Yuronda Jackson v. St. Francis Cabrini Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-0983

YURONDA JACKSON

VERSUS

CHRISTUS HEALTH CENTRAL LOUISIANA D/B/A CHRISTUS ST.
FRANCES CABRINI HOSPITAL

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 04-01063,
HONORABLE JAMES L. BRADDOCK
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, J. David Painter and James T. Genovese,
Judges.

AFFIRMED AS AMENDED.

Maria A. Losavio
Losavio Law Office, LLC
Post Office Box 12420
Alexandria, LA 71315-2420
(318) 767-9033
COUNSEL FOR PLAINTIFF/APPELLEE:
Yuronda Jackson

Kathryn Fowler Van Hoof
Van Hoof Law Firm
Post Office Box 339
369 Lamourie Rd.
Lecompte, LA 71346
(318) 776-4836
COUNSEL FOR DEFENDANT/APPELLANT:
Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini
Hospital

PETERS, J.

Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital

(Cabrini) has appealed a judgment which, among other things, awarded its former

employee, Yuronda Jackson, workers’ compensation medical benefits for her cervical

injury, penalties, and attorney fees. Ms. Jackson has answered the appeal, seeking an

increase in attorney fees for work done at the trial level as well as attorney fees for

work done on appeal. For the following reasons, we affirm the judgment below in all

respects and award Ms. Jackson an additional $2,500.00 in attorney fees for work

done on appeal.

DISCUSSION OF THE RECORD

On April 1, 2002, Ms. Jackson began working for Cabrini in its housekeeping

department in Alexandria, Louisiana. On April 18, 2002, as Ms. Jackson was wiping

underneath a bed, a wheel fell off of the bed and the bed fell on top of her. Ms.

Jackson finished cleaning the room and then reported the incident to the

housekeeping supervisor. An employee incident report was filed, which stated that

the bed fell on Ms. Jackson’s shoulder.1

On the same day as the accident, Ms. Jackson saw Dr. Ivan Altman and

reported that she had “pain . . . all in her [right] shoulder.” No complaints of cervical

pain were noted. A shoulder X-ray was reported as being normal. Dr. Altman

diagnosed Ms. Jackson as having a strained right shoulder and prescribed pain

medication and a muscle relaxant. Dr. Altman saw Ms. Jackson thereafter and

ultimately referred her to an orthopedist.

1
There was some dispute as to whether the bed fell on Ms. Jackson’s right shoulder or on her
neck and right shoulder. The employee incident report, the employer’s report of injury, and certain
medical records provide that the bed fell on Ms. Jackson’s shoulder, while other medical records
provide that the bed fell on Ms. Jackson’s neck. Ms. Jackson testified at trial that “the bed fell down
on [her] neck onto [her] shoulder.”

On April 29, 2002, Ms. Jackson saw Dr. L. Donovan Perdue, an orthopedist.

At that time, Dr. Perdue reported, among other things, that Ms. Jackson had

generalized tenderness about the shoulder and “mild discomfort with cervical

compression,” although no cervical diagnosis was made at that time. Instead, the

doctor diagnosed Ms. Jackson as having a right shoulder strain. Ms. Jackson began

a course of physical therapy the next day, during which she reported numbness in her

arm, wrist, and hand and a “‘tight’ middle finger.”

On September 3, 2002, Ms. Jackson went to Huey P. Long Medical Center

(Huey P. Long). The Huey P. Long record provides Ms. Jackson’s first documented

specific complaint of neck pain. Ms. Jackson was prescribed medication and told to

return if she experienced no improvement. Cabrini did not orchestrate the Huey P.

Long visit—Ms. Jackson went of her own accord. She testified as follows regarding

why she took this action: “I was waiting around for Cabrini to get in contact with me

to send me to a doctor. I waited, waited, waited. No one called me. I was in so much

pain.”

Ms. Jackson did not return to Dr. Perdue until November of 2002, at which

time she additionally began seeing Dr. Gordon L. Webb, also an orthopedist. On

November 11, 2002, Dr. Perdue ordered diagnostic testing. On November 19, 2002,

Ms. Jackson underwent an MRI of the cervical spine, which demonstrated

degenerative disc disease and disc bulges at multiple levels. She also underwent an

MRI of the right shoulder, which revealed mild subacromial bursitis.

