Brenda Miller v. Christus St. Patrick Hospital

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-370

BRENDA MILLER

VERSUS

CHRISTUS ST. PATRICK HOSPITAL

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, DOCKET NO. 11-02488
CHARLOTTE L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T.
Genovese, Judges.

AFFIRMED AND RENDERED.

Matthew J. Ungarino
Ungarino & Eckert L.L.C.
3850 North Causeway Boulevard
Suite 1280
Metairie, Louisiana 70002
(504) 836-7565
COUNSEL FOR DEFENDANT/APPELLANT:
Christus St. Patrick Hospital

J. Michael Nash
Ungarino & Eckert L.L.C.
910 Pierremont Road, Suite 351
Shreveport, Louisiana 71106
(318) 866-9599
COUNSEL FOR DEFENDANT/APPELLANT:
Christus St. Patrick Hospital

Thomas E. Townsley
711 Pujo Street
Lake Charles, Louisiana 70601
(337) 430-0994
COUNSEL FOR PLAINTIFF/APPELLEE:
Brenda Miller

GENOVESE, Judge.

In this workers‘ compensation case, employer, Christus St. Patrick Hospital

(CSPH), appeals the judgment rendered in favor of its former employee, Brenda

Miller, awarding her indemnity benefits, a penalty, and attorney fees. Ms. Miller

has answered the appeal, seeking a reversal of the workers‘ compensation judge‘s

denial of her request to treat with a physical therapist of her choice and seeking

attorney fees for work done on appeal. For the following reasons, we affirm and

award attorney fees on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Brenda Miller was employed by CSPH as a certified nurse assistant from

September 14, 2007, until her termination on October 14, 2010. Ms. Miller

suffered a work-related injury to her back on June 29, 2010. CSPH has never

disputed the fact that Ms. Miller was injured while in the course and scope of her

employment. CSPH provided medical treatment for Ms. Miller‘s injury; however,

no indemnity benefits were ever paid.

On March 29, 2011, Ms. Miller filed a disputed claim for workers‘

compensation benefits. Trial was held on September 15 and 21, 2011. On

December 5, 2011, the workers‘ compensation judge (WCJ) rendered judgment in

favor of Ms. Miller awarding her indemnity benefits. In her oral reasons for

judgment, the WCJ stated:

The parties to this litigation stipulated that [Ms. Miller] was
employed by [CSPH] when she was injured during the course and
scope of her employment on June 29, 2010. Ms. Miller was assisting
in transferring a patient from a bedside commode to the bed when she
injured herself. Ms. Miller was a full-time employee who earned
$8.75 per hour, 40 hours per week. Her average weekly wage was
$350[.00] per week with a corresponding compensation rate of
$233.33.

The facts are that in 2008, [Ms. Miller] suffered a work-related
accident. A second accident occurred on June 29, 2010, which is the

accident at issue in this litigation. After the June 29, 2010 accident,
[Ms. Miller] was seen at Business Health Partners on July 1st of 2010.
Business Health Partners examined [Ms. Miller] and put her on a light
duty status at work. In addition, Business Health Partners prescribed
pain medication and ordered physical therapy as well as an M.R.I.

On September 7, 2010, [Ms. Miller] was seen by Dr. James
Perry, an orthopedic specialist. She had complaints of mid and low
back pain and lower left extremity pain. Dr. Perry recommended
injections. On October 12th, 2010, Dr. Perry opined that [Ms. Miller]
could perform light duty work. [Ms. Miller] was last seen by
Dr. Perry on October 21, 2010, at which time he recommended core
strengthening and planned to see her in four weeks. [Ms. Miller] had
not reached maximum medical improvement and was not able to
return to full duty work at that time, nor was she at pre-injury status.
She was continued on light duty work status.

On October 14, 2010, [Ms. Miller] was terminated by [CSPH].
Lilabeth Salutillo was [Ms. Miller]‘s immediate supervisor at the time
of the termination.

After [Ms. Miller]‘s termination, she sought treatment by her
choice of physician, Dr. Kevin Lechtenberg. Although
Dr. Lechtenberg took [Ms. Miller] off work for a short period of time,
he ultimately opined that she could work in a light duty status.

The court is asked to decide whether [Ms. Miller] is entitled to
workers‘ compensation indemnity benefits and whether [she] is
entitled to her choice of physical therapy facility. All medical
treatment prescribed for [Ms. Miller] was and continues to be
provided by [CSPH].

