Wendy Ward v. Iberia Medical Center

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-0380 C/W 09-0381 - WCA

IBERIA MEDICAL CENTER

VERSUS

WENDY WARD

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 06-06495 C/W 06-06990
HONORABLE SAM LOWERY
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED AS AMENDED AND RENDERED.

Christopher R. Philipp
Attorney at Law
P. O. Box 2369
Lafayette, LA 70502
(337) 235-9478
COUNSEL FOR PLAINTIFF/APPELLEE:
Wendy Ward

C. Shannon Hardy
Penny & Hardy APLC
P. O. Box 2187
Lafayette, LA 70502-2187
(337) 231-1955
COUNSEL FOR DEFENDANT/APPELLANT:
Iberia Medical Center

PETERS, J.

These consolidated cases arise from a workers’ compensation claim by Wendy

Ward against her employer, Iberia Medical Center (Iberia Medical). Ms. Ward claims

to have injured her left hand in a work-related incident on Friday, February 3, 2006.

The matter is now before us because Iberia Medical has appealed a judgment in favor

of Ms. Ward awarding her indemnity benefits, medical treatment, penalties, and

attorney fees; and Ms. Ward has answered the appeal seeking an award of attorney

fees on appeal. For the following reasons, we affirm the judgment of the workers’

compensation judge (WCJ) as amended and render judgment in favor of Ms. Ward

for the additional sum of $5,000.00 as attorney fees associated with the work

performed on appeal.

DISCUSSION OF THE RECORD

Ms. Ward was displaced by Hurricane Katrina from the New Orleans,

Louisiana area to the New Iberia, Louisiana area in August of 2005. In December of

2005, she applied for work at Iberia Medical and was hired as a relief food service

worker. She claims to have suffered a work-related injury to her left hand on

February 3, 2006, while she and a co-worker, Joy Erikson, were attempting to move

a large food cart into the service elevator at the medical facility. According to Ms.

Ward, as she attempted to enter the service elevator, the cart’s wheels became stuck

in the gap between the sill at the opening of the elevator door and the sill of the

elevator car. She claimed in her pleadings that she injured her hand when it “got

caught in the elevator.” She immediately informed Ms. Erikson of her injury. Ms.

Erikson testified that she observed Ms. Ward’s swollen hand, and urged Ms. Ward

to report the accident and to seek medical attention at the emergency room.

Ms. Ward took Ms. Erikson’s advice and immediately reported the incident to

her supervisor, Annie Hines. She and Ms. Hines completed an incident report the

same day.1 With regard to the question in the incident report as to how the accident

occurred, the following notation was made: “Pushing lunch cart and Shut Elevator

on hand.” Concerning the need for medical treatment, the report states that Ms. Ward

did not seek medical attention because she “[t]hought It would be okay.” Ms. Hines

testified that immediately after the accident, Ms. Ward’s hand had an abrasion and

appeared to be swollen. She encouraged Ms. Ward to go to the medical center’s

emergency room, but Ms. Ward declined to do so.

When Ms. Ward returned to work on Monday, February 6, 2006, her hand was

still swollen. She then sought evaluation by an emergency room doctor at Iberia

Medical. The emergency room record recorded Ms. Ward’s complaint as “LEFT

WRIST & HAND PAIN & SWELLING.” The examining physician concluded that

Ms. Ward had sustained a contusion to her left hand as a result of her hand being

caught between an elevator and a food cart. After administering a drug screen (which

was completely normal) and taking an x-ray of the wrist (which revealed no fracture

or dislocation), the emergency room physician released Ms. Ward with instructions

for her to follow-up with her personal physician and to take Tylenol for pain.

On Wednesday of that same week, Ms. Ward saw her personal physician, Dr.

Kimberly Smith. At the time of the office visit, Ms. Ward’s hand and wrist were

swollen and bruised. According to Dr. Smith’s records, the elevator struck Ms.

Ward’s hand while the palm of her hand was wrapped around the leg of the cart. Dr.