By mid-December of 2002, both Dr. Perdue and Dr. Webb were of the opinion

that Ms. Jackson’s shoulder injury had healed and that Ms. Jackson’s cervical

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problem was not work related. Cabrini paid medical benefits for Ms. Jackson’s

shoulder injury but refused to recognize the cervical problem as being work related.

Ms. Jackson saw Dr. G. Andrew Wilson, a neurosurgeon, on March 12, 2003.

At that time, the doctor diagnosed a possible cervical radiculopathy and

recommended additional diagnostic testing. Apparently, Dr. Wilson moved his

practice from the Alexandria area thereafter. Still, on August 15, 2003, he released

a medical opinion in which he stated that the work accident “more probabl[y] than not

caused her neck injuries and aggravated any preexisting neck condition.”

Nevertheless, Cabrini still did not recognize Ms. Jackson’s cervical condition as

being work related.

On February 13, 2004, Ms. Jackson filed the instant claim for compensation

benefits, alleging, among other things, that no indemnity benefits had been paid and

that medical treatment for her cervical injury was in dispute. Cabrini filed an answer,

raising, among other issues, prescription. Subsequently, the parties entered into a

consent order dismissing Ms. Jackson’s claim for indemnity benefits. Cabrini then

filed a formal exception of prescription as to medical benefits for the cervical injury.

In the meantime, Ms. Jackson went to the LSU Health Sciences Center in

Shreveport (LSUS) on several occasions in connection with her cervical pain. She

also began treating with another neurosurgeon, Dr. Patrick A. Juneau, III, on March

29, 2004. Dr. Juneau recommended diagnostic testing, and, on May 20, 2004, Ms.

Jackson underwent another cervical MRI, which demonstrated “some progression of

disease” but with “no associated significant new disc herniations.” Dr. Juneau

diagnosed Ms. Jackson as having cervical radiculomyelopathy. Ms. Jackson

continued treating with Dr. Juneau, who concluded that Ms. Jackson needed cervical

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surgery. Dr. Juneau also concluded that there was a causal link between Ms.

Jackson’s need for surgery and the work accident.

Cabrini continued to dispute causation and, on June 19, 2004, obtained an

opinion from Dr. James A. Poche, apparently a neurosurgeon. Dr. Poche never saw

Ms. Jackson but based his opinion on information provided to him. Dr. Poche agreed

with the diagnosis of cervical disc disease and the recommendation of surgery, but

he was of the opinion that the work accident did not cause Ms. Jackson’s cervical

problems.

Cabrini followed up with a second medical opinion on August 24, 2004, with

Dr. Anil Nanda, a neurosurgeon. Dr. Nanda saw Ms. Jackson on one occasion only.

He diagnosed Ms. Jackson as having C5-6 stenosis and recommended surgery if she

“could not live around it.” When presented with a questionnaire, Dr. Nanda indicated

his agreement with Dr. Poche’s opinion regarding lack of causation.

A hearing was held on November 16, 2004, in connection with the cervical

injury. Following the hearing, Cabrini filed a “Motion to Report Fraud under La. R.S.

23:1208.2 and for Forfeiture of Benefits under La. R.S. 23:1208,” alleging that Ms.

Jackson committed fraud when she testified and submitted evidence regarding

mileage reimbursements at the hearing. The workers’ compensation judge (WCJ)

signed a judgment on May 24, 2005,2 denying Cabrini’s motion; ordering Cabrini to

pay for Ms. Jackson’s cervical medical treatment “submitted at trial,” including

surgery; ordering Cabrini “to pay only for those mileage expenses submitted by [Ms.

Jackson] as an exhibit at trial which were actually incurred by [Ms. Jackson]”;

2
This judgment was actually an amended judgment following a motion for new trial filed by
Ms. Jackson regarding lack of conformity of the original judgment with the WCJ’s oral reasons for
judgment.

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awarding Ms. Jackson $2,000.00 in penalties and $5,000.00 in attorney fees; and

ordering Cabrini to pay costs of the proceedings.

Cabrini has appealed, contending that the WCJ erred in (1) crediting Ms.