The case of [Palmer v. Schooner Petroleum Services, 02-397
(La.App. 3 Cir. 12/27/02), 834 So.2d 642, writ denied, 03-367
(La. 4/21/03), 841 So.2d 802], provides us guidance in this case. In
[Palmer v. Schooner], the [c]ourt held that termination does not
destroy one‘s entitlement to SEBs. In that case, the claimant suffered
an on-the-job injury to his back. He remained with his employer with
a light duty position until he was terminated allegedly for substandard
job performance. The [third] [c]ircuit noted, ―it is a claimant‘s refusal
to accept employment that fits within his abilities and/or disabilities
which is made available to him that precludes an award of SEBs.‖ In
other words, ―the SEB statute does not permit a claimant to choose
not to work and still collect supplemental earnings benefits when he is
physically able to work and jobs are available.‖ The [c]ourt further
noted that, ―to hold that an employee‘s termination destroys an
employee injured on the job‘s entitlement to SEB would provide
incentive for employers to allow injured employees to return to work
and thereafter terminate them to avoid paying SEB.‖

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Lawful termination, like fraud, cuts through everything; but the
reasons for firing here are murky. And whether it‘s a legal
termination or not isn‘t a question for this forum as workers‘
compensation courts are not in the business of determining whether a
firing was appropriate. What is important here is that termination
from employment in and of itself does not end entitlement to
supplemental earnings benefits as set forth in the [Palmer
v. Schooner] case. In the case at hand, [Ms. Miller] returned to work
in a light duty status. She worked for a short period of time until her
termination on October 14, 2010. She was terminated for violating a
hospital policy by posting a comment on Facebook. Pursuant to
Ms. Salutillo‘s comments in the [CSPH] employee memorandum,
[Ms. Miller‘s] employment was terminated based on failure to uphold
standards of behavior. After her termination, [Ms. Miller‘s] treating
physician took her off work for a short period of time, but ultimately
opined she could work light duty.

The [c]ourt finds that while [Ms. Miller] was a less than stellar
employee, the conditions of her termination were obscure or murky.
The [c]ourt finds that [Ms. Miller] did not refuse to work, but
performed her duties until she was terminated. It is a claimant‘s
refusal to accept employment that fits within his abilities and/or
disabilities which is made available to him that precludes an award of
SEBs. The [c]ourt does not find that [Ms. Miller] chose not to work,
but instead did not work due to the termination of her job. Further,
the [c]ourt finds that it was counter intuitive to place a worker, such as
[Ms. Miller], with limited abilities on the rehabilitation floor of the
hospital. [Ms. Miller] is entitled to workers‘ compensation indemnity
benefits.

On the issue of physical therapy, the [c]ourt finds that it seems
somewhat conflicting to have [Ms. Miller] attend physical therapy at
[CSPH]‘s physical therapy facility; however, [Ms. Miller]‘s treating
physician, Dr. Lechtenberg, found it suitable; therefore, [Ms. Miller]‘s
claim for her choice of physical therapy facility is denied.

In accordance with the jurisprudence set forth above, the [c]ourt
finds that [Ms. Miller] is entitled to an award of TTD and/or SEB at
zero earnings from October 14, 2010. [Ms. Miller]‘s claim for her
choice of physical therapy facility is denied. [Ms. Miller] is entitled
to a penalty for [CSPH‘s] failure to pay indemnity benefits in the
amount of $2,000[.00]. Attorney[] fees are owed in [the] amount of
$10,000[.00] for the prosecution of the [claim].

A written judgment was rendered in accordance with these findings and was

signed on December 21, 2012. CSPH has filed a suspensive appeal.

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ASSIGNMENTS OF ERROR

On appeal, CSPH alleges: (1) that the WCJ ―committed legal error in

refusing to determine whether [Ms. Miller‘s] termination from [CSPH] was with

cause, and therefore failed to find that employment was no longer available to

[Ms. Miller] solely due to her own actions, and thus not entitled to indemnity

benefits[;]‖ and (2) that the WCJ ―erred in awarding [Ms. Miller a penalty] and

attorney fees when [she] was capable of earning [ninety percent] or more of her

pre-accident wages and was the sole cause of her loss of employment.‖

Ms. Miller has answered the appeal, asserting that the WCJ ―erred in ruling

that [she] was required to treat with the physical therapist requested by [CSPH],

who also owns the physical therapy facility, which would appear to be a conflict of

interest.‖ Ms. Miller has also requested ―additional penalties and attorney fees for

[CSPH]‘s conduct and for the defense of this appeal.‖

LAW AND DISCUSSION

CSPH seeks a de novo review by this court on the basis that the WCJ

committed legal error in refusing to address the issue of whether Ms. Miller‘s

termination was for cause. CSPH asserts that ―[t]he issue before this court is

whether [Ms. Miller] is entitled to [SEBs] when her loss of employment was due to

her own actions.‖ In support of its argument, CSPH relies heavily upon the cases

of Palmer v. Alliance Compressors, 05-478 (La.App. 3 Cir. 11/2/05), 917 So.2d

510, writ denied, 05-2440 (La. 3/24/06), 925 So.2d 1231, and Grillette v. Alliance

Compressors, 05-982 (La.App. 3 Cir. 2/1/06), 923 So.2d 774.