Smith gave Ms. Ward an “EXCUSE SLIP” from work for the period from February

1
Although Ms. Ward signed the report, Ms. Hines provided the handwritten information in
the report.

2

8, 2006, through February 13, 2006. She later issued a second and third “EXCUSE

SLIP” extending that period, first to February 24, 2006, and then to March 6, 2006.

When Ms. Ward’s condition failed to improve, Dr. Smith referred her to Dr.

Andre Cenac, a New Iberia, Louisiana orthopedic surgeon. Dr. Cenac first examined

Ms. Ward on March 15, 2006, and continued to follow her medically thereafter. In

his initial evaluation, Dr. Cenac observed that Ms. Ward had a deep contusion to her

left hand with swelling and limited range of motion. He recommended physical

therapy and pain medication. When he saw her again on April 12, 2006, Dr. Cenac

found that her condition had not changed and recommended continuing the

previously prescribed medical management. Because she continued to have no use

of her left hand, he released her for, at best, light duty. Nothing had changed in the

June 19, 2006 evaluation, and Dr. Cenac suggested that Ms. Ward undergo some

additional medical tests to further evaluate his determination that she was possibly

suffering from reflex sympathetic dystrophy, a nerve type of pain which can be

attributable to a trauma. At this time, Dr. Cenac still was of the opinion that Ms.

Ward was not employable in her prior position. However, the diagnostic tests

suggested by Dr. Cenac were never performed.

In a December 14, 2006 letter addressed to HSLI, Iberia Medical’s workers’

compensation administrator, Dr. Cenac had completely changed his mind concerning

Ms. Ward’s condition and stated that “I am in agreement with the recommendation

[by Dr. E. Scott Yerger] of positive maximum medical improvement and return to

regular duty.” Dr. Cenac last saw Ms. Ward on April 18, 2007. His report concluded

that, despite a continued history of persistent pain and swelling, Ms. Ward suffered

from no significant abnormalities.

3

In his testimony, Dr. Cenac acknowledged that his opinion changed between

June and December of 2006 because of a surveillance video he received from

representatives of Iberia Medical. This video was filmed over a period from March

2, 2006, through August 8, 2006, then reduced to the ten-minute segment and shown

to the doctor.2 It purported to show Ms. Ward performing tasks not consistent with

her medical complaints. Despite changing his mind concerning diagnosis and Ms.

Ward’s ability to return to work, Dr. Cenac still was of the opinion that Ms. Ward had

sustained a contusion to her left hand based on her objective signs of swelling of the

hand and wrist. He was also impressed with the fact that Dr. Smith had seen such

significant swelling as to refer Ms. Ward to him for evaluation. That, he explained,

gave credibility to the existence of a significant traumatic event causing an injury.

At the request of Iberia Medical, Ms. Ward was also seen by Dr. E. Scott

Yerger, a Lafayette, Louisiana orthopedic surgeon. Dr. Yerger first examined Ms.

Ward on August 2, 2006. Following his examination, he was provided by Iberia

Medical with not one, but two surveillance videos.3 Dr. Yerger found the content of

these videos to be “impressive” in that it showed Ms. Ward doing things with her left

hand that were “contraindicative” to what he saw in his office. Specifically, her

2
Despite the long period of time over which Ms. Ward was observed by the individual or
individuals taking the surveillance video footage, that which was shown to the WCJ at trial begins
with a July 13, 2006 segment at 6:34 p.m. that shows Ms. Ward at her apartment picking up a mop
with her right hand and opening a door with her left hand; shows her leaving the apartment at 7:18
p.m. carrying a cup of coffee in her right hand and switching it to her left hand; a moment later
returning to her apartment and, after shifting the coffee cup back to her right hand, swinging her left
arm in a normal fashion without any guarding effort; then going to a store and ultimately exiting the
store at 7:39 p.m. with a newspaper in her left hand. The next segment was filmed on July 24, 2006,
beginning at 10:57 a.m., and initially shows Ms. Ward pushing the door of her apartment open with
her left hand. She is next seen opening the door with her left hand at 11:01 a.m. Next, at 11:19 a.m.,
she is seen walking out of her apartment adjusting her robe with her left hand. Next, at 11:21 a.m.
and 11:24 a.m., she is seen opening the door of her apartment with her left hand. Finally, at 11:26
a.m., she is seen sitting in a chair in front of her apartment with her left hand in her lap.
3
One was provided to him on July 13, 2006, and the other on July 24, 2006.

