Toni W. Odom v. Kinder Nursing Home

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1442

TONI W. ODOM

VERSUS

KINDER NURSING HOME

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 03-03313
CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and Glenn
B. Gremillion, Judges.

AFFIRMED.

Robert T. Jacques, Jr.
1039 Common Street, Suite A
Lake Charles, LA 70601
(337) 433-4674
Counsel for Plaintiff/Appellee:
Toni W. Odom

Craig A. Davis
111 Mercury
Lafayette, LA 70503
(337) 231-5351
Counsel for Defendant/Appellant:
Kinder Nursing Home

GREMILLION, Judge.

The defendant, Kinder Nursing Home, appeals the workers’ compensation

judge’s judgment finding the plaintiff, Toni Odom, permanently and totally disabled

and entitled to recommended psychological medical treatment. Odom was further

awarded penalties and attorney’s fees as a result of its improper reduction of her

indemnity benefits and its failure to properly investigate her claim. For the following

reasons, we affirm.

FACTS

Odom was employed as the night staff nurse for Kinder Nursing Home.

On July 24, 1997, she was leaning against a bed rail while hanging a feeding bag, when

it gave way causing her to fall and strike her head. As a result, she lost consciousness

for approximately twenty minutes and injured her right arm and wrist, head, neck, and

upper and lower back. She was treated at the Lake Charles Memorial Hospital

Emergency Room for a cervical strain and a closed head injury and told to follow up

with her primary care physician, Dr. Peggy Allemand. Dr. Allemand ultimately

referred her to Dr. Paul Mayes, a physiatrist, due to persistent musculoskeletal pain.

On May 7, 2003, Odom filed a disputed claim for compensation alleging

that Kinder Nursing Home had wrongly reduced her indemnity benefits from

temporary total disability benefits to supplemental earnings benefits on May 4, 2003,

had provided her with inadequate vocational rehabilitation, disputed her disability

status, and was liable for penalties and attorney’s fees on each issue. She amended her

disputed claim to later allege that it failed to authorize the EMG/nerve conduction

study and speech therapy recommended by its neurologist, Dr. Steven Zuckerman, and

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her treating physicians. Odom further alleged that Kinder Nursing Home had provided

her with sham rehabilitation and that it should be liable for maximum penalties and

attorney’s fees.

Following a trial on the merits, the workers’ compensation judge rendered

written reasons finding that Odom was temporarily totally disabled from a pain

management standpoint. The workers’ compensation judge further stated that she did

not believe that Odom was malingering neuropsychologically, but appointed an

independent medical examiner to conduct a neuropsychological assessment to address

whether her current psychological condition was work-related. Thereafter, an

independent medical examination was performed on Odom by Dr. Lawrence Dilks, a

clinical neuropsychologist. In his September 9, 2005 report, he determined that she

met the criteria for cognitive impairment, secondary to post-concussion syndrome, pain

disorder, physiological and psychological features; moderate depression, secondary to

pain disorder; post-traumatic stress disorder; and insomnia, secondary to pain disorder.

Dr. Dilks further found that Odom’s cognitive impairment and post conversion

syndrome were a direct result of her work-related injury.

During the interim, Odom filed a third disputed claim for compensation

alleging that Kinder Nursing Home improperly altered her supplemental earnings

benefits back to temporary total disability benefits on June 20, 2005, without providing

proper notice of the alteration. She further sought penalties and attorney’s fees based

on this action.

Based on Dr. Dilks’ evaluation, the workers’ compensation judge

rendered oral reasons for judgment finding that Odom’s psychological problems were

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compensable. Judgment was then rendered finding that Odom was temporarily and

totally disabled from a pain management standpoint, that her central pain disorder

resulted from her work-related injury, and that she was not malingering

neuropsychologically. The workers’ compensation judge further held that she gave

significant weight to Dr. Dilk’s evaluation and found Odom’s psychological problems

compensable. Following the rendition of this judgment, both Odom and Kinder

Nursing Home filed motions for new trial, which were granted.

After taking the matter under advisement, the workers’ compensation

judge rendered judgment finding that the medical evidence preponderated in Odom’s

favor from a pain management standpoint and that her psychological problems were

compensable injuries. The workers’ compensation judge further held that Kinder

Nursing Home failed to provide suitable vocational rehabilitation to Odom, that she

did not violate the La.R.S. 23:1208 fraud statute, and that she was permanently and

totally disabled. Finally, the workers’ compensation judge held that Kinder Nursing

Home improperly reduced Odom’s temporary total disability benefits to supplemental

earnings benefits, failed to reasonably investigate her claim, and awarded her $4,000

in penalties and $12,000 in attorney’s fees. This appeal by Kinder Nursing Home

followed.

ISSUES

On appeal, Kinder Nursing Home raises eight assignments of error. It

argues that the workers’ compensation judge erred in finding that:

1. Odom proved by clear and convincing evidence that she
was permanently and totally disabled as a result of her
work-related accident.

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2. Odom’s psychological problems were related to her work-
related accident.

