Boyd v. CCMSI
Boyd v. CCMSI
Opinion of the Court
This appeal arises from a claim for worker's compensation. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-Appellant, Dana Boyd ("Ms. Boyd"), was employed as a cook by Defendant-Appellee, Jazz Casino Company, LLC, d/b/a Harrah's New Orleans Casino ("Harrah's").
*372On September 26, 2016, Ms. Boyd presented to the West Jefferson Medical Center Emergency Room and reported increased pain and swelling; Ms. Boyd was diagnosed with an avulsion fracture to her right tibia, as well as sprains and strains.
In January 2017, Ms. Boyd was released to work without restriction. On February 5, 2017, Ms. Boyd secured new employment with the Hyatt Hotel. Ms. Boyd continued to receive medical treatment and in March 2017, Ms. Boyd reported that in addition to continued pain, she was experiencing pain in her right hip, right leg, and lower back. Ms. Boyd was advised that physical therapy had been authorized for solely her right knee.
Ms. Boyd avers that she was temporarily totally disabled from September 27, 2016 to February 5, 2017, and again on July 26, 2017, through the following month.
This matter was heard before the Office of Workers' Compensation ("OWC") on September 27, 2017.
On February 2, 2018, the OWC Clerk's Office issued a Notice of Appeal Charges in the amount of $2,043.10. Thereafter, Ms. Boyd's counsel was unable to reach her regarding the costs of the appeal and requested a waiver for payment of advanced costs. On March 6, 2018, Ms. Boyd's counsel filed an unopposed ex parte motion for extension of time for payment of appeal costs. On March 8, 2018, OWC extended the deadline to March 29, 2018, for Ms. Boyd to remit payment. On March 29, 2018, Ms. Boyd's counsel was still unable to contact her. On April 16, 2018, Harrah's filed a motion to dismiss the appeal on grounds of abandonment. On May 7, 2018, OWC held a hearing, and ordered Ms. Boyd to pay, in full, the estimated costs of the appeal on or before May 17, 2018. On *374May 15, 2018, Ms. Boyd filed an ex parte motion to file an in forma pauperis affidavit, pursuant to La. C.C.P. art. 5183(A).
DISCUSSION
On appeal, Ms. Boyd raises the following assignments of error:
1. Whether the OWC erred in finding that Harrah's did not fail to accommodate Ms. Boyd's light duty work restrictions;
2. Whether the OWC erred in finding that Ms. Boyd did not sustain injuries to her lower back, right hip, and right lower extremity in connection with her accident on September 20, 2016;
3. Whether the OWC erred in finding that Harrah's properly declined to authorize medical treatment for Ms. Boyd's lower back, right hip, and right lower extremity;
4. Whether the OWC erred in finding that Ms. Boyd was not entitled to either TTD or SEB; and
5. Whether the OWC erred in not awarding attorney's fees and penalties against Harrah's for not paying Ms. Boyd TTD and SEB, and not authorizing medical treatment.
Standard of Review
This Court is mindful that the Louisiana Supreme Court has stated that "the provisions of the worker's compensation law must be given a liberal interpretation ... to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co. ,
[i]n workers' compensation cases, "it is well-settled that the appropriate standard of appellate review is the manifest error or clearly wrong standard." Blair v. Wal-Mart Stores, Inc. , [20] 01-2211, p.7 (La. App. 4 Cir. 5/15/02),818 So.2d 1042 , 1047. Under that standard, "[t]he trial court's determinations as to whether the worker's testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error."Id. (quoting *375Bruno v. Harbert Int'l, Inc .,593 So.2d 357 , 361 (La. 1992) ). However, "[w]hen legal error interdicts the fact-finding process in a workers['] compensation proceeding, the de novo , rather than manifest error, standard of review applies." Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp. , [20] 11-0179, p. 3 (La. App. 4 Cir. 6/29/11),70 So.3d 988 , 990 (citing MacFarlane v. Schneider Nat'l Bulk Carriers, Inc. , [20] 07-1386, p. 3 (La. App. 4 Cir. 4/30/08),984 So.2d 185 , 188 ). "Likewise, interpretation of statutes pertaining to workers' compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct."Id.
Jackson v. Family Dollar Stores of Louisiana Inc. , 2017-0712, pp. 5-6 (La. App. 4 Cir. 10/24/18),
Assignment of Error Number 1
In her first assignment of error, Ms. Boyd alleges that the OWC manifestly erred when it found that Harrah's did not fail to accommodate her light duty work restrictions. Ms. Boyd contends that she was restricted to light duty work and although Harrah's permitted her to sit at a kitchen stool to perform her duties, if the kitchen became busy, she was forced to move about the kitchen, despite being in pain. The OWC acknowledged that this modification was "woefully inadequate," but found that it was nonetheless an accommodation. The OWC held that Ms. Boyd failed to prove that Harrah's failed to accommodate her work restrictions, because she did not attempt to report the inadequate accommodations to either Harrah's or her treating physician. Thus, based on the factual conclusions and determinations reached by the OWC, we do not find that it abused its great and broad discretion in not concluding that Harrah's failed to accommodate Ms. Boyd's work restrictions. Thus, we find that Ms. Boyd's assignment of error is without merit.