4

activities did not match with his provisional diagnosis. His summary of Ms. Ward’s

condition is as follows:

I do believe she suffered a contusion to the left hand and wrist when she
had her left hand caught in the door of an elevator, between the elevator
and the food cart that she was pushing in a hospital, but it would be
difficult for her to have a Complex Regional Pain Syndrome of her left
upper extremity involving the left hand and wrist and still be able to
perform the activities that she was doing on these videos. In light of
these surveillance videos, I think she’s able to return to work at her prior
position as a food service worker and that she had likely reached
maximum medical improvement.

In other words, both Dr. Cenac’s and Dr. Yerger’s final conclusion concerning Ms.

Ward’s physical condition rested solely on the credibility of the surveillance video[s]

and not on any medical findings associated with their individual examinations of their

patient.

Based on Dr. Yerger’s conclusion that Ms. Ward had reached maximum

medical improvement, Iberia Medical terminated her indemnity benefits as of

September 5, 2006. Ms. Ward never returned to her position with Iberia Medical.

On September 18, 2006, Iberia Medical filed a disputed claim for compensation

alleging not only that Ms. Ward was capable of returning to regular work duties, but

that she had forfeited her right to receive workers’ compensation benefits based on

her fraudulent actions in providing misleading information pertaining to her injury

and medical condition. On October 10, 2006, Ms. Ward filed a separate disputed

claim based on Iberia Medical’s failure to pay indemnity benefits, to authorize

medical treatment, to correctly calculate her workers’ compensation rate, and for the

premature termination of her indemnity benefits. The WCJ consolidated these two

claims for trial.

5

Following a trial on the merits, the WCJ rendered oral reasons in which he

found that Ms. Ward suffered a work-related accident, awarded her temporary total

disability (TTD) benefits for February 6 thorough 10, 2006, reinstated her TTD

benefits as of September 6, 2006, and awarded her $8,000.00 in penalties and

$14,667.65 in attorney fees based on Iberia Medical’s arbitrary and capricious

termination of her indemnity benefits.

Iberia Medical has suspensively appealed the WCJ’s judgment, raising five

assignments of error:

I. The trial court erred by determining that Ward sustained a work injury
when her trial testimony was diametrically opposed to her prior sworn
testimony and the physical evidence established that Ward’s testimony
regarding how the accident occurred was an impossibility.

II. The trial court erred by determining that Ward was entitled to the
reinstatement of temporary total disability benefits after September 6,
2006 when every doctor testified she was capable of returning to her
prior employment by that date and there was no medical evidence
submitted contradicting the doctor’s [sic] opinions.

III. The trial court erred in ruling that Iberia Medical acted in an arbitrary
and capricious fashion and improperly terminated Ward’s benefits when
the doctors provided opinions that Ward had misrepresented her
physical and medical condition and was capable of returning to work
prior to that date and there was no medical opinion or testimony that
Ward was not capable of returning to work after that date.

IV. The trial court erred in awarding penalties and attorney’s fees.

V. The trial court erred in failing to find that Ward had willfully made a
false statement or representation for the purpose of obtaining benefits or
payments thereby entitling Iberia Medical to a judgment for the amounts
previously paid.

Ms. Ward answered this appeal seeking additional attorney fees for work performed

on appeal.

6

OPINION

Assignments of Error Number I and V

Because both of these assignments of error relate to the particulars of the

accident itself and the factual record in general, they will be considered together.

