Mary Lu Doucet Hardee v. City of Jennings

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 07-242

MARY LU DOUCET HARDEE

VERSUS

CITY OF JENNINGS

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 04-05403
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Michael G. Sullivan, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED AS AMENDED.

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

Lisa Eve Mayer
Borne, Wilkes & Brady, LLP
P. O. Box 4305
Lafayette, LA 70502-4305
(337) 232-1604
Counsel for Defendant/Appellant:
City of Jennings

EZELL, JUDGE.

The City of Jennings appeals a workers’ compensation judgment finding that

Mary Lu Doucet Hardee had shown a change in circumstances entitling her to total

disability benefits. The City also requests a credit for an overpayment of

supplemental earnings benefits.

FACTS

Ms. Hardee was injured in the course and scope of her employment as a police

officer with the City in January 1993. She was attempting to restrain a prisoner when

she injured her stomach and back. In 2004, this court rendered an opinion affirming

the judgment of the Office of Workers’ Compensation that Ms. Hardee was capable

of working twenty hours a week at $5.50 an hour. City of Jennings v. Doucet, 03-

1099 (La.App. 3 Cir. 2/4/04), 865 So.2d 1056.

In 2004, the City filed a motion for summary judgment seeking a judgment that

it was entitled to terminate her benefits since it had paid a total of 520 weeks in

weekly compensation. On August 3, 2004, a judgment was signed declaring that the

City was entitled to terminate SEB as of November 30, 2003.

Meanwhile, on July 23, 2004, Ms. Hardee filed a motion to modify the

previous judgment pursuant to La.R.S. 23:1310.8, alleging that there had been a

change of conditions since the trial in August and September 2002. A hearing on the

matter was held on August 14, 2006. The trial court found that the doctors who had

repeatedly examined and treated Ms. Hardee were clear that Ms. Hardee is no longer

medically capable of gainful employment. Based on this evidence and Ms. Hardee’s

testimony, the workers’ compensation judge found that Ms. Hardee had shown a

change of circumstances and is now totally disabled. He ruled that she was entitled

to benefits in the amount of $269.09 per week beginning September 1, 2004. The

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City appealed the judgment.

CHANGE IN CIRCUMSTANCES

The City first claims that the workers’ compensation judge was manifestly

erroneous in relying on the testimony of Ms. Hardee’s treating physicians because

they were confused about the standard to be applied in determining total disability.

During the course of events, Ms. Hardee had moved to Everett, Washington. There

she sought treatment from new doctors for her condition.

During his deposition testimony, Dr. Marco Wen was asked about Ms.

Hardee’s ability to return to work. He explained that he sometimes gets confused

with the ability to work standard in Washington which requires that a worker have the

ability to work full time. Dr. Wen inquired about the Louisiana standard concerning

part-time work. After clarification, he proceeded to answer the question about

whether she could return to work. We find that Dr. Wen’s testimony establishes that

he clarified the Louisiana standard before proceeding to answer the question about

Ms. Hardee’s ability to return to work. We also find no confusion in Dr. Jaime

Novais’ testimony concerning the standard. Dr. Novais was the first doctor to treat

Ms. Hardee after she moved to Washington. Therefore, we find no merit to this

assignment of error.

The City also claims as error the workers’ compensation judge’s finding that

Ms. Hardee proved there was a change in circumstances since the last trial and that

she is totally disabled from working. It claims that the evidence presented by Ms.

Hardee was not clear and convincing.

Pursuant to La.R.S. 23:1310.8(B), a party may re-open a workers’

compensation case and the workers’ compensation judge may modify an award on the

grounds of a change in condition. “A party who seeks a modification of a worker’s

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compensation judgment must prove by a preponderance of the evidence that the

worker’s disability has increased or diminished.” Lormand v. Rossclaire Constr., 01-

515, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 675, 676. A claimant seeking total

disability benefits must prove by clear and convincing objective medical evidence

that she is physically unable to engage in any employment. La.R.S. 23:1221. The

factual finding of a workers’ compensation judge that the claimant has demonstrated

a change in condition is entitled to great weight and will not be disturbed unless

clearly wrong. Lormand, 801 So.2d 675.

Ms. Hardee first saw Dr. Jaime Novais who is board certified in internal

medicine and geriatric medicine. He saw Ms. Hardee on July 1, 2002, when she

sought treatment for her condition after she moved to Washington. He began seeing

her monthly. He observed that she had chronic pain and difficulty walking. He noted

that she was going to need ongoing pain management and psychiatric care. At that

time, he opined that Ms. Hardee was capable of returning to some type of

employment because she was attending college classes.

In December 2002, Dr. Novais referred Ms. Hardee to Dr. Wen, a physical

medicine rehabilitation doctor with a sub-speciality in pain medicine. He ordered

lumbar facet injections. There was an immediate reduction in pain thereafter but a

lack of therapeutic response about five or six hours after the injection. On April 4,

2003, Ms. Hardee fell down a short flight of stairs which triggered lumbar pain. Ms.

Hardee had reported to Dr. Novais in 2002 that her leg had given out causing her to

fall. Dr. Wen explained that if the weakness in her leg is what was causing her to fall,

it brought up the possibility of nerve root compression or nerve root irritation.

Dr. Wen continued with the injections. On July 3, 2003, he performed a

lumbar facet rhizotomy. This procedure utilizes radio frequency energy, which heats

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the nerve and basically kills it or oblates it so there is long-term pain relief. At that

time, Ms. Hardee had excellent pain reduction on her left side, with some residual

pain on her right side.

