Rhonda Timberlake v. Christus Health Central Louisiana D/B/A Fara Insurance Services

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-166

RHONDA TIMBERLAKE

VERSUS

CHRISTUS HEALTH CENTRAL LOUISIANA D/B/A
FARA INSURANCE COMPANIES

**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, DOCKET NO. 10-7681
HONORABLE JAMES L. BRADDOCK, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED AS AMENDED.

Maria A. Losavio
Losavio Law Office, LLC
1821 MacArthur Drive
P.O. Box 12420
Alexandria, LA 71315-2420
(318) 767-9033
ATTORNEY FOR PLAINTIFF/APPELLANT
Rhonda Timberlake

John C. Turnage
Meyer, Smith & Roberts, LLP
1550 Creswell
Shreveport, LA 71101
(318) 222-2135
ATTORNEY FOR DEFENDANTS/APPELLEES
Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital

COOKS, Judge.

Both the employer and worker assert various errors in the judgment rendered

by the Office of Workers’ Compensation following a work accident involving the

Claimant.

FACTS AND PROCEDURAL HISTORY

On March 30, 2010, the Claimant, Rhonda Timberlake, alleged she

sustained a left wrist and forearm injury while in the course and scope of her

employment as a registered nurse with Christus Health Central Louisiana d/b/a

Christus St. Frances Cabrini Hospital (hereafter Cabrini). The alleged injury

occurred when Claimant was repositioning an Intensive Care Unit (ICU) patient.

A claim for workers’ compensation benefits was eventually filed. Cabrini is self-

insured for purposes of this claim. F.A. Richard and Associates, Inc., (FARA) is

the third-party administrator of Cabrini’s workers’ compensation claims.

After the injury, Claimant, upon referral by Cabrini, received care from Dr.

Gordon Webb, an occupational medicine specialist. Restrictions were placed on

Claimant, but she continued her employment with Cabrini. Claimant then chose

Dr. William Crenshaw, an orthopedist, as her choice of physician. She was seen

by Dr. Crenshaw on several occasions. During the course of her treatment with Dr.

Crenshaw, Claimant underwent an MRI, EMG and nerve conduction studies. She

had her arm placed in a cast and was advised to begin physical therapy. She was

restricted from working on May of 2010 and began receiving temporary total

disability (TTD) benefits until she returned back to work with other restrictions on

June 15, 2010.

Dr. Crenshaw suggested that Claimant be evaluated by his partner, Dr. Mark

Dodson, also an orthopedic specialist. Claimant agreed, and Dr. Dodson examined

her on June 16, 2010. On the day following the examination by Dr. Dodson,

Claimant called the adjuster for FARA, Joanna Cannatella, and requested to be

2

evaluated by another orthopedic hand specialist, Dr. Richard Morrow. Ms.

Cannatella denied this, believing the change to Dr. Dodson was a prior change of

orthopedic specialists. Claimant remained under Dr. Dodson’s care until she was

granted the right to be treated by Dr. Richard Morrow.

According to Claimant, when she returned to work, Cabrini had to find

things for her to do under her work limitations. She was moved around to various

areas, many involving monitoring and administrative duties. Claimant earned

approximately $26.00 per hour. It was subsequently alleged by Cabrini that

Claimant missed periods of work due to unrelated illnesses or family events.

Claimant disputed that, and claimed she missed work only for problems related to

her arm injury.

In October of 2010, Claimant was released to return to her nursing duties in

the ICU Unit. Claimant left her employment at Cabrini in November of 2010

because, according to her, she was not making near the money she was making

prior to her injury. She stated this was largely due to Cabrini failing to offer

Claimant sufficient shifts that would earn her close to her pre-accident wages. She

also testified there were rising tensions in the ICU because she was still working

there with restrictions and her co-workers were forced to compensate for her

medical limitations.

In an effort to earn more money, Claimant accepted contract nursing jobs in

California. Claimant stated this job also appealed to her because she was able to

work with more ambulatory patients rather than bedbound ICU patients. She

testified she earned $30.00 an hour during this employment. It was maintained this

level of remuneration still did not reach 90% of her pre-accident wages.