Jackson’s testimony regarding the occurrence of a cervical injury and her request for

mileage reimbursements, (2) finding that the cervical complaints were related to the

work accident, (3) “awarding the payment of all medical bills submitted in evidence,”

(4) awarding penalties and attorney fees, (5) refusing to admit Ms. Jackson’s

deposition into evidence, and (6) failing to find that Ms. Jackson’s claim for medical

and mileage benefits had prescribed.

OPINION

Credibility

Cabrini contends that the WCJ “committed error in unreasonably evaluating

the credibility of the claimant when the manifest weight of the evidence showed no

degree of reliability and trust-worthiness in her testimony as to willful

misrepresentation of mileage reimbursement or occurrence of cervical injury.” In this

assignment of error, Cabrini essentially urges that we overturn the WCJ’s credibility

evaluation of Ms. Jackson and also find that she forfeited her benefits pursuant to

La.R.S. 23:1208 for misrepresenting her entitlement to mileage reimbursements.

Specifically, Cabrini attacks Ms. Jackson’s credibility by pointing out

“discrepancies” between Ms. Jackson’s initial complaints of shoulder pain and

subsequent complaints of cervical pain, between Ms. Jackson’s description of the

condition of the room following the collapse of the bed and her supervisor’s

description of the room, and between Ms. Jackson’s description of which wheel fell

off of the bed and her supervisor’s description of which wheel fell off of the bed.

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Cabrini does not contend that a work accident did not occur; rather, Cabrini

contends that the work accident did not cause Ms. Jackson’s cervical complaints.

While there may have been discrepancies between Ms. Jackson’s description and her

supervisor’s description as to the nature and extent of the aftermath of the work

accident and while Ms. Jackson may not have initially reported cervical complaints,

these “discrepancies” do not mandate overturning the WCJ’s credibility

determinations. Importantly, credibility calls are for the WCJ. Bruno v. Harbert Int’l

Inc., 593 So.2d 357 (La.1992). While another fact finder might have made different

credibility determinations and weighed the evidence differently, we do not find that

the WCJ was clearly wrong in rejecting Cabrini’s attack on Ms. Jackson’s credibility.

Cabrini also contends that Ms. Jackson wilfully made false statements for the

purpose of obtaining workers’ compensation benefits by misrepresenting her

entitlement to mileage reimbursements at trial. Ms. Jackson introduced into evidence

mileage claims for mileage which she testified she incurred, but the record reveals

discrepancies in certain of Ms. Jackson’s mileage claims. The mileage request forms

Ms. Jackson submitted were signed and dated months after the mileage was allegedly

incurred in several instances listed on the request forms. According to Ms. Jackson,

she went over her records and appointment slips to compile her mileage claims.

Louisiana Revised Statutes 23:1208 provides for the forfeiture of compensation

benefits when a person wilfully makes a false statement or representation for the

purpose of obtaining benefits. While there were inaccuracies, the WCJ was

“convinced that Ms. Jackson did not wilfully and intentionally misrepresent her

mileage trips.” Essentially, there were two permissible views of the evidence, one

being that Ms. Jackson merely became confused when she compiled her mileage

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claims. Thus, we find no manifest error in the WCJ’s determination that Ms. Jackson

did not wilfully misrepresent her mileage.

Causation

The WCJ found that Ms. Jackson’s cervical injury was work related, and

Cabrini challenges that finding. Cabrini does not dispute that Ms. Jackson has

cervical problems. Rather, Cabrini contests the finding of causation by challenging

Ms. Jackson’s credibility, pointing out that she did not complain of neck pain until

five months after the accident, and pointing to medical evidence that she had

preexisting progressive cervical disc disease.

We have already found no manifest error regarding the WCJ’s decision to

reject Cabrini’s attack on Ms. Jackson’s credibility. Concerning the timing of Ms.

Jackson’s symptoms as an indication of lack of causation, Dr. Poche stated:

“Cervical disc syndromes caused or aggravated by injury usually become

symptomatic at the time of injury, or within the next 1-2 days. Occasionally,

symptoms may develop only after 1-2 weeks.” Ms. Jackson reported “pain . . . all in

her [right] shoulder,” an area obviously proximate to the cervical spine, as early as

the day of the work accident. Dr. Webb stated that he and Dr. Perdue agreed “that the

degenerative disc disease in her C-spine is the cause of her shoulder pain.”

