Alpizar v. Dollar General

Citations: 134 So. 3d 99; 13 La.App. 3 Cir. 1150; 2014 La. App. LEXIS 607; 2014 WL 852264Docket: No. 13-1150

Court: Louisiana Court of Appeal; March 4, 2014; Louisiana; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

In the workers’ compensation case involving Gina Alpizar and her employer, Dolgencorp, LLC (Dollar General), the court upheld a judgment in favor of Ms. Alpizar. The judgment included a change of orthopedic surgeon, the award of supplemental earnings benefits (SEB), a functional capacity evaluation (FCE), litigation costs, penalties, and attorney fees. Ms. Alpizar also sought additional attorney fees for the appeal.

The case originated from Ms. Alpizar’s injury on September 2, 2008, while working as an assistant manager at Dollar General, where she tripped and injured her right knee and lower back. Following the injury, she filed a disputed claim on December 29, 2010, alleging Dollar General denied a doctor-recommended MRI and sought SEB, penalties, and attorney fees. An amended claim was filed on August 10, 2011, for denied physical therapy.

Dollar General admitted to the injury but contended that Ms. Alpizar’s ongoing issues were unrelated to the work incident and claimed she had voluntarily terminated her employment. The case was tried on March 4, 2013, with the Workers’ Compensation Judge (WCJ) evaluating the reasonableness of Dollar General's expectations for Ms. Alpizar to return to work considering her post-accident condition.

Ms. Alpizar was treated by several medical professionals for her injuries, including surgeries performed by Dr. J. David DeLapp on her knee and Dr. Richard Francis on her back. Although Dr. Francis released her to work in December 2009, Ms. Alpizar maintained that she could not return to work due to ongoing pain. An FCE conducted in August 2010 confirmed she was only capable of performing light-duty, sedentary work on a part-time basis.

Dr. DeLapp indicated in March 2009 that Ms. Alpizar might struggle to return to work without restrictions and suggested a Functional Capacity Evaluation (FCE) could be necessary. On November 22, 2010, orthopedic surgeon Dr. Gunderson recommended a lumbar MRI, a right-knee replacement, and stated Ms. Alpizar was unfit for any work. When Ms. Alpizar returned to Dr. Francis on June 16, 2011, he diagnosed her with chronic low back and leg pain and recommended further MRI and electroneurographic studies. Dollar General contested the authorization for Dr. Gunderson’s MRI, claiming Dr. Francis was her treating physician who had cleared her to work without restrictions on December 17, 2009. Additionally, they disputed an April 2010 FCE prescription from a nurse practitioner, asserting Ms. Alpizar voluntarily resigned by not reaching out to return to work post-release. Dollar General deemed her subsequent health issues unrelated to her September 2, 2008 work accident and argued they were justified in denying her treatment requests. The Workers' Compensation Judge (WCJ) ruled in favor of Ms. Alpizar, questioning Dollar General’s interpretation of her medical care and asserting that their stance seemed to prioritize litigation concerns over valid medical considerations. The WCJ noted skepticism regarding the motives of both Ms. Alpizar’s and Dollar General’s physicians. Ultimately, the case centered on whether Ms. Alpizar was seeking unnecessary treatment to exploit workers' compensation benefits or if she was genuinely affected by unresolved medical issues, highlighting her serious health conditions and history of low-paying employment. Ms. Alpizar appeared earnest in her testimony, expressing a desire to work despite her ailments.

Ms. Alpizar exhibited a passive demeanor during her dealings with the insurance company, lacking effective communication with both the adjuster and her doctors. A timeline of events post-injury reveals significant delays in her recovery efforts, with months of inactivity. The defense counsel noted that the litigation was initiated by Ms. Alpizar's lawyer, and she failed to follow proper administrative procedures for changing her orthopedic physician. However, strict adherence to these procedures contributed to her issues. 

Dr. Francis had declared Ms. Alpizar fit to resume her pre-injury work shortly before her major spinal surgery, a diagnosis the employer interpreted literally, disregarding her subsequent functional capacity exam that indicated work restrictions. Following another surgeon's recommendation for knee replacement, the employer objected to her consulting a different doctor. Ms. Alpizar sought a new physician based on advice from an attorney, primarily to find someone who would address her health concerns. Despite the employer's claims that her change of physician was unnecessary, both the functional capacity evaluation and another orthopedic assessment validated her complaints. 

There is no precedent in the Third Circuit suggesting that a patient's condition post-surgery should not be re-evaluated after new medical developments. The employer's refusal to reconsider Ms. Alpizar's work status, despite ongoing medical issues and clear indications from multiple physicians, was unreasonable. The failure to respond to medical evaluations highlighting her deteriorating condition reflects a lack of due diligence on the employer's part. Ms. Alpizar's current medical reports and evaluations indicate a pressing need for reassessment, which the employer continues to ignore, adhering rigidly to its initial diagnosis.