Following the denial by Ms. Cannatella on June 17, 2010 of her request to

be seen by Dr. Morrow, Claimant retained legal counsel. Several requests were

made by Claimant to Cabrini to get pre-authorization to see Dr. Morrow, which

3

were all denied. Dr. Morrow’s policy required written pre-authorization from the

employer for an initial evaluation of Claimant since she was a workers’

compensation patient. No pre-authorization was given.

Counsel for Claimant filed a Motion for Authorization of Treatment with Dr.

Morrow. On March 10, 2011, a hearing on that motion was held before the Office

of Workers’ Compensation (OWC). The Workers’ Compensation Judge (WCJ)

ruled in favor of Claimant and ordered Cabrini to allow Claimant to obtain medical

treatment with Dr. Morrow. The issue of whether a penalty and attorney fees were

warranted for Cabrini’s failure to timely authorize this change was deferred to the

trial on the merits.

Claimant began treatment with Dr. Morrow in March of 2011. During this

time, claimant was working periodically in California. On September 15, 2011,

Dr. Morrow, concerned with Claimant’s lack of improvement, scheduled several

diagnostic tests, an arthrogram, an Electromyography (EMG) and a nerve

conduction study (NCS). After discussing the results with Claimant, Dr. Morrow

recommended surgery on her wrist and took her completely off of work. Cabrini

did not begin paying TTD benefits to Claimant until November 13, 2011, the date

of the wrist surgery.

Trial on the merits was held on March 28, 2012, focusing primarily on

indemnity, penalties and attorney fees allegedly owed. Average weekly wages

were stipulated to be $1,549.83, which resulted in a maximum temporary total

disability (TTD) rate of $577.00 per week. Claimant alleged for the months of

July, August and September 2010, she returned to work at Cabrini under

restrictions and was unable to earn at least 90% of her pre-accident wages.

Claimant also requests supplemental earnings benefits (SEB) from December 2010

through September 2011 when she was “forced’ to leave Cabrini to work out of

4

state resulting in less than 90% of her pre-accident wages. Claimant also requested

penalties and attorney fees for Cabrini’s unreasonable failure to pay SEB.

Claimant also maintained she was entitled to TTD benefits from September

27, 2011 to November 13, 2011 (the date she began receiving TTD benefits).

Claimant maintained Dr. Morrow removed her from work on September 27, 2011

and recommended surgery. Penalties and attorney fees were also requested for

Cabrini’s non-payment of TTD benefits during that time period.

The WCJ issued an oral ruling on May 21, 2012, finding Claimant

“sustained a work accident on March 30, 2010 during the course and scope of her

employment” with Cabrini. The WCJ further concluded Claimant was entitled to

SEB benefits for July, 2010 in the amount of $1,569.70; for August, 2010 in the

amount of $777.82; for September, 2010 in the amount of $1,155.77. The WCJ

found these were the only months Claimant was entitled to SEB. The WCJ also

assessed Cabrini with a $2,000.00 penalty for what the court termed “an

unreasonable failure to pay SEB benefits to [Claimant] for July, August and

September of 2010.” The WCJ awarded TTD benefits to Claimant from

September 27, 2011 through November 13, 2011, and continuing. The WCJ found

Cabrini “was unreasonable in its failure to pay TTD” during the above period and

was assessed a $2,000.00 penalty. The WCJ denied Claimant’s request for a

penalty and attorney fees for Cabrini’s refusal to allow her to change orthopedic

surgeon from Dr. Crenshaw and/or Dr. Dodson to Dr. Morrow. Lastly, the WCJ

awarded attorney fees to Claimant in the amount of $7,500.00.

Claimant filed a Motion for New Trial on the WCJ’s denial of penalties and

attorney fees for Cabrini’s failure to timely authorize the change of physician to

Dr. Morrow. The basis for the motion was that the WCJ referenced a statute that

had been repealed. At a hearing on the motion, the WCJ acknowledged the citing

5

of an inappropriate statute, but affirmed his previous ruling denying penalties and

attorney fees.

Cabrini appealed the WCJ’s judgment, asserting the following assignments

of error:

1. The WCJ erred in awarding SEB to Claimant for July, August and
September, 2010.

2. The WCJ erred in awarding TTD benefits from September 27,
2011 through November 13, 2011.

3. The WCJ erred in finding Cabrini was arbitrary and capricious and
awarding penalties and attorney fees.

Claimant filed an answer to Cabrini’s appeal, and asserts the following

assignments of error:

1. The WCJ erred in not awarding penalties and attorney fees for
Cabrini’s failure to timely authorize the change in treating physician
to Dr. Morrow.

