The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-430
CATHERINE COBB
VERSUS
LAFAYETTE PARISH SCHOOL BOARD
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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4,
PARISH OF LAFAYETTE, NO. 01-03123
HONORABLE SHARON MARROW,
WORKERS’ COMPENSATION JUDGE
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J. DAVID PAINTER
JUDGE
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Court composed of Oswald A. Decuir, J. David Painter, and Shannon J. Gremillion,
Judges.
AFFIRMED.
Michael Miller, Attorney at Law
P.O. Drawer 1630
Crowley, LA 70527
Counsel for Plaintiff-Appellant:
Catherine Cobb
Jeffery Riggs, Attorney at Law
P.O. Drawer 94-C
Lafayette, LA 70509
Counsel for Defendant-Appellee:
Lafayette Parish School Board
PAINTER, Judge.
Plaintiff, Catherine Cobb, appeals the judgment of the workers’ compensation
judge finding that the Lafayette Parish School Board was entitled to a modification
of a stipulated judgment and that she was not entitled to any further benefits. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was employed by the Lafayette Parish School Board as a clerical
worker at Northside High School. On September 12, 2000, she was attempting to
locate a lost item of student clothing. The lost and found area was situated
underneath a staircase. Plaintiff attempted to straighten up from a squatting position
and bumped her head on the stairwell. She testified that she “saw stars.” She went
to the walk-in clinic at the school and was given an ice pack and some Tylenol. On
the same day she saw Dr. Chris Hayes, her treating physician, for a previously
scheduled appointment and complained of hitting her head. Dr. Hayes’ records
indicate a posterior tender spot. She continued to complain of pain and was seen
several times at the Stafford Clinic before being referred to a neurologist, Dr. Leo
deAlvare. She underwent continuous treatment and, except for three days in August
of 2006, never returned to work.
On July 20, 2005, the parties stipulated that Plaintiff was injured on September
12, 2000, in the course and scope of her employment and that she was then entitled
to temporary total disability benefits. In accordance with the stipulation, Defendant
paid penalties and attorney’s fees. On or about August 30, 2006, Defendant
terminated Plaintiff’s benefits. On or about May 30, 2008, Defendant filed a motion
to modify judgment. Following trial, the workers’ compensation judge found that a
modification of the judgment was warranted but that said modification could only
relate back to May 30, 2008. Accordingly, the workers’ compensation judge found
that failure to pay continued benefits under the stipulation violated La.R.S.
23:1201(G) and that Defendant was liable for a penalty of $3,000.00, or twenty-four
percent (24%) of the unpaid benefits from the time of termination to May 30, and
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attorney’s fees of $10,000.00. The workers’ compensation judge further found that
Plaintiff was not entitled to any further benefits. Plaintiff appeals this finding.
Defendant has answered the appeal, alleging that the award of penalties and
attorney’s fees to Plaintiff was in error. For the following reasons, we affirm.
DISCUSSION
In Hardee v. City of Jennings, 07-242, pp. 2-3 (La.App. 3 Cir. 5/30/07), 961
So.2d 531, 533, writ denied, 07-1779, 07-1799 (La. 11/9/07), 967 So.2d 505, 509,
this court recognized:
Pursuant to La.R.S. 23:1310.8(B), a party may re-open a workers’
compensation case [,] and the workers’ compensation judge may modify
an award on the grounds of a change in condition. “A party who seeks
a modification of a worker’s compensation judgment must prove by a
preponderance of the evidence that the worker's disability has increased
or diminished.” Lormand v. Rossclaire Constr., 01-515, p. 2 (La.App.
3 Cir. 12/12/01), 801 So.2d 675, 676. A claimant seeking total
disability benefits must prove by clear and convincing objective medical
evidence that she is physically unable to engage in any employment.
La.R.S. 23:1221.
Furthermore:
In workers’ compensation cases, the factual findings of the
workers’ compensation judge are subject to the manifest error or clearly
wrong standard of appellate review. Seal v. Gaylord Container Corp.,
97-0688 (La.12/02/97), 704 So.2d 1161. When applying this standard,
we are not to determine whether the factfinder was right or wrong, but
rather, whether the factfinder’s conclusion was a reasonable one. Id.
Thus, if the judge’s findings are reasonable in light of the record
reviewed in its entirety, we may not reverse even if we would have
weighed the evidence differently. Romero v. Northrop-Grumman,
01-0024 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149.
Jackson v. Iberia Parish Gov., 01-925, p. 2 (La.App. 3 Cir. 3/20/02), 813 So.2d 589,
591, writ denied, 02-1075 (La. 6/14/02), 817 So.2d 1159.
The workers’ compensation judge found that the stipulation entered into by the
parties on July 20, 2005, was a binding, non-appealable judgment. Defendant asserts
that this is incorrect but cites no legal authority in support thereof. Our law is clear
that stipulations have the effect of judicial admissions or confessions and bind all
parties and the court. Becht v. Morgan Bldg. & Spas, Inc., 02-2047 (La.4/23/03) 843
So.2d 1109; see Stelly v. Guy Scroggins, Inc., 682 So.2d 782 (La.App. 3 Cir.1996),
writ denied, 688 So.2d 503 (La.1997).
