The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
22-46
THERESA S. HATCHELL
VERSUS
ST. MICHAEL PFU, LLC
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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - District No. 3
PARISH OF CALCASIEU, NO. 20-0465 1
MELISSA A. ST. MARY, WORKERS’ COMPENSATION JUDGE
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VAN H. KYZAR
JUDGE
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Court composed of Elizabeth A. Pickett, Chief Judge, Van H. Kyzar, Candyce G.
Perret, Sharon Darville Wilson, and Gary J. Ortego, Judges.
AFFIRMED IN PART AS AMENDED;
REVERSED IN PART;
RENDERED; AND REMANDED.
Kevin L. Camel
Cox, Cox, Filo, Camel & Wilson, LLC
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLANT:
Theresa S. Hatchell
Patrick A. Johnson
Parker and Landry, LLC
4023 Ambassador Caffery Parkway, Suite 320
Lafayette, LA 70503
(337) 362-1602
COUNSEL FOR DEFENDANT/APPELLEE:
St. Michael PFU, LLC
KYZAR, Judge.
In this workers’ compensation matter, the plaintiff, Theresa S. Hatchell,
appeals from a judgment rendered by the workers’ compensation judge in favor of
the defendant, St. Michael PFU, LLC. The judgment held that Ms. Hatchell forfeited
her right to future workers’ compensation benefits when she failed to obtain the
defendant’s approval prior to settling her third-party claims for injuries that
aggravated her work-related injury. For the following reasons, we affirm in part as
amended, reverse in part, render, and remand.
FACTUAL AND PROCEDURAL HISTORY
Ms. Hatchell, a certified nursing assistant, suffered a work-related injury to
her neck and left shoulder on May 23, 2012, while transferring a patient from their
bed to a wheelchair. Her employer, St. Michael PFU, LLC d/b/a The Care Center
of DeQuincy (Defendant), commenced paying indemnity benefits on June 15, 2012,
as well as medical expenses on July 5, 2012. During the course of her treatment,
Ms. Hatchell underwent a right C5-6 anterior cervical discectomy and total disc
arthroplasty on June 27, 2017, as well as numerous pain-management treatments,
including multiple cervical epidural-steroid injections, radiofrequency ablations,
facet blocks, medial branch blocks, selective nerve root blocks, and physical therapy.
In 2018, Ms. Hatchell was involved in car accidents on May 25, 2018 and
December 13, 2018. She was involved in a third accident on April 14, 2019. On
May 28, 2019, she underwent removal of the C5-6 arthroplasty device, as well as an
anterior cervical discectomy and fusion of C5-6 and C6-7. The medical records of
Ms. Hatchell’s treating physicians indicated that the last two accidents aggravated
her work-related cervical injury. Without notifying Defendant, Ms. Hatchell settled
her third-party claims for the December 13, 2018 and the April 14, 2019 accidents
for approximately $35,000.00 and $15,000.00, respectively.
On July 31, 2020, Ms. Hatchell filed a disputed claim for compensation,
alleging a claim for penalties and attorney fees based on Defendant’s November 23,
2019 termination of her indemnity benefits. In its October 5, 2020 answer,
Defendant affirmatively alleged that Ms. Hatchell was no longer entitled to workers’
compensation benefits because her three “‘accidents were separate and intervening
causes and not the natural or expected consequence of her original alleged work
related [sic] injury.” Defendant later amended its answer to allege that because the
accidents aggravated Ms. Hatchell’s work-related injury, she forfeited her claim to
future workers’ compensation benefits when she failed to obtain its written approval
before settling her claims with the third-party insurers.
This matter proceeded to a trial on the merits on July 21, 2021. At the start of
the trial, the parties stipulated that Ms. Hatchell suffered a work-related accident to
her neck and left shoulder on May 23, 2012; she received medical treatment from
Drs. Erich Wolf, Vanchi Vu, and Joseph Gillespie; she underwent two surgeries on
her neck; her average weekly wage was $492.88, with a compensation rate of
$328.88; Louisiana Healthcare Self-Insurance Fund provided insurance coverage;
and Risk Management’s claim file contained no written approval allowing Ms.
Hatchell to settle her third-party claims. At the close of the trial, the workers’
compensation judge (WCJ) took the matter under advisement.