2. The WCJ erred in failing to award SEB for the periods Claimant
was working out of state under restrictions from work.

3. The WCJ erred in not awarding penalties and attorney fees for
Cabrini’s failure to pay SEB for the periods Claimant was working
out of state.

4. An increase in attorney fees is warranted for the efforts put forth
prior to appeal and additional attorney fees are warranted for the work
necessitated by the appeal.

ANALYSIS

“Factual findings in workers’ compensation cases are subject to the

manifest error or clearly wrong standard of appellate review. In applying the

manifest error standard, 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.” Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811

So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citation

omitted).

6

In Green v. National Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir.

4/27/11), 63 So.3d 354, 358, we explained:

“The determination of coverage is a subjective one in that each case
must be decided from all of its particular facts.” Jackson v. Am. Ins.
Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light
of that standard of review, “great deference is accorded to the
[workers’ compensation judge’s] factual findings and reasonable
evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3
(La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315
(La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-
39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

CABRINI’S APPEAL

I. SEB for July, August, September 2010 .

Cabrini argues the WCJ erred in awarding SEB to Claimant for July, August

and September of 2010. In Allen v. City of Shreveport, 618 So.2d 386, 388 (La.

1993) (footnote omitted), the Louisiana Supreme Court summarized the purpose of

SEB as follows:

Supplemental earnings benefits were established in 1983 as a
method of replacement of lost wages for partially disabled employees.
The benefits are designed to replace lost earning capacity of workers
who do not fall under the definition of total disability. When an
injured employee is able to engage in a gainful occupation, but
because of his work-related disability is unable to earn wages at the
level he was earning prior to his injury, he is classified as partially
disabled. And when the partial disability reaches the level that the
employee is unable to earn wages equal to ninety percent or more of
the wages he was earning at the time of the injury, he is entitled to
supplemental earnings benefits, calculated according to a formula
relating to his pre-injury wages and the wages he “is able to earn” in
any employment or self-employment after the injury. La.Rev.Stat.
23:1221(3)(a).

The employee bears the initial burden of proving by a preponderance of the

evidence that he or she is disabled due to a work-related injury that rendered him

or her unable to earn ninety percent of the pre-injury wages. Banks v. Ind. Roofing

& Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. “In determining

if an injured employee has made out a prima facie case of entitlement to

supplemental earnings benefits, the trial court may and should take into account all

7

those factors which might bear on an employee’s ability to earn a wage.” Daigle v.

Sherwin-Williams Co., 545 So.2d 1005, 1007 (La. 1989), quoting Gaspard v. St.

Paul Fire & Marine Ins. Co., 488 So.2d 1037 (La.App. 3 Cir. 1985); see also

La.R.S. 23:1221(3)(a). Once the employee seeking SEB establishes a prima facie

case, the burden shifts to the employer to show the employee is physically capable

of work and that the work was offered or available in the employee’s or

employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i).

The evidence established that Claimant had restrictions placed upon her

immediately after the injury occurred, although she continued working in more

sedentary duties. The WCJ found, even with her physical limitations, Claimant

was able to earn at least 90% of her pre-accident wages during April, 2010, thus no

SEB was due for that month. In May of 2010, she was removed from work, and

began receiving TTD benefits. The WCJ found no SEB was due for May and

June, which is not disputed by the parties.

Claimant returned to work with restrictions by July, 2010. Claimant testified

she attempted “as best she could” to schedule as many hours as possible, but was

unable to earn 90% of her pre-accident wages. Cabrini argues Claimant was not

prevented from earning 90% of her pre-accident wages during the period in

question, but rather refused shifts offered to her by Cabrini that fell within her

restrictions. Cabrini asserts she turned down these offered shifts for “unrelated

personal reasons.” Cabrini specifically point to certain instances where Claimant

asked not to be scheduled on some Fridays to attend her son’s band performance.

Claimant maintained any time she missed was due to continued pain with her

injured arm, and that she notified Cabrini well in advance if she could not work on

a certain Friday.

