Teilla L. Noel v. Home Health Care 2000

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1280

TEILLA L. NOEL

VERSUS

HOME HEALTH CARE 2000, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 01-06726,
HONORABLE SAM LOWERY,
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and Glenn B. Gremillion,
Judges.

AFFIRMED IN PART; REVERSED IN PART.

Robert T. Jacques, Jr.
Attorney at Law
1011 Lakeshore Dr., Suite 310
Lake Charles, LA 70601
(337) 433-4674
COUNSEL FOR PLAINTIFF/APPELLEE:
Teilla Noel

H. Douglas Hunter
Guglielmo, Lopez, Tuttle,
Hunter & Jarrell, L.L.P.
306 East North Street
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
COUNSEL FOR DEFENDANT/APPELLANT:
Home Health Care 2000, Inc.

PETERS, J.

In this workers’ compensation case, Home Health Care 2000, Inc. (Home

Health)1 appeals a judgment in favor of its former employee, Teilla Noel, ordering

reinstatement of Ms. Noel’s indemnity and medical benefits, awarding reimbursement

for mileage expenses, awarding $9,000.00 in attorney fees, and holding that Ms. Noel

did not violate the provisions of La.R.S. 23:1208. For the following reasons, we

affirm in part and reverse in part.

DISCUSSION OF THE RECORD

Jonald J. Walker is the president of Home Health, and his wife, Lisa Walker,

is the corporation’s chief executive officer. Apparently, they are the sole shareholders

in the corporation. In February of 1998, Mrs. Walker hired Ms. Noel as a clerical

employee. Ms. Noel eventually attained the position of office staff coordinator.

On September 30, 1998, in the course and scope of her employment, Ms. Noel

fell off of a ladder while attempting to move files. As a result of the accident, Ms.

Noel sustained various injuries and saw a host of physicians and psychologists for

evaluation and/or treatment. Ms. Noel’s diagnoses included a concussion, post-

concussion syndrome with brain injury, right knee injury requiring arthroscopic

surgery, sacroiliac joint dysfunction, depression, and pain disorder. Following her

work accident, Ms. Noel began receiving indemnity and medical benefits and mileage

expense reimbursements for travel in connection with her medical evaluations and

treatment. Ms. Noel did not return to any employment after her work accident.

At some point, Home Health began to question the accuracy of Ms. Noel’s

mileage submissions, and, in August of 2001, or almost three years after her work

accident, Home Health discontinued reimbursement of the mileage expenses.

1
We note that Home Health was insured through the Louisiana United Businesses Self
Insurers Fund, but for purposes of this appeal all references will be made to Home Health directly.

Additionally, in August of 2001, Ms. Noel underwent a functional capacity evaluation

(FCE). Ms. Noel’s effort in the FCE was labeled as “questionable” and “unreliable”

to a degree. While the evaluator was of the opinion that Ms. Noel could not

accurately be placed in an appropriate work category “[d]ue to [her] excessive number

of inconsistent test results,” the evaluator assumed through clinical observation and

test results that Ms. Noel qualified for light-duty work. Home Health offered Ms.

Noel her former job with accommodations and at the same rate of pay. Ms. Noel

refused the job offer. Based mainly on its determination that Ms. Noel misrepresented

her mileage and partially on the invalid FCE and the job tender, Home Health

discontinued indemnity and medical benefits in September of 2001.

However, apparently just prior to Home Health’s discontinuance of benefits,

Ms. Noel ended a sexual affair she had been having with Mr. Walker. In fact,

according to Ms. Noel, Mr. Walker had indicated to her that the benefits would be

stopped because she refused to accompany him on a trip to Dallas, Texas. Mr. Walker

denied that he had any control over Ms. Noel’s receipt of benefits and stated that he

did not tell her he had such control.

Regardless of any actual connection between the discontinuance of benefits and

the ending of the affair, the affair and its aftermath resulted in complications not

encountered in the typical workers’ compensation case. Specifically, the sexual

aspects of the affair began after the work accident, but Mr. Walker and Ms. Noel had

engaged in “[c]ommunication” before the work accident. It appears that in the Fall

of 2001, Ms. Noel filed a sexual harassment lawsuit against Mr. Walker.

Additionally, in December of 2001, she filed a criminal complaint, asserting that Mr.