On September 16, 2021, the WCJ rendered judgment finding that Defendant’s
payment of supplemental earnings benefits (SEBs) to Ms. Hatchell interrupted
prescription for its payment of temporary total disability benefits (TTD). Thus, the
WC]J awarded Ms. Hatchell TTD for the period of June 27 through July 11, 2017,
and awarded her $2,000.00 in penalties and $7,500.00 in attorney fees. The WCJ
further held that because Ms. Hatchell’s December 13, 2018 and April 14, 2019
accidents aggravated her work-related injury, she was required to obtain Defendant’s
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written approval before settling her third-party claims. The WCJ held that based on
Ms. Hatchell’s failure to do so, she forfeited her right to future compensation
benefits, including medical expenses. However, it further held that “Defendant
failed to carry its burden of proving entitlement to a credit as no evidence was
presented as to what portion of Claimant’s motor vehicle settlements were
attributable to the aggravation of Claimant’s work-related cervical injury.” Itis from
this judgment that Ms. Hatchell appeals.
Ms. Hatchell raises three assignments of error in the form of issues presented
on appeal:
1. Whether the employer proved that claimant suffered an actual
aggravation to her work-related condition as a result of
subsequent non-work-related accidents and the amount of any
such aggravation.
2. Whether the OWC judge properly found that the claimant
forfeited her right to workers’ compensation benefits when the
employer failed to prove that it paid any additional benefits as a
result of the subsequent accidents.
3. Whether claimant is entitled to penalties and attorney fees for the
employer’s unjustified termination of benefits without any
evidence of an aggravation and without proving that it paid any
additional benefits as a result of the subsequent accidents.
OPINION
The appellate standard of review applicable in workers’ compensation matters
was set forth by the supreme court in Banks v. Industrial Roofing & Sheet Metal
Works, Inc., 96-2840, pp. 7-8 (La. 7/1/97), 696 So.2d 551, 556 (alteration in
original), as follows:
Factual findings in workers’ compensation cases are subject to
the manifest error or clearly wrong standard of appellate review. Smith
v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633
So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5
(La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-
clearly wrong 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. Freeman, 93-1530 at p. 5, 630 So.2d
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at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill,
505 So.2d 1120, 1127 (La.1987). Where there are two permissible
views of the evidence, a factfinder’s choice between them can never be
manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882.
Thus, “if the [factfinder’s] findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse, even if
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558
So.2d 1106, 1112 (La.1990).
The main issue on appeal is whether Ms. Hatchell forfeited her right to future
workers’ compensation benefits pursuant to La.R.S. 23:1102(B) as a result of her
unauthorized settlements. Louisiana Revised Statutes 23:1102(B) provides, in part:
If the employee or his dependent fails to notify the employer or insurer
of the suit against the third person or fails to obtain written approval of
the compromise from the employer and insurer at the time of or prior
to such compromise, the employee or his dependent shall forfeit the
right to future compensation, including medical expenses.
As noted by the supreme court in Haynes v. United Parcel Service, 05-2378,
p. 4 (La. 7/6/06), 933 So.2d 765, 768 (per curiam):
La. R.S. 23:1101 recognizes the right of the employer or
employee to seek redress from a third person causing injury to the
employee. See Roche v. Big Moose Oil Field Truck Service, 381 So.2d
396 (La.1980). La. R.S. 23:1102(A)(1) provides that if an employee
brings suit against a third party as provided by La. R.S. 23:1101, the
employee is required to give the employer notice in writing of this suit.
The purpose of this requirement is to promote timely intervention by
the employer and protect the employer from losing its right of
indemnity. See Norris v. Goeders, 26,130 (La.App.2d Cir.3/10/95),
652 So.2d 144, writ denied, 95-0933 (La.6/2/95), 654 So.2d 1106.
Pursuant to La. R.S. 23:1102(B), if the employee fails to notify the
employer of the suit against the third party or fails to obtain written
approval of a compromise from the employer, the employee “shall
forfeit the right to future compensation, including medical expenses[.]”
At the heart of this issue is the question of whether the parties Ms. Hatchell
settled with qualified as “third parties” pursuant to La.R.S. 23:1101(C). That statute
provides that with regard to an employee’s suit against a third person, a “‘third
person’ shall include any party who causes injury to an employee at the time of his
employment or at any time thereafter provided the employer is obligated to pay
benefits under this Chapter because the injury by the third party has aggravated the
employment related injury.” La.R.S. 23:1101(C). Applying a plain reading of this
statute, we conclude that Defendant’s burden of proving that the settling parties were
third persons is two-fold: Defendant must prove (1) an aggravation of the work-
related injury, and (2) the payment of benefits as a result of the aggravation. The
failure to satisfy both elements will defeat Defendant’s claim that Ms. Hatchell
forfeited her right to future workers’ compensation benefits based on her failure to
obtain its written approval of the settlements.
