horseshoe stipulated that a work-related accident occurred; by paying Ms. Futch TTD for over two years, it admitted that the accident resulted in a compensable loss. The first issue is whether she proved by a preponderance of the evidence that the work-related accident resulted in
The second (and closer) issue is whether Ms. Futch proved by clear and convincing evidence that solely as a consequence of substantial pain, she could not perform the employment offered. Horseshoe correctly shows that the claimant's self-serving testimony is insufficient to meet this burden, Gilliam v. Manhattan/Whitaker Const. Co., 30,566 (La.App. 2 Cir. 5/13/98), 714 So.2d 101, writ not cons., 98-1845 (La.9/4/98), 723 So.2d 429; Duhon v. Holi Temp. Servs., supra. We are also concerned that Dr. Acurio's deposition is not a ringing approval of his patient's complaints. However, his report of June 13, 2006, declared her unable to work as a dealer, and his deposition accepted her account of the pain. The record also shows that her subsequent complaints have been unusually consistent. By contrast, the record does not show that after getting Dr. Acurio's report, Horseshoe requested another FCE or any other diagnostic to confirm or refute her claim of substantial pain. On this record we are constrained to defer to the WCJ's factual findings and credibility calls. The WCJ did not commit manifest error in finding that Ms. Futch met her burden of proof under La. R.S. 23:1221(3)(c)(ii). This assignment of error lacks merit.
By its third assignment of error, Horseshoe urges the WCJ erred in awarding a penalty and attorney fee despite the fact that it reasonably controverted Ms. Futch's claim. The penalty statute, R.S. 23:1201 F, is strictly construed, Williams v. Rush Masonry, 98-2271 (La.6/29/99), 737 So.2d 41, and penalties are not allowed if the employer has "some valid reason or evidence upon which to base his denial of benefits," Brown v. Texas-La. Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885. Horseshoe argues that until June 13, 2006, every expert said Ms. Futch could perform sedentary work, and on that date, only one, Dr. Acurio, changed his view — a change based solely on her subjective complaints; the mini-bac job satisfied the requirements of the FCE; and she had many preexisting injuries. Horseshoe submits that on this evidence, it had a valid reason or evidence to deny benefits.
Ms. Futch responds that in addition to Dr. Acurio's report, Dr. Mead agreed the mini-bac position "was not appropriate if [she] had to use her injured foot to pivot the chair." She also contends that Horseshoe relied solely on one offered job and made no other attempts at rehabilitation.
The WCJ treated this claim as a failure to commence benefits under La. R.S. 23:1201 F. The record, however, shows that Horseshoe actually discontinued Ms. Futch's benefits on June 30, 2006, after she attempted to work the mini-bac
The award of a penalty and attorney fee under R.S. 23:1201 I is penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Iberia Medical Ctr. v. Ward, 2009-2705 (La.11/30/10), 53 So.3d 421. Although the Workers' Compensation Act is liberally construed as to benefits, its penal provisions are strictly construed. Id. Arbitrary and capricious behavior consists of "willful and unreasoning action, without consideration and regard for the facts and circumstances presented, or of seemingly unfounded motivation." Id.; Brown v. Texas-La. Cartage, supra; Henderson v. Graphic Packaging Int'l, 48,491 (La.App. 2 Cir. 11/20/13), 128 So.3d 599.
On close examination we find Horseshoe's termination of benefits was not arbitrary, capricious or without probable cause. Both of Ms. Futch's treating physicians — Drs. Acurio and Hebert — had released her to sedentary work in 2004. Her examining physicians — Drs. Mead and Lillich — also released her to sedentary work, as did the therapist who conducted the FCE. Dr. Acurio's about-face of June 13, 2006, was without the benefit of any objective findings and thus subject to some skepticism. See, e.g., La.R.S. 23:1317 A.
For the reasons expressed, the judgment is affirmed insofar as it denied Horseshoe's motion to dismiss and awarded Ms. Futch SEB effective July 1, 2006. It is reversed insofar as it assessed a penalty and attorney fee. Appellate costs are to be paid one-half by Horseshoe Casino and one-half by Shellie Futch.
STEWART, J., concurs in part and dissents in part with written reasons.