3. Kinder Nursing Home failed to provide Odom with suitable
vocational rehabilitation.

4. Odom did not violate La.R.S. 23:1208.

5. From a pain management standpoint, the medical evidence
preponderates in Odom’s favor.

6. Kinder Nursing Home improperly reduced Odom’s
temporary total disability benefits to supplemental earnings
benefits.

7. Kinder Nursing Home did not reasonably controvert
Odom’s claims and in awarding penalties and attorney’s
fees.

8. Kinder Nursing Home failed to reasonably investigate
Odom’s claim.

Odom has filed an answer to appeal seeking additional attorney’s fees for work

performed on appeal.

STANDARD OF REVIEW

As in other civil matters, the standard of review applied to factual findings

in workers’ compensation matters is the manifest error standard. This standard, which

is based upon the reasonableness of the factual findings in light of the record reviewed

in its entirety, is well established in our jurisprudence following the seminal cases of

Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department

of Transportation and Development, 617 So.2d 880 (La.1993).

DISABILITY STATUS

In its first assignments of error, Kinder Nursing Home argues that the

workers’ compensation judge erred in finding that Odom proved by clear and

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convincing evidence that she is permanently and totally disabled as a result of her

work-related accident. It further argues that the workers’ compensation judge erred

in finding that Odom’s psychological problems stemmed from her work-related

accident and that she satisfied her burden of proof with regard to her pain management

treatment.

An injured employee will be entitled to recover permanent and total

disability benefits if he or she proves their inability to engage in any type of

employment by clear and convincing evidence. La.R.S. 23:1221(2)(c). “The issue of

disability within the framework of the workers’ compensation law is a legal rather than

a purely medical determination. LeBlanc [v. Grand Isle Shipyard, Inc., 95-2452

(La.App. 1 Cir. 6/28/96)], 676 So.2d [1157,] 1161. The issue of disability is

determined with reference to the totality of the evidence, including both lay and

medical testimony. LeBlanc, 676 So.2d at 1161.” Walker v. High Tech Refractory

Servs., Inc., 03-1621, p. 4 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

Moreover, before an injured employee may be found permanently and

totally disabled, La.R.S. 23:1226(D) requires the workers’ compensation judge to

consider the likelihood of the employee being rehabilitated through training or

education to the extent that he or she may become gainfully employed again. In

Comeaux v. City of Crowley, 01-0032, p. 13 (La. 7/3/01), 793 So.2d 1215, 1222, the

supreme court stated, “Obviously, the Legislature intended, by imposing in

La.Rev.Stat. 23:1226 a mandate that the prospects of rehabilitation be explored before

an employee is classified as permanently, totally disabled, that the results–negative as

well as positive–of such attempted rehabilitations be considered in ultimately

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determining disability status.”

Dr. Mayes began treating Odom on October 15, 1997, and continued her

treatment up to and after the trial on the merits in this matter. Initially, he stated that

she suffered from post-concussive syndrome or a closed head injury and mild and

increased tone in her right arm. He felt that the pain in her arm was caused by a central

pain syndrome or thalmic pain syndrome, which he described as occurring in stroke

and head injury cases when:

[T]he effected side of the body is intertwined centrally in the brain with
many mechanisms that control function and sensory and tone; and an
environment is set up such that the brain reports pain in the effected limb
and it’s modulated and controlled in the brain as opposed to in the limb.

Dr. Mayes testified that Odom’s condition has worsened over time. By

March 28, 2003, he stated that it had become static for a history of a closed head

injury, which led to the development of a central pain disorder, a right C6-7

radiculopathy, and an ulnar and medial neuropathy in her right arm. He stated that she

suffers from speech and cognitive impairment, mood disorder including depression and

anxiety, and generalized osteoarthritis. He said that she further has a gait disorder

requiring the use of a cane, and occasional spasticity, i.e. tics and clonus. In addition

to these work-related problems, Dr. Mayes testified that Odom suffers from various

other medical conditions, including coronary artery disease; diabetes mellitus, with its

likely accompanying peripheral neuropathy; peripheral vascular disease;

gastroesophegeal reflux disease; and obesity.

Dr. Mayes stated that although mild head injuries usually resolve within

three months, Odom developed the central pain disorder, which affects her right upper

and lower limbs. He described Odom’s right arm and shoulder as being practically

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frozen, in that she holds her arm in a contracted position against her body and has

difficulty moving her elbow and shoulder. He related this to either the cervical

radiculopathy or the central pain disorder. He stated that the pain in her arm affects

her ability to grip and lift things and is chronic in nature. Dr. Mayes testified that the

C6-7 radiculopathy and the median and ulnar peripheral nerve injuries, alone, could

be disabling, but certainly would be a major contributor to her current disabilities. He

further stated that if these conditions are not addressed early on, they become

permanent.

Dr. Mayes further related Odom’s depression to her work-related injuries.

He stated that Kinder Nursing Home has refused to authorize psychological treatment

for Odom despite his request for such treatment early on in his treatment of her. While

Kinder Nursing Home finally approved a neuropsychological evaluation, he said that

it did not authorize any followup treatment, despite the finding that Odom was very

depressed, which he said was common in head-injury patients. He further said that it

was normal for a patient, such as Odom, who was questioned about the veracity of her

symptoms over a period of years, was examined in an adverse way, was not able to

work, and had suffered a loss of income, to be depressed.

