On July 20, 2006, Jeneta Baker, while in the course and scope of her employment as a waitress with Harrah’s New Orleans Casino (“Harrah’s” or the “employer”), sustained an injury to her back while carrying a heavy tray.  Due to her injuries, Baker was unable return to work as a waitress.  Harrah’s accommodated Baker by having her work various modified duty jobs. On June 25 and 27, 2007, Baker underwent a functional capacity evaluation, after which her then treating orthopedist, Dr. Estrada, and pain management physician, Dr. Waring, opined that Baker was capable of sedentary duty work.

On December 14, 2007, while working as a cashier at Harrah’s, Baker again injured her back while bending over. Thereafter, Baker began orthopedic treatment with Dr. Bourgeois, who released Baker to return to work on a part time basis.

Then, on October 9, 2012, Harrah’s terminated Baker’s indemnity benefits based upon job positions identified by its vocational counselor, Mr. Pleune.  In response, Baker filed a disputed claim for compensation (the “disputed claim”), alleging that she was permanently and totally disabled as a result of her workplace injury, and that she was entitled to penalties, attorney’s fees, interest, and costs for Harrah’s discontinuance of indemnity benefits.  In support of her disputed claim, she submitted a report of her vocational expert, Mr. Roberts.

Prior to trial, Baker was seen on March 19, 2014, for a follow up IME by Dr. Katz, who reiterated his prior opinion that Baker had reached MMI and was capable of returning to sedentary work.

After her claim was denied by the Office of Workers Compensation (“OWC”), Baker appealed the judgment and argues that the workers’ compensation judge (“WCJ”) erred as follows: (1) in striking Roberts’ vocational report based on Daubert; (2) in not striking Pleune’s testimony; (3) in determining that Baker was not entitled to permanent and total disability benefits; (4) alternatively, in determining that Baker was not entitled to any indemnity benefits including temporary total disability benefits or supplemental earnings benefits; and (5) in determining that the claimant was not entitled to costs, interest, penalties, and attorney’s fees.

1. The OWC did not abuse its discretion in declining to qualify Roberts as a vocational rehabilitation expert

The appellate court agreed that the OWC may have erred in citing to Daubert, as its basis for disqualifying Roberts as an expert, as opposed to excluding such evidence as part of the lower court’s gatekeeping function pursuant to Daubert, but felt that it merely amounted to a harmless error.  The OWC acted within its broad discretion to determine that Roberts’ vocational file did not set forth the necessary qualifications for Roberts to testify as an expert – specifically, that he lacked a Louisiana license.  Because trial judges are afforded great latitude in deciding whether the witness has qualifications to testify as an expert on a particular subject and because the court found no manifest error in excluding the testimony of a vocational rehabilitation counselor who lacked a Louisiana license, Baker’s assignment of error was without merit.

2. There was no reason to strike Pleune’s testimony

Baker argued that the testimony of Harrah’s vocational rehabilitation expert, Pleune, should have been stricken due to Harrah’s refusal to produce a document that Baker argued would have allow her to assess whether Pleune’s vocational rehabilitation counseling services had been “appropriate.”

Harrah’s contended that the letter was subject to the attorney work-product rule and is irrelevant to any dispute in this case, as the letter was sent after all vocational services were complete and Pleune’s file was closed. However, according to Baker, the withheld document was not privileged, because Baker, and not Harrah’s or its attorneys, was Pleune’s client.

The court began its analysis by citing the relaxed evidentiary standard for workers’ compensation proceedings is set forth in La. R.S. 23:1317(A). Essentially, the trial court has the discretion to order the production of a writing prepared in anticipation of trial if it is convinced that the denial of production “will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice.”

Consistent with its prior decisions, the court found it unreasonable to require a vocational counselor to include the employee and her attorney in all oral conversations with the employer. Thus, there was no error in excluding the document, and no reason to strike Pleune’s testimony.

3. There was manifest error in denying PTD benefits

Pursuant to La. R.S. 23:1221(2)(c), even if an employee seeking PTD is in pain, he must work unless he proves by clear and convincing evidence that he is physically unable to engage in any type of employment whatsoever, including self-employment.  The clear and convincing standard is a heavier burden of proof than the usual civil preponderance of the evidence standard but less burdensome than the beyond a reasonable doubt standard used in criminal law.  To carry the burden of proving disability by clear and convincing evidence, a workers’ compensation claimant must present objective medical evidence.

Baker contends that an employee capable of sedentary work should still be classified as permanently and totally disabled if any or all of the following factors are present: the lack of necessary medical treatment to enable the claimant to return to work; the claimant’s treating physician deems the employee unable to work; the employee is limited by age and work experience; and the claimant has not been the subject of meaningful rehabilitation or retraining.