Dr. Wen ordered an MRI, which indicated a lateral disc protrusion at L3-4. As

of November 2003, Ms. Hardee was experiencing consistent pain on both sides. Dr.

Wen ordered a bone scan, which indicated a right facet problem at L1-2, L2-3, and

L3-4. Dr. Wen continued administering the injections, which did not seem to be

providing any pain relief.

During the course of treatment, Dr. Wen referred Ms. Hardee to Dr. Suzanne

Lacross because Ms. Hardee alluded to being very depressed. Dr. Lacross is a

psychologist specializing in behavioral medicine and chronic pain management. Dr.

Lacross commented that Ms. Hardee was very depressed when she saw her. She

believed that Ms. Hardee wanted to be out of pain and resume her life as she once

knew it. She knew of no intellectual reason why Ms. Hardee could not return to work

but observed that she had been in a pain situation for ten years, which is significant.

Dr. Novais also noted that Ms. Hardee began to have more problems and

became more psychiatric unstable. Both Doctors Novais and Wen were of the

opinion that a combination of the physical and emotional factors prevented Ms.

Hardee from working. Dr. Novais commented that if Ms. Hardee had back pain only,

then she would be able to work a job that had no physical demands. Dr. Novais

explained that the waxing and waning of Ms. Hardee’s condition caused an increase

in psychiatric problems. Dr. Novais testified that chronic pain will exacerbate a

previous mental problem. Dr. Novais explained that after Ms. Hardee began having

more problems and became more mentally unstable, she was unable to work. He

stated that her back condition was very serious and that she could not hold a job. Dr.

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Wen also opined that Ms. Hardee would not be able to engage in any type of gainful

employment.

Additionally, both doctors were concerned with Ms. Hardee’s cognitive

abilities. Since her injury, she has been on numerous medications which have

affected her.

We cannot say the workers’ compensation judge was clearly wrong in

concluding that Ms. Hardee had proven a change in circumstances. Both Dr. Novais

and Dr. Wen were clear that she was unable to now work with her increasing

psychiatric problems caused by her continuing back problems. We agree with the

workers’ compensation judge’s conclusion that she is now totally disabled.

CREDIT

On April 21, 2003, a judgment of the Office of Workers’ Compensation was

signed which held that Ms. Hardee was capable of working twenty hours a week at

minimum wage of $5.50 an hour. While that decision was on appeal, the City claims

it continued to pay the full amount of SEB of $1,122.69 to Ms. Hardee, when it only

owed $813.59. The City claims that the total overpayment during this time was

$2,163.70.1

The City also claims that it overpaid Ms. Hardee during another time period.

In its brief, the City explains that the decision of this court was not rendered until

February 2004 and as of November 30, 2003, Ms. Hardee had received 520 weeks of

SEB. The City began initiating proceedings to terminate her benefits in January

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The City offered the following calculation pursuant to La.R.S. 23:1221(3)(a) to
explain the amount of overpayment: Ms. Hardee’s average weekly wage is $391.63 (260.09 ÷ 2/3).
$391.63 x 52 ÷ 12 = $1,697.06 average monthly wages at the time of the injury. The amount Ms.
Hardee was found to be capable of earning is $110.00 per week (20 hours per week at $5.50). Ms.
Hardee’s average monthly wage is $476.67 ($110.00 x 52 ÷ 12). $1,697.06 - $476.67 = $1,220.39
x 2/3 = $813.59. The City claims that Ms. Hardee was overpaid $309.11 each month ($1,122.69,
amount actually paid, - $813.59, amount owed) for seven months (May through November, 2003).
Total overpayment of $2,163.70.

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2004. The hearing was held on August 4, 2004. Ms. Hardee was paid the full SEB

rate of $1,122.69 through August 31, 2004. The City claims that the total

overpayment during this time was $10,104.21 (nine months of payments, December

2003 through August 2004, at the rate of $1,122.69 per month). The City introduced

a print-out in the record substantiating these payments.

The City claims it is entitled to a credit for these overpayments of SEB to Ms.

Hardee. The total overpayment the City is claiming is $12,267.91.

Ms. Hardee does not dispute the calculations themselves. Ms. Hardee alleges

that the evidence indicated that she had a fall on April 3, 2003, which aggravated and

worsened her condition. She argues that as of April 3, 2003, she was entitled to total

disability benefits at the rate of $261.09 a week or $1,122.69 a month, so she has been

receiving the correct amount of benefits as of April 3, 2003.

Louisiana Revised Statues 23:1206 provides that an employer is entitled to

deduct any voluntary payment or unearned wages which were not due from

compensation payments. Both parties agree that the workers’ compensation judgment

was silent as to the credit issue, so it is deemed a rejection of the relief requested by

the City. Chesne v. Elevated Tank Applicators, 04-46 (La.App. 3 Cir. 5/12/04), 874

So.2d 333, writ denied, 04-1439 (La. 9/24/04), 882 So.2d 1141.

The reasons for judgment make clear that the workers’ compensation judge was

aware that Ms. Hardee was claiming she was entitled to total benefits retroactive to

2003. Obviously, the workers’ compensation judgment also rejected this claim as the

reasons and the judgment itself are clear that she is entitled to total disability benefits

as of September 1, 2004. Therefore, we find that the City was entitled to a credit for

the overpayment of benefits in the amount of $12,267.91.

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For the foregoing reasons, the judgment of the trial court finding that Ms.

Hardee is now totally disabled and entitled to total disability benefits is affirmed.

However, the judgment is amended to give the City a credit of $12,267.91.

AFFIRMED AS AMENDED.

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