Christy Rogel v. Dollar General Corp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 13-792

CHRISTY ROGEL

VERSUS

DOLLAR GENERAL CORP.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 11-03785
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

Marcus Miller Zimmerman
4216 Lake Street
Lake Charles, LA 70605
(337) 474-1644
COUNSEL FOR PLAINTIFF/APPELLEE:
Christy Rogel

Michael Meunier
Sullivan, Stolier, Kovata
909 Poydras St., Suite 2600
New Orleans, LA 70112-4000
(504) 561-1044
COUNSEL FOR DEFENDANT/APPELLANT:
Dollar General Corp. (Dolgencorp, LLC)

EZELL, Judge.

In this workers’ compensation case, Dollar General appeals the decision of

the workers’ compensation judge (WCJ) below awarding Christy Rogel

supplemental earning benefits (SEB), medical expenses, a second medical opinion,

as well as penalties and attorney fees. For the following reasons, we hereby affirm

the decision of the WCJ in part, reverse in part, and render judgment.

Ms. Rogel was the store manager at Dollar General in Starks, Louisiana. On

June 17, 2010, she was moving a rolltainer loaded with 600 pounds of charcoal to

the store’s sidewalk when the rolltainer tipped, pinning her. As a result, her ankle

suffered a chip avulsion. She continued to work until July 6, 2010, when her ankle

was surgically repaired by Dr. Geoffrey Collins. She was placed on total disability

benefits from this date until she returned to work on September 2, 2010. Ms.

Rogel returned to work on light-duty status; however, because she was often alone

at the store, she continued to perform duties that required her to labor beyond the

light-duty work she was restricted to.

In December 2010, Ms. Rogel again presented to Dr. Collins with

complaints that her ankle pain was getting worse and affecting her work.

Eventually, a functional capacity evaluation was ordered which found swelling,

tenderness, decreased mobility, and an abnormal gait and standing mechanics. The

functional capacity evaluation and Dr. Collins recommended limitations on

standing and walking. Dr. Collins ultimately decided that a second surgery was

needed to remove hardware placed on the ankle during Ms. Rogel’s first surgery.

This surgery was delayed when Ms. Rogel suffered chest pains during her pre-

surgery physical and she was taken via ambulance to the hospital. She was cleared,

but could not be anesthetized until a complete cardiac work-up was performed.

While Dollar General sought to authorize this work-up, an error by Dr. Collins’

office delayed this for several months. Ms. Rogel eventually resigned her position

in April 2011. After that, the second surgery was performed.

Ms. Rogel filed the current workers’ compensation action seeking SEB,

medical expenses, and penalties and attorney fees. The WCJ awarded her SEB,

medical expenses related to her hospitalization for chest pain, and penalties and

attorney fees for Dollar General’s failure to timely pay those claims. The WCJ

also rejected Dollar General’s allegations that Ms. Rogel committed fraud under

La.R.S. 23:1208 and approved a second medical opinion for her continuing ankle

pain. From that decision, Dollar General appeals.

Dollar General asserts six assignments of error on appeal. It claims:

1. The [WCJ] clearly erred in awarding SEBs;

2. The [WCJ] clearly erred in authorizing a second choice of
orthopedic surgeon;

3. The [WCJ] clearly erred in ordering defendant to pay medical bills
which were not related to the work accident;

4. The [WCJ] clearly erred in finding that defendant did not timely
approve the cardiac clearance, when the uniform evidence shows that
in fact the employer did just that and;

5. The [WCJ] clearly erred in refusing to apply La. R.S. 23:1208
forfeiture in the face of numerous deliberate misrepresentations made
by the plaintiff in order to obtain workers’ compensation benefits; and

6. The [WCJ] clearly erred in awarding penalties and attorney’s fees
and in finding that defendant did not reasonably controvert the
plaintiff’s claims.

In Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117,

the supreme court stated:

In worker’s compensation cases, the appropriate standard of
review to be applied by the appellate court to the OWC’s findings of
fact is the “manifest error-clearly wrong” standard. Brown v. Coastal

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Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97),
704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-
1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the
findings of the OWC will not be set aside by a reviewing court unless
they are found to be clearly wrong in light of the record viewed in its
entirety. Alexander, 630 So.2d at 710. Where there is conflict in the
testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even though
the appellate court may feel that its own evaluations and inferences
are as reasonable. Robinson v. North American Salt Co., 02-1869
(La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not
reverse the findings of the lower court even when convinced that had
it been sitting as the trier of fact, it would have weighed the evidence
differently. Robinson, 865 So.2d at 105.