Assignments of Error Numbers 2 and 3
Because Ms. Boyd's assignments of error numbers 2 and 3 both involve her lower back, right hip, and right lower extremity - specifically, whether she sustained injuries to these body parts in her September 20, 2016 accident, and whether Harrah's properly denied authorization for medical treatment to these body parts - these issues will be addressed together.
Ms. Boyd avers that during her initial visit to Concentra Medical Center, she complained of pain in her right leg, right knee, and lower back. She further states that during her initial visit with Dr. Clark, she complained of pain throughout her right lower extremity and right hip. Ms. Boyd also testified that she complained of pain in her lower back, right hip, and lower right extremity during physical therapy.
Conversely, Harrah's asserts that during her visit with Dr. Clark, Ms. Boyd completed a pain diagram and indicated pain in her right leg, but not her hips or back. Specifically, Ms. Boyd indicated that she experienced pain above and below her right knee. Further, Dr. Clark examined Ms. Boyd, but did not find tenderness or limited range of motion with her back or hips. Harrah's contends that Ms. Boyd first complained of hip pain on November 8, 2016, to her physical therapist. Harrah's further contends that, for the first time, on December 26, 2016, Ms. Boyd presented to the West Jefferson Medical Center Emergency Room and reported muscle spasms in her left lower back, pain in her lower left hip, left lower back, and abdomen; Ms. Boyd reported that she began experiencing *376this pain one and a half (1.5) weeks prior.
The OWC concluded that it did not find complaints about the lower back, right hip, and right lower extremity in Ms. Boyd's medical records prior to her March 6, 2017 request to expand medical treatment to those areas. This Court inspected the transcription from Ms. Boyd's visit to Concentra Medical Center and takes note that no body parts, other than the right knee, are mentioned. Further, this Court examined the incident report that Ms. Boyd completed with Harrah's, and observes that this report states that she fell on her right knee and right shin. Both her documents from Dr. Clark and workers' compensation claim mention pain in the right knee, and nowhere else. Based on the aforementioned, we find that the OWC did not abuse its discretion when it concluded that Ms. Boyd's lower back, right hip and right lower extremity pains/complaints do not relate to the accident that occurred on September 20, 2016. It weighed the evidence presented to it, both subjective testimony, as well as objective exhibits and came to a reasonable conclusion. For these reasons, we find no merit in these two assignments of error.
Assignment of Error Number 4
In her fourth assignment of error, Ms. Boyd argues that Harrah's deprived her of TTD benefits, did not facilitate her return to work, and prevented her from returning to work; Ms. Boyd emphasizes the "two [2] to three [3] weeks during which she was waiting to see an orthopedist." While Ms. Boyd acknowledges that she was released to return to work with light duty restrictions, she asserts that she "believed " she could not return to work until she was seen by an orthopedist.
Harrah's asserts that no doctor determined that Ms. Boyd was totally disabled, rather she was released to return to work with the restriction of modified duty. Further, Harrah's argues that Ms. Boyd failed to produce any evidence of her total disability, and she failed to submit a 1020 form to show that she did not earn any wages.
The OWC reasoned that Ms. Boyd was released to return to work with the restriction of modified duty. The OWC also stated that Ms. Boyd testified that no doctor ever told her that she was temporarily disabled or supplied an "off-work slip indicating that she should not return to work." The OWC concluded that no medical evidence supported Ms. Boyd's argument that she was temporarily totally disabled.
This Court has explained that TTD benefits are provided under Title 23 of the Louisiana Revised Statutes, the Louisiana Workers' Compensation Act. Under La. R.S. 23:1221(1)(a), an injured worker entitled to TTD benefits is paid compensation benefits in the amount of "sixty-six and two-thirds percent of wages during the period of [temporary total] disability." Bay v. Jefferson Par.Pub. Sch. , 2016-0890, p. 6 (La. App. 4 Cir. 4/26/17),
Assignment of Error Number 5
In her final assignment of error, Ms. Boyd argues that the OWC committed error when it declined to award her penalties and attorney's fees. Ms. Boyd asserts that penalties and attorney's fees are warranted, because Harrah's was unreasonable in denying authorization for medical treatment to body parts other than her right knee. Ms. Boyd further asserts that Harrah's did not facilitate and even prevented her from returning to work. Contrarily, Harrah's asserts that because they successfully controverted Ms. Boyd's claims, the OWC did not err in denying Ms. Boyd's request for penalties and attorney's fees.