PITMAN, J., concurs in part and dissents in part for the reasons assigned by STEWART, J.
BROWN, CHIEF Judge concurs in part and dissents in part.
I agree with the reversal of the WCJ's assessment of a penalty and an attorney's fee. I disagree with the affirmation of the award of Supplemental Earnings Benefits. To put it plainly, I would reverse the entirety of the WCJ's judgment.
Claimant stumbled while waking into the casino. She did not fall. She suffered a strain. Prior to this, claimant had serious injuries to her right foot and lower back from an automobile accident (resulting in major surgery) and re-injury in a slip-and-fall at a grocery store. Her initial burden was to prove that the stumble caused her disability, that is, that her substantial pain was due to the work injury and not her preexisting degenerative foot and lumbar injuries. Horseshoe stipulated that claimant stumbled and strained her foot. The physicians stated that this aggravated her preexisting condition. Although it is questionable, Horseshoe appears to have conceded that claimant met her initial burden of proof that the strain caused her disability. Further, Horseshoe offered claimant, at the same salary, a job that all the physicians agreed she could physically perform. Therefore, the burden shifted to claimant to show by clear and convincing evidence that due to pain she was unable to perform the duties of the modified dealer position offered by Horseshoe.
The FCE and all the physicians agreed that claimant could work at this modified position. Claimant's pain management physician opined that claimant could perform the sedentary work offered by Horseshoe. Based solely on claimant's statement, Dr. Acurio changed his opinion. Against the weight of the evidence, the WCJ awarded Supplemental Earnings Benefits. I would reverse the WCJ's conclusion.
STEWART, J., concurring in part and dissenting in part.
While I concur with the majority in affirming that part of the judgment awarding SEB and denying the claimants motion to dismiss, I dissent from that part which reverses the penalty and attorney fee granted by the trial court.
As previously stated by the majority, the findings of the Worker's Compensation Judge are subject to the manifest error standard of review. Dean v. Southmark Const. Co., 2003-1051 (La.7/6/04), 879 So.2d 112. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275. Furthermore, R.S. 23:1201(F) provides for the imposition of statutory penalties and attorney's fees where the employer and/or its worker's compensation insurer failed to reasonably controvert a claim for benefits.
The majority refers to Williams v. Rush Masonry, 98-2271 (La.6/29/99), 737 So.2d 41, as precedent for reversing the penalty and attorney fee here. In that case, the court stated that penalties are not allowed if the employer has "some valid reason or evidence upon which to base his denial of benefits."
In the case at bar, Horseshoe did not have a valid reason or evidence to base its denial of benefits. In order to defeat the employee's claim for SEB, the employee
The trial court noted that when an employer's denial or termination of worker's compensation is based on competent medical evidence, its decision is not arbitrary and capricious so as to warrant imposition of penalties and attorney's fees. Crawford v. Al Smith Plumbing and Heating Service, Inc. 352 So.2d 669 (La.1977); Levine v. Liberty Mutual Insurance Co., 305 So.2d 665 (La.App. 3d Cir.1974). However, if an initially favorable report is contradicted by subsequent reports showing that the claimant is disabled, the employer may not avoid penalties via "blind reliance" on the earlier report. Jackson v. Georgia Cas. & Sur. Co., 513 So.2d 530, 535 (La.Ct. App.1987) writ denied, 515 So.2d 448 (La. 1987).
The majority conceives that termination of the benefits was not arbitrary because all of Ms. Futch's treating physicians released her to work. However, Dr. Acurio, her primary physician, changed his opinion when Ms. Futch expressed that she was not able to perform her job without experiencing pain in her injured foot. The trial judge found that Horseshoe had not offered anything contrary to the appellant's representation in that regard. In addition, the court concluded that Ms. Futch had proved by clear, convincing, and uncontradicted evidence that she remains unable to perform the modified dealer position due to substantial pain.
For these reasons, I dissent from that part of the majority opinion which reverses the penalty and attorney fee granted by the trial court.
APPLICATION FOR REHEARING Before BROWN, STEWART, MOORE, PITMAN and GARRETT, JJ.
Rehearing denied.
BROWN, C.J., would grant rehearing.
