Opinion
No. 2001 CA 1186.
June 21, 2002.
ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION ADMINISTRATION, DISTRICT 6, DOCKET NO: 99-05959, STATE OF LOUISIANA HONORABLE ROBERT W. VARNADO, JR., WORKERS' COMPENSATION JUDGE.
Rodney N. Erdey, Livingston, LA Counsel for Plaintiff/Appellant, Paul L. Templet.
Raymond S. Maher, Jr., New Orleans, LA Counsel for Defendant/Appellee, S B Engineers Constructors, Ltd.
FACTS
Mr. Paul Lonny Templet, a carpenter, filed a disputed claim for compensation on August 16, 1999, against his employer, S B Engineers and Construction, Ltd. (SB). He averred that he was injured on October 14, 1998, as he was installing a kicker against a form and his foot slipped. He twisted his right knee and hip, falling on his right knee. SB paid some workers' compensation benefits to Mr. Templet, but later terminated his employment on June 10, 1999.
Mr. Templet subsequently amended his claim to assert that defendants arbitrarily and capriciously failed to pay all medical expenses arising from his injury; thus, he was entitled to statutory penalties, interest, reasonable attorney fees, and all other relief provided under law.
SB answered the petition, generally denying that Mr. Templet sustained an injury during the course and scope of employment and asserting that Mr. Templet was guilty of La.R.S. 23:1208 and 1208.1 violations.
At trial, the parties stipulated that Mr. Templet suffered a work-related injury and that his medical expenses had been paid with the exception of the disputed medical expenses that were incurred after Mr. Templet was released by his treating physician as having reached maximum medical improvement. The parties also stipulated that Mr. Templet's termination was not related to his medical condition or his injury.
After trial on the merits, the workers' compensation judge denied Mr. Templet's claim for supplemental earning benefits and ruled that SB was responsible for the medical bills entered into evidence and accepted as exhibit P-2. Also, Mr. Templet's claim for penalties and attorney fees was denied.
The workers' compensation judge, in his oral reasons for judgment, noted that Mr. Templet's credibility had been significantly called into question by convictions of crimes of moral turpitude. The workers' compensation judge noted that SB's heightened suspicion about medical expenses incurred after Mr. Templet's release by his treating physician was justified.
Mr. Templet sustained a back injury while working for a previous employer in the early 1990's. Mr. Templet admitted at trial that while he was receiving workers' compensation benefits for that back injury, he was engaged in physical activity, which was videotaped by the workers' compensation insurer, resulting in criminal proceedings being brought against him. Mr. Templet pled guilty to workers' compensation fraud and was on probation for that offense at the time of trial. Also, in 1990, Mr. Templet pled guilty in East Baton Rouge Parish to the crime of receiving stolen goods.
Further, prior to the trial of this case, Mr. Templet had filed a large number of personal injury lawsuits, including a suit against SB for a claim of chemical exposure.
Mr. Templet had filed suit against Progressive Insurance Company for an automobile accident, which he explained as "Someone rear ended me." He had filed suit against State Farm Insurance Company for another automobile accident that occurred in a parking lot when he was leaving Dr. Hubbard's office. That claim settled.
Also following the SB claim at issue herein, Mr. Templet filed suit against Shoney's for an injury that occurred when he was washing his hands and an air conditioning duct fell out of the ceiling and hit him. That suit settled out of court.
Mr. Templet filed suit against Liberty Mutual Insurance for an automobile accident that occurred when he was driving his daughter to work. That suit settled out of court. He filed suit against Blimpie's for an injury that occurred when he went to sit on a toilet and it collapsed. That suit settled out of court.
Mr. Templet testified at trial that none of the post-SB injuries for which he filed lawsuits affected the knee that was injured when he worked at SB.
Ms. Ilette Surtain, a senior special fraud investigator for Liberty Mutual Insurance, testified that the 1999 claim filed by Mr. Templet against Liberty Mutual Insurance for an automobile accident sought damages for lost wages, medical expenses, and pain and suffering. Ms. Surtain testified that in that case, Mr. Templet claimed he earned $3,959.66 in a month and that he averaged $220.00 per day. However, Mr. Templet's tax returns, introduced into the record at trial, revealed that he earned far less income during that time period than the amount he asserted in his claim to Liberty Mutual Insurance.
THE ASSIGNMENTS OF ERROR
Mr. Templet is appealing the decision of the workers' compensation judge and makes the following assignments of error:
1) The [OWC judge] committed manifest and legal error in its finding that applicant, Paul L. Templet, was not entitled to supplemental earnings benefits, in accordance with the workers' compensation act.