Dr. Mayes further said that he could not separate Odom’s psychological

problems from her physical problems. Although he agreed that she had suffered from

depression prior to her work accident, he stated that she was working and functioning

prior to her fall. However, afterwards, he said that her condition worsened. With

regard to her speech impairment, Dr. Mayes testified that it was either caused by her

psychological problems or by “vascular problems in her brain with a speaking

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mechanism in her throat.” He stated that he has recommended speech therapy to

address this problem, which Kinder Nursing Home has never authorized.

As of January 14, 2005, Dr. Mayes stated that Odom was still totally

disabled. He related this to the C6-7 radiculopathy, the peripheral neuropathy

involving her right arm, her chronic pain disorder, and her severe depression. He

further stated that he did not feel that she should undergo a functional capacity

evaluation.

Early on, Kinder Nursing Home had Odom examined by Dr. Gregory

Gidman, an orthopaedic surgeon. In his March 4, 1998 report, he said that he could

not explain the unusual presentation of her right upper extremity or her multiple

complaints. Although he noted that she had end-stage osteoarthritis in both knees, he

said that he could provide no orthopaedic explanation for her gait or her inability to

move her right upper extremity. As Odom had suffered a head injury and there was

a question of whether she had suffered a stroke, Dr. Gidman recommended that she see

a neurologist/neurosurgeon. He then suggested that she undergo an MRI of her

shoulder and then a psychiatric evaluation for possible psychosocial factors. If both

tests were negative, he opined that she would be at maximum medical improvement

and could return to work pursuant to a functional capacity evaluation.

Kinder Nursing Home next referred Odom to Dr. John Clark, a

physiatrist. In his February 22, 2001 report, he found that Odom had suffered a

significant brain trauma as a result of her accident, which caused her spastic right

hemiparesis, motor imbalance, speech and language deficits, as well as chronic

myofascial pain with superimposed thalmic pain syndrome. Dr. Clark opined that

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Odom’s chronic pain stemmed from her increased tone with superimposed thalmic pain

condition and that she was incapable of returning to work due to her impairments. He

recommended that she undergo an MRI of the brain, a neuropsychological evaluation,

and speech therapy. He also suggested an occupational therapy evaluation of her home

in order to outfit it with grab bars and a tub bench.

Dr. Zuckerman examined Odom once at Kinder Nursing Home’s request.

In his April 18, 2001 report, he doubted whether any of her symptoms were

physiological and, although he found her report of a head injury to be very ambiguous,

he opined that a mild closed head injury would not cause the sort of persistent

problems suffered by her. He further felt that such an injury should have resolved

within three months. Dr. Zuckerman recommended that Odom undergo an MRI of the

brain to exclude the possibility that she had suffered a stroke. If it was negative, then

he recommended an EMG/nerve conduction study of the right arm to exclude any

nerve root or peripheral nerve dysfunction. Otherwise, he recommended a psychiatric

evaluation for an assessment of malingering. Subsequent to a normal June 8, 2001

MRI of the brain, Dr. Zuckerman found no physical basis for Odom’s ongoing

complaints; therefore, he opined that she could return to work at full duty with no

restrictions.

Dr. Rennie Culver, a psychiatrist, also evaluated Odom once at the request

of Kinder Nursing Home. In his October 1, 2001 report, he stated that Odom was

obviously depressed and he was unable to determine the onset of this condition due to

her reluctance to give him relevant information. However, he noted that Dr.

Allemand’s medical records documented that she was depressed prior to her work-

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related accident, and he opined that the source of this depression was the declining

health and later deaths of her parents and the fact that she bore three illegitimate

children for the same doctor.

Dr. Culver felt that Odom was malingering or suffering from a factitious

disorder and indicated that she was positive for three of the four criteria for

malingering. He felt that she had suffered a very mild traumatic brain injury as a result

of her fall, which should have resolved within three months. He based a finding of

malingering on her inconsistent clinical presentation which he said had resulted in a

number of diagnoses over the years and with little improvement. He explained that

one of the hallmarks of malingering or factitious disorders is the failure of the patient’s

complaints to conform to any known medical problem or that the complaints are so

inconsistently presented that they result in a number of different diagnoses. Dr. Culver

recommended that Odom undergo a psychological evaluation to define the parameters

of her mental condition and a functional capacity evaluation to define the nature of her

problems.

Dr. Charles Robertson, a clinical psychologist, performed a

neuropsychological evaluation, which was authorized by Kinder Nursing Home based

on Dr. Zuckerman’s recommendation. In his extensive report, he summarized his

findings and recommendations as follows:

Toni Odom is a 49 year old, white female outpatient, referred by
Dr. Paul Mayes for neuropsychological assessment. Current test results
reflect problems in the cognitive domain with distractability, sustained
attention, and speed of mental operations. There were no clear
indications of lateralized impairments which would suggest a stroke.
Language screening reflected dysarthria and dyscalculia but found
adequate verbal fluency with no classic aphasic or apraxic disorders.
Intellectual measures suggested greater non-dominant hemisphere

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impairments in visual-spatial tasks with low-average overall functioning.
Memory problems found were confounded by attention and concentration
problems. Effort demanded by the tasks was a potent predictor of
memory performance, suggesting a depression effect. Higher-order
reasoning and problem solving was moderately impaired.