At trial, the parties introduced medical evidence from three different orthopedic surgeons. Baker introduced the medical records and deposition of Dr. Bourgeois. It is clear from Dr. Bourgeois’ records and testimony that he was Baker’s treating physician since 2007, that he saw her approximately once every three months, that he has recommended surgery since 2009, and that he has opined since 2010 that Baker is permanently, totally disabled.

Harrah’s introduced the records of its choice of physician, Dr. Nutik, who deemed Baker capable of sedentary work in 2009. At that time, Dr. Nutik felt surgery was unnecessary. However, when Dr. Nutik re-evaluated Baker in 2012, he equivocated regarding the necessary of surgery, believing it may have been appropriate at that point. Nevertheless, Dr. Nutik still believed Baker capable of sedentary work and approved several sedentary positions which were identified by Pleune in the course of vocational rehabilitation.  Harrah’s also came forward with the records and deposition testimony of Dr. Katz who, in his capacity as a court-appointed IME, evaluated Baker both in 2010 and 2014.

The court did not agree with the standard fashioned by Baker above and explained that the Fourth Circuit follows the general jurisprudential rule that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. However, and once again, the court pointed out that the WCJ is afforded considerable discretion in evaluating expert testimony, and the decision to accept the testimony of one witness over the conflicting testimony of another can virtually never be manifestly erroneous.  Accordingly, the court decline to disturb the factual finding made by the WCJ in giving greater weight to Dr. Katz’s independent conclusion and to the opinion of Dr. Nutik. The WCJ was not clearly wrong in denying PTD benefits

4. The OWC was free from error in determining that Baker was not entitled to indemnity benefits, including temporary total disability benefits or supplemental earnings benefits

The court looked towards the medical evidence and pointed out that no physician characterized Baker’s condition as “temporary” at the time of trial. Instead, Drs. Bourgeois, Nutik, and Katz all found Baker to have attained MMI, all agreeing on the permanency of her condition, though offering differing opinions on her ability to return to work.

An employer may discharge its burden of proving “job availability under La. R.S. 23:1221(3)(c)(i) by establishing, at a minimum, by competent evidence:

1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;

(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and

(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

The Supreme Court defined a “suitable job” as “a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.”

At trial, the OWC found that Baker did not meet her initial burden to show, by a preponderance of the evidence, her inability to earn at least 90% of her preinjury wages. The OWC also found that Harrah’s established by a preponderance of the evidence that Baker is physically able to perform a job available to her in her geographic region that paid in excess of 90% of her average weekly wage.

With respect to Baker’s initial burden to prove her inability to earn 90% of her pre-injury wages, she introduced the medical records and deposition of Dr. Bourgeois, who found Baker unable to return to work in any capacity from July 2010 forward and opined as of October 2010 that Baker was permanently and totally disabled without undergoing back surgery. Baker testified at trial that she declined to have surgery, and that she had neither worked nor applied for work since July 2010. She also introduced the vocational rehabilitation report of Roberts, who opined that Baker would not be able to return to work. The OWC declined to qualify Roberts as an expert.

Harrah’s argues that Baker failed to put forth evidence in support of her initial burden to show by a preponderance of the evidence that her injury resulted in her inability to earn at least 90% of her pre-injury wages. According to Harrah’s argument, mere refusal to return to work, or to look for work, is insufficient to prove entitlement to SEBs. Harrah’s contends that because Baker did not meet her initial burden of proof, the claim for SEBs was defeated at that point, and the burden did not shift back to Harrah’s to prove Baker’s ability to perform a certain job or availability of that job

Considering the above, the court concluded that the OWC’s finding, that Baker failed to establish by a preponderance of the evidence that she was and is unable to work and earn 90% of her pre-accident wages, was neither manifestly erroneous nor clearly wrong.  The court further stressed that, only after the claimant has discharged this initial burden does the burden shift to the employer to show that the claimant is able to perform a job available in his or his employer’s community or reasonable geographic region.  Accordingly, it did not find that it was necessary to reach the question of whether the employer proved Baker’s ability to perform a job available in her geographic reason, earning 90% or more of pre-injury wages.

5. Baker was not entitled to costs, interest, penalties, and attorney’s fees

Here, OWC found that Baker failed to meet her burden of proof regarding her entitlement to benefits. No benefits were awarded and there was no finding that Baker was entitled to penalties, attorney’s fees, costs, or interest based on any sanctionable action or inaction by the employer. Accordingly, nothing entitled her to costs, interest, penalties, and attorney’s fees.

Baker v. Harrah’s