Walker was making harassing telephone calls to her. According to Ms. Noel, after the

affair ended, Mr. Walker called her repeatedly, appeared at her house, and followed

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her. However, Ms. Noel testified that the harassment was not limited to Mr. Walker

as Mrs. Walker followed her as well. She presented as evidence of the Walkers’

activities her journal entries in which she recorded various episodes of the harassment,

the Calcasieu Parish Sheriff’s Department complaint and investigation records, and

BellSouth telephone records. Mr. Walker, on the advice of separate counsel who was

present during the workers’ compensation proceedings, refused to answer questions

concerning the alleged affair and harassment.

In part due to these complications and in part due to her continuing physical

problems, Ms. Noel did not feel that she could accept the job offer by Home Health

following the FCE. Additionally, while Ms. Noel admitted that the mileage she

submitted was not in compliance with the shortest routes available to her, her reasons

for taking the longer routes included attempts to avoid being followed by Mr. Walker

and the need to pick someone up to go with her to certain appointments because she

was afraid to be alone and because of the nature of the procedures she was to undergo.

Following the termination of benefits, Ms. Noel filed the instant claim for

reinstatement of benefits, penalties, and attorney fees. Home Health countered with

the assertion that Ms. Noel violated La.R.S. 23:1208 by overstating her mileage in her

reimbursement requests and by misrepresenting her physical capabilities in the FCE.

After a trial on the merits, the workers’ compensation judge (WCJ) held that

Ms. Noel did not commit fraud for purposes of La.R.S. 23:1208 forfeiture, ordered

reinstatement of indemnity and medical benefits from the date of termination of those

benefits, awarded a penalty in the amount of $2,000.00, awarded attorney fees in the

amount of $9,000.00, and ordered that unpaid mileage expenses be resubmitted.

Home Health then filed a motion for new trial, which the WCJ granted in part to the

extent of deleting the penalty award and setting the mileage for various healthcare

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providers as well as a pharmacy. Otherwise, the WCJ left its original judgment intact.

Home Health has appealed, asserting the following assignments of error:

1. The trial court erred in awarding Teilla Noel disability benefits
subsequent to September 21, 2001.
2. The trial court erred in finding Teilla Noel did not violate LSA
R.S. 23:1208, forfeiting any future right to worker’s compensation
benefits.
3. The trial court erred in awarding attorney’s fees.

Additionally, Ms. Noel has answered the appeal, seeking additional attorney fees for

work done on appeal.

OPINION

Indemnity Benefits

Initially, Home Health contends that the WCJ erred in awarding Ms. Noel

indemnity benefits after September 21, 2001. Specifically, Home Health’s vocational

rehabilitation consultant determined that Ms. Noel’s former job was available to her

and that she could physically perform the job. Home Health thus offered Ms. Noel

her former job, with accommodations, at her same rate of pay and presented evidence

that it had jobs available at the same rate of pay at other Home Health office locations

where Mr. Walker would not be present. Nevertheless, Ms. Noel did not return to

work with Home Health, citing personal and physical reasons. The WCJ rejected

these positions as being insufficient to terminate indemnity benefits, and Home Health

challenges this rejection.

Louisiana Revised Statutes 23:1226(B)(1) provides that the goal of

rehabilitation services is to return the disabled employee to work as soon as possible

after an injury occurs, with a minimum of retraining. The first appropriate option is

a return to the same position. Id. Additionally, in order for an employer to establish

the employee’s earning capacity, the employer must prove, by a preponderance of the

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evidence, that the employee is physically able to perform a certain job and that the job

was offered to the employee or available to the employee in the employee’s or

employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i);

Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d

551. An employer may discharge its burden of proving job availability by

establishing: (1) the existence of a suitable job within the employee’s physical

capabilities and within the employee’s or employer’s community or reasonable

geographic region, (2) the amount of wages that the employee can be expected to earn

in that job, and (3) an actual position available for that particular job at the time that

the employee received notification of the job’s existence. Banks, 696 So.2d 551. A

“suitable job” has been described as “a job that claimant is not only physically capable

of performing, but one that also falls within the limits of claimant’s age, experience,

and education.” Id. at 557.

