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Ashworth v. Wal-Mart Stores12/10/2003
PUBLISHED
AFFIRMED.
The defendant, Wal-Mart Stores, Inc., appeals the judgment of the trial court denying its request for restitution from the plaintiff, Lutherine Ashworth, based on La.R.S. 23:1208 fraud. For the following reasons, we affirm.
FACTS
Ashworth suffered an alleged work-related injury to her lower back on March 6, 1999, while scanning a box of weights for a customer. She was initially treated by her family doctor, Dr. Ashar Qarni, for complaints of lower back pain, which radiated down into her right leg. A March 16, 1999 MRI revealed a dorsal extrusion of the L4-5 disc. A March 31, 1999 EMG and nerve conduction study by Dr. Riad Haj Murad, a neurologist, revealed irritability of the L5-S1 myotome suggestive of possible radiculopathy. Ashworth was then referred to Dr. James Perry, an orthopedic surgeon, who performed a discogram which was positive at L4-5 and L5-S1, with concordant pain reproduction. He then performed an intradiscal electrothermal therapy or IDET procedure, which failed to relieve her lower back pain. Ashworth underwent a functional capacity evaluation, which placed her in a sedentary work level. However, it noted that she appeared to self-limit in her performance and that severe pain made an accurate determination of her overall capabilities difficult. A July 7, 2000 MRI revealed a broad based diffuse bulge at L4-5, with associated articular facet degeneration resulting in bilateral neural foraminal narrowing. Dr. Perry diagnosed Ashworth with degenerative disc disease at two levels, with mild stenosis at L4-5. He found her only fit for sedentary work that required her to change positions frequently.
Ashworth underwent a second medical opinion with Dr. Stan Foster, an orthopedic surgeon, on June 30, 1999. She told him that she had no previous history of back or neck injury. After examining her and reviewing her previous diagnostic studies, Dr. Foster felt that she would eventually require surgical decompression and/or fusion.
Dr. Mark Dodson, an orthopedic surgeon, performed an independent medical examination Ashworth on March 6, 2000, at which time she denied any injury prior to March 6, 1999. He diagnosed Ashworth with chronic back pain, finding that the majority of her pain was located along the lumbar paraspinious musculature. He recommended that she undergo physical therapy, but did not feel that she required surgery. He felt that she could return to light or sedentary work after she gained relief from muscle spasms in her lower back.
Ashworth underwent a further second medical opinion by Dr. David DeLapp, an orthopedic surgeon, on August 10, 2000. She told Dr. DeLapp that she had no previous history of low back pain. He recommended that she undergo physical therapy, a functional capacity evaluation, a consultation for chronic pain management, and psychiatric consultation for chronic pain. Although Dr. DeLapp believed that Ashworth would have chronic pain for the remainder of her life, he felt that she should be able to return to sedentary work.
Ashworth received both indemnity and medical benefits as a result of this injury. On August 7, 2000, Wal-Mart terminated her benefits based on a taped conversation between her and an insurance adjustor and a subsequent video surveillance tape. As a result of this action, Ashworth filed a disputed claim for compensation seeking the reinstatement of her benefits as well as vocational rehabilitation. In its first amending answer, Wal-Mart contended that Ashworth forfeited any rights to workers' compensation benefits based on La.R.S. 23:1208 fraud. It further sought full restitution of approximately $40,000 it paid her in medical expense
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