In Palmer v. Alliance, 917 So.2d at 513-14, this court noted that:

The parties stipulated that Alliance provided a job to Palmer after her
injury that accommodated the restrictions placed upon her . . . . The
parties further stipulated that the light duty job would still be available
to her but for her termination for cause unrelated to the injury. The
fact that the job is no longer available to her solely due to her own

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actions is no different from refusing to accept the job in the first place
and, thus, terminates her entitlement to SEB.

In Grillette v. Alliance, 923 So.2d at 778, reiterating its holding in Palmer

v. Alliance, 917 So.2d 510, this court held that: ―an employer cannot avoid paying

benefits by creating a job that accommodates any work restrictions and then firing

the injured employee without cause and that an injured employee cannot refuse to

accept suitable employment or blatantly violate company policy without the

possibility of recourse by the employer.‖

CSPH argues that it was error for the WCJ to support its decision to award

Ms. Miller workers‘ compensation benefits considering this court‘s holding in

Palmer v. Schooner Petroleum Services, 834 So.2d 642. In Palmer v. Schooner

Petroleum, 834 So.2d 642, this court held that termination in and of itself does not

end entitlement to SEB. ―To hold that an employee‘s termination destroys an

employee injured on the job‘s entitlement to SEB would provide incentive for

employers to allow injured employees to return to work and thereafter terminate

them to avoid paying SEB.‖ Id. at 650.

CSPH contends that this court‘s more recent holdings in Palmer v. Alliance,

917 So.2d 510, and Grillette v. Alliance, 923 So.2d 774, are more applicable to the

instant matter and further support its position that Ms. Miller‘s entitlement to

workers‘ compensation benefits ended when she was terminated for cause. We

disagree and find no merit to CSPH‘s first assignment of error.

A thorough comparison of the two cases relied upon by CSPH, Palmer

v. Alliance, 917 So.2d 510, and Grillette v. Alliance, 923 So.2d 774, against the

case relied upon by the WCJ to support its judgment in favor of Ms. Miller, Palmer

v. Schooner, 834 So.2d 642, reveals a significant distinction which CSPH fails to

recognize. In Palmer v. Alliance, 917 So.2d 510, and Grillette v. Alliance, 923

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So.2d 774, the claimants either stipulated or acquiesced that their terminations

were for cause. However, in Palmer v. Schooner, 834 So.2d 642, the claimant

disputed the employer‘s contention that poor work performance led to his

termination.

In the instant matter, Ms. Miller was terminated for what CSPH alleges was

a violation of their standards of behavior. According to CSPH, Ms. Miller was

terminated on October 14, 2010, because she made threatening statements about

her supervisor on a social media website while she was at work on September 8,

2010. Though Ms. Miller does not deny that she posted on a social media website

while at work on September 8, 2010, she denies that her posting was directed at her

supervisor. Ms. Miller denies violating the standards of behavior required by

CSPH. Thus, Ms. Miller clearly disputes the reason for her termination and clearly

does not stipulate or acquiesce that her termination was for cause. Therefore,

though the holdings in Palmer v. Alliance, 917 So.2d 510, and Grillette v. Alliance,

923 So.2d 774, may provide some guidance in this matter, we do not find them

controlling since this is not a clear case of Ms. Miller being terminated for cause.

We find Palmer v. Schooner, 834 So.2d 642, to be most analogous to the instant

matter, and we find no error in the WCJ‘s reliance thereon.

