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Judgment rendered December 15, 2010. Application for rehearing may be filed within the delay allowed by art. 2166, La. C.C.P.

No. 45,846-WCA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

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WILLIE MAE TAYLOR Versus

Plaintiff-Appellant

PLASTECH ENGINEERED PRODUCTS, INC.

Defendant-Appellee

***** Appealed from the Office of Workers' Compensation, District 1-WEST Parish of Caddo, Louisiana Docket No. 08-21870 Ryan Gatti, Worker's Compensation Judge

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FISCHER & ASSOCIATES By: William T. Allison PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP By: Robert A. Dunkelman Joshua P. Monteleone

Counsel for Appellant Counsel for Appellee

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Before WILLIAMS, DREW and MOORE, JJ.

MOORE, J. Willie Mae Taylor appeals a summary judgment that dismissed her workers' compensation claim. She also appeals an earlier judgment that sustained the compensation carrier's dilatory exception of vagueness. For the reasons expressed, we affirm the judgment insofar as it dismissed the claim for weekly indemnity benefits. However, finding genuine issues of material fact as to Ms. Taylor's choice of an orthopedic specialist and as to certain medical expenses, we reverse in part and remand. Factual Background Ms. Taylor was employed as an assembly line worker at Plastech Engineered Products, a former GM supplier in southwest Shreveport, at an average weekly wage of $715. On Friday, April 13, 2007, she tripped over an air hose and fell to the floor, landing on her left side. She was taken to Willis-Knighton South Workkare with pain in her left hand; X-rays showed she had dislocated and fractured the PIP (large) joint in her left pinkie. An emergency room doctor set the fracture in a splint, gave her Lortab, sent her home and released her to sedentary work the following Monday. On April 23, she went to Dr. Don Burt, an orthopedic surgeon whom she later selected as her choice of physician. He approved her for light-duty work, lifting no more than one pound with her left hand. Two weeks later, on May 7, Ms. Taylor apparently told Dr. Burt that her left hip was also hurting; he X-rayed it and found a nondisplaced linear fracture. He also wrote that her finger was about 50% healed and approved her to "continue in her present work activity only." On August 3, despite her continued complaints of pain in the pinkie, Dr. Burt found the fracture

had healed; he approved her for full work activity. Over subsequent visits, Dr. Burt found gradual improvement, advised her to continue with therapy (stretching exercises), and reiterated "full work activity" despite some soreness in the finger. In January 2008, Dr. Burt excused her from one day's work because of soreness and swelling in the left pinkie, and on February 15 he restricted her from "snapping on the Christmas trees, the child tethers or the glue gun." Meanwhile, in October 2007, Plastech and its compensation carrier, Travelers, sent Ms. Taylor to their own orthopedist, Dr. Karl Bilderback, for an evaluation. He found the fractured pinkie had healed but left her with stiffness "refractory to therapy and serial splinting." He noted that surgery would be her only option for improved motion, but it came with the risk of no improvement and perhaps making the situation worse. As for her hip pain, he suggested a steroid shot and expected no long-term impairment. In April 2008, Ms. Taylor returned to Dr. Burt for hip pain; he gave her a cortisone shot. On June 13, he diagnosed trochanteric bursitis, "brought about by sleeping on the left side at night as well as by the amount of standing and walking activity she does at work." On the history sheet, he also wrote, "It was recommended that she get a memory foam mattress cover"; in a letter addressed "to whom it may concern," he stated that neither her hand nor her hip was healing as they should "because of her work activity," and repeated, "She needs a memory foam mattress cover as treatment for bursitis of the left hip."

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Plastech fell victim to the downturn in the auto market; it declared bankruptcy and closed its plant on June 30, 2008. Ms. Taylor received accrued vacation and sick time, and then applied for unemployment ("UI") benefits which she received and was still drawing at the time of her deposition in February 2009. In October 2008, Ms. Taylor filed the instant disputed claim, checking off the following items on the Form 1008, with typewritten addenda indicated in italics: 1. 6. No wage benefits have been paid *** Medical treatment (Procedure/Prescription) Foam Mattress, recommended by Dr. Burt for Claimant's hip problems *** Disability status *** Other: Medical bills not paid; Mileage Expense not Reimbursed; penalties and attorney's fees

8. 12.

Travelers answered, admitting that a work-related accident occurred but denying the other allegations and asserting that no indemnity benefits were due because Ms. Taylor never missed any work. It also raised dilatory exceptions of vagueness and prematurity, urging that Ms. Taylor failed to state the time frame for which wage benefits were due. In February 2009, the WCJ sustained the exception of vagueness and gave Ms. Taylor 15 days in which to amend. She filed no amendment. Meanwhile, in January 2009, Dr. Burt wrote on a history sheet, "I am going to refer her to a hand specialist for evaluation of this continued pain," and Travelers' counsel approved this, pending her completion of a choice of physician form. Ms. Taylor chose Dr. Diego Miranda, but in late February

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Travelers' counsel retracted its approval, questioning whether Dr. Burt "truly felt such a referral was medically necessary" and asking her to return to Dr. Bilderback for a second opinion. Dr. Bilderback saw Ms. Taylor on March 4 and found a "flexion deformity" of her left little finger; however, because serial splinting had failed, he now felt that surgery would not be of any significant value. He reiterated that her hip would improve over time, and advised her to continue working on a full-time, unrestricted basis. The Motion for Summary Judgment Travelers then filed this motion for summary judgment, arguing that Ms. Taylor never missed any work, and since Plastech closed, she was drawing UI, which disqualified her from wage benefits under La. R.S. 23:1225 B. Further, she had failed to produce any evidence that she cannot earn 90% of her pre-injury wage, a prerequisite for temporary, total disability under R.S. 23:1221 (3). Still further, Dr. Burt's referral to a hand specialist was suspect, as he had consistently approved her for regular work for nearly two years, but the issue was premature because Ms. Taylor never filed a motion for choice (or change of choice) of physician. Finally, Ms. Taylor provided no receipt or evidence of purchase of the foam mattress cover, no proof that Travelers failed to pay any medical bill, and no request for mileage reimbursement. Ms. Taylor responded that several issues of material fact remained: (1) Dr. Burt recommended a foam mattress but it was never provided; (2) he also thought her hand and hip were not healing as they should; (3) Travelers

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has not honored her choice of Dr. Miranda as a hand specialist; (4) Dr. Bilderback first recommended, and then did not recommend, surgery, creating a genuine issue; (5) whether Travelers knew about Dr. Burt's prescription of a foam mattress was also a genuine issue. After a hearing in October 2009, the WCJ granted summary judgment, holding that based on Drs. Burt and Bilderback's reports, there was no genuine issue as to disability; no genuine issue as to whether the mattress pad or other medical expenses were ever submitted; and no proof that Ms. Taylor was entitled to indemnity benefits. The WCJ rendered judgment dismissing her claim, "including, but not limited to, claims for indemnity benefits, unpaid medical or mileage reimbursement, a foam mattress and penalties and attorney's fees."1 Ms. Taylor now appeals, raising three assignments of error. Discussion: Exception of Vagueness By her first assignment of error, Ms. Taylor urges the WCJ erred in sustaining the exception of vagueness. She shows that the form for initiating a disputed claim is "to be provided by the director," La. R.S. 23:1310 A, and is to be called "Form LDOL-WC-1008," 40 La. Adm. C.

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