Supplemental Earnings Benefits

Dollar General first claims that the WCJ erred in awarding Ms. Rogel SEB

after she was able to return to part-time work.

“The purpose of [SEBs] is to compensate the injured employee
for the wage earning capacity he has lost as a result of his accident.”
Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840
(La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive
SEBs if he sustains a work-related injury that results in his inability to
earn ninety percent (90%) or more of his average pre-injury wage. La.
R.S. 23:1221(3)(a). Initially, the employee bears the burden of
proving, by a preponderance of the evidence, that the injury resulted
in his inability to earn that amount under the facts and circumstances
of the individual case. Banks, supra at 556. “In determining if an
injured employee has made out a prima facie case of entitlement to
[SEBs], the trial court may and should take into account all those
factors which might bear on an employee’s ability to earn a wage.”
Daigle v. Sherwin–Williams Co., 545 So.2d 1005, 1009 (La.1989)
(quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d
1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee
overcomes this initial step that the burden shifts to the employer to
prove, by a preponderance of the evidence, that the employee is
physically able to perform a certain job and that the job was offered to
the employee or that the job was available to the employee in his or
the employee’s community or reasonable geographic location. La. R.S.
23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.

Poissenot v. St. Bernard Parish Sheriff’s Office, 09–2793, pp. 4-5 (La. 1/9/11), 56

So.3d 170, 174 (alterations in original)(footnote omitted). “In determining whether

a [workers’ compensation judge’s] finding that an employee has met his initial

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burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court

must examine the record for all evidence that bears upon the employee’s inability

to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp.,

97-688, p. 8 (La. 12/2/97), 704 So.2d 1161, 1166

Ms. Rogel clearly suffered a workplace accident when the rolltainer fell on

her ankle. Dollar General does not dispute that. It is further clear that she is

limited to light to medium-duty work with limited time on her feet, prolonged

stooping, and in the amount of weight she is to lift. This is supported by both her

testimony and Dr. Collins’ medical records. Ms. Rogel testified that she cannot

work because of her continued ankle pain. This testimony is uncontroverted by

Dollar General. Additionally, the WCJ stated that he found Ms. Rogel to be very

credible and praised her work ethic and history of continuing work through pain.

This is bolstered by her uncontested testimony that, while between surgeries, she

performed duties at a level higher than those she was limited to by her doctor

because that work needed to be done and Dollar General would not hire additional

help. Based on the WCJ’s evaluation of MS. Rogel’s credibility and the record

before this court, there is reasonable basis for the workers’ compensation judge’s

award of SEB. What is more, Dollar General has failed to prove that Ms. Rogel is

“physically able to perform a certain job and that the job was offered to the

employee or that the job was available to the employee in his or the employee’s

community or reasonable geographic location.” Poissenot, 56 So.3d at 174.

Accordingly, this assignment of error is without merit.

Second Choice of Physician

In its second assignment of error, Dollar General claims that the WCJ erred

in authorizing Ms. Rogel a second medical opinion regarding her ankle. Louisiana

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Revised Statutes 23:1121(B) provides that an employee has a right to select one

treating physician in any field or specialty. However, Scott v. Piccadilly Cafeteria,

97-1584 (La. App. 3 Cir. 4/1/98), 708 So.2d 1296, recognized that while La.R.S.

23:1121(B) requires that an employee obtain prior consent from the employer or

his workers’ compensation carrier for a change of treating physician within that

same field or specialty, an employer may be bound to provide additional expenses

from another physician in the same field or specialty as long as the treatment is

both reasonable and necessary to alleviate the employee’s symptoms.

Here, the WCJ obviously credited Ms. Rogel’s assertion that she continues

to experience pain in her ankle, and the WCJ found that the sought-after care might

relieve those painful symptoms. While Ms. Rogel’s treating physician, Dr. Collins,

was of the opinion that he could do nothing else for Ms. Rogel, his records indicate

that she still presented with pain and swelling at her last visit with him. Moreover,

Dr. Collins felt that a second opinion was not unreasonable. Thus, the evidence

reasonably supports a finding of necessity. Therefore, the WCJ’s finding cannot

be clearly wrong.