In this assignment of error, we address only whether the Home Health jobs

offered or open were truly “available” under the facts and circumstances of this case,

not whether Ms. Noel was physically capable of performing the jobs.

Home Health asserts the following in its brief:

The main objection to the tender of employment was due to the
employee’s illicit relationship with the owner of Home Health 2000,
Jonald Walker. This was a sexual relationship which started after Ms.
Noel began receiving worker’s compensation benefits. It included secret
rendezvous in apartments and motels, both locally and afar. This
relationship continued for over two years. Neither Jonald Walker nor
Teilla Noel is blameless in this relationship. Jonald Walker was married.
His wife worked at Home Health. Teilla Noel knew Jonald Walker was
married. In fact, she knew his wife. Nonetheless, she knowingly entered
into this relationship.
It is unfathomable that an employee can benefit from their own
indiscretions. In the instant case Ms. Noel entered into a dangerous
relationship, that with a married man. The examples of such
relationships ending in good standing are few and far between. Ms. Noel
got what she deserved, a distasteful ending. In the name of justice she

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cannot benefit by her actions.
Furthermore, it is inconceivable that the Walkers would continue
harassment of Ms. Noel given the fact that there are criminal charges
pending against Mr. Walker. There are no less than fourteen separate
offices in which Ms. Noel could work. Jonald and Lisa Walker work out
of one of those offices. Allegations of continued harassment are simply
baseless. Had Ms. Noel wanted to establish such harassment she should
have returned to work. Only in that fashion could anybody state, with
any certainty, whether she would have been penalized by the Walkers as
a result of her adulterous relationship with Jonald.

This is a case of first impression for us and, as set forth above, is complicated

by circumstances not usually present in a workers’ compensation case. Ms. Noel’s

former job involved working in the same office location as Mr. Walker, with whom

she had been involved sexually. Were the affair the only complication in Ms. Noel’s

return to work, we might be inclined to agree that Ms. Noel should not be allowed to

“benefit from [her] own indiscretions” to the extent of considering her former job as

not being “available” because of this complication.

However, the evidence reveals more than the mere termination of the affair.

After Ms. Noel ended the affair, Mr. Walker stalked and harassed her. Additionally,

Mrs. Walker followed or stalked Ms. Noel during these events. The Walkers are both

the officers and owners of the employing corporation. Under these circumstances in

which the former employers committed acts against their former employee that

resulted in or necessitated the filing of a civil suit and criminal charges, we cannot say

that the WCJ erred in finding that Ms. Noel’s former job was not truly “available” to

her as a suitable or appropriate job. We hold that such factors should be considered

in determining the “suitability” of and thus the “availability” of a job. Certainly the

job was theoretically “available” to her or available “on paper” according to the trial

testimony, but it was not suitable for her and thus not practically “available” due to

the actions of the Walkers. We find specious Home Health’s argument to the effect

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that “it is inconceivable that the Walkers would continue harassment of Ms. Noel

given the fact that there are criminal charges pending against Mr. Walker.” Rather,

in keeping with the beneficent and humanitarian goals of the Workers’ Compensation

Act, we find that Ms. Noel should not be required to either suffer the loss of her

workers’ compensation benefits or return to a work environment where those in

authority over her have already engaged in a course of hostile and perhaps criminal

conduct against her and against whom she has ongoing litigation as a result. Further,

were she to return to work, Ms. Noel would be put in a position of depending on the

continued availability of that job from the Walkers themselves, where, according to

Ms. Noel, Mr. Walker had previously threatened her with the loss of her workers’

compensation benefits for failing to comply with his demands. Human nature

militates against the fitness or feasibility of such a work situation. Simply put, the

offer of her former job under these circumstances is sham rehabilitation. We do not

comment in any way on Ms. Noel’s physical ability to perform the job; rather, our

holding is that the job is not available to Ms. Noel, regardless of her abilities, because

of the actions of her former employers.

Nevertheless, Home Health presented evidence as to the availability of positions

in its other office locations in the area, where Mr. Walker would not be present. Still,

Mrs. Walker admitted that she and her husband supervise the other offices and that she

travels to those offices about once a month. Moreover, regardless of the physical

presence or absence of the Walkers at other Home Health job locations, the Walkers

are still the owners of Home Health. For the reasons given above, these jobs are also

not practically available to Ms. Noel.