Problems in the psychological domain include severe depression and
anxiety with likely conversion of psychological stress to physical
complaints. A history of psychological instability is reflected. She has
complaints consistent with a diagnosis of pain disorder.

Overall results from neuropsychological assessment are more suggestive
of severe psychiatric problems than brain injury. She would not be
expected to have her current level of difficulty with attention and
concentration four years after a mild brain injury. This is not to say she
did not sustain a brain injury in her fall 4 years ago, however. The level
of impairment found suggests a more acute problem such as a response
to medication, psychiatric illness, or more recent brain injury. No clear
pattern of lateralized brain injury was found to account for her
appearance of hemiparesis. Her language problems are atypical. A more
detailed assessment by a certified speech pathologist is warranted.
She does not present as someone malingering neuropsychological
impairment, however. Validity measures were all passed. She appears
more to be convinced she has severe medical problems and is quite
worried about her health. She may convert psychological stress to
physical symptoms and completely lack insight into doing so.

While neuropsychological syndromes are not clearly present, her
psychiatric profile is less ambiguous. A severe major depression with
anxiety is present and probably related to her chronic pain complaints.
She also matches diagnostic criteria for somatoform disorder. A history
of personality disorder is also likely.

I advise prompt referral for aggressive psychiatric treatment of depression
and anxiety. She may respond to medical reassurance about her physical
complaints. She should be scheduled for an evaluation by a certified
speech pathologist. I can arrange this through my office if needed. She
should continue in pain management care with Dr. Mayes. He can
determine her readiness to return to work based on limitations from
chronic pain and medication. However, I believe her severe psychiatric
illness presently prevents her from returning to work. A combination of
psychiatric medical management and cognitive behavioral therapy by a
neuropsychologist is advised. Once her depression and anxiety resolve,
a repeat neuropsychological evaluation may be more revealing.

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After performing his court-ordered neuropsychological evaluation, Dr.

Dilks opined that Odom was suffering from a mild post-concussion syndrome, along

with impairments in her memory, judgment, and reasoning. He further found that her

profile was indicative of major depression. Based on his findings, he recommended

the following actions: 1) psychiatric consultation and follow-up treatment; 2)

neurological consultation and follow-up treatment; 3) physical therapy consultation;

4) driving evaluation; 5) individual counseling for depression; 6) group counseling for

post-traumatic stress disorder; 7) vocational evaluation; 8) sleep study; 9) speech and

language evaluation and follow-up treatment; and 10) re-evaluation in one year.

Finally, Dr. Dilks related Odom’s findings directly to her on-the-job injury.

Odom testified that her condition worsened progressively after her fall

until she was unable to use her right arm and had to use a cane due to the pain in her

right leg and her problems with balance. Although she suffered from preexisting

arthritis in her right knee, she said that the fall increased her arthritis. She further

stated that her arthritis medication affected her kidneys so she no longer took it. As

a result, she stated that she suffered greater pain and increased difficulty in walking.

Odom further testified that she now has difficulty speaking and suffers

from increasing depression since her accident. She said that she feels depressed and

frustrated because of her loss of independence and her inability to do things for herself

since the accident. She stated that she lives alone, but said that her daughter visits her

and she has hired someone to clean her house. She said that she lacks stamina and is

no longer able to vacuum, sweep, or make her bed; however, she stated that she can

load her dishwasher, cook, and wash and fold clothes using one hand.

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Odom testified that she is able to drive her car, which is an automatic, in

Kinder and to Eunice, which is twenty-five miles away. However, she said that she

requires a driver to go anywhere else, as she is not as confident driving as she was

prior to her fall. She stated that this is especially true when she is driving on the

interstate, as she does not believe that she would think or react quickly enough in an

emergency.

Britaney Bogard, Odom’s daughter, testified that she has noted

tremendous declines in her mother’s mental and physical capabilities since her fall.

Prior to that, she stated that Odom worked a ten-day shift for Kinder Nursing Home,

raised her three children singlehandedly, and did practically everything for herself.

However, afterwards, she stated that Odom began experiencing problems with her

speech, the use of her right arm and leg, and increasing depression. Now, she stated

that Odom’s speech comes and goes and that she uses a four-legged cane to walk.

Bogard testified that she and her husband both left well-paying positions in Orlando,

Florida to return to Kinder in order to care for her mother.

Bogard stated that Odom’s inability to use her right arm prevents her from

drawing and painting. She said that her mother was an accomplished artist, but now

she uses her left arm for writing and eating. Although she stated that Odom is able to

drive and visit her friend, who lives ten miles away, she said that she requires a driver

to go anywhere else. She further testified that she and her husband purchased a scooter

for Odom to get her out of the house and do things.

Although Bogard admitted that Odom was depressed due to the illnesses

and later deaths of her parents, she stated that her depression increased after her fall.