Louisiana Revised Statutes 23:1021(1) provides that an accident is “an

unexpected or unforeseen actual, identifiable, precipitous event happening suddenly

or violently, with or without human fault, and directly producing at the time objective

findings of an injury which is more than simply a gradual deterioration or progressive

degeneration.” La.R.S. 23:1021(1). Proof on this issue is by a preponderance of the

evidence. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). Additionally, an

employee’s testimony alone may be sufficient to discharge this burden, provided that

(1) no other evidence discredits or casts serious doubt upon his or her version of the

incident, and (2) his or her testimony is corroborated by the circumstances following

the alleged incident. Id. In determining whether the employee has discharged his or

her burden of proof, the WCJ should accept as true a witness’s uncontradicted

testimony, even though the witness is a party, absent circumstances that cast

suspicion on the reliability of that testimony. Id. Further, the WCJ’s determinations

on whether the employee’s testimony is credible and on whether she met her burden

of proof are factual findings not to be disturbed on appeal absent manifest error. Id.

Louisiana Revised Statutes 23:1208(A) provides in pertinent part that “[i]t shall

be unlawful for any person, for the purpose of obtaining or defeating any benefit or

payment under the provisions of this Chapter, either for himself or for any other

person, to willfully make a false statement or representation.” In order to prove fraud

as defined by this provision, an employer must prove: (1) a false statement or

7

misrepresentation by the employee, (2) willfully made, and (3) that it was made for

the purpose of obtaining workers’ compensation benefits. Campbell v. City of

Leesville, 07-1061 (La.App. 3 Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La.

4/25/08), 978 So.2d 366.

The food cart involved in the claimed accident was described in testimony as

a five-foot high, heavy stainless steel box on four wheels, with doors at the front and

back and a long rod-like handle extending from top to bottom on each corner of the

cart. It is wide enough to hold two food trays side by side, and, when loaded, holds

approximately thirty trays. At trial, Ms. Ward described how the accident occurred

in the following manner:

Me and another co-worker, which is Joy Erickson, we were going to
deliver food trays to the patients because we had to get them out for a
certain time, and she and I was pushing the food cart to the elevators.
We got to the second floor, and we had delivered all the trays to the
second, third, and fourth floor of the hospital. And upon returning back
to the first floor where we had to bring the cart back until it was time to
go pick up the trays, she and I was pushing the elevator – pushing the
food cart into the elevator, and the wheels got stuck in the groove of the
elevator. And as we were trying to get it out, the door closed on my
hand, on the corner of the food cart and my hand.

Iberia Medical argued at trial, and argues before this court, that Ms. Ward’s

numerous versions of how the accident occurred precludes any trier of fact from

finding that she established the occurrence of an accident by a preponderance of the

evidence. Admittedly, her testimony on this point is less than clear. As seen from the

testimony set forth above, Ms. Ward testified at trial that she was pushing the cart

onto the service elevator when the accident occurred. However, in her June 2007

deposition, Ms. Ward testified that the accident occurred while she and Ms. Erikson

were retrieving trays from either the second or third floor— not while loading the cart

on the first floor—and that she was pulling the cart inside the elevator, not pushing

8

the cart. Because the elevator door opened and closed from the left side, Iberia

Medical contends that the elevator door would not have struck her left hand had she

been pulling the cart instead of pushing it and that she changed her testimony to

comport with the physical evidence. When questioned at trial about these conflicts

in her testimony, Ms. Ward acknowledged that for her left hand to have been struck

by the elevator door, she would have had to have been pushing the cart into the

elevator, but she claimed that when she gave her deposition testimony, she was not

really thinking about the details of the accident.

Ms. Erikson’s testimony did not support Ms. Ward’s trial testimony on the

pushing/pulling issue. According to Ms. Erikson, when the accident occurred, Ms.

Ward was pulling the cart into the elevator as she [Ms. Erikson] pushed it from

behind. Additionally, Ms. Erikson did not observe the cart’s wheels becoming stuck

in the elevator door gap and suggested that this was not possible given the large size

of the wheels when compared to the narrow gap. Ms. Erikson also questioned

whether the elevator door could have jammed Ms. Ward’s hand given the fact that the

elevator had a safety sensor which caused the door to stop when someone crosses the

threshold. She was unaware of any instance where the sensor malfunctioned.

Other instances in the record that Iberia Medical suggests give cause to

question Ms. Ward’s credibility include the following:

# Ms. Ward testified that she learned of the position at Iberia Medical
from her cousin while her job application states that she became aware
of the position through the food stamp office.