Assignment of Error Number One
In her first assignment of error, Ms. Hatchell argues the WCJ erred in finding
that the injuries she suffered as a result of the December 13, 2018 and April 14, 2019
accidents aggravated her work-related neck injury. We disagree.
Ms. Hatchell admitted that she was involved in these accidents subsequent to
her work-related accident. She further admitted that she settled her claims with the
insurers involved in these accidents without first obtaining written approval from
Defendant. However, she claimed that neither of these accidents aggravated her
work-related neck injury, increased her work restrictions, or caused her to miss
work. Ms. Hatchell claimed that these accidents only irritated her neck pain, and
she denied telling either Drs. Vu or Wolf that her neck pain had worsened as a result
of the accidents. While she admitted that Dr. Vu administered a trigger point
injection, she claimed that this occurred following the May 25, 2018 accident. She
further testified that this was not the first time she had received a trigger point
injection from Dr. Vu. She further denied that Dr. Vu prescribed a pain patch after
the December 13, 2018 accident.
According to the medical records, Ms. Hatchell reported that her neck
symptoms worsened after both the December 13, 2018 and the April 13, 2019
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accidents. On January 18, 2019, Ms. Hatchell, who was seeing Dr. Clark Gunderson
for her lumbar issues following the December 13th accident, reported that her
preexisting neck pain was worse since the accident. In his January 18, 2019 letter
to her then counsel, Dr. Gunderson stated that in addition to her lower-back pain,
Ms. Hatchell had left-sided neck pain, which radiated into her left shoulder, as well
as “discomfort and numbness in her left upper extremity, which is unchanged from
prior to the motor vehicle accident.” With regard to Ms. Hatchell’s neck pain, it was
Dr. Gunderson’s impression that Ms. Hatchell “has sustained a cervical injury
superimposed on a previously operated cervical spine that had discomfort prior to
the recent motor vehicle accident.”
On January 23, 2019, Ms. Hatchell told Dr. Vu that she was suffering “low
back pain with radicular pain in left leg and spasm and constant pain in neck[]” as a
result of the December 13th accident. Based on Ms. Hatchell’s complaints, Dr. Vu
administered trigger point injections to her bilaterally in the trapezius and levator
scapulae and the right rhomboid muscles. On January 30, 2019, Ms. Hatchell
reported to Dr. Wolf's assistant that her “cervical pain has increased since the wreck
and she is now experiencing pain into her lumbar and down left leg — into posterior
aspect of left calf.” Based on her increased pain and radiculopathy, Dr. Wolf ordered
an updated cervical MRI. In addition to his previous assessment of Ms. Hatchell’s
condition, Dr. Wolf now added C6-7 disc disorder with radiculopathy. The February
2, 2019 MRI revealed disc bulges at C3-4 and C4-5, postoperative changes at C5-6,
and a broad-based disc herniation, mild central canal narrowing and bilateral neural
canal narrowing at C6-7. This was similar to the findings of an August 14, 2018
MRI.
Dr. Vu’s record of May 9, 2019, states that Ms. Hatchell complained of “neck
pain with radiation to entire left arm and lower, lateral aspect of left hand with
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numbness[]” following the accident. On May 16, 2019, Ms. Hatchell reported to Dr.
Wolf's assistant that her cervical symptoms had worsened following the April 14,
2019 accident. Her pain level had increased from 8 to 9/10, and she was now
experiencing tingling in her entire right upper extremity and the last three fingers of
her right hand.
It was Dr. Vu’s opinion that these accidents caused an exaggeration of Ms.
Hatchell’s work-related neck injury. While Dr. Wolf could not say if Ms. Hatchell
suffered a temporary exacerbation of her symptoms due to the accidents, his records
indicated that the tenderness in her cervical spine and upper-back muscles increased
extensively. Additionally, her left-arm strength decreased from 5/5 to a range of -4
to +4/5. Although some of the tenderness in her spine had resolved by March 5,
2020, Ms. Hatchell was still exhibiting some muscle weakness in her left arm.