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She testified that Odom becomes more depressed if she is unable to leave her home

and that she feels okay as long as she remembers to take her medication. However, she

said that she can tell when Odom forgets to take her medication. She stated that Odom

will start crying just from watching a commercial on television. Now, she testified that

they cannot watch any movie which has a sad ending and that her mother tries to focus

only on good things.

Ronnie Smith, an independent nurse case manager, testified as a friend

of Odom’s. He stated that he was the administrator of Kinder Nursing Home from

1978 through 1991, and that he hired Odom as the night LPN. Prior to her accident,

he testified that Odom was an excellent employee, who supervised 100 patients and

four nurses’ assistants as the night nurse. While he worked for Kinder Nursing Home,

he stated that he never noticed that Odom was depressed to such an extent that she was

unable to work. He further admitted that she was slightly overweight and that she

walked with a slight abnormality as a result of arthritis in her legs. However, he said

that neither problem hindered her in any way. He did testify that the way she walks

has changed since her fall.

Smith said that he has seen a drastic change in Odom since her fall. He

stated that her thought process has become much slower and that her speech has

deteriorated. He said that her speech is better on some days than others, but that

sometimes she speaks very slowly and does not make complete statements or

sentences. He said that she occasionally speaks clearer when she is aggravated, but

that her speech slows down again when she becomes calmer.

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Karen Pelican and Helen Daniels both work for Kinder Nursing Home;

Pelican as secretary and Daniels as Odom’s relief nurse. Both testified that Odom

walked with a limp prior to her accident and that they noticed no difference in how she

walked prior to her fall than how she walked afterwards. Daniels testified that Odom

did not use a cane prior to her fall.

In her written reasons for judgment, the workers’ compensation judge

held that Odom carried her burden of proof with regard to the issue of pain

management based on the testimony from Drs. Mayes and Clark. The workers’

compensation judge recalled that Dr. Mayes opined that Odom was suffering from a

central pain disorder as a result of her brain injury, while Dr. Clark found that she

suffered from a “spastic right hemiparesis, motor imbalance, speech and language

deficits, as well as chronic myofascial pain with superimposed thalamic pain

syndrome.” Both doctors felt that Odom was incapable of returning to work as a result

of her impairments. The workers’ compensation judge further held that Odom’s

psychological problems were work-related based on Dr. Robertson’s and Dr. Dilks’

neuropsychological assessments. Although Drs. Zuckerman and Culver found no

relationship between Odom’s psychological condition and her work-related injury, the

workers’ compensation judge held that Odom proved by clear and convincing evidence

that they were a direct result of her work-related accident.

On the issue of disability, the workers’ compensation judge stated in her

written reasons for judgment:

It is undisputed that Dr. Mayes, claimant’s treating physician and Dr.
Clark, defendant’s choice of physician, opined that claimant in (sic) not
capable of returning to work. Notwithstanding the fact that claimant has

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other non-work related medical concerns, the fact remains that she has
not been released to work by her treating pain management physician, Dr.
Mayes, as well as by defendant’s pain management physician, Dr. Clark.
The court appointed psychologist, Dr. Dilks, does not believe claimant is
capable of working. In addition, Dr. Dilks indicates that Ms. Odom’s
neuropsychological assessment suggests cognitive impairment and post-
concussion syndrome that directly relate to her job injury.

Based on the evidence presented, the court finds that the totality of
the evidence demonstrates that it will be impossible due to claimant’s
mental instability and physical limitations for claimant to work. The fact
that Ms. Odom can do limited activities at certain times for limited
periods of time does not equate to employment capability. Reeves v.
International Maintenance Corporation, [05-1149 (La.App. 3 Cir.
4/5/06)] 926 So.2d 105 (La.App. 3 Cir. 4/5/06). Accordingly, this court
finds that claimant is permanently and totally disabled.

After reviewing the record in its entirety, we find no error in the workers’

compensation judge’s finding that Odom is permanently and totally disabled. Dr.

Mayes, who has treated Odom continuously from two months post- accident, said that

she was totally disabled as a result of her C6-7 radiculopathy, the peripheral

neuropathy involving her right arm, her chronic pain disorder, and her severe

depression. In finding this, he did not take into account Odom’s additional health

problems such as her cardiac problem, diabetes, and peripheral vascular disease.

Moreover, Dr. Clark, Kinder Nursing Home’s choice of physiatrist, and Dr. Robertson

both felt that Odom was incapable of returning to work.

Although Drs. Zuckerman and Culver found no relationship between

Odom’s fall and her psychological problems and felt that she was malingering and was

capable of returning to work at full duty, we find no error in the workers’

compensation judge’s decision to instead credit the testimony of Drs. Mayes,

Robertson, and Dilks. Both Drs. Robertson’s and Dilks’ reports indicate that Odom

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passed all tests for validity and that she was not seen as malingering. Accordingly, the

workers’ compensation judge’s judgment, finding that Odom proved by clear and

convincing evidence that her psychological and pain management problems resulted

from her work-related accident and that she is permanently and totally disabled, is

affirmed.

VOCATIONAL REHABILITATION

In its next assignments of error, Kinder Nursing Home argues that the

workers’ compensation judge erred in finding that it failed to provide Odom with

suitable vocational rehabilitation services.