# Ms. Ward, who was hired as a relief worker on an as-needed basis,
asserted in her testimony that she thought she had been hired on a part-
time basis and only learned of her relief worker status at trial. However,
she checked on her job application that she was seeking a “relief”
position.

9

# Ms. Ward failed to list her most recent employment on her job
application—an eight-year employment with Wendy’s Old Fashioned
Hamburgers.

# Ms. Ward testified that she was attending courses to complete her high
school education at the time of trial. Yet, in her deposition, she testified
that she had graduated from New Iberia Senior High School in 1986 and
had attended some college.

# When asked in her deposition about prior arrests, she testified that she
had been arrested for a domestic disturbance in either 2004 or 2005.
However, she admitted at trial that she had been arrested in 2006 for
aggravated battery.

# Ms. Ward received unemployment benefits while working for Iberia
Medical.

With regard to how she came to know about the job vacancy, Ms. Ward

acknowledged that she stated in her job application that she had heard about the job

through the food stamp office rather than through her cousin, but did so at the

instruction of her cousin who, at the time, was an employee of Iberia Medical. When

questioned concerning the discrepancy in her education status, Ms. Ward testified that

she did not recall telling anyone in her deposition that she had graduated from high

school. She again stated that she had gone to college, explaining that she had

attended Baytown Technical College in Waco, Texas. In explaining her failure to

mention her 2006 aggravated battery arrest, Ms. Ward stated “I mean, I don’t

remember everything that goes on in the past thirty, forty years of my life. I don’t

think anyone does remember every detail of their life.” With regard to her receiving

unemployment benefits while working for Iberia Medical, Ms. Ward testified that an

employment office employee had described the benefits as supplemental pay for the

hours she did not work in New Orleans because of Hurricane Katrina.

We must agree with Iberia Medical that Ms. Ward’s testimony is filled with

contradictions. However, that fact alone does not defeat her claim. Before simply

10

reversing the judgment based on the existence of these contradictions, we must first

consider the WCJ’s reasons for his decision and apply the manifest error standard to

his factual findings. In that regard, it is necessary to reproduce the pertinent

provisions of the WCJ’s reasons for judgment.

Mrs. Ward was a food service worker at the medical center when
on February 3, 2006, a service elevator door shut on her left hand as she
was loading a large food cart. She contends that the accident has caused
serious, disabling problems to her hand ever since. She asked the Court
to find that her injuries arose out of this alleged accident, and as such is
entitled to not only reasonable and necessary medical care, but also
penalties and attorney’s fees for what she terms her employer’s improper
handling of her claim.

The employer counters with the rather unambiguous argument
that Mrs. Ward has either concocted or exaggerated her injuries in an
effort to commit fraud. It says it was perfectly justified in terminating
her indemnity payments and medical treatment and wants back all of the
money it has spent on this matter.

The testimony suggests that after Mrs. Ward allegedly hurt her
hand, that she reported the injury to her supervisor, was subsequently
treated by a series of physicians, including an orthopedic surgeon, Dr.
Cenac, who began seeing her the next month, in March of 2006.

The tipping point seems to have occurred in August 2006, when
the insurance adjuster showed Dr. Cenac, the treating physician, and Dr.
Yerger, the employer’s choice of physician, a video surveillance tape of
Mrs. Ward. Apparently, the video had the intended result. Dr. Yerger,
who had earlier opined that the elevator door accident had caused Mrs.
Ward to develop Complex Regional Pain Syndrome of her left hand and
wrist, recommended that Mrs. Ward return to her job. Dr. Cenac agreed.

The insurance company at this juncture took the view that Mrs.
Ward never had an accident in the first place; and in any event, she
needed to return to work. Workers’ Compensation benefits were
terminated.

