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Lewis v. Casino Magic9/28/2001
In this workers compensation case, the defendant, Casino Magic (hereinafter Casino) appeals a judgment awarding the claimant, Michael Lewis (hereinafter Lewis), supplemental earnings benefits (hereinafter SEB) for the periods of March 12, 1998, through May 22, 1998, and from November 22, 1998, and continuing thereafter in accordance with La. R.S. 23:1221(3), subject to a total credit of $150 assessed as wages by the claimant. For the following reasons, we affirm.
FACTS
Michael Lewis was employed with Casino Magic on February 28, 1998, as a busser of tables when he slipped and fell on a rubber mat and suffered an injury to his back. Lewis was initially treated by Dr. Ignatius Tedesco who diagnosed him with a paracervical lumbar tenderness with a mild contusion. Lewis was also examined by Dr. James Harris on March 10, 1998, and diagnosed with contusions of the cervical and lumbar spine and released to light duty work.
The light duty work release form that Lewis was required to sign by Casino indicated that Lewis sole responsibility was to roll silverware into napkins. Lewis was advised by Charles Young, the workers' compensation coordinator with Casino, that if he deviated in any way from rolling silverware, he would be written up. In fact, Mr. Young told Lewis that if anyone attempted to force him to do anything other than roll silverware into napkins, they would also be written up. However, approximately two hours after Lewis began working, there were no more silverware and napkins to roll. Mr. Antwine, Lewis' immediate supervisor, told Lewis that he could also dip glasses into lemon juice as a light duty assignment. Interestingly, polishing the glasses and dipping them in lemon juice was a part of the regular duties of a busser. Although Lewis admitted that he was physically capable of performing the tasks, he warned Mr. Antwine of Mr. Young's strict warning regarding his work restriction to just rolling silverware into napkins. After a heated exchange with Antwine, Lewis was allowed to leave early from work.
Lewis then advised his new treating physician, Dr. Michael Acurio, an expert in the field of orthopedics, that light duty work was not available at Casino, and that Casino was attempting to force him to perform his regular duties. Dr. Acurio had previously diagnosed a degenerative condition in Lewis' back. He opined that Lewis' back pain, neck pain, and stiffness complaints were likely related to arthritis and the cervical and lumbar strain. Dr. Acurio determined that because of the degenerative condition, Lewis had probably reached maximum medical improvement in April, 1998. On March 11, 1998, Dr. Acurio gave Lewis a medical release from work for 11 days.
On March 12, 1998, Lewis brought the medical excuse to Barbara Manina, a risk manager at Casino, who then offered him work filing papers or filing pictures in her office. Lewis rejected the offer because of the restrictions given him by Mr. Young. Ms. Manina then faxed Dr. Acurio a statement advising him of available light duty work for Lewis. Lewis testified that Manina had requested that he contact her the next day, but he went to Winnfield to recuperate from his injury and did not contact her or Casino. Young and Manina forwarded correspondence to Lewis dated March 18, 1998, regarding a missed appointment which was scheduled for March 17, 1998 at Willis Knighton Work Kare, where Casino sends its employees who are injured at work. The correspondence advised Lewis that the medical appointment was rescheduled to March 20, 1998, and that Casino had constructed a job in his department that met the criteria of Lewis' physicians. Lewis was advised in the correspondence to contact Casino within five
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