An employee, who suffers a work-related injury rendering her incapable

of earning wages equal to or in excess of her pre-injury wages, is entitled to prompt

rehabilitation services from a licensed vocational rehabilitation counselor chosen by

the employer. La.R.S. 23:1226(A) and (B)(3). The goal of rehabilitation is to return

the disabled worker to employment as quickly as possible, with as little retraining as

possible.

In this instance, the workers’ compensation judge held that Kinder

Nursing Home failed to provide Odom with suitable vocational rehabilitation services,

as it failed to meet the standard for proving job availability as set out in Banks v.

Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551.

There, the supreme court stated:

[A]n employer may discharge its burden of proving job availability by
establishing, at a minimum, the following, by competent evidence:

(1) the existence of a suitable job within claimant’s physical
capabilities and within claimant’s or the employer’s community or

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reasonable geographic region;

(2) the amount of wages that an employee with claimant’s
experience and training can be expected to earn in that job; and

(3) an actual position available for that particular job at the time
that the claimant received notification of the job’s existence.

By “suitable job,” we mean 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, unless, of course, the
employer or potential employer is willing to provide any additional
necessary training or education.

Id. at 557 (footnote omitted).

Marcy Holmes was hired by Employer’s Risk Management Services to

provide vocational rehabilitation services to Odom. She stated that she received

Odom’s file on April 17, 2002, but closed it in September 2002, without completing

her evaluation as Dr. Mayes would not release Odom to return to work.

In her July 25, 2002 report, Holmes noted the following barriers to

Odom’s successful rehabilitation: 1) secondary conditions-arteriosclerotic vascular

disease, diabetes mellitus, and peripheral vascular disease; 2) observed and reported

inability to use her right arm for functional activity; 3) evidence of dysarthrimic

speech-difficulty with word finding and expression; 4) obvious physical disability as

evidenced by use of a cane and dysarthrimic speech; and 5) prescribed medications

affecting cognition and her ability to drive-Vicodin, Xanax, and Ambien.

Holmes testified that she completed a generic labor market survey in

which she located seven sedentary positions. She admitted that the positions did not

necessarily match Odom’s qualifications or vocational background, but described the

survey as a snapshot of the positions available between August 8-18, 2002. The

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positions were 1) slot clerk at Island Gold, Isle of Capri Casino; 2) reservation clerk,

Isle of Capri Casino; 3) c.b.x. operator at Lake Charles Memorial Hospital; 4) r.v.

guest services representative, Grand Casino Coushatta; 5) registrar position, Women

and Childrens Hospital; 6) counter sales representative, AAA Cleaners; and 7) revenue

auditor, Isle of Capri Casino.

Holmes testified that she did not feel that there was anything more she

could offer Odom until she knew what her physical capabilities were. However, she

said that Dr. Mayes indicated that he would not order a functional capacity evaluation

for Odom due to her secondary diagnosis of peripheral vascular disease and peripheral

neuropathy. Holmes further stated that Dr. Mayes never differentiated as to whether

Odom was disabled as a result of her work-related accident or due to her peripheral

vascular disease or neuropathy.

Crystal Younger, the owner and manager of Younger and Associates,

testified that her company was hired by Employer’s Risk Management Services to

provide vocational rehabilitation services to Odom. She stated that her former

employee, Shelly Brantley, performed the actual work on Odom’s file, but has since

left the vocational rehabilitation field. In reviewing the file, Younger testified that

Odom’s counsel would not let her meet with Brantley because he complained that

Kinder Nursing Home was shopping around for vocational rehabilitation services. She

further stated that the file indicated that a June 26, 2002 report by Holmes said that Dr.

Mayes placed Odom at maximum medical improvement for her mild brain injury, but

that she was not at maximum medical improvement for her unrelated physical

problems of peripheral vascular disease and depression.

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Younger testified that Brantley performed a labor market survey based on

Dr. Mayes’ finding that Odom was at maximum medical improvement for her brain

injury. However, she described it as being hypothetical as Brantley was limited to

Holmes’ information from her initial meeting with Odom. She stated that five

positions were found which were approved by Drs. Culver and Zuckerman.

Younger identified the five jobs in the survey. The first job was for a pit

clerk at Harrah’s Casino in Lake Charles. She stated that this job was situated in a

high volume environment and entailed key wording and the use of a computer

terminal. The second job was a c.b.x. operator at Harrah’s Casino in Lake Charles.

The job description required the employee to provide professional, courteous, and

efficient service at all times; to present oneself as a credit to Harrah’s; required

dexterity to perform several functions at the same time; and possess a pleasant and

easily comprehensible voice. The third position was for a cashier checker at Piccadilly

in Lake Charles. This entailed using a cash register and interacting with customers.

The fourth job was for a front desk clerk at Motel Six in Lake Charles. The fifth job

was a direct care position with Robinswood School in Lake Charles, which entailed

supervising and observing developmentally disabled adults. This position was a light

duty job and required occasionally lifting of ten to twenty pounds, frequent sitting,

standing, occasional walking, and rare bending, twisting, and reaching above the

shoulder.

Dr. Mayes felt that Odom was incapable of performing all of these

positions, as she lacked the physical dexterity to perform most of the positions’

functions and would be hindered by her balance problems. When questioned, Dr.