Unrelated Medical Expenses

Dollar General next claims the WCJ erred in awarding Ms. Rogel expenses

related to hospital visits on March 22 and 28, 2011, arising from incidents of chest

pain suffered by Ms. Rogel. We agree.

The record reflects that on March 22, 2011, Ms. Rogel was having tests

performed as part of a pre-surgery check-up as ordered by Dr. Collins. These

included a chest x-ray, blood work, and an EKG. During the EKG, Ms. Rogel

began to experience chest pain. The doctor present at the time became concerned

enough that an ambulance was called and she was sent to Lake Charles Memorial

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Hospital (LCMH) for diagnosis and treatment for that chest pain. The records

from LCMH show that her chief complaint was chest pain which was deep,

intensified by moving, and relieved by nothing. The records show that Ms. Rogel

had suffered this pain for two months with increasing frequency. She was

diagnosed with non-cardiac chest pain.

The record is clear that some of the expenses incurred on March 22, 2011,

are related to her workers’ compensation claim. The chest x-ray, EKG, and blood-

work ordered by Dr. Collins were part of clearing Ms. Rogel for her second

surgery. Thus, the charges related to that were correctly awarded by the WCJ.

Those include $30.00 to Radiology Associates of SWLA, $218.00 to The Clinic,

and $95.00 for charges from the Medical Laboratory.

However, the record is also clear that when Ms. Rogel began to experience

chest pain during the EKG, she was sent via ambulance to LCMH for treatment of

that potentially life threatening condition. There is nothing in the records from

LCMH that indicates any pre-surgical cardiac work-up was performed, but rather,

that she was simply treated for her chest pain and discharged. While the work-up

itself would be related, since it was required to allow Ms. Rogel to have her second

surgery on her injured ankle, her chest pain and treatment thereof had nothing to do

with the accident at Dollar General whatsoever. Accordingly, the WCJ committed

manifest error when he ordered Dollar General to pay for medical expenses not

related to Ms. Rogel’s work-place injury. We hereby reverse the awards of

$1,228.59 to Acadian Ambulance, and $2,268.00 and $1,146.15 to LCMH.

Dollar General also challenges the WCJ’s finding that it is responsible for

charges stemming from Ms. Rogel’s visit to Moss Regional Hospital on March 28,

2011. Again, we agree.

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Even accepting as true Ms. Rogel’s unlikely assertion that she went to Moss

Regional partially to have the cardiac work-up performed and partially due to

ongoing chest pain, she testified that no such work up was done at that time. This

is also shown by the medical records from Moss Regional. Rather, she testified

that the doctor at Moss Regional sent her to Lafayette “to have a complete work

up” after the EKG performed there to help in treating her chest pain was normal.

Moreover, she stated that she never told anyone at Moss Regional to send Dollar

General any of the records from that day, which Dollar General would have needed

had the work-up actually been performed. What the medical records from Moss

Regional do show is that Ms. Rogel complained of “constant chest pain” which

had been ongoing for two days. No work-up is ever mentioned in the records. She

was simply treated for anxiety related chest pains, something which has nothing to

do with her work-place accident. Accordingly, Dollar General is not responsible

for the $610.34 in charges arising from her visit to the hospital there. The WCJ

was clearly wrong in his finding that the visit was related to her injury and that

finding is hereby reversed.

Timely Approval

Dollar General’s next assignment of error claims that the WCJ erred in

finding it failed to timely approve the cardiac work-up required to clear Ms. Rogel

for her second surgery. However, while the WCJ did discuss this in his reasons for

judgment, the judgment itself makes no mention of or award for anything in

connection with that issue. Accordingly, we need not address that assignment of

error.

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Fraud

As its fifth assignment of error, Dollar General claims that the WCJ erred in

failing to find that Ms. Rogel committed fraud under La.R.S. 23:1208. An

employer claiming that an employee has forfeited his or her rights under La.R.S.

23:1208 must prove “that (1) there is a false statement or representation, (2) it is

willfully made, and (3) it is made for the purpose of obtaining or defeating any

benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 7 (La.

9/5/95), 660 So.2d 7, 12. The supreme court further explained:

[T]he statute does not require the forfeiture of benefits for any false
statement, but rather only false statements that are willfully made for
the purpose of obtaining benefits. It is evident that the relationship
between the false statement and the pending claim will be probative in
determining whether the statement was made willfully for the purpose
of obtaining benefits….Clearly, an inadvertent and inconsequential
false statement would not result in forfeiture of benefits.