Dr. Wolf testified that following these accidents, he “was working under the
assumption that the pain generators were unchanged, simply that the severity was
exacerbated.” He stated that although he did not document any objective change in
Ms. Hatchell’s condition, she subjectively reported that her complaints had been
aggravated. By March 5, 2020, Dr. Wolf determined that Ms. Hatchell had reached
surgical maximum medical improvement (MMI). Pursuant to a February 13, 2020
functional capacity evaluation (FCE), she was permanently restricted to sedentary
work, with the additional restrictions of no lifting, pushing, or pulling of more than
five pounds and no repetitive activity. He stated that although Ms. Hatchell was at
surgical MMI, she might benefit from “additional or more aggressive medical
management.”
Based on the foregoing evidence, we find that the WCJ’s finding that Ms.
Hatchell suffered an aggravation of her work-related neck injury as a result of the
December 13, 2018 and April 14, 2019 accidents is “reasonable in light of the record
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reviewed in its entirety.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). As the
WC] was presented with differing views of the evidence, “its choice between them
cannot be manifestly erroneous or clearly wrong.” Jd. Accordingly, the WCJ’s
finding that Defendant proved Ms. Hatchell suffered an aggravation of her work-
related neck injury was not manifestly erroneous.
However, this does not end our inquiry as Defendant had to satisfy the second
element of La.R.S. 23:1101(C) before a finding could be reached that Ms. Hatchell
forfeited her right to future workers’ compensation benefits. Thus, Defendant had
to establish proof of its payment of benefits as a result of the aggravation. This leads
us to Ms. Hatchell’s second assignment of error.
Assignment of Error Number Two
In her second assignment of error, Ms. Hatchell argues that the WCJ erred in
finding that she forfeited her right to workers’ compensation benefits based on
Defendant’s failure to prove that it paid any additional benefits as a result of her
subsequent accidents. We agree.
The WCJ specifically held that Defendant failed to prove the amount of its
lien based on the amount of medical expenses it paid as a result of Ms. Hatchell’s
ageravated work-related injury. The judgment directly states that “no evidence was
presented as to what portion of Claimant’s motor vehicle settlements were
attributable to the aggravation of Claimant’s work-related cervical injury.” This
factual finding is also reviewed on appeal pursuant to the manifest error-clearly
wrong standard. Banks, 696 So.2d 551.
After reviewing the record in its entirety, we cannot find, nor has Defendant
pointed to, any evidence establishing that Defendant paid benefits to Ms. Hatchell,
medical or indemnity, due to an aggravation of her work-related injury. Following
the December 13, 2018 accident, Dr. Vu testified that she administered trigger point
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injections due to Ms. Hatchell’s increased pain. As reflected above, it was her
opinion that these accidents caused an exaggeration of Ms. Hatchell’s work-related
neck injury. Her records indicate that a lidocaine mixture was injected into Ms.
Hatchell’s bilateral trapezius, levator scapulae, and right rhomboid muscles on
January 23, 2019. However, Risk Management’s records indicate that Dr. Vu had
requested permission to administer cervical trigger point injections on May 1, 2018,
prior to the December 13th accident and that it denied her request. Moreover,
Defendant has not pointed to, and we could not find, any evidence establishing that
Defendant paid for these injections. Other than the trigger point injections, the
medical records reveal no change in the treatment offered to Ms. Hatchell by Dr. Vu.
It is further clear from Dr. Wolf’s records that Ms. Hatchell was experiencing
C6 and C7 radicular symptoms prior to the December 13, 2018 accident, as
evidenced by the burning sensation down her left arm to her elbow and the numbness
in her left ring finger and pinky. However, subsequent to that and the April 14, 2019
accident, Ms. Hatchell’s neck and radicular pain were exacerbated such that Dr.
Wolf changed his impression of her condition to include C6-7 disc disorder with
radiculopathy. Dr. Wolf ordered an updated MRI based on Ms. Hatchell’s increased
pain and radiculopathy following the December 13, 2018 accident.
Although the MRI was performed, the record contains no evidence
establishing that Defendant paid for it. However, it is clear that Risk Management
denied payment pending a determination of causation. We could find no payment
to Radiology Specialist LLC corresponding to a February 2, 2019 MRI in Risk
Management’s payment history. Dr. Wolf’s medical records establish that Risk
Management, on behalf of Defendant, paid him $6,937.00 on July 8, 2019, for
performing fusions at both C5-6 and C6-7, a surgery that he had discussed with Ms.
Hatchell prior to the accidents. Additionally, because the charged surgical rate of
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$15,184.00 was contractually reduced by $8,614.93, it is unclear what, if any of that
amount, was for the C6-7 fusion, even if it was not considered in Ms. Hatchell’s
surgical plan prior to the subsequent accidents.