Additionally, even Dr. Nanda was of the opinion that the pain generator was not in

the shoulder joint but in the cervical spine. Thus, as early as the day of the work

accident, Ms. Jackson manifested symptoms of a cervical problem through the

shoulder pain, although not definitively diagnosed as such until months later. In any

event, within two weeks of the work accident, Dr. Perdue recorded that Ms. Jackson

had “mild discomfort with cervical compression.” Also within two weeks of the work

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accident, Ms. Jackson reported numbness in her arm, wrist, and hand. Again, while

she did not obtain a specific diagnosis of a cervical injury within two weeks of the

work accident, Ms. Jackson certainly presented with symptoms consistent with a

cervical problem within that time frame. Moreover, while it was not until several

months after the work accident that the emphasis of Ms. Jackson’s complaints shifted

to cervical pain specifically and a definitive diagnosis was made, both of Ms.

Jackson’s treating neurologists, Dr. Wilson and Dr. Juneau, were of the opinion that

Ms. Jackson’s cervical injury was caused by the work accident.

Nevertheless, Cabrini points to medical evidence to the effect that Ms.

Jackson’s cervical problems preexisted the work accident. Concerning Ms. Jackson’s

preexisting degenerative process, Dr. Poche stated: “There are numerous signs of

degenerative disc disease noted in the cervical MRI which pre-date the injury;

therefore, it is not necessary to postulate an event or injury in order for symptoms to

develop.” Dr. Nanda indicated agreement with Dr. Poche’s opinion in that regard.

Further, Dr. Webb stated that he and Dr. Perdue were in agreement that Ms. Jackson’s

“degenerative disc disease in her C-spine . . . could not have been the result of her

injury on April 18, 2002.”

However, “[e]ven if there were a pre-existing latent back disability,

nevertheless workmen’s compensation benefits are payable when a work-accident

aggravates or accelerates it, producing disability. ‘A claimant’s disability is

presumed to have resulted from an accident, if before the accident the injured person

was in good health, but commencing with the accident the symptoms of the disabling

condition appear and continuously manifest themselves afterwards, providing that the

medical evidence shows there to be a reasonable possibility of causal connection

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between the accident and the disabling condition.’ Lucas v. Insurance Company of

North America, 342 So.2d 591, 596 (La.1977).” West v. Bayou Vista Manor, Inc.,

371 So.2d 1146, 1149 (La.1979) (citation omitted).

In fact, while Dr. Perdue did initially report that Ms. Jackson’s cervical

problem was the result of “degenerative process, not caused by injury,” he

subsequently explained that degenerative disc disease “can easily be aggravated by

incidents, such as her work injury . . . .” Ms. Jackson does not contend that the work

accident caused her degenerative process. Rather, she became symptomatic following

the work accident. Ms. Jackson presented evidence to show that she was in good

health before the work accident and that she became symptomatic shortly after the

work accident. She also presented medical evidence showing more than a reasonable

possibility of a causal connection. Cabrini presented no evidence to suggest that Ms.

Jackson had any cervical symptoms before the accident or that an intervening activity

or accident caused Ms. Jackson’s cervical injury. Therefore, we find no manifest

error in the WCJ’s finding of causation.

Medical Bills

In the amended judgment, the WCJ ordered Cabrini to “pay for the cervical

medical treatment, including surgery, of [Ms. Jackson] submitted at trial.” Cabrini

contends that the WCJ erroneously “awarded payment of all medical bills submitted

in the present case.” Specifically, Cabrini challenges the following bills: (1) LSUS

bills totaling $2,747.40, (2) a Rite Aid Pharmacy bill in the amount of $20.89, (3) an

Eckerd Pharmacy bill in the amount of $7.88, (4) a medical mileage claim totaling

$413.44, (5) a medical mileage claim totaling $47.64, and (6) an “LSU lien.”

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Cabrini argues that “[t]here is no medical record supporting the [LSUS] bills

except for the March 4, 2004 outpatient record . . . which refers only to un-related

back and neck pain.” Cabrini also disputes an “LSU lien” that it contends is

erroneously marked as Defendant’s Exhibit 22. Ms. Jackson submits that the “LSU

lien” to which Cabrini refers is actually in evidence as Plaintiff’s Exhibit 1, for which

she claims the $2,747.40. Cabrini does not challenge the authenticity of these

medical bills, and they correspond with the nature and timing of Ms. Jackson’s

cervical complaints. Further, as set forth above, we have affirmed that Ms. Jackson’s

cervical injury was work related. Thus, we reject Cabrini’s argument regarding the

LSUS bills.

