Rhonda A. Luquette v. Clayborn Self D/B/A Blockbuster Video

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
12-112

RHONDA A. LUQUETTE
VERSUS
CLAYBORN SELF D/B/A
BLOCKBUSTER VIDEO

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 10-09975
ADAM JOHNSON, WORKERS’ COMPENSATION JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell
306 E. North Street
Post Office Drawer 1329
Opelousas, Louisiana 70571-1329
(337) 948-8201
COUNSEL FOR DEFENDANT/APPELLANT:
Clayborn Self d/b/a/ Blockbuster Video and
Bridgefield Casualty Insurance Company

Michael B. Miller
Attorney at Law
Post Office Drawer 1630
Crowley, Louisiana 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLEE:
Rhonda A. Luquette

GENOVESE, Judge.

In this workers’ compensation case, the employer, Clayborn Self d/b/a

Blockbuster Video, and its insurer, Bridgefield Casualty Insurance Company

(collectively Blockbuster), appeal the judgment of the Office of Workers’

Compensation (OWC) denying their motion to modify a judgment awarding the

employee, Rhonda A. Luquette, temporary total disability (TTD) benefits and

subsequently denying its Motion for New Trial. For the reasons that follow, we

affirm.

FACTS AND PROCEDURAL HISTORY

While employed with Blockbuster, Ms. Luquette sustained a work-related

injury resulting in surgery on her back in May 2004. Ms. Luquette was treated by

Dr. Louis Blanda, the orthopedic surgeon who performed her back surgery, and

Dr. Charles Bramlet, a general psychiatrist, for psychological issues and pain

management purposes. In December 2004, the parties entered into a consent

judgment awarding Ms. Luquette TTD benefits.

In October 2010, Blockbuster filed a disputed claim for compensation,

seeking to have the 2004 consent judgment modified on the grounds that

Ms. Luquette’s disability status was no longer temporary. Following a hearing,

Blockbuster’s motion was denied by the workers compensation judge (WCJ).

Blockbuster then filed a Motion for New Trial, which was likewise denied.

Blockbuster appeals.

ASSIGNMENTS OF ERROR

On appeal, Blockbuster presents the following assignments of error for our

review:

1. The OWC committed manifest error when it failed to modify the
consent judgment of August 15, 2004[1] to reflect that
Ms. Luquette’s condition was no longer temporary.

2. The OWC committed manifest error when it failed to grant the
Motion for New Trial after denying the motion to modify the
consent judgment when the ruling was clearly contrary to the law
and evidence.

LAW AND DISCUSSION

A party may move to modify an existing judgment of the OWC pursuant to

the authority of La.R.S. 23:1310.8(B), which provides as follows:

B. Upon the application of any party in interest, on the ground
of a change in conditions, the workers’ compensation judge may, after
a contradictory hearing, review any award, and, on such review, may
make an award ending, diminishing, or increasing the compensation
previously awarded, subject to the maximum or minimum provided in
the Workers’ Compensation Act, and shall state his conclusions of
fact and rulings of law, and the director shall immediately send to the
parties a copy of the award.
Pursuant to La.R.S. 23:1310.8(B), Blockbuster sought to modify the consent

judgment awarding Ms. Luquette TTD benefits on the grounds of a change in her

condition. As the mover, the burden was upon Blockbuster to “prove by a

preponderance of the evidence that [Ms. Luquette’s] disability has increased or

diminished.” Doyal v. Vernon Parish Sch. Bd., 10-427, p. 2 (La.App. 3 Cir.

11/3/10), 52 So.3d 917, 920, writs denied, 11-305, 11-400 (La. 4/8/11), 61 So.3d

685, 691 (quoting Lormand v. Rossclaire Constr., 01-515, p. 2 (La.App. 3 Cir

12/12/01), 801 So.2d 675, 676). These factual findings of the WCJ “are entitled to

great weight and will not be disturbed unless clearly wrong.” Id.

