Horne v. Lowe's Home Improvement2/27/2002
The injured employee in this workers' compensation action obtained a default judgment and was awarded temporary total disability benefits, penalties, and attorney fees. The employer appeals asserting that the medical records used as evidence at the confirmation hearing were not in the form required by La. R.S. 23:1316.1(C) so as to serve as proof of the disability. Finding merit in the employer's argument, we reverse.
Facts
Lowe's Home Improvement ("Lowe's") hired claimant, Paul Horne ("Horne"), in March 2000 as a sales associate in its Monroe store. On June 1, 2000, Horne was working in the warehouse, moving a roll of roofing felt from a high shelf, when he accidentally struck his elbow on a steel beam. He claims worker's compensation benefits for this accident.
On August 7, 2000, Specialty Risk Services, apparently Lowe's risk manager, mailed notice of the final cost report for Horne's injury to the Office of Workers' Compensation ("OWC"). The report indicated that Lowe's paid Horne $400.02 in indemnity benefits and $450.02 in medical expenses through August 1, 2000 and then stopped paying benefits, because Horne was "working at equal or greater wage."
On August 15, 2000, Horne filed a disputed claim for compensation with the OWC. On the "bona-fide dispute" section of the form, Horne checked only the box for wage benefits and wrote "7/31/00" in the blank to indicate when his wage benefits were terminated or reduced.
Following mediation efforts, the OWC sent formal notice of Horne's claim to Lowe's on February 7, 2001, and according to OWC records, Lowe's received notice of the claim on February 8, 2001. Lowe's did not answer the proceedings.
On March 28, 2001, Horne filed a request for a preliminary default judgment with the OWC. On April 2, 2001, the Workers' Compensation Judge ("WCJ") entered the preliminary default in Horne's favor. On April 30, 2001, the WCJ held a hearing to confirm the default, at which time Horne appeared and described his injury. He testified that he hit his elbow and shoulder on a steel beam and that, after the accident, his supervisor sent him to the doctor. Records show that Horne visited the OccuMed Clinic on June 2, 2000, where he was treated for a contusion to his right elbow, was prescribed Naprosyn, and was approved to return to light work, which is defined as "exerting up to 20 pounds of force occasionally."
Horne further stated that after the accident, he "couldn't move nothing with right arm" and that in June 2000, he saw Dr. Douglas Brown, an orthopedist. Dr. Brown prescribed physical therapy for Horne. Dr. Brown's records from July 12, 2000 show that he advised Horne to avoid using his arm until a follow-up appointment at the end of the month. Horne testified that on July 12, 2000, Lowe's paid him $401.
Horne did not work at all after July 12, 2000. Dr. Brown's note dated July 24, 2000 indicates that Horne could resume "5 lbs. weight lifting restrictions" with his right arm.
Horne returned to Dr. Brown on July 31, 2000, and Dr. Brown released him to return to "light duty" work. The progress note for the July 31 visit states: "Patient has not gone back to work despite instruction to do so. He says his shoulder and elbow still hurt." Dr. Brown referred Horne for a functional capacity evaluation ("FCE"). Horne submitted to the FCE on August 4, 2000. Following the FCE, Dr. Brown's progress note, dated August 22, 2000, states, in part: "He completed his FCE on 8/4/00 rating at a medium/heavy work level, lifting 100 pounds repetitively. There were some elements of invalidity using the right upper extremity and the patient appeared to `exaggerate his pain.'" T
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