Rose Guffey v. Louisiana Retailers Mutual Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-982

ROSE GUFFEY

VERSUS

ACADIANA COMPUTER SYSTEMS, INC.
AND LOUISIANA RETAILERS MUTUAL
INSURANCE COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 10-01977
JAMES BRADDOCK, WORKERS’ COMPENSATION JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED AND RENDERED.

Chris J. Roy, Jr.
A Law Corporation
1100 M.L. King Drive
P.O. Box 1592
Alexandria, Louisiana 71309-1592
(318) 487-9537
COUNSEL FOR PLAINTIFF/APPELLEE:
Rose Guffey

George C. Gaiennie III
Gaiennie Law Firm, L.L.C.
1920 Jackson Street
P.O. Box 1408
Alexandria, Louisiana 71309
(318) 767-1114
COUNSEL FOR PLAINTIFF/APPELLEE:
Rose Guffey

Donald J. Anzelmo
Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P.
1503 North 19th Street
P.O. Box 2055
Monroe, Louisiana 71207-2055
(318) 387-8000
COUNSEL FOR DEFENDANTS/APPELLANTS:
Acadiana Computer Systems, Inc., and
Louisiana Retailers Mutual Insurance Company

GENOVESE, Judge.

In this workers’ compensation case, Defendant/Employer, Acadiana

Computer Systems, Inc., and its insurer, Louisiana Retailers Mutual Insurance

Company (collectively Acadiana Computer Systems), appeal the judgment of the

Office of Workers’ Compensation finding Plaintiff/Claimant, Rose Guffey,

temporarily totally disabled, ordering reinstatement of benefits, and awarding her a

$2,000.00 penalty and $5,000.00 attorney fees. Mrs. Guffey has answered the

appeal, asserting that the attorney fee award is insufficient, and seeking additional

attorney fees for work done on appeal. For the reasons that follow, we affirm the

judgment of the OWC in its entirety, and we render an attorney fee award in favor

of Mrs. Guffey for the work necessitated by the appeal.

FACTS AND PROCEDURAL HISTORY

Mrs. Guffey injured her back in a work-related accident on March 30, 2005,

during the course and scope of her employment with Acadiana Computer Systems.

Mrs. Guffey underwent surgery for a herniated disk following the accident and was

subsequently treated by: (1) Dr. Gerald Leglue, a physical medicine and

rehabilitation physician; (2) Dr. Stephen Katz, a pain management physician; and

(3) Dr. James Quillin, a psychologist (among others). Following the accident, Mrs.

Guffey received temporary total disability (TTD) benefits through February 2,

2010, at which time benefits were terminated by Acadiana Computer Systems.

Mrs. Guffey filed a Disputed Claim for Compensation (1008) on February

25, 2010, asserting that she was permanently and totally disabled. Her 1008 states

that “[c]laimant’s physical pain, the types of medicines she takes, and her inability

to function without these medicines[,] including medicines for depression[,] all

make it impractical that she can work at the present time[.]” Mrs. Guffey also

sought penalties and attorney fees for the alleged arbitrary and capricious

termination of TTD benefits.

Acadiana Computer Systems answered the claim admitting that Mrs. Guffey

“was temporarily disabled for a period of time following the accident[;]” however,

the employer denied that Mrs. Guffey “remained disabled after she was approved

for employment by her treating health care providers.” Acadiana Computer

Systems denied her claim of permanent and total disability status and, further,

contended that she was no longer entitled to TTD benefits since she “was released

to return to work at a job offered to her by her employer, but which she refused.”

The matter proceeded to trial on February 15, 2011, and was taken under

advisement by the workers’ compensation judge (WCJ). On April 27, 2011, the

WCJ rendered oral reasons: (1) denying Mrs. Guffey’s claim of permanent and

total disability status; (2) ordering that TTD benefits be reinstated effective

March 10, 2010; awarding a $2,000.00 penalty for the employer’s failure to

investigate the claim for reinstatement of benefits; and (3) awarding attorney fees

of $5,000.00 “for defendant’s arbitrary, capricious, and unreasonable conduct for

not reinstating [TTD] benefits and/or not investigating the reinstatement of [TTD]

benefits after termination[.]” Written judgment was signed on May 11, 2011.

Acadiana Computer Systems has appealed that judgment. Mrs. Guffey has

answered the appeal, asserting that the attorney fee award is insufficient and that

she should be awarded additional attorney fees for work done on appeal.

ASSIGNMENTS OF ERROR

Acadiana Computer Systems presents the following assignments of error for

our review:

1. The workers’ compensation judge erred in finding that
[C]laimant had sufficiently met her burden of proving that she is

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entitled to continuing temporary total disability benefits, as defined
by the Louisiana Workers’ Compensation Act.

2. The workers’ compensation judge erred in finding that the
[D]efendant’s failure to pay temporary total disability benefits was
arbitrary and capricious, thus entitling [Mrs. Guffey] to recover
penalties and attorney fees.