Cabrini challenges the $20.89 Rite Aid Pharmacy bill because it “neither

identifies the prescriptions filled, the ordering physician, or in any way describes how

it could be work-related.” The prescription was filled on April 14, 2003, for

cyclobenzaprine, which is the generic of Flexeril, a muscle relaxant. Dr. Altman

prescribed a muscle relaxant for Ms. Jackson as early as the day of the accident, and

Ms. Jackson was prescribed Flexeril in connection with an emergency room visit in

February 2003 for shoulder pain. Furthermore, Ms. Jackson testified that the

prescription was for her shoulder and neck. The record contains no evidence to show

that Ms. Jackson had another incident or injury that would have necessitated

treatment with a muscle relaxant. Accordingly, we reject Cabrini’s argument

regarding the Rite Aid Pharmacy bill.

Additionally, Cabrini challenges the $7.88 Eckerd Pharmacy bill on the basis

that it “is supported by no medical record indicating how it could be work-related.”

This prescription was filled on February 6, 2003, for codeine, a pain reliever. The

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record reveals that Ms. Jackson went to the emergency room on that day and was

diagnosed with shoulder pain and prescribed pain medication. Ms. Jackson testified

that the prescription was for her shoulder and neck, and the record contains no

evidence to show that Ms. Jackson had another incident or injury that would have

necessitated treatment with a pain reliever. Therefore, we also reject Cabrini’s

argument regarding the Eckerd Pharmacy bill.

Cabrini challenges two medical mileage reimbursement claims, but Ms.

Jackson concedes in her appellate brief that the WCJ “specifically ruled that

defendant was only responsible for those mileage expenses actually incurred, not all

the mileages submitted in Plaintiff’s Exhibits 4 and 5.” Thus, we reject Cabrini’s

argument in this regard.

Penalties and Attorney Fees

The WCJ awarded penalties in the amount of $2,000.00 and attorney fees in the

amount of $5,000.00 in connection with Cabrini’s denial of medical benefits for Ms.

Jackson’s cervical condition. The WCJ based its award “on the totality of the

evidence and the very minimal inconsistencies and the equivocal statements of the

physicians relied upon by the employer.”

“[T]o determine whether the claimant’s right has been reasonably controverted,

thereby precluding the imposition of penalties and attorney fees under La. R.S.

23:1201, a court must ascertain whether the employer or his insurer . . . possessed

factual and/or medical information to reasonably counter the factual and medical

information presented by the claimant throughout the time he refused to pay all or

part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p.

9 (La. 12/1/98), 721 So.2d 885, 890. We review a WCJ’s decision regarding the

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assessment of penalties and attorney fees pursuant to the manifest error standard.

Olivier v. After Crash, Inc., 04-1655 (La.App. 3 Cir. 5/4/05), 901 So.2d 1214.

Cabrini contends that the WCJ erred in awarding penalties and attorney fees.

As we appreciate Cabrini’s position, it reasonably controverted the claim based on

the timing of Ms. Jackson’s cervical complaints and the opinions of Dr. Webb, Dr.

Perdue, Dr. Poche, and Dr. Nanda that Ms. Jackson’s cervical injury was not caused

by the work accident.

As set forth above, early on Dr. Webb and Dr. Perdue were of the opinion that

Ms. Jackson had degenerative disc disease that was not caused by her work accident.

However, later on in response to Dr. Wilson’s opinion regarding causation, Dr.

Perdue expounded on his original opinion in part as follows:

Please be advised that this review [of Dr. Wilson’s statement dated
August 15, 2003] does not change my opinion. Undoubtedly, the
degenerative disc disease at multiple levels in her cervical spine as
demonstrated by MRI as well as osteophytes constitute a chronic
condition which long preceded her work injury. Of course this kind of
condition can easily be aggravated by incidents, such as her work
injury, as well as activities of daily living, as well as flare-ups occurring
for no particular reason.
....
The question of whether or not her work injury aggravated the condition
and rendered it symptomatic cannot be answered definitively, but the
best indication of that would be careful review of her prior medical
records from all sources prior to her work injury . . . . If review of her
records shows that she had similar symptoms prior to her work injury,
then I would not consider her work injury as being a significant cause
and aggravation of her pre-existing condition. If a review of her record
does not show any history of similar symptoms prior to her work injury,
then I would consider her work injury to have aggravated her pre-
existing condition.

