Linda Moody v. Abrom Kaplan Memorial Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 05-527

LINDA MOODY

VERSUS

ABROM KAPLAN MEMORIAL HOSPITAL

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF VERMILION, NO. 04-07644
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and
J. David Painter, Judges.

AFFIRMED.

Michael Benny Miller
Miller & Miller
P. O. Box 1630
Crowley, LA 70527-1630
(337) 785-9500
Counsel for Plaintiff/Appellee:
Linda Moody

Christopher H. Hebert
Rabalais, Hanna & Hebert
701 Robley Drive, #210
Lafayette, La 70503
(337) 981-0309
Counsel for Defendant/Appellant:
Abrom Kaplan Memorial Hospital

EZELL, JUDGE.

In this workers’ compensation matter, Abrom Kaplan Memorial Hospital

(AKMH) appeals the decision of the workers’ compensation judge setting conditions

upon the vocational rehabilitation counselor assigned to its employee, Linda Moody.

AKMH claims that the workers’ compensation judge imposed unreasonable conditions

upon the counselor and that it had no authority to force the conditions upon him. We

disagree, and for the following reasons, affirm the decision of the workers’

compensation judge.

Linda Moody injured her back in the course and scope of her employment with

AKMH. Eventually, it was requested by the employer that Ms. Moody meet with a

vocational rehabilitation counselor, Glen Guidry. After meeting with Mr. Guidry

several times, Ms. Moody attained counsel. Through her attorney, in a letter dated

June 2, 2004, Ms. Moody requested that certain conditions, as set out in Crain

Brothers, Inc. v. Richard, 02-1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523, be

followed in order for Mr. Guidry to remain her vocational rehabilitation counselor.

Mrs. Moody’s attorney specifically requested that:

(A) That your meetings with my client be held at my office at
Crowley, Louisiana.

(B) That you agree not to question my client as to any facts other
than those facts necessary to provide vocational rehabilitation under La.
R.S. 23:1226.

(C) That I will be simultaneously copied on all documents sent to
anyone concerning my client. This is to include correspondence, job
analyses, and all appendices to your correspondence.

(E)(sic) That I will be a party to all oral conversations between you
and the employer, insurer or their representative or attorney. (There will
be no secret conversations between yourself and the employer or insurer
or their representatives.)

(F)(sic) That you will not subject my client to jobs which are
inappropriate.

(G)(sic) That you will upon request provide your entire file for
copying or provide a copy of your entire file without charge.

(H)(sic) That you understand that although you were selected by
and are paid by my clients’ employer/insurer, you are dedicated to
finding a job for my client which client can obtain and also continue to
perform.

(I)(sic) That the purpose of the vocational rehabilitation you
provide is for the benefit of my client, who is also your client.

(J)(sic) No other person has provided vocational rehabilitation in
this case.

(K)(sic) That you or your firm has no connection, directly or
indirectly, with my client’s employer or insurer or their agents, except that
you were chosen and paid by the employer/insurer to provide vocational
rehabilitation in this case.

Mr. Guidry refused to comply with these conditions. Mr. Guidry then set up

a vocational rehabilitation conference with one of Ms. Moody’s physicians, Dr. John

Budden. In response, Ms. Moody sought a motion to quash the conference and filed

a motion to set guidelines for rehabilitation.

After a hearing, the workers’ compensation judge granted the motion to quash

the rehabilitation conference with Dr. Budden, and granted the motion to set guidelines,

finding the conditions sought by Ms. Moody to be reasonable and imposing them

upon Mr. Guidry. From this decision AKMH appeals.

AKMH asserts as its lone assignment of error that the workers’ compensation

judge erred in granting Ms. Moody’s motion to quash and motion to set guidelines,

claiming that the conditions imposed by the workers’ compensation judge were

unreasonable, and that he lacked the authority to impose such conditions. For the

following reasons, we disagree.

A workers’ compensation judge’s factual findings are reviewed pursuant to the

manifest error-clearly wrong standard of review. Sharbono v. Fire Safety Sales and

Serv., 04-265 (La.App. 3 Cir. 9/29/04), 883 So.2d 1066, writ denied, 04-2661 (La.

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1/28/05), 893 So.2d 73. In applying this standard, “we must determine not whether

the trier of fact was right or wrong, but whether the fact finder’s conclusion was a

reasonable one.” Jackson v. Wal-Mart Stores, Inc., 03-1054, p.5 (La.App. 5 Cir.

2/10/04), 868 So.2d 813, 818, quoting Hookfin v. Advantage Nursing Servs., Inc.,

03-340 (La.App. 5 Cir. 10/15/03), 860 So.2d 57.

In Crain Brothers Incorporated v. Richard, 02-1342, p.3 (La.App. 3 Cir.

4/9/03), 842 So.2d 523, 526, this court ruled that La. R.S. 23:1226, “considered in its

entirety does not restrict the WCJ from exercising her inherent power to require that

a vocational counselor, selected pursuant to the statute, act in accordance with the

rules regulating his professional conduct to assure his integrity, honesty and fair

dealing in rendering the services prescribed.” This court stands by that determination.

However, as noted in Interiano v. Fernando Pastrana Construction, 04-430, p.4

(La.App. 5 Cir. 10/26/04), 887 So.2d 547, 549, we “did not hold that the conditions

set forth by the claimant’s counsel were mandatory in every case or that they should

be ‘deemed necessary by the hearing officer’ in every situation.” We simply found

“that La. R.S. 23:1226 does not restrict the worker’s compensation judge from

requiring a vocational counselor to agree to certain terms,” and we found no manifest

error in the worker’s compensation judge’s finding that the conditions set forth by the

claimant’s counsel under those circumstances were reasonable. Id.

The conditions determined to be reasonable in Crain Brothers are the exact

conditions found to be reasonable by the workers’ compensation judge in this matter.

As in Crain Brothers, there is simply nothing included in the record which indicates

that the workers’ compensation judge committed manifest error in determining these

conditions to be reasonable under the facts of this case.

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We hereby affirm the decisions of the workers’ compensation judge. Costs of

this appeal are assessed against AKMH.

AFFIRMED.

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