LAW AND DISCUSSION

Acadiana Computer Systems argues that the WCJ erred in finding that

Mrs. Guffey had met her burden of proving her entitlement to TTD benefits by

clear and convincing evidence as required by law. It contends that through the

efforts of a vocational rehabilitation consultant, Mr. Buster Fontenot, two jobs

were offered to Mrs. Guffey by Acadiana Computer Systems, both of which were

submitted to and approved by Dr. Leglue, Dr. Katz, and Dr. Quillin. Despite these

offers of employment, “Mrs. Guffey did not appear for these jobs, did not contact

the employer about them, and made no effort to determine whether she could

perform these jobs.” To the contrary, Mrs. Guffey argues that Acadiana Computer

Systems erroneously focuses on her “condition at the time benefits were terminated

the previous month and disregard[s] her condition thereafter.”

Louisiana Revised Statutes 23:1221(1)(c) establishes the
criteria for awarding temporary total disability benefits. The
employee must show “by clear and convincing evidence . . . that the
employee is physically unable to engage in any employment or self-
employment . . . .” The trial court’s determination that an employee
has or has not fulfilled her burden of proof under the statute requires a
finding of fact “governed by the manifest error or clearly wrong
standard and will not be disturbed absent such a finding.” Ratliff v.
Brice Bldg. Co., 03-624, p. 6 (La.App. 5 Cir. 11/12/2003), 861 So.2d
613, 617. The appellate court must determine “not whether the trier
of fact was right or wrong, but whether the factfinder’s conclusion
was a reasonable one.” Newson v. Richard Spurgeon Masonry,
03-1367, p. 2 (La.App. 3 Cir. 3/3/04), 867 So.2d 78, 81, writ denied,
04-839 (La.5/14/04), 872 So.2d 523.

Alexander v. Autozone, Inc., 04-871, p. 5 (La.App. 3 Cir. 12/8/04), 889 So.2d 366,

371.

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Mrs. Guffey’s injury in March of 2005 resulted in a herniated disc requiring

a microdiscectomy which was performed in February of 2006. Due to continuing

complaints, a repeat microdiscectomy or fusion was recommended, which

Mrs. Guffey declined to undergo. Mrs. Guffey continued to be treated by

Dr. Leglue, who referred her to Dr. Katz and to Dr. Anil Nanda. Mrs. Guffey

testified that she was continuing to have problems with her back and with her legs

through 2008 and 2009, and her treatment with Dr. Katz continued. In May of

2009, Dr. Katz referred Mrs. Guffey to Dr. Quillin who began treating her for

depression. She also saw Ms. Paige Quillin for pain management through 2009.

During this time, Mrs. Guffey was receiving workers’ compensation benefits.

In February of 2010, the month that her benefits were terminated,

Mrs. Guffey testified that she was still having issues with pain in her back and

problems with her legs. She also described continued anxiety, an inability to

concentrate, and depression for which she continued to see Dr. Quillin into 2010.

Mrs. Guffey also returned to Dr. Leglue in March of 2010 with continuing

complaints of back pain and leg problems including falls secondary to her legs

giving out on her. Additionally, Mrs. Guffey was still under the care of Dr. Katz

for pain management. In light of her complaints, Dr. Leglue ordered a repeat MRI

in April of 2010. Dr. Leglue, at that point, felt that because of her worsening

condition, Mrs. Guffey could not be helped conservatively; therefore, he

recommended that she return to Dr. Nanda. A repeat myelogram ordered by

Dr. Nanda was done in September of 2010, prior to her visit with him in January of

2011, and approximately three weeks before trial. At this visit, the option of a

surgical fusion was discussed. Mrs. Guffey had also recently seen Dr. Quillin and

had an upcoming appointment with Dr. Katz.

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In support of its termination of benefits in February 2010, Acadiana

Computer Systems relies on the vocational rehabilitation services performed by

Mr. Fontenot. Specifically, it notes that Dr. Leglue, Dr. Katz, and Dr. Quillin had

each approved both of the jobs which had been located by Mr. Fontenot and

offered to Mrs. Guffey by Acadiana Computer Systems. Once the jobs were

approved and tendered to Mrs. Guffey, she did not report to work in February of

2010.

Undisputedly, each of the physicians initially approved the jobs that were

tendered to Mrs. Guffey. However, each physician subsequently changed his

opinion on Mrs. Guffey’s ability to return to work given her need for continued

treatment, as evidenced by objective medical findings. In March of 2010,

Mrs. Guffey was seeing Dr. Katz regularly for pain management. She also

returned to Dr. Leglue with complaints of having fallen. Notably, Dr. Leglue felt

that Mrs. Guffey should be seen again by Dr. Nanda. The repeat myelogram

requested by Dr. Nanda, done in September of 2010, showed a large disc

protrusion and nerve root impingement which had progressed from her prior

studies. Her condition, according to Dr. Nanda, warranted a lumbar fusion.