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Mayes stated that he did not believe it was reasonable to think that Odom could

perform any of these jobs.

Melissa Vaughn, a claims representative for Employer’s Risk

Management Services, handled Odom’s claim as the third party administrator for

Kinder Nursing Home. She testified that she hired Holmes to conduct a labor market

survey for Odom, but removed her from the file when she failed to do so based on Dr.

Mayes refusal to release Odom to return to work. She stated that she wanted the labor

market survey because Drs. Culver and Zuckerman had released Odom to work based

on her work-related problems. Vaughn testified that she never attempted to obtain Dr.

Mayes approval for the jobs and she never sent the job descriptions to any other

treating physician. Finally, she admitted that Odom was never provided any vocational

rehabilitation services, other than the labor market survey conducted by Younger.

In her reasons for judgment, the workers’ compensation judge held that

Kinder Nursing Home failed to satisfy the standards set out in Banks. Specifically, she

stated that the vocational rehabilitation counselor failed to identify any actual position

that was within Odom’s physical capabilities and her reasonable geographic region of

Kinder.

After reviewing the evidence, we find no error in this finding. The labor

market survey was, by Younger’s own admission, hypothetical in nature and contained

positions that Dr. Mayes described as being beyond Odom’s capabilities. All of these

positions required physical dexterity in the use of her hands and interaction with the

public. Based on Dr. Mayes’ testimony, Odom has very limited use of her right arm

and hand and would be incapable of using this, her dominant hand, to perform the

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described functions. She also has speech difficulty, so interacting with the public

would be very difficult for her. Moreover, all of the positions listed were located in

Lake Charles. We agree with the workers’ compensation judge that this is outside of

Odom’s reasonable geographic area, as she requires a driver to go anywhere beyond

Kinder or Eunice, especially if she is required to drive on the interstate. Based on the

foregoing, the judgment of the workers’ compensation judge finding that Kinder

Nursing Home provided Odom with insufficient vocational rehabilitation services is

affirmed. This assignment of error is dismissed as being without merit.

PENALTIES AND ATTORNEY’S FEES

In its next assignments of error, Kinder Nursing Home argues that the

workers’ compensation judge erred in awarding Odom penalties and attorney’s fees.

The workers’ compensation judge held that Kinder Nursing Home failed to reasonably

controvert her claim prior to reducing her weekly indemnity benefits and that it failed

to properly investigate her requests for various medical therapies and handicap bars

prior to denying them. As a result, she awarded Odom $4,000 in penalties and $12,000

in attorney’s fees.

Dr. Mayes testified that Kinder Nursing Home’s failure to approve testing

early on prevented him from making a proper diagnosis in this matter. He stated that

it was slow in responding and would not provide diagnostic testing until after its own

consultants examined Odom and requested the same tests. Dr. Mayes said that

although he requested a test of the brain to rule out neuropathy versus a stroke, the test

was not authorized until Dr. Zuckerman requested it in 2001. He further said that he

requested an EMG/nerve conduction study as early as 1998 and 2001, which was not

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approved until Dr. Zuckerman requested it. This test was not performed until 2004.

He testified that he has consistently requested psychological treatment for Odom, but

that it was not approved by Kinder Nursing Home until after she was seen by Dr.

Culver in 2001. He further stated that his requests for a utility cart, cervical pillow,

and grab bars for her shower and hallway were never approved.

Vaughn admitted that she relied strictly on her own physicians’ opinions

in approving medical tests and in reducing Odom’s benefits, even though she was

aware that Drs. Culver and Zuckerman had each seen her only once. Although Dr.

Clark was her choice of physiatrist, she testified that she refused to authorize the

neuropsychological and occupational therapy evaluations and speech therapy

recommended by him, even though he confirmed Dr. Mayes’ findings on Odom.

However, she approved a brain MRI and a neuropsychological evaluation after Dr.

Zuckerman recommended them.

Vaughn stated that she did not approve any further treatment for Odom,

even after Dr. Robertson recommended that she undergo aggressive psychiatric

medical management and treatment for depression, cognizant behavior therapy, and

speech therapy. She further admitted denying numerous requests from Odom’s

counsel for her to see physicians in various other specialities, and she denied Dr.

Clark’s request for handicap bars based on her determination that Odom had walked

with a limp prior to the accident.

Vaughn testified that she reduced Odom’s temporary total disability

benefits to supplemental earnings benefits after Younger conducted a labor market

survey based on Drs. Culver’s and Zuckerman’s opinions that Odom was at maximum

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medical improvement. This reduction took effect on May 4, 2003. Vaughn further

admitted that she reduced Odom’s benefits even though she was unsure that Odom

could actually perform the jobs identified in the survey.

An employer avoids the imposition of penalties and attorney’s fees by

satisfying its continuing obligation to investigate, assemble, and assess factual

information prior to it denying benefits. Wright v. Cypress Gen. Contractors, Inc.,

05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526, writ denied, 06-0238 (La. 4/24/06),

926 So.2d 553. Furthermore, the decision to award penalties and attorney’s fees is

factual in nature and will not be reversed on appeal absent manifest error. Bigge v. The

Lemoine Co., 04-1191 (La.App. 3 Cir. 3/2/05), 896 So.2d 269. Based on our review

of the record and our finding that Odom is permanently and totally disabled, we find

no error in these awards. The judgment awarding $4,000 in penalties and $12,000 in

attorney’s fees is affirmed.