(Emphasis added.)

Importantly, Cabrini never obtained information to suggest that Ms. Jackson had any

cervical symptoms before the accident. Thus, although Dr. Webb’s and Dr. Perdue’s

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initial opinions may have provided an initial basis for Cabrini to deny benefits, Dr.

Perdue’s subsequent opinion actually supported Ms. Jackson’s claim for benefits.

Further, although Dr. Webb’s initial opinion remained unchanged, it did not provide

a reasonable basis for the denial of benefits because it did not address the issue of

causation of any aggravation or acceleration of Ms. Jackson’s preexisting cervical

condition.

Dr. Poche, who never examined Ms. Jackson, was of the opinion that the work

accident did not cause Ms. Jackson’s disc to rupture or become symptomatic. He

predicated his conclusion on the following:

1. The original injury was to the shoulder.
2. The original evaluations note point tenderness in the shoulder.
This implies the pain generator was in the shoulder joint or its
surrounding soft tissues. This pain did not originate in the
cervical spine.
3. Cervical disc syndromes caused or aggravated by injury usually
become symptomatic at the time of injury, or within the next 1-2
days. Occasionally, symptoms may develop only after 1-2 weeks.
In this particular case, the period of time that passed between the
injury and the onset of definable cervical disc symptoms would
make a causal relationship very doubtful.
4. There are numerous signs of degenerative disc disease noted in
the cervical MRI which pre-date the injury; therefore it is not
necessary to postulate an event or injury in order for symptoms to
develop.

Dr. Poche’s determination that the pain generator was in the shoulder and not

the cervical spine is in direct conflict with the determinations of the other physicians

upon which Cabrini relied, Dr. Webb, Dr. Perdue, and Dr. Nanda, who concluded that

the pain generator was in fact in the cervical spine. Moreover, contrary to Dr.

Poche’s supposition, Ms. Jackson actually began exhibiting cervical symptoms

immediately following the accident, although not immediately diagnosed as such.

Furthermore, Dr. Poche’s analysis regarding Ms. Jackson’s preexisting cervical disc

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disease does not take into consideration that Louisiana Workers’ Compensation Law

provides for recovery even for an aggravation or acceleration of an employee’s

preexisting condition and additionally provides an employee with a presumption of

causation under circumstances such as are present in the instant case. Finally, this

court has held that the mere production of a different opinion of a physician who

never examined the employee does not constitute competent medical evidence

sufficient to reasonably controvert a claim for benefits. LeMelle v. Wal-Mart Stores,

Inc., 04-527 (La.App. 3 Cir. 9/29/04), 883 So.2d 526. Thus, Dr. Poche’s opinion did

not provide an acceptable basis for Cabrini to deny benefits for Ms. Jackson’s

cervical injury.

Cabrini also relied on the opinion of Dr. Nanda, who did see Ms. Jackson, but

on only one occasion for a second medical opinion. Moreover, he merely checked the

“Yes” boxes on a questionnaire to indicate his agreement with Dr. Poche that

“cervical disc syndromes caused or aggravated by injury usually become symptomatic

at the time of injury or within 1-2 days, and occasionally as late as 1-2 weeks” and

that it was “not necessary to postulate an event or injury in order for symptoms to

develop” in light of the signs of the degenerative disc disease. He also checked the

“Yes” box to indicate his agreement that “the amount of time that passed between the

date of injury (4/18/02) and the onset of definable cervical disc symptoms (11/11/02)

would make a causal relationship very doubtful.” As did Dr. Poche, Dr. Nanda relied

on assumptions not supported by the evidence or law. Thus, Dr. Nanda’s opinion did

not provide an acceptable basis for Cabrini to deny benefits in light of all of the

information available to Cabrini by the time of Dr. Nanda’s analysis.