Based on Defendant’s failure to satisfy the second element of La.R.S.
23:1101(C), Ms. Hatchell was not required to obtain its approval prior to settling her
claims with the insurers of the vehicles involved in those accidents. Thus, we find
that the WCJ legally erred in finding that Ms. Hatchell forfeited her right to future
workers’ compensation benefits. Accordingly, the judgment finding that Ms.
Hatchell forfeited her right to future workers’ compensation benefits is reversed.
Based on this finding, we further amend the judgment to award Ms. Hatchell
TTD for the additional time she was restricted from working. According to Dr.
Wolf's records, Ms. Hatchell was restricted from working following the surgical
removal of the C5-6 arthroplasty device and the anterior cervical discectomy and
fusion at C5-6 and C6-7. This restriction lasted from May 28, 2019 through October
15, 2019. Although Ms. Hatchell was released to light-duty work on October 15,
2019, she was again restricted from working on November 20, 2019, after she
experienced an exacerbation of her axial neck pain and an increase in her daily
headaches following her return to work. On March 5, 2020, Dr. Wolf determined
that Ms. Hatchell was at surgical MMI, and released her with a permanent restriction
of sedentary work. Thus, the judgment is amended to award Ms. Hatchell additional
TTD, at the rate of $328.60 per week, for the period of time between May 28, 2019
and October 15, 2019, and between November 20, 2019 and March 5, 2020, for a
total of $12,618.24. We further remand the matter for a determination of whether
Ms. Hatchell is entitled to SEBs following her March 5, 2020 release to sedentary
work, and for a determination of all reasonable and necessary medical expenses not
paid as a result of Defendant’s termination of her workers’ compensation benefits.
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Assignment of Error Number Three
In her third assignment of error, Ms. Hatchell argues that she is entitled to
penalties and attorney fees based on Defendant’s termination of her workers’
compensation benefits. We agree.
Ms. Hatchell claims that she is entitled to statutory penalties and attorney fees
pursuant to La.R.S. 23:1201(F). However, as La.R.S. 23:1201(F) pertains to the
untimely payment of benefits, we find, under the facts at issue, that the applicable
penalty provision is La.R.S. 23:1201(1), which provides:
Any employer or insurer who at any time discontinues payment
of claims due and arising under this Chapter, when such discontinuance
is found to be arbitrary, capricious, or without probable cause, shall be
subject to the payment of a penalty not to exceed eight thousand dollars
and a reasonable attorney fee for the prosecution and collection of such
claims. The provisions as set forth in R.S. 23:1141 limiting the amount
of attorney fees shall not apply to cases where the employer or insurer
is found liable for attorney fees under this Section. The provisions as
set forth in R.S. 22:1892(C) shall be applicable to claims arising under
this Chapter.
In awarding penalties and attorney fees based on an employer’s termination
of workers’ compensation benefits, the supreme court, in Johnson v. Insurance Co.
of North America, 454 So.2d 1113, 1117 (La.1984), stated:
An insurer is required to make a reasonable effort to ascertain an
employee’s exact medical condition before benefits are terminated.
Orgeron v. Tri-State Road Boring, Inc., 434 $o0.2d 65 (La., 1983). If,
subsequent to an initial optimistic report, an insurer receives medical
information indicating continuing disability, the insurer may not
blindly rely upon the earlier report to avoid penalties for arbitrary
nonpayment of compensation benefits. Walker v. Gaines P. Wilson &
Son, Inc., 340 So.2d 985 (La.,1976). Penalties and attorneys’ fees are
awarded when an insurer discontinues compensation benefits without
probable cause. Guillory v. Travelers Insurance Co., 294 $o.2d 215
(La., 1974).
In Howard v. Rio Sol Nursing Home, 21-824, p. 11 (La.App. 3 Cir. 6/15/22), 344
So.3d 216, 223, this court further explained:
“Arbitrary and capricious behavior consists of willful and
unreasoning action, without consideration and regard for facts and
1]
circumstances presented, or of seemingly unfounded motivation.”
Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9 (La. 12/1/98), 721
So.2d 885, 890. “In determining whether an employer’s actions are
arbitrary and capricious, the crucial inquiry is whether the employer can
articulate an objective reason for terminating benefits at the time of the
termination.” Doyal v. Vernon Par. Sch. Bd., 06-1088, p. 10 (La.App.