Forfeiture of Benefits

Home Health contends that the WCJ erred in finding that Ms. Noel did not

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violate La.R.S. 23:1208 and thus forfeit her right to workers’ compensation benefits

when she misrepresented her mileage and when she misrepresented her physical

capabilities at the FCE.

Louisiana Revised Statutes 23:1208(A) provides: “It shall be unlawful for any

person, for the purpose of obtaining or defeating any benefit or payment under the

provisions of this Chapter . . . to willfully make a false statement or representation.”

Further, La.R.S. 23:1208(E) provides: “Any employee violating this Section shall,

upon determination by workers’ compensation judge, forfeit any right to

compensation benefits under this Chapter.” “The only requirements for forfeiture of

benefits under Section 1208 are that (1) there is a false statement or representation, (2)

it is willfully made, and (3) it is made for the purpose of obtaining or defeating any

benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La. 9/5/95), 660

So.2d 7, 12.

Concerning mileage reimbursement, La.R.S. 23:1203(D) provides in pertinent

part that “the employer shall be liable for the actual expenses reasonably and

necessarily incurred by the employee for mileage reasonably and necessarily traveled

by the employee in order to obtain the medical services, medicines, and prosthetic

devices, which the employer is required to furnish under this Section . . . .” (Emphasis

added.) Home Health asserts that Ms. Noel continuously, wilfully, and for the

purposes of obtaining benefits overstated her mileage for a period of almost three

years, which led to her receiving around $1,000.00 in benefits to which was not

legally entitled. Home Health hired a private investigator to check the mileage for the

most direct routes for certain locations, and the private investigator’s mileage was

significantly different than that reported by Ms. Noel. Additionally, Home Health’s

third-party administrator checked Ms. Noel’s reported mileage against mileage

8

available over the internet through MapQuest, and again the mileage differed

significantly. Home Health cites Johnson v. Basic Industries, Inc., 97-1136 (La.App.

3 Cir. 4/15/98), 711 So.2d 843, writ denied, 98-1358 (La. 6/26/98), 719 So.2d 1292,

and St. Benard Parish Police Jury v. Duplessis, 02-632 (La. 12/4/02), 831 So.2d 955,

in support of its argument.

At trial, Ms. Noel admitted that she did not take the shortest routes available to

her, but she denied doing anything willful to change the mileage that she submitted.

Because her vehicle did not have a “trip meter,” she recorded the mileage when she

left home and subtracted that from the mileage registered when she returned home.

As we appreciate her testimony, Ms. Noel included in her mileage the distance to pick

up her friend or her daughter to attend various appointments with her because: “I was

scared to be by myself during the day and also, a lot of times, I got injections; and Dr.

Lopez suggested that I bring somebody with me to drive home.” As set forth above,

it appears that Mr. Walker followed or stalked Ms. Noel, and she testified that she

chose a certain route because Mr. Walker was not aware of that route. Additionally,

it appears that Ms. Noel included in her mileage the distance traveled to her mother’s

house where she dropped her children off during certain doctor appointments. Ms.

Noel hired her own private investigator, who checked the mileage for Ms. Noel’s trips

within Calcasieu Parish in accordance with the routes given by Ms. Noel. According

to Ms. Noel’s private investigator, the mileage Ms. Noel submitted was actually less,

except in one instance, than what he found.

Ms. Noel testified that no one ever informed her that she had to use the shortest

routes. Indeed, La.R.S. 23:1203(D) requires only that the mileage be reasonable and

necessary. The WCJ adjusted the mileage owed by Home Health to an amount less

than that claimed by Ms. Noel, but he did not find that Ms. Noel had wilfully made

9

false representations for the purpose of obtaining benefits in regard to her mileage

submissions. The WCJ gave the following reasons:

I’ve sat less than two feet from each person testifying, listened to
everything they said, gauged their demeanor, weighed what they said in
context of what everyone else said, and made a decision based on
credibility, because this case, while it involves a unique combination of
litigation and libido, basically comes down to who is the most
believable. I don’t think anybody who has listened to and sat where I’ve
sat and looked at the witnesses as carefully as I looked at them could
possibly reach any other conclusion than I have reached. They could
have reached it quicker, perhaps, but it wouldn’t be any different. The
over-arching and under-penning question here is: Did Mrs. Noel commit
fraud, and what would be the consequences of her either doing it or not
doing it? Did she deceive her employer?
Well, we have a lot of geographical material. We know where all
the streets are and ponds and lakes and bridges and all. We know all
that, but that really – and we know the shortest distance from point “A”
to point “B”, but I could have figured that out from home. I know Moss
Bluff and all the doctors’ offices, and I can tell you the quickest way to
get there, but that really doesn’t go to the heart of the problem. She
admits she didn’t take the shortest distance, and she says the reason she
didn’t take the shortest distance – well, there are two. First, she needed
to take medication at the doctor’s office on occasion, and she needed
somebody to go with her to drive her back, and the people that she
happens to know just didn’t live on the direct A-to-B, geometrically
straight route. Reasonable.
Secondly, she says she’s having problems, or was having
problems, and still is, with her employer. Well, there’s a lot of dispute
about that. When did it start, when did it end, what happened, and all of
that, and Mr. Walker took the stand briefly. Well, he didn’t stay on the
stand briefly, but he answered very briefly, and I want the record to
reflect that every word out of his mouth was heard by his counsel who
is representing him in another related matter, and I took great pains to
make sure that his counsel had direct eye contact with Mr. Walker, and
he apparently used it. He refused to answer each and every question that
is important as to the issue of whether or not Ms. Noel found it necessary
to use a different approach. Now, his refusing to answer is certainly his
prerogative, and I respect that, and I draw no inference from the fact that
he said nothing, nothing; however, I did, can, and am drawing inferences
from the testimony of the CEO, his wife, whose attorney in this matter
was also in court, with direct eye contact with her. The question was:
Did you know that Ms. Noel and her husband was [sic] having an affair?
And the answer was, “I don’t know anything about that.” So I sit here
in slack-jawed disbelief, as Mrs. Walker says, who has been served,
presumably with papers by a U.S. Marshal, I guess that’s who served
them in federal court, citing the affair, and the relationship, and the
alleged harassment, but he [sic] just doesn’t know anything about this,

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and that was the high point of her testimony. The rest of it was – not
clear and confusing. Asked did he think Ms. Noel was an honest person.
He said no. Would you hire her back? Absolutely.
Now, Mrs. Walker remembers nothing. Her – her most frequent
response was: I just don’t recall. Mr. Walker just is not going to testify.
We then have to move to Ms. Noel, who presented pounds of documents,
clear, detailed information that outlined her allegation. Police reports,
police complaints, district attorney reports, page after page, and they’re
all in evidence, page after page of telephone calls made by, presumably,
Mr. Walker to her. Mr. Walker can’t comment. Mrs. Walker says she
doesn’t know anything about it, so we pretty much are left with what Ms.
Noel says.

The WCJ concluded that Mrs. Noel did not commit fraud: “What she did had a lot of

labels to it, but it does not rise to the level of fraud.”

Credibility calls are for the WCJ. Bruno v. Harbert Int’l, Inc., 593 So.2d 357

(La.1992). The record supports that while Ms. Noel recorded mileage that was

arguably not reasonable and necessary for purposes of La.R.S. 23:1203(D), which

issue we do not here decide, she did not do so wilfully for the purpose of obtaining

benefits. We do not find that the WCJ’s credibility calls and other factual

determinations in this regard were clearly wrong. Further, the cases cited by Home

Health are inapposite. In Johnson, 711 So.2d 843, this court found that the employee

was not credible, and the specific and complicating facts that are present in the instant

case were not present in Johnson. Also, in St. Bernard, 831 So.2d 955, the supreme

court expressly stated that the issue of whether the employee wilfully gave false

statements or representations regarding mileage for the purposes of obtaining benefits

was not before it; rather, the court addressed the issue of whether an injured employee

who has made willful misrepresentations regarding mileage reimbursement forfeits

his right to all workers’ compensation benefits.

Concerning the FCE, the record reveals that the evaluator concluded that Ms.