Importantly, both of Ms. Jackson’s treating neurologists, Dr. Wilson and Dr. Juneau,

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were of the opinion that Ms. Jackson’s cervical injury was caused by the work

accident. Cabrini apparently questioned Dr. Wilson’s opinion because he couched

it in terms of the bed having fallen on Ms. Jackson’s head rather than on her shoulder.

However, Cabrini did not obtain information to show that Dr. Wilson’s opinion

regarding causation was unsupportable because of his understanding of the location

of the point of impact. Thus, Cabrini was not entitled to automatically discount Dr.

Wilson’s opinion, particularly in light of Dr. Juneau’s opinion. Interestingly, Cabrini

relied on Dr. Nanda’s opinion, although he described the mechanism of injury as

being a “[fall] off a bed.”

Basically, while Cabrini did possess medical information early on to support

a lack of causation, the information Cabrini possessed was insufficient to reasonably

counter the factual and medical information presented by Ms. Jackson throughout the

time Cabrini refused to pay benefits. Thus, the WCJ was not manifestly erroneous

in awarding Ms. Jackson penalties and attorney fees.

Exclusion of Deposition

At trial, Cabrini sought to introduce into evidence Ms. Jackson’s deposition.

The WCJ refused to admit the deposition into evidence for purposes other than

impeachment, and Cabrini contends that this was error. “However, if a party fails to

proffer excluded evidence, an appellate court cannot analyze it and its admissibility,

and that party is precluded from complaining of the excluded testimony.” Whitehead

v. Kan. City S. Ry. Co., 99-896, p. 11 (La.App. 3 Cir. 12/22/99), 758 So.2d 211, 218-

19, writ denied, 00-209 (La. 4/7/00), 759 So.2d 767. Because Cabrini did not proffer

the deposition, it is precluded from complaining about the WCJ’s refusal to admit the

deposition into evidence.

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Prescription

Finally, while Cabrini concedes that “[t]here is no dispute that the claim for

medical payments for the alleged shoulder injury has not prescribed,” Cabrini

nevertheless contends that any claim for medical and mileage reimbursement benefits

regarding Ms. Jackson’s cervical condition has prescribed. Specifically, Cabrini

argues that Ms. Jackson’s claim regarding her cervical condition has prescribed

because Ms. Jackson “has received no workers’ compensation medical payments for

cervical injuries and she has not asserted her claim for medical benefits for cervical

injuries with the Office [of] Workers’ Compensation within one year of the accident,

or within one year of the date the cervical injuries developed.”

Louisiana Revised Statutes 23:1209(C) provides:

All claims for medical benefits payable pursuant to R.S. 23:1203
shall be forever barred unless within one year after the accident or death
the parties have agreed upon the payments to be made under this
Chapter, or unless within one year after the accident a formal claim has
been filed with the office as provided in this Chapter. Where such
payments have been made in any case, this limitation shall not take
effect until the expiration of three years from the time of making the last
payment of medical benefits.

(Emphasis added.)

Without discussing the effect of Cabrini’s payment of medical benefits for Ms.

Jackson’s shoulder injury, we note that, despite Cabrini’s assertion to the contrary,

the evidence reveals that Cabrini did in fact pay for diagnostic testing in connection

with Ms. Jackson’s cervical injury in November of 2002 and that Ms. Jackson filed

her claim for medical benefits in connection with the cervical injury well within three

years of Cabrini’s payment for the diagnostic testing. Cabrini also paid for diagnostic

testing for the cervical spine as late as May of 2004. Accordingly, Ms. Jackson’s

claim for medical benefits for her cervical injury has not prescribed.

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Answer to Appeal

Ms. Jackson has answered the appeal, seeking an increase in attorney fees for

work done at the trial level as well as attorney fees for work done on appeal. “[T]he

amount of the statutory attorney fees rests within the discretion of the WCJ, provided

the amount is supported by the record.” LeMelle, 883 So.2d at 534. We find no

abuse of discretion in the amount of attorney fees the WCJ awarded at the trial level.

However, we do find that attorney fees are warranted for work done on appeal, and

we award $2,500.00 in that regard.

DISPOSITION

For the foregoing reasons, we affirm the judgment below in all respects and

award additional attorney fees in the amount of $2,500.00 for work done on appeal.

We assess costs of this appeal to Christus Health Central Louisiana d/b/a Christus St.

Frances Cabrini Hospital.

AFFIRMED AS AMENDED.

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