2) The [OWC judge] committed manifest and legal error in its finding that appellee's conduct was not arbitrary and capricious in their failure to pay all court determined "reasonable and necessary" medical treatment costs; thereby further denying claimant's entitlement to statutory penalties, interest and attorney fees.
THE STANDARD OF REVIEW
In a workers' compensation case, the appellate court's review is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater , 93-1530 (La. 1/14/94), 630 So.2d 733, 737. Where there is a 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).
ASSIGNMENT OF ERROR NO. 1
Mr. Templet avers that a comparison of his pre-termination wages and his post-termination wages clearly shows that he has an inability to earn 90% of his pre-termination wages, thus entitling him to supplemental earning benefits.
Louisiana Revised Statute 23:1221 provides, in pertinent part:
(3) Supplemental earnings benefits.
(a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages" by fifty-two and then dividing the quotient by twelve.
(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain.
(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee's or employer's community or reasonable geographic region.
The purpose of supplemental earnings benefits is to compensate the injured employee for the wage-earning capacity lost as a result of an accident. Vicknair v. Nature Conservancy , 97-2229 (La.App. 1 Cir. 6/29/98), 718 So.2d 476, 478, writ denied, 98-2495 (La. 11/25/98), 729 So.2d 567.
The claimant must prove by a preponderance of the evidence that his work-related injury rendered him unable to earn 90% of his pre-injury wages. Because this is a question of fact, the appellate court may not set aside the hearing officer's findings in this regard absent manifest error or unless the findings are clearly wrong. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Hurst v. Baker Sand Control , 94-2463 (La.App. 1 Cir. 10/6/95), 671 So.2d 408, 412.
Dr. William J. Hubbard first saw Mr. Templet on November 4, 1998. Mr. Templet was complaining of right knee pain, with his knee swelling, popping, and giving way. Mr. Templet asked not to be given any narcotic medication due to a prior drug addiction problem. X-rays of the knee were normal, and an ultrasound was negative for a popliteal cyst. Mr. Templet had anteromedial joint line tenderness. Dr. Hubbard diagnosed a right knee medial miniscal tear. Mr. Templet was sent to physical therapy for four weeks. Mr. Templet was put on off-work status until January 1, 1999. Results of an MRI scan were consistent with the medial meniscal tear.
At that time, there were no problems with the anterior cruciate ligament (ACL) or any other part of the knee. Mr. Templet's condition had not been responsive to conservative measures, so a right knee arthroscopy and possible partial medial menisectomy was discussed, and Mr. Templet consented to that surgery.
Outpatient surgery was performed on January 22, 1999. Quarter-inch incisions were made on the anteromedial, anterolateral, and superiormedial joint lines. A post-operative visit on January 25, 1999 followed. At that time, the sutures were removed, Band-Aids were applied, and Mr. Templet was instructed to work on straight leg raising exercises. He returned to work at light duty the next day, and Dr. Hubbard considered the surgery a success.
Mr. Templet was seen several more times complaining of drainage, but there was no infection and he was given antibiotics. Then on February 1, 1999, Mr. Templet was seen again with drainage, and Dr. Hubbard cauterized the wound with silver nitrate to seal it and put on a butterfly bandage. On that date, Dr. Hubbard listed Mr. Templet's work status as fit for work with no restrictions. On February 8, 1999, that status was changed to six weeks light duty, at the request of Mr. Templet. Then, on February 10, 1999, Mr. Templet was taken off work completely, again at his request.
Dr. Hubbard stated that a second, diagnostic outpatient arthroscopy was performed on February 2, 1999, to "look and take cultures" because Mr. Templet continued to complain about the knee and drainage continued despite antibiotics. Dr. Hubbard found no infection. Mr. Templet was involved in an automobile accident leaving the doctor's office that day.
On February 10, 1999, Mr. Templet was not doing well, and Dr. Hubbard took him off work again, at his request. At an office visit on February 15, 1999, Dr. Hubbard felt that Mr. Templet was making satisfactory progress in his recovery, and, on February 17, 1999, Dr. Hubbard again released Mr. Templet to light duty work.
Approximately three weeks after cauterization of the knee wound, on February 24, 1999, Mr. Templet complained that he was at work when his knee gave way and began swelling. A second MRI showed no sign of infection, although there was a small amount of swelling and some degenerative changes in both menisci. The ACL all appeared intact.
On February 26, 1999, Mr. Templet was still limited to sedentary work. He was seen at Dr. Hubbard's office again on March 3, 1999, at which time he had no ligament problems. Then on March 12, 1999, Mr. Templet was seen at the office, due to a knee laceration resulting from a fall three days earlier. Mr. Templet had received stitches at the emergency room, and Dr. Hubbard found no sign of infection in the knee and no motor sensory deficits.