The Court reviewed the video with both counsel and encouraged
both to make comments on the record to explain the pictorial evidence.
The video surveillance sequences began about 5:30 in the morning on
March 2, 2005, and continued sporadically for some seventeen months
or so until around 12:00 noon on August 8, 2006. This some year and
a half was condensed into about ten minutes of snippets, clips and
random shots. Now, I suppose that if any of these flashes in time had

11

shown Mrs. Ward throwing a shot put, operating a jackhammer or
something to that effect, it might be a different matter. But instead, we
see Mrs. Ward’s left hand carrying a newspaper, holding a coffee cup
and lifting – not sweeping, just lifting – a broom. That’s about it.

The purely unilateral use of video surveillance video, especially
one as disjointed, ill-conceived and poorly produced as the one in open
court to justify termination of medical treatment and indemnity
payments to an injured worker flies squarely in the face of any sense of
fair play.

I am hard-pressed to comprehend, much less agree with, the
defense’s position that it is literally physically impossible for the
elevator door to have injured her hand the way she described. The
photos submitted into evidence show a very large metal food cart being
pushed into an under-sized service elevator door with virtually no
visible clearance between the side of the elevator and the cart. Mrs.
Ward, who is not particularly articulate, did not describe the mechanics
of the accident with any degree of precision; however, she’s not required
by law to show the exact manner in which her hand was caught. The
fact is that her left hand was remarkably functional before she pushed
the cart in and was decidedly not thereafter, and she reported this
immediately to her supervisor. There’s a reasonable presumption here
that somehow, someway, the small door and the large cart somehow
caused her left hand to get smashed.

Thus, as to the occurrence of an accident, the WCJ concluded that regardless

of whether Ms. Ward was pushing or pulling the food cart, or whether she was struck

by the closing elevator door or the side of the elevator itself, she sustained a work-

related injury. We find no manifest error in that factual finding. No evidence points

to a pre-existing injury as hinted to by Iberia Medical. Ms. Ward had worked a

significant part of the work day without complaint and immediately complained upon

sustaining the injury. Her co-worker had not observed any disability or evidence of

traumatic injury prior to Ms. Ward’s complaint, but immediately observed that Ms.

Ward’s hand and wrist had begun to swell. Ms. Ward immediately reported the

accident to her supervisor, who also testified that she observed an abrasion on, and

swelling of, Ms. Ward’s hand. Both specialists who treated her testified that Ms.

12

Ward had sustained a traumatic injury to her hand. The comparative negligence of

an employee does not play any part in a workers’ compensation claim and, therefore,

the mechanics of how the accident occurred, other than for credibility purposes as

argued by Iberia Medical herein, are less important than the mere fact that an accident

occurred.

With the exception of the surveillance video, the WCJ made no mention of

the other inconsistencies complained of by Iberia Medical. Apparently, the WCJ

found that either these inconsistences were adequately explained away by Ms. Ward,

or they were not relevant to the accident or forfeiture issues. While we might have

reached a different conclusion concerning Ms. Ward’s credibility given the

inconsistencies, we find no error in the WCJ’s opposite conclusion in that regard.

Assuming for purposes of argument that the inconsistencies were not adequately

explained away by Ms. Ward, we do note that all except her criminal history relate

to Ms. Ward’s attempt to obtain her job in the first place and, except for the

credibility issue, do not relate to her workers’ compensation claim. Even her

inconsistent criminal history statements relate only to credibility.

The one credibility issue that does relate to Ms. Ward’s workers’ compensation

claim is the surveillance video. Despite maintaining surveillance of Ms. Ward for a

period of almost six months4 beginning in March of 2006, the most Iberia Medical

could produce was an approximate ten minute segment taken on July 13, 2006 and

July 24, 2006, revealing her performing minimal activities and not wearing her

4
The WCJ erroneously concluded in his reasons for judgment that surveillance had begun in
March of 2005, not March of 2006. However, this error does not change the WCJ’s characterization
of the video.

13

compression glove.5 While obviously impressive to Drs. Yerger and Cenac, the WCJ

found the video to be less than convincing. We find no error in the WCJ’s conclusion

in this regard. See Fabre v. ICF Kaiser Int’l, 01-2734 (La.App. 1 Cir. 11/8/02), 835

So.2d 724. Reaching that conclusion, it follows that we find no error in the WCJ’s

conclusion that Ms. Ward sustained a work-related injury and that Iberia Medical

failed to establish that Ms. Ward willfully made false statements for the purpose of

obtaining workers’ compensation benefits and would, thus, have forfeited her right

to receive benefits pursuant to La.R.S. 23:1208(E).