Ms. Luquette testified on her own behalf at the hearing on the motion to

modify. According to Ms. Luquette, she continues to have significant physical and

emotional problems. She testified that she has continuing problems with her back

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Blockbuster’s use of August 15, 2004, as the date of the consent judgment is an error as
the disputed claim for compensation reflects a date of December 15, 2004, and the judgment on
the motion to modify the judgment contains a date of December 14, 2004. The actual consent
judgment is not part of the record.
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and both hips, as well as radiating pain down her left leg. She takes pain

medication four times a day and medication to help her sleep. Ms. Luquette

explained that she experiences “good and bad days.” On a good day, she does

manage to do some household chores, but she is unable to do “any real cleaning.”

On what she described as a bad day, Ms. Luquette states that she is “in bed most of

the day” due to pain. It was her testimony that she has trouble with prolonged

sitting and standing, and she has trouble walking.

Doctor Blanda’s deposition testimony was also introduced into evidence at

the hearing. His opinion, based upon a recent functional capacity evaluation, is

that, physically, Ms. Luquette is able to perform some like-duty work. However,

Dr. Blanda recognized that “there’s [sic] some other issues . . . that go beyond the

orthopedic problems that probably need to be considered[.]” He explained that

although “she can do certain things[,]” what also needs to be considered is

“whether she can continue to do that day in and day out because of psychological

problems[.]” Dr. Blanda confirmed that he has never released Ms. Luquette to

return to work.

The deposition testimony of Dr. Bramlet was also introduced. Dr. Bramlet

testified that he has primarily treated Ms. Luquette for pain management, but he

has also addressed some of her psychiatric problems. Consistent with Dr. Blanda’s

testimony, Dr. Bramlet explained the necessity of factoring in Ms. Luquette’s

psychological condition with her physical limitations. Dr. Bramlet agreed with

Dr. Blanda that Ms. Luquette could do light-duty work from a physical standpoint

alone; however, when coupled with the psychological component of her condition,

he is of the opinion that she is not capable of returning to work. According to

Dr. Bramlet, Ms. Luquette still has some significant psychological problems.

Although Dr. Bramlet was willing to review light-duty work descriptions, he
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maintained that Ms. Luquette was unable to work, and he acknowledged the

“mixed picture” that was presented.

Based upon the evidence of record, and considering no contradictory

medical evidence, we do not find the factual findings of the WCJ to be clearly

wrong. Therefore, we affirm the judgment of the OWC denying Blockbuster’s

motion to modify the December 2004 consent judgment.

In its second assignment of error, Blockbuster asserts that the WCJ erred in

failing to grant its Motion for New Trial. We disagree.

Louisiana Code of Civil Procedure Article 1972(1) provides that a new trial

shall be granted “[w]hen the verdict or judgment appears clearly contrary to the

law and evidence.” An appellate court reviews the grant or denial of a motion for

new trial pursuant to the abuse of discretion standard of review. Harbor v.

Christus St. Frances Cabrini Hosp., 06-593 (La.App. 3 Cir. 11/2/06), 943 So.2d

545.

Relative to the denial of its Motion for New Trial, Blockbuster advances the

same arguments it raised in its first assignment of error and concludes that “there

was ample evidence to show that Ms. Luquette’s condition should no longer be

classified as temporary total disability.” Based upon our review of the record, for

the reasons set forth above, we find no abuse of discretion in the WCJ’s denial of

the Motion for New Trial.

DECREE

For the foregoing reasons, we affirm the judgment of the Office of Workers’

Compensation denying the motion to modify the December 2004 consent judgment

filed by Clayborn Self d/b/a Blockbuster Video and Bridgefield Casualty Insurance

Company awarding Rhonda A. Luquette temporary total disability benefits. The

judgment denying their Motion for New Trial is likewise affirmed. All costs of
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these proceedings are assessed to Clayborn Self d/b/a Blockbuster Video and

Bridgefield Casualty Insurance Company.

AFFIRMED.

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