As to CSPH‘s contention that the WCJ erred in failing to consider whether

Ms. Miller was terminated for cause, we also find CSPH to be misguided in its

understanding of what was legally before the WCJ. Louisiana Constitution

Article 5, § 16(A)(1) vests district courts ―original jurisdiction of all civil . . .

matters.‖ ―[T]he workers‘ compensation judge shall be vested with original,

exclusive jurisdiction over all claims or disputes arising out of this Chapter.‖

La.R.S. 23:1310.3(F). The question of whether Ms. Miller‘s termination was for

cause is a legal determination to be decided by a district court, not the

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administrative agency determining workers‘ compensation matters. See

La.Const. art. 5, § 16(A)(1). Therefore, the WCJ in this matter was correct that

―whether it‘s a legal termination or not isn‘t a question for this forum.‖ Hence, we

do not find that the WCJ committed legal error. Consequently, we do not review

this matter de novo based on legal error.

The appropriate standard of review in a workers‘ compensation case, as set

forth in Lynch v. A Door Works, Inc., 11-414, p. 3 (La.App. 3 Cir. 10/5/11), 72

So.3d 1033, 1035, writ denied, 11-2457 (La. 1/13/12), 77 So.3d 965, is as follows:

The standard of review applied in workers‘ compensation cases
to a WCJ‘s finding of fact is the ―manifest error–clearly wrong‖
standard. Dean v. Southmark Constr., 03-1051, p. 7 (La. 7/6/04), 879
So.2d 112, 117. The court of appeal may not set aside the findings of
the WCJ ―unless they are found to be clearly wrong in light of the
record reviewed in its entirety.‖ Id. (quoting Alexander v. Pellerin
Marble & Granite, 93-1698, pp. 5-6 (La. 1/14/94), 630 So.2d 706,
710). ―[E]ven where the appellate court is convinced it would have
weighed the evidence differently if it had been sitting as trier, the
court of appeal may not reverse if the factfinder‘s findings are
reasonable in light of the record reviewed in its entirety.‖ Winford
v. Conerly Corp., 04-1278, pp. 15-16 (La. 3/11/05), 897 So.2d 560,
569-70.

The sole question before the WCJ was whether Ms. Miller met the requisite

burden of proof for entitlement to workers‘ compensation benefits. The parties

stipulated that Ms. Miller was involved in an accident while in the course and

scope of her employment on June 29, 2010. The parties also stipulated that when

Ms. Miller was injured, she was working full time, earning $8.75 per hour, and that

her average weekly wage was $350.00.

The factual conclusions reached by the WCJ are reasonable and are

supported by the evidence. After thoroughly reviewing the evidence in the record

and considering the WCJ‘s detailed reasons for judgment, we find that the WCJ

was not manifestly erroneous or clearly wrong in her determination that Ms. Miller

met the requisite burden of proof for entitlement to workers‘ compensation benefits

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and that CSPH failed to prove that employment was no longer available to

Ms. Miller due to her refusal to work.

In its second assignment of error, CSPH alleges that the WCJ erred in

awarding Ms. Miller a $2,000.00 penalty and $10,000.00 in attorney fees based on

her determination that Ms. Miller was unable to earn ninety percent or more of her

pre-accident wages. We disagree.

―The applicable standard of review in determining whether a
defendant should be cast with penalties and attorney fees is the
manifest error—clearly wrong standard.‖ Rutledge v. Resource
Transp., 08-1149, p. 2 (La.App. 3 Cir. 3/4/09), 7 So.3d 794, 795
(quoting Bennett v. Pilgrim’s Pride, 07-753, p. 10 (La.App. 3
Cir. 12/12/07), 972 So.2d 423, 429, writ denied, 08-103 (La.3/7/08),
977 So.2d 907). It is well settled in Louisiana law that while
workers‘ compensation benefits should be given broad interpretation,
the punitive statutes should be interpreted strictly. Williams v. Rush
Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41.

Louisiana Revised Statutes 23:1201 governs the payment of
benefits and any attorney fees or penalties associated therewith.
Subsection E states that ―[m]edical benefits payable under this
Chapter shall be paid within sixty days after the employer or insurer
receives written notice thereof.‖ Subsection F of that statute
mandates that a penalty be assessed when payment is not provided in
accordance with the other subparts and allows for attorney fees to be
assessed as well. An employer can escape the mandatory penalties
only when it reasonably controverts the employee‘s claim.
La.R.S. 23:1201(F)(2). This court has previously held that ―[a] claim
is reasonably controverted when the employer or insurer produces
factual or medical information that reasonably counters the claimant‘s
evidence.‖ Bourgeois v. Brown’s Deli & Market, Inc., 09-290, p. 7
(La.App. 3 Cir. 10/14/09), 21 So.3d 1072, 1077 (citing Davis v. Jones
Baldwin Music Co., 27,545 (La.App. 2 Cir. 11/1/95), 662 So.2d 803).