The WCJ specifically noted he found Claimant’s testimony that she

attempted to secure as many shifts as possible credible. Stephen Dubae, Cabrini’s

8

ICU Supervisor, testified he was largely unaware of what hours and shifts were

offered to Claimant. The WCJ noted Claimant’s testimony “seemed to be

corroborated” by Mr. Dubae. After a review of the record we find no error in the

WCJ’s finding that Claimant established her entitlement to SEB for July, August

and September of 2010.

We also find unpersuasive Cabrini’s argument that the lack of available

shifts for Claimant was due to an alleged reduction in the number of patients in the

facility. The law clearly sets forth that once the “employee seeking SEB

establishes a prima facie, the burden shifts to the employer to show the employee is

physically capable of work and that the work was offered or available in the

employee’s or employer’s community or reasonable geographic region. La.R.S.

23:1221(3)(c)(i). Cabrini failed to meet their burden at trial to establish that

sufficient work was offered or available to allow Claimant to earn 90% of her pre-

accident wages.

Cabrini also argues the WCJ erred in awarding penalties and attorney fees

for its refusal to pay SEB for July, August and September of 2010. The

determination of whether an employer should be cast with penalties and attorney

fees is essentially a question of fact, and the WCJ’s finding must not be disturbed

on appeal absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930

(La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La. 10/13/00), 771

So.2d 650. “To avoid penalties and attorneys fees for the nonpayment of benefits,

the employer or insurer is under a continuing duty to investigate, to assemble, and

to assess factual information before denying benefits.” George v. Guillory, 00-

591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209, overruled on other

grounds by Smith v. Quarles Drilling Co., 04-179 (La. 10/29/04), 885 So.2d 562.

We note Cabrini puts forth the same arguments for its belief that it should

not be cast with penalties and attorney fees as it did in its assignment of error that

9

SEB was not warranted at all, i.e., Claimant’s inability to earn 90% of her pre-

accident wages was due to her refusal of shifts for personal reasons and a shortage

of patients at the hospital. These arguments were found lacking above and are

similarly no defense to the WCJ’s imposition of penalties and attorney fees for

Cabrini’s failure to pay SEB for the pertinent period.

II. TTD Benefits.

The WCJ awarded Claimant TTD benefits from September 27, 2011, the

date Dr. Morrow recommended surgery, through November 13, 2011, the day

before surgery was performed. Cabrini has justified its refusal to pay TTD benefits

during this period on the fact that Karl Bilderback (an orthopedic surgeon selected

by Cabrini to examine Claimant in light of Dr. Morrow’s surgery recommendation)

determined Claimant was capable of working, albeit with restrictions, during the

period in question. The WCJ examined in detail Dr. Bilderback’s conclusions

concerning Claimant, but determined she was still entitled to TTD benefits for the

period in question.

Following Dr. Morrow’s surgical recommendation, Cabrini requested that

Claimant be examined by Dr. Bilderback. On October 28, 2011, Dr. Bilderback

examined Claimant and concluded she had “clearly not reached Maximum Medical

Improvement, as she is in need of further treatment.” The WCJ noted that Dr.

Bilderback did state he believed Claimant could return to work with restrictions.

Specifically, Dr. Bilderback wrote:

I believe she could return to work at this point. However, she would
have difficulty in lifting patients with draw sheets, as well as any fine
motor activity with her left hand. These type of activities would be
required in her job description. I believe she would have difficulty
returning to work without some restrictions or accommodations.

Despite his belief that Claimant could only return to work while under restrictions,

the WCJ noted neither Dr. Bilderback nor Cabrini presented any updated

restrictions or accommodations after the arthrogram, EMG and NCS performed in

10

September of 2011. The WCJ gave the following oral reasons for finding TTD

benefits should have been commenced during the period in question:

Pursuant to the [cases of Ebare v. Cubic Applications, Inc., 08-1095
(La.App. 3 Cir. 3/4/09), 5 So.3d 1028 and Pickett v. Stine Lumber Co.,
93-1534 (La.App. 3 Cir. 6/1/94), 640 So.2d 769], toward the facts and
the particular circumstances of [Claimant’s] case, she is in further
need of further medical care, testing and treatment. Even Dr.
Bilderback indicates she may need further nerve conduction – I mean,
EMG studies, updated studies, and this was what Dr. Dodson had
indicated in July 5th of 2010. Indicates she is not at Maximum
Medical Improvement and needs to have the surgery. She’s going to
have difficulty lifting patients. She has a problem with fine motor
activity with her hand, and particularly, since it hasn’t been shown by
the employer since this new development of medical information from
Dr. Morrow, as well as Dr. Bilderback with – that there’s any
employment –[in Claimant’s], or the employer’s reasonable
geographic area [that] meets this new criteria, [Claimant] is, in fact,
entitled to TTD benefits September 27th of 2011 until she had her
surgery, which I think [was on] November 14th of 2011.