Id. at 16.

A WCJ’s determination as to whether a claimant has made a false statement,

willfully, for the purpose of obtaining workers’ compensation benefits is a finding

of fact, and is, therefore, subject to the manifest error standard of review. Jim

Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239.

Further,

When findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations in demeanor and tone of
voice that bear so heavily on the listener’s understanding and belief in
what is said. Where documents or objective evidence so contradict the
witness’s story, or the story itself is so internally inconsistent or
implausible on its face, that a reasonable fact finder would not credit
the witness’s story, the court of appeal may well find manifest error or
clear wrongness even in a finding purportedly based upon a credibility
determination. But where such factors are not present, and a
factfinder’s finding is based on its decision to credit the testimony of

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one of two or more witnesses, that finding can virtually never be
manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted).

Here, the record is devoid of any evidence of false statements by Ms. Rogel

willfully made for the purpose of obtaining benefits. To the contrary, the WCJ

explicitly found Ms. Rogel to be a credible witness, stating that “[a] fair reading of

the evidence suggests that at no point did she deliberately misrepresent her

previous medical history or exaggerate her injuries from the accident.” Moreover,

as noted above, the WCJ was extremely complimentary of Ms. Rogel’s work

history and work ethic and felt that Dollar General allegations of fraud were

“creative but scarcely credible.” There is nothing in the record which shows this

determination to be clearly wrong.

Penalties and Attorney Fees

Finally, Dollar General claims that the WCJ erred in granting Ms. Rogel

penalties and attorney fees for its failure to timely pay benefits and expenses. The

Louisiana Supreme Court discussed the meaning of “reasonably controverting a

claim” in Brown v. Texas-LA Cartage, Inc., 98–1063, p. 9 (La. 12/1/98), 721 So.2d

885, 890, as follows:

In general, one can surmise from the plain meaning of the words
making up the phrase “reasonably controvert” that in order to
reasonably controvert a claim, the defendant must have some valid
reason or evidence upon which to base his denial of benefits. Thus, to
determine whether the claimant’s right has been reasonably
controverted, thereby precluding the imposition of penalties and
attorney fees under La. R.S. 23:1201, a court must ascertain whether
the employer or his insurer engaged in a nonfrivolous legal dispute or
possessed factual and/or medical information to reasonably counter
the factual and medical information presented by the claimant
throughout the time he refused to pay all or part of the benefits
allegedly owed.

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

attorney fees in a workers’ compensation case is essentially a question of fact and

subject to the manifest error/clearly wrong standard of review. Reed v. Abshire, 05-

744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224.

The record before this court does not show that the WCJ erred in granting

Ms. Rogel $2,000.00 in penalties for Dollar General’s failure to pay SEB. Her

medical records showed a consistent history of problems, including pain and

swelling after even the second surgery. Ms. Rogel remains restricted to light to

medium-duty work, despite her prior attempts to work under the harsher duties of

her job with Dollar General. Ms. Rogel’s testimony concerning her injuries is

supported by her medical records and her testimony that Dollar General failed to

accommodate her restricted duties is uncontroverted. We can find nothing in the

record which shows the WCJ erred in granting this penalty.

Likewise, even though Dollar General would have reasonably controverted

the claims for the LCMH, Moss Regional, and Acadian Ambulance expenses

reversed above, because it failed to give any reason at all for the failure to pay the

medical expenses from March 22, 2011, ordered by Dr. Collins and directly related

to her second surgery, we cannot say that the WCJ erred in awarding the $2,000.00

penalty for those smaller, completely related charges. As there is no evidence the

WCJ’s awards of penalties and attorney fees were manifestly erroneous, this

assignment of error is without merit.

Ms. Rogel has answered this appeal seeking additional fees for work done

on appeal. Considering our decision affirming the majority of the judgment, Ms.

Rogel is entitled to additional attorney fees for work done on appeal, and same will

be awarded.

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DISPOSITION

For the above reasons, the ruling of the WCJ is hereby affirmed in part and

reversed in part. The portions of the judgment awarding Ms. Rogel awards of

$1,228.59 to Acadian Ambulance, $2,268.00 and $1,146.15 to LCMH, and

$610.34 to Moss Regional hospital are reversed. The judgment is affirmed in all

other respects. Ms. Rogel is awarded additional attorney fees of $2,000.00 for

work performed on this appeal.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

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