Assignment of Error Number II

In this assignment of error, Iberia Medical argues that the WCJ erred in

reinstating Ms. Ward TTD benefits as of September 6, 2006, when both Drs. Cenac

and Yerger testified that she was at maximum medical improvement (MMI), and she

failed to present any medical evidence contradicting these opinions.

An employee who proves, by clear and convincing evidence, unaided by any

presumption of disability, that they are physically unable to engage in any

employment as a result of a work-related injury will be awarded TTD benefits.

La.R.S. 23:1221(1). Disability can be proven by both medical and lay testimony, and

the WCJ must weigh all of the evidence in order to determine whether the employee

has satisfied her burden of proof. Jack v. Prairie Cajun Seafood Wholesale, 07-102

(La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 07-2388 (La. 2/15/08), 976

So.2d 178. Whether the employee has proven disability is a factual determination

that is subject to a manifest error analysis. Id.

5
During her August 2, 2006 appointment with Dr. Yerger, Ms. Ward wore a compression
glove on her left hand, complained of pain while making a fist and with flexion and extension of her
fingers and wrist, and complained of significant pain upon light palpation of her hand.

14

Ms. Ward testified that she suffers from hand symptoms a majority of the time,

and that her hand is very sensitive to hot and cold temperatures. Following her

accident, she began wearing a compression stocking glove, but was told by her

physical therapist that she did not have to wear it all the time. In fact, she claimed

that sometimes wearing the glove makes her hand hurt worse.

According to Ms. Ward, since injuring her hand, much of her daily activity is

hindered because of the limitation of use of her left hand. While she used to work in

the kitchen, she now has difficulties because she cannot handle pots or dishes with

her left hand. At best, she can carry a saucer-sized plate with her left hand. Ms.

Ward further testified that she is able to carry a broom, a cup of coffee, and a

newspaper, as was shown in the surveillance video. However, she explained that she

was encouraged by both Dr. Cenac and her physical therapist to use her hand as much

as possible. She stated that she is not capable of performing her position with Iberia

Medical because she cannot carry a tray with her left hand and she felt that the heat

from the tray would affect her hand.

Ms. Ward also called as a witness Sheila Jacquette, a life-long friend who had

grown up with her. Ms. Jacquette testified that between childhood and late 2007, she

had no contact with Ms. Ward, but became reacquainted after she found that Ms.

Ward had moved into the same neighborhood following Hurricane Katrina. Since

their reacquaintance, Ms. Jacquette testified that she has heard Ms. Ward complain

of being unable to carry heavy items with her left hand and that her hand is

susceptible to hot and cold temperatures. She stated that she actually saw Ms. Ward’s

left hand swell up on one occasion when Ms. Ward was sitting in a car. Ms. Jacquette

testified that she has also seen Ms. Ward shake her hand and complain of stiffness or

15

discomfort in her fingers, and she observed Ms. Ward wearing a compression glove

on several occasions.

In this instance, both Drs. Cenac’s and Yerger’s determination that Ms. Ward

had reached MMI and was capable of returning to work was based on the surveillance

video and not on an actual physical examination of her hand. Prior to viewing the

video, both doctors had restricted Ms. Ward from working. On June 16, 2006, Dr.

Cenac noted that Ms. Ward was complaining of continuing swelling in the dorsum

of her hand, which caused problems with the flexibility of her hand and the

movement of her fingers. Dr. Cenac, based on the fact that Ms. Wards’ condition had

not improved over time, ordered an EMG and nerve conduction test to determine if

she was suffering from reflex sympathetic dystrophy. He restricted her from working.

On April 18, 2007, he ordered a triple phase bone scan in order to definitively

diagnose her condition. Neither of these tests were conducted.

