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Ashworth v. Wal-Mart Stores12/10/2003
records show that Ashworth was referred to physical therapy for treatment of a lumbosacral strain suffered while employed as a bus driver by the Vernon Parish School Board in November 1990. In 1994, she underwent a CT scan of her lumbar spine, which revealed evidence of a central disc at L4-5, with obliteration of the neural foramina bilaterally. She was examined by Dr. John Raggio, a neurosurgeon, on July 18, 1994, for complaints of low back pain at the left posterior superior iliac area. X-rays revealed mild degenerative changes at L4-5. On August 25, 1994, Dr. Vinh diagnosed Ashworth with a lumbosacral strain and left sciatica.
Ashworth was seen by Dr. Qarni on October 30, 1998, at which time, she complained of low back pain. She also complained of low back pain on February 18, 1999. On March 10, 1999, after her work-related injury , she complained of lower back pain, which radiated down into her right leg.
In making his ruling, the workers' compensation judge had the benefit of all of the evidence which had been introduced into the record. This included Drs. Vinh's, Qarni's, Perry's, DeLapp's, Dodson's, Foster's, and Haj Murad's medical records, Drs. Qarni's and Perry's depositions, and Ashworth's deposition and her testimony at trial. It further included the deposition of Stephanie Toup, the claims adjustor for Claims Management, Inc., the third-party handler of the claim, the recorded telephone conversation between Ashworth and Diane Knighting, the former claims adjustor, as well as the surveillance video of Ashworth taken by CMI's investigator on August 7-8, 2000.
After taking the matter under advisement, the workers' compensation judge held that Ashworth did not make any willful misrepresentations to Wal-Mart or the physicians for the purpose of obtaining compensation benefits. Citing Fuselier v. Kaough & Associates, 00-1750 (La.App. 3 Cir. 5/2/01), 784 So.2d 830, the workers' compensation judge found that Ashworth was an unsophisticated person, with an eleventh grade education, who had not misled any of the physicians when she reported that she had suffered no similar back problems or injuries prior to this injury . In reviewing her medical records, he found that she had never reported suffering "numbness and tingling or a hot sensation and numbness or tingling down the right side," rather, her prior complaints were all of low back pain or left-sided problems. Thus, the workers' compensation judge held that Ashworth's failure to report her prior lower back pain to her treating or examining physicians was not done willfully.
The workers' compensation judge also found that it was insignificant that Ashworth answered "no" to a question in an Associate Statement for Wal-Mart, that asked, "Have these parts ever been injured before?" He further found irrelevant the information she gave Wal-Mart about her past employment, since Ashworth did not miss any work as a result of the back strain she suffered as a bus driver for Vernon Parish School Board in 1990. With regard to the surveillance video, the workers' compensation judge stated that it "shows no compelling evidence to the Court that Ms. Ashworth is capable of any type of sustained work activity."
Although the workers' compensation judge does not mention the August 11, 2000, recorded conversation between Knighting and Ashworth in his oral reasons, the conversation was in the record, as well as Ashworth's testimony concerning it, both in her deposition and during the trial. Accordingly, we assume this was considered by the workers' compensation judge in reaching his decision to deny restitution.
The awarding of restitution pursuant to La.R.S. 23:1208(D) is discretionary, rather than m
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