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Furthermore, the transcript of the proceeding in which the stipulation entered
of record reveals the following:
Mr. Miller: We can stipulate that Catherine Cobb was injured in the
course and scope of her employment on September 12, 2000, while
employed by the Lafayette Parish School Board; and that as a result of
that injury, she is presently entitled to Temporary Total Disability
benefits, the amount to be determined once we determine her average
weekly wage, Judge.
The defendants have agreed to pay penalties of Eight Thousand
Dollars and attorney’s fees of Eight Thousand Dollars.
Thus, we agree with the workers’ compensation judge that it was incumbent upon
Defendant to obtain a modification of this stipulation prior to terminating benefits.
We find no error in the workers’ compensation judge’s determination that benefits
could only be terminated from the time of the filing of the motion to modify.
When treatment of Plaintiff’s complaints of headaches was unsuccessful, Dr.
deAlvare referred Plaintiff to Dr. Deborah Elliott, also a neurologist, at the headache
clinic at Tulane. Dr. Elliott treated Plaintiff from October 2003 to November 2005.
Treatment again was unsuccessful, and Dr. Elliott found that Plaintiff was completely
disabled from any type of work. Defendant then had Plaintiff examined by its choice
of neurologist, Dr. Steven Zuckerman.1 Dr. Zuckerman reached the conclusion that
there was no physical basis for Plaintiff’s continued complaints but could not
determine whether she had a conversion disorder or was malingering. The workers’
compensation judge then ordered an independent medical examination by Dr. Neil
Smith, III, also a neurologist. Dr. Smith found no medical basis for Plaintiff’s
complaints and opined that the injury was trivial and that Plaintiff was able to work.
Based on this opinion, Plaintiff attempted to return to work. She worked at Broussard
Middle School from August 16 through August 18, 2006, when she requested that an
ambulance be called due to her complaints of severe pain. The workers’
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Defendant’s original choice of neurologist was Dr. James Domingue; however, Dr.
Domingue refused to see Plaintiff, and the court allowed Defendant to change its choice of
neurologist.
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compensation judge noted that it was troubling that Plaintiff arrived to work on this
date with all of her medical records.
The workers’ compensation judge doubted Plaintiff’s veracity based on several
factors, most notable was her finding that Plaintiff’s assertion that prior to the
accident, she had headaches only related to her menstrual cycle was contradicted by
her medical records, which contained notations of daily headaches dating back to at
least 1990. The workers’ compensation judge ultimately found that further treatment
for Plaintiff’s headaches was not medically necessary. The IME performed by Dr.
Smith supports the finding of a change in condition such that Defendant was entitled
to a modification of the stipulation.
It is clear that the burden is on Defendant to show, by a preponderance of the
evidence, that it was entitled to a modification of the stipulation. However, we find
the workers’ compensation judge’s discussion of Plaintiff’s burden of proof from the
inception of the claim was of no moment because there is ample evidence in the
record to support her finding that there was a change in Plaintiff’s condition entitling
Defendant to a modification of the stipulation. Thus, we find no manifest error in
workers’ compensation judge’s finding.
The workers’ compensation judge awarded a penalty of $3,000.00, or twenty-
four percent (24%) of the unpaid benefits from the time of termination to May 30, and
attorney’s fees of $10,000.00. The decision to impose penalties and attorney’s fees
is essentially a factual issue subject to the manifest error or clearly wrong standard
of review. Authement v. Shappert Eng’g, 02-1631(La. 2/25/03), 840 So.2d 1181. We
find no manifest error in the workers’ compensation judge’s ruling in this regard.
Finally, we address Defendant’s argument that the trial court erred in awarding
penalties and attorney’s fees because La.R.S. 23:1201(G) does not apply to public
boards. This court has previously addressed this argument in Broussard v. Lafayette
Parish Sch. Bd., 08-666, pp. 3-5 (La.App. 3 Cir. 12/10/08), 998 So.2d 1253, 1257,
writ denied, 09-471 (La. 4/17/09), 6 So.3d 794 (footnote omitted):
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Pursuant to La.R.S. 23:1201, our courts have imposed penalties
and attorney fees on parish school boards for at least thirty years. E.g.,
Ranson v. Orleans Parish Sch. Bd., 365 So.2d 937 (La.App. 4 Cir.1978),
writ denied, 367 So.2d 393 (La.1979). Given that the legislature is
presumed to know these decisions, it is difficult for us to imagine that
the legislature was not cognizant of this interpretation of the statute to
persist in our jurisprudence, had it really meant the penalties provisions
of La.R.S. 23:1201 not to apply to school boards.
Moreover, the legislature is certainly capable of including “school
board” along with “public board” in a statute. For example, in La.R.S.
13:5102, located in Part XV and, incidentally, titled “Suits Against
State, State Agencies, or Political Subdivisions,” the legislature did not
hesitate to include both, “school board” and “public board” when it
defined “political subdivision” for the purposes of Part XV. Thus, if the
legislature really intended La.R.S. 23:1213 to cover school boards, it
would and could have done so explicitly.
This argument lacks merit.
Thus, we conclude that a reasonable basis exists for the workers’ compensation
judge’s findings and that those findings are not manifestly erroneous.
DECREE
For all of the foregoing reasons, the ruling the workers’ compensation judge
is affirmed. All costs of this appeal are assessed to Plaintiff, Catherine Cobb.
AFFIRMED.
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