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Cenacle Retreat House & Summit-Claims Center v. Dubose11/30/2004
AFFIRMED
The Defendant, Regina Dubose (Dubose), appeals a workers' compensation judgment in favor of the Plaintiff, Cenacle Retreat Home (Cenacle), which denied her claim for benefits. We affirm.
Dubose was hired on August 3, 2001 on a three-month probationary basis as an office manager to run the Cenacle's mass and prayer card business located at the retreat home in Metairie, Louisiana. Dubose had pre-existing pain in her shoulders and arms from a 1996 automobile accident and subsequent surgeries to relieve thoracic outlet syndrome (TOS). She was still being treated by a chiropractor for residual problems when she was hired. This was known by Cenacle and Dubose was cautioned about lifting. Dubose had also been involved in an automobile accident on April 11, 2001, four months prior to her employment with Cenacle.
In November of 2001, Dubose made a claim for injuries which she allegedly sustained in two separate job -related accidents, occurring in October and November of 2001. She claimed that the accidents caused her to suffer pain around her left collarbone area, left shoulder, left arm, left hand fingers and legs. At the end of December of 2001 she was terminated for failing to perform her duties and for her hostility to her supervisor, Sister Patricia Agnes Pafco. On February 21, 2002, Dubose was involved in another automobile accident when a car backed into her. She claimed an aggravation to her neck, back and left arm injuries.
Dubose was initially paid indemnity and medical benefits. Cenacle terminated the benefits after discovery of her medical records and based on a vocational evaluation performed by Lynn Castro of Younger & Associates, showing the availability of jobs. Cenacle concluded that Dubose was not disabled from a work-related injury . On July 10, 2002, Cenacle and its claims administrator, Summit - Claims Center (Summit), filed a Disputed Claim for Workers' Compensation, contesting Dubose's entitlement to disability or medical benefits. Dubose responded with a request for reinstatement of benefits and for penalties and attorneys' fees.
Trial of the matter took place on December 17, 2003. On February 4, 2004, the workers' compensation judge issued a judgment in Cenacle's favor, finding that Dubose had failed to prove a work-related accident and causation. He further found that Dubose willfully misrepresented certain facts in order to receive workers' compensation benefits, thereby violating La.R.S.23:1208 and forfeiting any rights to said benefits. Dubose's claims for penalties and attorney's fees were denied.
On appeal, Dubose asserts that the workers' compensation judge erred in failing to find a compensable accident, in failing to find causation, and in failing to award penalties and attorney's fees. Dubose further asserts that the trial judge erred in finding that she forfeited her right to benefits because Cenacle failed to plead a violation of La.R.S. 23:1208 and because any inconsistencies in testimony and alleged misrepresentations do not rise to the level of willfulness, which is required under R.S. 23:1208.
The manifest error standard of review applies to factual findings in a workers' compensation case. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380; Hookfin v. Advantage Nursing Services, Inc., 03-340, p. 3 (La.App. 5th Cir. 10/15/03), 860 So.2d 57, 59, writ denied, 03-3136 (La. 1/30/04), 865 So.2d 85. In applying the manifest error-clearly wrong standard, we must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Chaisson, 97-1225 at 13, 708 So.2d at 380; Hookfin, 03-340 at 3, 860 So
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