Penalties and attorney's fees are awarded pursuant to La. R.S. 23:1201(F). The Louisiana Supreme Court explained that the award of "penalties and attorney fees in workers' compensation cases are essentially penal in nature. The purpose of the imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers." Authement v. Shappert Eng'g , 2002-1631, p. 11 (La. 2/25/03),
Consolidated Writ 2018-C-0658
While the above-captioned appeal was pending, Harrah's sought supervisory review of the OWC's July 17, 2018 judgment denying Harrah's second motion to dismiss an appeal. After filing her appeal with this Court, Ms. Boyd failed to timely pay costs, and Harrah's filed its first motion to dismiss appeal as abandoned. The OWC granted Ms. Boyd an additional ten (10) days to pay the costs on or before May 17, 2018 and further ordered that failure to pay the costs would result in dismissal on the ground of abandonment. On May 15, 2018, Ms. Boyd filed a motion to be granted in forma pauperis status pursuant to La. C.C.P. art. 1581(A); the OWC granted Ms. Boyd's motion, and Harrah's filed an *378opposition. Thereafter, Harrah's filed its second motion to dismiss appeal. Based on the fact that the OWC granted Ms. Boyd in forma pauperis status, we find that the writ application filed by Harrah's seeking dismissal of this appeal should be denied.
DECREE
For the aforementioned reasons, we affirm the OWC's judgment. Further, we deny Harrah's writ seeking supervisory review of the OWC's July 17, 2018 denial of its second motion to dismiss the appeal.
AFFIRMED; WRIT DENIED
Ms. Boyd worked in Manning's Restaurant which is located inside Harrah's.
Concentra Medical Center is Harrah's occupational medical clinic.
Ms. Boyd complained that the kitchen got busy and she was forced to move about and retrieve items. Harrah's contends that Ms. Boyd made no complaints of her light duty work restriction being exceeded.
Ms. Boyd contends that she worked her scheduled shift on this day. However, Harrah's avers that she reported to the hospital rather than to work.
Harrah's contends that there is no record of Ms. Boyd calling out of work on those days.
Both Ms. Boyd and Harrah's agree that she was scheduled off on September 29-30, 2016.
Harrah's contends that although Ms. Boyd was scheduled to work October 1 through 4, 2016, she neither reported to work, nor called out to inform anyone that she would be absent.
According to Harrah's, Ms. Boyd made a formal request for treatment to her right hip and lower back on March 6, 2017.
On September 20, 2017, Ms. Boyd secured employment with the Sheraton Hotel.
At trial, the parties made the following stipulations, which were recited in the OWC's written judgment:
1. Claimant, Dana Boyd, was employed by Harrah's as a cook on or about September 20, 2016, the date of the accident;
2. Claimant's, Dana Boyd's, average weekly wage is $533.32 and the corresponding compensation rate is $355.56;
3. Claimant, Dana Boyd, worked full duty on September 21, 2016;
4. Claimant's, Dana Boyd's, scheduled off-work days were September 22, 2016, and September 23, 2016;
5. Claimant's, Dana Boyd's, accident was reported on September 23, 2016;
6. Claimant, Dana Boyd, was placed on restricted work duty on September 23, 2016 by Concentra Medical Center; and
7. Claimant, Dana Boyd, returned to Harrah's and worked restricted work duty at the same wages on September 24, 2016, September 25, 2016, and September 26, 2016.
This Court explained that
[t]he purpose of SEBs is to provide compensation to an injured employee for [her] lost wage-earning capacity." Bastoe v. Burger King Distribution Services, 96-0021 at p. 3 (La. App. 4 Cir. 03/19/97), 691 So.2d at 276. A workers' compensation claimant is entitled to SEBs if, as a result of a work-related injury, she is unable to earn at least 90 percent of her pre-injury wages. Id. ; La. R.S. 23:1221(3)(a).
Doane v. Omni Royal Orleans Hotel , 2016-0144, p.p. 5-6 (La. App. 4 Cir. 10/26/16),
On December 19, 2017, Ms. Boyd timely filed a petition for devolutive appeal, which the OWC granted on January 11, 2018.
La. C.C.P. art. 5183(A) provides:
A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion if requested later, to which he shall annex:
(1) His affidavit that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of his poverty and lack of means, accompanied by any supporting documentation; and
(2) The affidavit of a third person other than his attorney that he knows the applicant, knows his financial condition, and believes that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.
(3) A recommendation from the clerk of court's office as to whether or not it feels the litigant is in fact indigent, and thus unable to pay the cost of court in advance, or as they accrue, or to furnish security therefor, if required by local rule of the court.
2018-C-0658
Case-law data current through December 31, 2025. Source: CourtListener bulk data.