Thus, although Mrs. Guffey was considered to have been at maximum

medical improvement when the three physicians approved her return to work, her

condition continued to worsen. In its oral reasons, the WCJ noted that the critical

inquiry relative to her disability status was not “whether treatment is ongoing, but

whether ongoing treatment is required.”1 The need for Mrs. Guffey to have

ongoing treatment for her back which included a surgical recommendation, as well

1
In Stoute v. Petroleum Center, 07-1533, p. 4 (La.App. 3 Cir. 4/2/08), 980 So.2d 818,
821, this court stated that “[t]he question for the court is not whether treatment is ongoing, but
whether ongoing treatment is required.”
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as her continued treatment for depression, is clearly evidenced in and warranted by

the medical records.

Undisputedly, the jobs presented to Dr. Leglue were initially approved by

him in January of 2010, as he was of the opinion that Mrs. Guffey was not in need

of further medical treatment at that time. However, his testimony was clear that

when she returned to see him in March of 2010, his opinion had changed. As of

March 31, 2010, Dr. Leglue felt that Mrs. Guffey’s condition was such that she

was not capable of performing the jobs that had been offered to her by Acadiana

Computer Systems. Moreover, it was his opinion that as of that date, Mrs. Guffey

was temporarily totally disabled. Similarly, Dr. Quillin testified that although he

was initially hopeful that Mrs. Guffey could return to work and that he did approve

the jobs presented to him, in 2010, he came to the conclusion that, in light of her

continued psychological problems, she was not going to be able to perform the

jobs. Additionally, Dr. Quillin is of the opinion that Mrs. Guffey is still in need of

follow-up treatment. Finally, consistent with the opinion of the other two

physicians, Dr. Katz’s progress note of May 3, 2010, clearly states that he did “not

think that it [was] appropriate for [Mrs. Guffey] to return to work[-]related

activity.” Dr. Katz’s notes further evidence the need for continued treatment and

his intention to reevaluate Mrs. Guffey and adjust medications as needed. Thus,

the medical evidence irrefutably shows that all three of Mrs. Guffey’s treating

physicians indicated that she was unable to work.

In its oral reasons, the WCJ concluded (emphasis added) that “based upon

[the] jurisprudence and [the] medical records, and the worsening condition, that

Mrs. Guffey has demonstrated that she’s entitled to continued temporary/total

disability benefits, and these should be reinstated from the time that she saw

Dr. Leglue in March of 2010.” Having reviewed the evidence in this case, we find
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that the record supports the WCJ’s determination that Mrs. Guffey proved by clear

and convincing evidence that she is physically unable to engage in any kind of

employment. Given the evidence in the record, we conclude that the WCJ was not

manifestly erroneous in finding Mrs. Guffey temporarily totally disabled and in

awarding the reinstatement of TTD benefits.

In its second assignment of error, Acadiana Computer Systems asserts that

the WCJ erred in awarding penalties and attorney fees for its failure to reinstate

benefits. We disagree.

In rendering the award, the WCJ reasoned that Acadiana Computer Systems

could not “blindly rely upon old medical records[.]” Rather, it had a duty “to

continue to investigate to assess the disability status” of Mrs. Guffey. Considering

the evidence discussed above relative to the worsening condition of Mrs. Guffey,

the need for her continued treatment, and despite the lack of any evidence of any

effort on the part of Acadiana Computer Systems to investigate further in order to

dispute these findings, Acadiana Computer Systems failed to reinstate her benefits

even though three physicians had opined that she was unable to return to work. An

appellate court reviews a WCJ’s award of penalties and attorney fees under the

manifest error/clearly wrong standard. Scott v. City of Pineville, 08-1410 (La.App.

3 Cir. 4/1/09), 8 So.3d 81, writ denied, 09-981 (La. 6/19/09), 10 So.3d 742. For

the foregoing reasons, we find no manifest error in the WCJ’s award of penalties

and attorney fees.

Answer to Appeal

Mrs. Guffey has answered the appeal, alleging that the attorney fee awarded

by the WCJ is insufficient. She also seeks an additional attorney fee award for the

work done on appeal. The WCJ awarded Mrs. Guffey $5,000.00 in attorney fees.

We find no abuse of discretion in the amount of that award; therefore, we affirm
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same. Considering the additional work necessitated by the appeal, we award

additional attorney fees of $3,500.00 in favor of Mrs. Guffey for work done on

appeal.

DECREE

For the reasons assigned, the judgment of the trial court in favor of Rose

Guffey is affirmed in its entirety. Additionally, we render an attorney fee award of

$3,500.00 in favor of Rose Guffey and against Louisiana Retailers Mutual

Insurance Company and Acadiana Computer Systems, Inc. for the work done on

appeal. Costs of this appeal are assessed to Acadiana Computer Systems, Inc. and

Louisiana Retailers Mutual Insurance Company.

AFFIRMED AND RENDERED.

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