On March 19, 1999, Mr. Templet was seen at the office again and was still on light duty status. At this visit, Mr. Templet first told Dr. Hubbard about his previous extensive back problems and lumbar surgery. On March 29, 1999, Dr. Hubbard again recommended physical therapy for Mr. Templet.
On April 12, 1999, Dr. Hubbard saw Mr. Templet again and found he had no swelling, a limited range of motion from minus 15 to minus 95 degrees, but otherwise a normal exam. On that date, Dr. Hubbard also talked to Dr. John Clark, a psychiatrist, regarding the fact that Mr. Templet's complaints were not supported by objective findings. Dr. Clark agreed with Dr. Hubbard that the complaints were nonorganic.
From April 19, 1999, to April 23, 1999, Mr. Templet was taken out of work, again at his request, then released to work on April 27, 1999.
On April 28, 1999, Dr. Hubbard saw Mr. Templet again and noted that the MRI scan of the right knee was essentially normal with the examination of the effusion and the same degenerative changes in the menisci and, essentially, unchanged from the previous MRI scan. Dr. Hubbard noted at that visit that Mr. Templet's symptoms seemed out of proportion to his pathology and testified that he seemed to be having "much more problems than could be documented by objective findings."
On May 5, 1999, Mr. Templet was given a hinged knee brace. Dr. Hubbard again talked to Dr. Clark about Mr. Templet's complaints being out of proportion to the medical findings. Also, on that date, Dr. Hubbard talked to an investigator, Deborah Coffee, regarding an altered back-to-work request for Mr. Templet. The request had been altered to show a return to work date of April 28, 1999, rather than April 27, 1999.
Dr. Hubbard testified that everything seemed to be progressing normally and "basically I could not see any particular problem that would be related to complaints of knee pain." On May 10, 1999, a functional capacity evaluation (FCE) was done. Mr. Templet exhibited a marked level of self-limiting behavior and an inappropriate exaggerated symptom response. The FCE showed that Mr. Templet was capable of employment and indicated that Mr. Templet could return to work as a carpenter at regular or full duty. Additional testing was indicated to explore a probable underlying factor or motivation in the client's presentation. Dr. Hubbard agreed with the FCE results.
Dr. Hubbard felt that Mr. Templet reached maximum medical improvement in early May of 1999. Dr. Hubbard testified that he had done everything he could for Mr. Templet at that time, and no further surgery was needed.
Dr. Hubbard released Mr. Templet to full-time light duty on May 19, 1999. On June 7, 1999, Dr. Hubbard diagnosed Mr. Templet with a partial tear of the ACL, but testified he was at maximum medical improvement and did not need surgery or any kind of medical treatment. On June 10, 1999, SB terminated Mr. Templet's employment.
Mr. Templet avers that his pre-termination earnings, as shown in exhibit P-3, compared to his post-termination wages, shown in exhibit P-4, show that he is unable to earn 90% of his pre-termination wages, thus entitling him to supplemental earnings benefits.
Exhibit P-3 contains weekly payroll information for Mr. Templet when he was employed at SB. The records show that the last four weeks that Mr. Templet worked at SB, in May of 1999, he earned an average weekly wage of approximately $731.00. However, these are post-accident wages, not pre-accident wages. Exhibit P-4 consists of Livingston Parish School Board sales and use tax reports which were filed for January 2000 through January 2001, for the windshield repair business that Mr. Templet began after leaving SB.
Although Mr. Templet points to these exhibits as evidence that he cannot earn 90% of his pre-termination wages, they show that he apparently earned more money in his last four weeks of work at SB, seven months after his work-related accident.
After a thorough review of the record, we cannot say that the workers' compensation judge committed manifest error in determining that Mr. Templet was not entitled to supplemental earnings benefits. This assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2
Mr. Templet asserts that pursuant to La.R.S. 23:1201, SB must pay statutory penalties and attorneys fees because the workers' compensation judge determined that the medical bills listed in exhibit P-2 were necessary and reasonable medical expenses relating to his injury.
Louisiana Revised Statute 23:1201 provides, in pertinent part:
E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers' compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers' compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
Based upon the record, we cannot say that the workers' compensation judge erred in finding that the medical bills incurred by Mr. Templet after his release by his treating physician were reasonably controverted by SB. This assignment of error has no merit.
Therefore, for the foregoing reasons, the OWC judge's judgment is AFFIRMED. Costs are assessed against Mr. Templet.