The Court determined that Gina Alpizar is entitled to supplemental earnings benefits (SEB) due to her inability to perform her pre-injury job at Dollar General, effective from December 21, 2009, at a zero earning capacity. A penalty of $2,000.00 was imposed on the employer for not reasonably disputing her SEB claim. Alpizar's request to change orthopedic surgeons from Dr. Francis to Dr. Gunderson was justified, and her request for a functional capacity examination (FCE) should have been approved, leading to an additional $2,000.00 penalty for Dollar General's refusal. Attorney fees of $13,000.00 were deemed reasonable and awarded to her counsel, along with reimbursement of litigation costs and FCE expenses totaling $2,279.89. Dollar General has appealed, citing four errors, including the awarding of SEBs and penalties, and the approval of the change in surgeons and attorney fees. Alpizar responded to the appeal seeking additional attorney fees for the appeal process. The standard of review for factual findings in workers’ compensation cases is the manifest error or clearly wrong standard, focusing on whether the factfinder’s conclusion was reasonable. Dollar General argues that there was no medical opinion indicating Alpizar was disabled until Dr. Gunderson’s opinion in November 2010, and contends that any benefits should only apply from August 2010 based on the FCE. The purpose of SEB is to compensate for lost wage earning capacity due to injury.

An employee is entitled to Supplemental Earnings Benefits (SEBs) if a work-related injury prevents them from earning 90% or more of their average pre-injury wage, as stated in La. R.S. 23:1221(3)(a). The employee initially bears the burden to prove, by a preponderance of evidence, that their injury resulted in such inability. The trial court must consider all relevant factors impacting the employee's earning capacity, according to Daigle v. Sherwin-Williams Co., and the burden shifts to the employer only after the employee establishes a prima facie case. The employer must then demonstrate, also by a preponderance of evidence, that the employee can perform a specific job that was offered or available in their community.

In reviewing a Workers' Compensation Judge’s (WCJ) determination regarding SEBs, a court examines all evidence pertaining to the employee's inability to earn 90% of pre-injury wages. In the case of Ms. Alpizar, the WCJ awarded SEBs based on her trial testimony about her duties and the circumstances of her September 2008 injury. Following her accident, Ms. Alpizar performed light duties for a short time, after which her employer, Dollar General, stopped providing light duty work and subsequently terminated her temporary total disability benefits in December 2009. Ms. Alpizar submitted further evidence to support her claim for SEBs from that date. The WCJ concluded that Ms. Alpizar demonstrated her entitlement to SEBs due to a causal link between her disability and the injury. Despite Dollar General's claims of insufficient evidence, they did not provide substantial counter-evidence, leading to a judicial affirmation of the WCJ's findings and reasoning in favor of Ms. Alpizar's entitlement to SEBs.

The WCJ found Dr. Francis' December 2009 medical opinion unpersuasive and deemed Ms. Alpizar credible regarding her knee and back pain, which made her unable to work. As a result, the WCJ awarded Ms. Alpizar Supplemental Earnings Benefits (SEB), accepting her testimony and corroborating evidence from a Functional Capacity Evaluation (FCE) and Dr. Gunderson, confirming her inability to earn at least ninety percent of her pre-injury wage. Dollar General contested the WCJ's decision to allow Ms. Alpizar to switch from Dr. Francis to Dr. Gunderson, arguing that her formal request was untimely and that she had previously chosen Dr. Francis. However, the WCJ found sufficient reasons for the change, noting that Dr. Francis had opined she could return to work shortly after surgery, and Dollar General's refusal to authorize an FCE based on Dr. Francis's opinion. The WCJ's rationale for allowing the change in orthopedic surgeons was deemed reasonable, and the ruling was upheld. 

Dollar General also challenged the imposition of $2,000 penalties for failing to pay SEB and for not authorizing the FCE, as well as $13,000 in attorney fees, arguing it had not failed to reasonably controvert Ms. Alpizar’s claims. Under Louisiana law (La.R.S. 23:1201(F)), penalties and attorney fees can be imposed when an employer fails to timely pay benefits or provide necessary medical treatment. To avoid these penalties, employers must present sufficient evidence to reasonably contest a claim.

In Landry v. Furniture Center, the court established that the determination of whether an employer should be liable for attorney fees and penalties is a factual question that will not be overturned on appeal unless there is manifest error. The Workers' Compensation Judge (WCJ) found that Dollar General failed to adequately contest Ms. Alpizar's requests for Supplemental Earnings Benefits (SEB) and a Functional Capacity Evaluation (FCE). Dollar General's defense was primarily based on a medical release from Dr. Francis and claims that Ms. Alpizar’s inability to work stemmed from her poor health rather than her work-related injuries. However, the court noted that Dollar General did not provide sufficient medical or factual evidence to counter Ms. Alpizar's claims, which were supported by the FCE results.

The WCJ awarded penalties totaling $4,000.00 and $13,000.00 in attorney fees due to Dollar General's failure to pay SEB and authorize the FCE. The court held that the FCE was medically necessary and thus justified the assessment of its costs against Dollar General. The WCJ's discretion in determining litigation costs was found to be appropriate given Ms. Alpizar's success in her claims.

Ms. Alpizar also requested additional attorney fees for the appeal process, which is typically granted when the original award of attorney fees is affirmed. The court awarded her $3,500.00 for work done on appeal. The judgment of the WCJ was fully affirmed, with all appeal costs assessed against Dollar General, officially identified as Dolgencorp, LLC. Ms. Alpizar described the physical demands of her job, detailing the handling of heavy rolltainers in the store.