FRAUD

In its final assignment of error, Kinder Nursing Home argues that the

workers’ compensation judge erred in failing to find that Odom forfeited her right to

workers’ compensation benefits based on La.R.S. 23:1208 fraud. It bases its argument

on the following facts: 1) that Odom sued for a motorized scooter which was not

prescribed by Dr. Mayes; 2) that she lied in her deposition about previously being

diagnosed with depression; and 3) that she lied about why she was unable to attend an

examination by Dr. Culver.

In order for an employer to prove forfeiture pursuant to La.R.S. 23:1208,

it must prove that a false representation was willfully made by the employee for the

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purpose of obtaining compensation benefits. Resweber v. Haroil Constr. Co., 94-2708,

94-3138 (La. 9/5/95), 660 So.2d 7; La.R.S. 23:1208(A). An inadvertent or

inconsequential false statement does not result in the forfeiture of benefits. Jim Walter

Homes, Inc. v. Prine, 01-116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818.

Louisiana Code of Civil Procedure Article 1005 further provides that all

affirmative defenses must be pled in a defendant’s answer. The fraud provision found

in La.R.S. 23:1208 is an affirmative defense; therefore, Kinder Nursing Home was

required to plead this defense in its answer. However, it failed to do so. The first

mention that it makes of fraud is in its post-trial brief to the workers’ compensation

judge.

In Richey v. Vanliner Insurance Co., 97-121 (La.App. 3 Cir. 6/4/97), 696

So.2d 190, writ denied, 97-1799 (La. 10/13/97), 703 So.2d 620, we noted an exception

to Article 1005 when the first knowledge of the alleged fraudulent statements occurred

during cross-examination; thereby depriving the defendant of the right to seek relief

pursuant to La.R.S. 23:1208. In that instance, we held that “we [would] not support

claimant’s fraud by technical applications of rules related to pleadings.” Id. at 193.

However, we find that the facts in Richey are clearly distinguishable, in part, from the

facts present here.

The second and third statements that Kinder Nursing Home complains

about were known by it for several years. These were not facts which first came to

light during the trial on February 9, 2005. Kinder Nursing Home claims that Odom

lied in her deposition when she testified that she had not taken any medication for

depression prior to her fall. Although it failed to introduce Odom’s deposition into the

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record, Kinder Nursing Home obviously had this information prior to the trial.

Kinder Nursing Home further claims that she lied about the reason she

could not attend a 2001 appointment. It had scheduled the appointment with Dr.

Culver on June 28, 2001, but was informed by her counsel that her father had died and

she would be unable to attend it. Vaughn testified that they normally scheduled

appointments approximately a month and a half in advance of the actual appointment.

When she was told that Odom would be unable to attend, she stated that she hired a

private investigator, who learned that Odom’s father actually died on May 19, 2001,

and that she was in Mississippi with her daughter on June 28, 2001. As Kinder

Nursing Home knew about Odom’s alleged lie in June 2001, it cannot claim that it

suddenly learned about her statements during the trial.

The third allegedly fraudulent statement concerning Odom’s request for

a motorized scooter presents the closest question. Dr. Mayes’ records reveal that he

received a telephone message from Odom’s counsel on October 4, 2001. The message

simply asks if she could have a prescription for a scooter. In his deposition, Dr. Mayes

testified that he thought she may have asked for one, but, as far as he could recall, he

did not feel that she needed it at the time. However, no mention of a request for a

scooter is made in Odom’s several disputed claims. During the trial on the merits, she

testified that Dr. Mayes prescribed the scooter, but said that it was paid for by her

daughter and son-in-law. Bogard simply testified that she was surprised to learn that

Dr. Mayes never prescribed the scooter.

In reviewing this evidence pursuant to the manifest error standard of

review, we find that the workers’ compensation judge evidently decided that Odom’s

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statement about the scooter was not made willfully for the purpose of obtaining

workers’ compensation benefits. The fact that Odom never sought repayment for the

scooter from Kinder Nursing Home would support this finding. Accordingly, we find

no error in the workers’ compensation judge’s finding that Odom did not commit

La.R.S. 23:1208 fraud as a result of her testimony concerning the scooter.

ANSWER TO APPEAL

In her answer to the appeal, Odom requests that we award her additional

attorney’s fees for work performed in defense of Kinder Nursing Home’s appeal.

Based on our decision affirming the judgment in her favor, we award her an additional

$5,000 in attorney’s fees for work performed on appeal. Cannon v. Hamilton Transp.,

06-1302 (La.App. 3 Cir. 2/7/07), 948 So.2d 1250.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation

judge is affirmed in all respects. Additional attorney’s fees of $5,000 are awarded to

Odom for work performed on appeal. The costs of this appeal are assessed to the

defendant-appellant, Kinder Nursing Home.

AFFIRMED.

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