We cannot say the WCJ manifestly erred in its award of TTD benefits for the

period in question. This Court has held when a claimant, either at the time of trial

or at the time of nonpayment of benefits, is still undergoing testing and treatment

with an “indefinite recovery period, she is entitled to recover TTD’s. See Warren

v. Maddox Hauling, 02-733 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082, writ denied,

03-4 (La. 4/21/03), 841 So.2d 791; Foster v. Liberty Rice Mill, 96-438 (La.App. 3

Cir. 12/11/96), 690 So.2d 792.

We likewise affirm the WCJ’s imposition of penalties and attorney fees for

Cabrini’s failure to pay TTD benefits from September 27, 2011 through November

14, 2011. The WCJ did not manifestly err in finding Cabrini did not perform its

continuing duty to investigate, assemble and assess the factual information before

denying TTD benefits for the period in question.

CLAIMANT’S APPEAL

I. Penalties and Attorney Fees for Failure to Authorize Change of Physician.

A review of the record indicates Claimant initially sought treatment the day

of the accident at Cabrini Hospital. She then began treatment with Dr. William

11

Crenshaw of Mid-State Orthopedic and Sports Medicine, who treated her over

several visits, including ordering physical therapy and several diagnostic tests.

Dr. Crenshaw suggested to Claimant that she be evaluated by his partner, Dr.

Mark Dodson. Claimant agreed, and Dr. Dodson examined her on June 16, 2010.

According to Claimant, she did not agree to select Dr. Dodson as her choice of

orthopedist, and only thought he was giving a second opinion to his partner, Dr.

Crenshaw. However, she was told by Mid-State that once Dr. Dodson had seen

her, according to policy she was unable to return to Dr. Crenshaw for treatment.

On the day following the June 16, 2010 examination by Dr. Dodson,

Claimant called the adjuster for FARA, Joanna Cannatella, and requested to be

evaluated by another orthopedic hand specialist, Dr. Morrow. Ms. Cannatella

denied this, believing the change to Dr. Dodson was a prior change of orthopedic

specialists. The WCJ noted that, even after voicing her disapproval, Claimant

continued seeing Dr. Dodson.

Claimant notes that Dr. Dodson believed that an evaluation by Dr. Morrow

was an “excellent idea,” and that Cabrini was aware of Dr. Dodson’s opinion.

However, no authorization was given. Thus, they contend it was arbitrary and

capricious to deny Claimant’s request to see Dr. Morrow.

Counsel for Claimant filed a Motion for Authorization of Treatment with Dr.

Morrow. On March 10, 2011, a hearing on that motion was held before the OWC.

The WCJ ruled in favor of Claimant and ordered Cabrini to allow Claimant to

obtain medical treatment with Dr. Morrow. The issue of whether a penalty and

attorney fees were warranted for Cabrini’s failure to timely authorize this change

was deferred to the trial on the merits. At the trial on the merits, the WCJ declined

to assess penalties and attorney fees.

12

Louisiana Revised Statutes 23:1121(B)(1)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.

Claimant contends she never selected Dr. Dodson as her treating physician,

but merely consented to a second opinion from him at Dr. Crenshaw’s request.

Cabrini disputes this, arguing Claimant “is a registered nurse and she was aware

Dr. Crenshaw wanted her to see the hand specialist within his clinic.” Her

agreement to see him, Cabrini argues, “became her choice.”

The WCJ’s decision to award penalties and attorney’s fees is a question of

fact which is reviewed under the manifest error standard of review. Pauley v. Wal-

Mart Stores, Inc., 02-1354 (La.App. 3 Cir. 6/4/03), 847 So.2d 757, writ denied, 03-

1884 (La.11/21/03), 860 So.2d 544. In the instant matter, the WCJ concluded

whether to grant Claimant’s request for a change in physician was “a genuine

issue, reasonably contested by the employer, given the factual issues about the

actual choice of that physician.” Thus, the WCJ declined to award penalties and

attorney fees. The law is clear that “an employer should not be penalized for

bringing a close legal issue to court.” Burruss v. Centro Mgmt., Inc., 00-1274, p. 2

(La.App. 3 Cir. 2/28/01), 780 So.2d 630, 631. Mindful of the vast discretion

vested in the trier of fact, we cannot say the WCJ erred in finding there was

sufficient evidence for Cabrini to contest Claiman’s choice of physician request.