Stockman v. Med. Tech. Inc., 11-285, pp. 3-4 (La.App. 3 Cir. 12/14/11), 81 So.3d

198, 201, writ denied, 12-145 (La. 3/23/12), 85 So.3d 94.

At trial, Ms. Miller testified that her treating physician, Dr. Lechtenberg,

took her off work completely at her November 3, 2010 office visit. No indemnity

benefits were ever paid to Ms. Miller because of CSPH‘s position that Ms. Miller‘s

termination was for cause. Considering the evidence in the record of these

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proceedings, we find that Ms. Miller proved she was unable to earn ninety percent

of her pre-accident wages and that CSPH failed to reasonably controvert her claim.

Therefore, we find no manifest error in the WCJ‘s award of a penalty and attorney

fees.

Answer to Appeal

The WCJ denied Ms. Miller‘s request to choose her own physical therapist.

In her answer to appeal, Ms. Miller argues that this was error and she seeks

penalties and attorney fees.

Ms. Miller chose her treating physician, Dr. Lechtenberg, as allowed by

La.R.S. 23:1121(B)(1).1 CSPH approved Ms. Miller to receive physical therapy

with Total Physical Therapy. Ms. Miller wishes to receive physical therapy from a

different clinic on the basis that CSPH owns Total Physical Therapy. She asserts a

conflict exists with Total Physical Therapy because it is owned by CSPH, her

former employer.

CSPH counters arguing that that while Ms. Miller ―has a right to her choice

of physician, [she] has no right to choice when it comes to her physical therapist.‖

CSPH points out that this court addressed a similar issue in Gautreaux

v. K.A.S. Construction, LLC, 05-1192 (La.App. 3 Cir. 2/22/06), 923 So.2d 850, and

argues that Gautreaux controls the instant matter.

In Gautreaux, the plaintiff argued that he had the right to choose a physical

therapist to conduct a functional capacity evaluation (FCE). This court stated:
1
Louisiana Revised Statutes 23:1121(B)(1) provides:

The employee shall have the right to select one treating physician in any
field or specialty. The employee shall have a right to the type of summary
proceeding provided for in R.S. 23:1124(B), when denied his right to an initial
physician of choice. After his initial choice[,] the employee shall obtain prior
consent from the employer or his workers‘ compensation carrier for a change of
treating physician within that same field or specialty. The employee, however, is
not required to obtain approval for change to a treating physician in another field
or specialty.

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We now are called upon to face the issue squarely as it relates
to FCEs. After careful review, we find that the statute itself
addresses the issue. Specifically, it provides that an injured
employee ―shall submit himself to an examination by a duly qualified
medical practitioner‖ selected by his employer. La.R.S.
23:1121(A) (emphasis added). However, the statute also provides
that an injured ―employee shall have the right to select one treating
physician‖ in each field or specialty. La.R.S. 23:1121(B)(1)
(emphasis added).

Id. at 851-52. This court concluded that a physical therapist is not considered a

physician but, instead, falls within the definition of the broader term of medical

practitioner. Therefore, because La.R.S. 23:1121(B)(1) grants the employee the

right to choose a treating physician and does not grant the employee the right to

choose a medical practitioner, this court held that the plaintiff had no right to select

a physical therapist.

The WCJ also found it noteworthy, as do we, that Ms. Miller‘s treating

physician, Dr. Lechtenberg, did not challenge the selection of Total Physical

Therapy as the facility chosen by CSPH to treat Ms. Miller. Considering the

foregoing, we agree with CSPH and find no legal error in the WCJ‘s denial of

Ms. Miller‘s request to choose her physical therapist.

Ms. Miller has also requested an additional award of attorney fees for work

performed on appeal. ―In Nash v. Aecom Tech. Corp., 07-990, p. 8 (La.App. 3

Cir. 2/6/08), 976 So.2d 263, 268, this court held that ‗[a] workers‘ compensation

claimant is entitled to an increase in attorney fees to reflect additional time

incurred in defending an employer/insurer‘s unsuccessful appeal.‘‖ Bethel v. Lake

City Trucking, 11-1542, p. 9 (La.App. 3 Cir. 4/4/12), 87 So.3d 338, 344.

Therefore, we award Ms. Miller an additional $5,000.00 in attorney fees for work

performed on appeal.

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DECREE

For the foregoing reasons, the judgment of the Office of Workers‘

Compensation is affirmed, and we award $5,000.00 in attorney fees for work

performed on this appeal. All costs are assessed to Defendant/Appellant, Christus

St. Patrick Hospital.

AFFIRMED AND RENDERED.

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