3 Cir. 2/7/07), 950 So.2d 902, 909, writ denied, 07-832 (La. 6/15/07),
958 So.2d 1190.
Peggy Evans, Risk Management’s claims adjuster, testified that Ms.
Hatchell’s indemnity benefits were stopped because her claim for TTD had
prescribed; she failed to submit any requests for SEBs after November 23, 2019; and
she was involved in three intervening accidents and settled claims related to two of
the accidents. In regard to Ms. Hatchell’s TTD benefits, she stated that it was Risk
Management’s position that the payment of SEBs does not interrupt the prescription
for TTD. Thus, Ms. Hatchell’s right to receive TTD was prescribed as it had been
more than one year since she had last received TTD.
In the termination of Ms. Hatchell’s SEBs, Ms. Evans testified that she relied
on the medical records; February 18, 2018 and December 7, 2020 ISO reports that
revealed the three accidents; and a January | 1, 2021 letter from Defendant’s counsel,
which summarized Ms. Hatchell’s deposition and revealed she had been involved in
three accidents and had settled her claims in two of the accidents. Other than the
February 18, 2019 letter to Dr. Wolf, Ms. Evans admitted that she made no further
effort to discover whether these accidents caused an aggravation of Ms. Hatchell’s
work-related injury. She stated that for this finding, she relied on Dr. Wolf’s January
31, 2019 report that Ms. Hatchell’s work injury was aggravated by the December
13, 2018 accident.
In in the judgment awarding Ms. Hatchell TTD, the WCJ held:
IT IS ORDERED, ADJUDGED, AND DECREED that
Defendant’s continuous payment of [SEBs] to Claimant from the date
of injury through the date of Claimant’s June 2017 surgery interrupted
prescription for [TTD], thereby entitling Claimant to [TTD] for the
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period of June 27, 2017 through July 11, 2017. Based on Defendant’s
refusal to pay [TTD] due, Claimant’s request for penalties and
attorney’s fees is granted in the amount of $2,000 and $7,500,
respectively.
Considering the foregoing evidence and the WCJ’s award of penalties and
attorney fees based on Defendant’s failure to pay TTD for the period following Ms.
Hatchell’s June 2017 surgery, which Defendant has not appealed, we find that
Defendant acted arbitrarily and capriciously and without probable cause in
terminating Ms. Hatchell’s TTD. We further find that Ms. Evans’s reliance on Dr.
Wolf's January 31, 2019 report was unreasonable in light of his February 19, 2019
opinion, in which he related his diagnoses, treatment requests, and disability finding
to Ms. Hatchell’s work-related injury. Although Dr. Wolf’s opinions predated Ms.
Hatchell’s April 14, 2019 accident, Ms. Evans admitted she made no effort to
question Ms. Hatchell’s physicians concerning the effect that accident had on her
work-related injury. Thus, Dr. Wolf’s opinion was the only opinion Defendant had
regarding a possible aggravation of Ms. Hatchell’s work-related injury prior to its
January 21, 2021 termination of her benefits, as the physicians’ depositions were not
taken until after the termination. Accordingly, we find that Ms. Evans failed to make
a reasonable effort to determine the exact nature of any possible aggravation suffered
by Ms. Hatchell or that Defendant had paid benefits as a result of her aggravation
prior to terminating her benefits.
Accordingly, we render judgment in favor of Ms. Hatchell to award her
$8,000.00 in penalties pursuant to La.R.S. 23:1201(1). We further amend the WCJ’s
judgment to increase the amount of attorney fees awarded to her from $7,500.00 to
$15,000.00.
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DECREE
For the foregoing reasons, the judgment of the workers’ compensation judge
is reversed to the extent that it holds that Theresa S. Hatchell forfeited her future
compensation benefits; it is amended to award Theresa S. Hatchell an additional
$12,618.24 in temporary total disability benefits and to increase the attorney fees
awarded to $15,000.00; and it is remanded to the Office of Workers’ Compensation
for a determination of whether Theresa S. Hatchell is entitled to supplemental
earnings benefits following her March 5, 2020 release to sedentary work and a
determination of all reasonable and necessary medical benefits not paid to her as a
result of St. Michael PFU, LLC’s termination of her workers’ compensation benefits.
The judgment is affirmed in all other respects. Judgement is further rendered in
favor of Theresa S. Hatchell to award her penalties in the amount of $8,000.00.
Costs of this appeal are assessed to St. Michael PFU, LLC.
AFFIRMED IN PART AS AMENDED; REVERSED IN PART;
RENDERED; AND REMANDED.
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