Noel had an “excessive number of inconsistent test results” and that her effort was

11

“unreliable” to a degree. Assuming, without deciding, that an FCE qualifies for

purposes of La.R.S. 23:1208(A) as a “statement” or “representation,” a false statement

or representation in that regard must be wilfully made for the purpose of obtaining

benefits. Ms. Noel testified that she performed the tests to the best of her ability, that

she informed the evaluator that she was on medication at the time, that she was told

what to do but not given any demonstrations, and that she complained that some of the

tests hurt her. Physical Therapist Kevin Sellers, who did not perform the FCE but

who testified about the results of the FCE, stated that, based on the test results, “it

would appear that the effort she gave was not a reliable effort and that it would

suggest she withheld some of her efforts.” However, Mr. Sellers admitted that it was

difficult for him to state whether there was a conscious effort on Ms. Noel’s part to

not perform to her full capabilities. He explained: “These things vary. The person’s

subjective pain levels are involved. There’s an emotional component that’s involved

. . . .”

The record supports that Ms. Noel did not give a reliable effort. However, that

fact alone does not result in the ultimate conclusion that she wilfully gave a false

representation for the purpose of obtaining benefits. Ms. Noel gave reasonable

explanations about factors that may have affected the FCE, and the WCJ accepted Ms.

Noel as a credible witness. Further, even Mr. Sellers explained that pain levels and

an emotional component are involved in an FCE. Thus, we find no manifest error in

the WCJ’s determination that Ms. Noel did not violate the provisions of La.R.S.

23:1208 concerning the FCE.

Attorney Fees

Finally, Home Health contends that the WCJ erred in awarding attorney fees

when it had a reasonable basis to deny benefits. Ms. Noel seeks additional attorney

12

fees for work done on appeal.

At all pertinent times, La.R.S. 23:1201.22 provided: “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 all reasonable attorney fees for the

prosecution and collection of such claims.” The WCJ stated:

Now, did the employer act arbitrarily and capriciously? Well, not
exactly, because to act arbitrarily encompasses the notion that there had
to be some cognitive effort on somebody’s part to do something mean-
spirited, and here, there was not a lot of cognition. More properly put,
I would say this has [sic] vindictive, punitive, mean-spirited, and in a
large measure, just plain dumb, but there’s no legislation for that, so
we’re going to have to ratchet this up the moral scale to get it to the level
of arbitrary and capricious, but that certainly is where it belongs,
although that’s almost a charitable description.

“Arbitrary and capricious behavior consists of willful and unreasoning action,

without consideration and regard for facts and 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. It appears on one hand that the WCJ found

that Home Health’s discontinuance of benefits did not rise to the level of willful and

unreasoning action, but on the other hand he found that it was vindictive, punitive, and

mean-spirited. Regardless of whether the WCJ in effect applied the wrong legal

standard or applied the standard incorrectly, the record evidence does not support that

Home Health was arbitrary, capricious, or without probable cause in its termination

of benefits.

As set forth above, Home Health discontinued benefits based mainly on its

determination that Ms. Noel misrepresented her mileage and partially on the invalid

2
We note that 2003 La. Acts No. 1204, § 2, repealed La.R.S. 23:1201.2, and its substance
appears now in La.R.S. 23:1201(I).

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FCE and the job tender. Indeed, Ms. Noel admitted that she did not calculate her

mileage using the most direct routes available to her, and the WCJ adjusted her

mileage down from that submitted by her. Further, the issue of whether Ms. Noel’s

job was “available” to her because of the complicating circumstances of this case was

an issue of first impression for us, not firmly established by statute or jurisprudence,

and Ms. Noel’s effort on the FCE was reported as “unreliable.” Importantly, “an

employer should not be penalized for bringing a close legal issue to court.” Burruss

v. Centro Mgmt., Inc., 00-1274, p. 2 (La.App. 3 Cir. 2/28/01), 780 So.2d 630, 631.

Moreover, much of this case turned on credibility calls, which could have gone in

Home Health’s favor. Therefore, we find that the WCJ was at least manifestly

erroneous in awarding attorney fees, and we reverse that award. We likewise reject

Ms. Noel’s claim for attorney fees for work done on appeal.

DISPOSITION

For the foregoing reasons, we reverse the award of attorney fees and affirm the

judgment below in all other respects. We assess one-half of the costs of this appeal

to Teilla Noel and one-half of the costs to Home Health Care 2000, Inc.

AFFIRMED IN PART; REVERSED IN PART.

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