Accordingly, we affirm the WCJ’s denial of penalties and attorney’s fees on this

issue.

II. Claimant’s Request for SEB While Working Out of State.
1
La.R.S. 21:1121(B) was amended by 2013 Acts 337, § 1, effective August 1, 2013. The amendments are
retroactive, and address the hearing on the claimant’s choice of physician.
13

The WCJ noted that Claimant earned in excess of her pre-accident wages in

October of 2010, when she was released to return to the ICU Unit. In the middle

of November, Claimant resigned from her employment with Cabrini and began

accepting contract nursing jobs in California. Claimant worked in California from

December 2010 until September 27, 2011, when Dr. Morrow removed her from all

work.

Claimant maintained she left her employment with Cabrini because she was

not making near the money she was making prior to her injury and there were

rising tensions in the ICU Unit due to her fellow employees having to compensate

for her medical restrictions. Despite her pursuing and accepting work in

California, Claimant maintained she was still unable to earn 90% of her pre-

accident wages, and the WCJ erred in not awarding her SEB for this period.

The WCJ gave the following reasons for denying SEB to Claimant during

her period of out-of-state employment:

Based on the time that she had worked during the month of November
of 2010, she was well on her way, [to] earning greater than 90% of her
pre-injury wages for the month of November of 2010. I do not accept
[Claimant’s] testimony that she left Christus St. Frances Cabrini
Hospital because she was making less money after her injury than she
was making prior to her injury, since, clearly, up until October or
November, after she had been released to return to the ICU Unit, does
– as fact, working in the ICU Unit, it – was no medical evidence
indicating that she was incapable of doing the work in the ICU Unit.
[Stephen Dubae] testified that nothing in the ICU Unit, other than
turning patients, required them to lift greater than 41 pounds, that they
always had assistance in lifting patients. And the mere fact that
someone feels tension in the air from coworkers and having to assist
them is not a basis to leave an employment and place the employer in
the responsibility of providing SEB benefits when there’s no medical
corroboration that the worker cannot perform the work. I could find
no jurisprudence along that line that I was cited on behalf of
[Claimant]. So, [she] is not entitled to SEB from October [2010], all
the way through September 27, 2011.

We find the record supports the WCJ’s reasoning that Claimant did not leave

her employment with Cabrini because she was unable to earn close to her pre-

accident wages. Claimant earned well in excess of her monthly pre-accident wages

14

in October of 2010. The WCJ also noted she was on a similar track in November

of 2010, until she voluntarily left her employment with Cabrini. Thus, the WCJ’s

refusal to accept Claimant’s contention that she left her employment because she

could not earn her pre-accident wages was reasonable. Likewise, we find the

WCJ’s conclusion that Claimant was able, with occasional assistance, to perform

her duties in the ICU was supported by the record.

As for Claimant’s argument that there was tension in the ICU that led to her

departure, Claimant acknowledged she never went to her supervisor, Mr. Dubae, to

voice any concerns over any tension. The WCJ concluded simply because there

may be tension with coworkers is not enough by itself to make the employer

responsible for payment of SEB, when the record establishes Claimant was able to

perform her duties and was able to earn 90% of her pre-accident wages. We find

no error in this conclusion.

III. Increase in Attorney Fees for Work Performed on Appeal.

We have long held that a claimant who successfully defends the WCJ’s

ruling should be entitled to additional fees for the work necessitated by the appeal.

Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313.

We will award Claimant additional attorney fees in the amount of $3,000.00.

DECREE

For the foregoing reasons, the judgment of the Office of Worker’s

Compensation is affirmed. The judgment is amended to award Claimant $3,000.00

in additional attorney fees for the work necessitated by Cabrini’s appeal. Costs of

this appeal are assessed to defendant, Christus St. Frances Cabrini Hospital.

AFFIRMED AS AMENDED.

15