Dr. Yerger examined Ms. Ward only once, on August 2, 2006. At that time,

she complained of pain in her left hand and wrist, numbness in her left long finger,

and swelling within her hand and wrist. She stated that her hand felt cool to the touch

and was hypersensitive to light touch. On exam, Dr. Yerger noted that Ms. Ward

seemed to lack terminal flexion of the PIP and DIP joint of the fingers when making

a fist with her left hand. She complained of pain along the dorsal aspect of the wrist

and hand while making a fist. Dr. Yerger noted a decrease in the light touch in the

tip of the long finger as compared to the other four fingers of her left hand, decreased

skin turgor on the left hand and wrist, and the skin of her left hand was duskier in

appearance, paler, and cooler to touch than her right hand. Based on his examination

and a review of her medical records, Dr. Yerger felt that Ms. Ward had developed a

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complex regional pain syndrome in her left hand and wrist, which he stated was

another name for reflex sympathetic dystrophy.

Unfortunately, both Dr. Cenac’s and Dr. Yerger’s medical impartiality has been

compromised as a result of viewing Iberia Medical’s surveillance video. As of the

October 15, 2008 trial date, no further medical examination of Ms. Ward had been

conducted. Thus, we have no evidence concerning her physical condition past April

18, 2006.

After reviewing the record, we find that it was reasonable for the WCJ to find

that Ms. Ward was entitled to TTD benefits as a result of this injury. This is based

on the fact that Dr. Cenac found objective signs of swelling in Ms. Ward’s hand on

a couple of occasions and because he emphasized the fact that Dr. Smith found the

swelling significant enough to refer Ms. Ward to him for a consultation. Moreover,

until he viewed the surveillance video, Dr. Yerger concurred with Dr. Cenac’s

findings and recommended that Ms. Ward undergo evaluation by a pain management

specialist.

Our difficulty lies in the fact that we are now approximately three years and

eight months post-injury and two years and seven months past the last examination

of Ms. Ward’s hand. However, barring any evidence to the contrary, we find that Ms.

Ward is entitled to TTD benefits for eighteen months past February 3, 2006. This

period of time accords with Dr. Cenac’s testimony that this condition only lasts an

average of eighteen months. Should Ms. Ward be able to prove otherwise, she is

entitled to revisit this issue before the WCJ. Accordingly, the judgment of the WCJ

is amended to reduce the period of time Ms. Ward is entitled to TTD benefits to

eighteen months past February 3, 2006.

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Assignments of Error Numbers III and IV

In these assignments of error, Iberia Medical asserts that the WCJ erred in

concluding that it was arbitrary and capricious and in awarding Ms. Ward penalties

and attorney fees pursuant to La.R.S. 23:1201(1) based on the termination of her

benefits. Specifically, Iberia Medical asserts that it acted pursuant to medical

opinions that “[Ms.] Ward had misrepresented her physical and medical condition and

was capable of returning to work prior to [the date it ceased paying benefits] and

there was no medical opinion or testimony that [Ms.] Ward was not capable of

returning to work after that date.”

In making this argument, Iberia Medical ignores the fact that the medical

opinions relied upon to terminate Ms. Ward’s benefits were based on its own

surveillance video and not any medical evaluation. Additionally, in considering

Iberia Medical’s attitude toward Ms. Ward’s claim from the beginning, we note that

she was never paid disability benefits for the week of February 6 through 10, 2006,

and Iberia Medical instituted surveillance activities less than one month after the

accident without any evidence to suggest Ms. Ward did not sustain a work-related

injury. In other words, Iberia Medical seems to have immediately begun a campaign

to terminate Ms. Ward’s benefits without any basis for such a campaign. We find no

merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we amend the judgment of the WCJ to reduce the

period of time Ms. Ward is entitled to TTD benefits to eighteen months past February

3, 2006. We affirm the judgment in all other respects. We render judgment in favor

of Wendy Ward and against Iberia Medical Center in the amount of $5,000.00 as

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attorney fees for the prosecution of this appeal. We assess all costs of this litigation

to Iberia Medical Center.

AFFIRMED AS AMENDED AND RENDERED.

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