# A STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2022 CA 0475

JAMILYN CALHOUN

VERSUS SANDERSON FARMS, INC.

Judgment Rendered DEC 16 2022

Appealed from the Office ofWorkers' Compensation, District 6 Parish ofTangipahoa, State ofLouisiana

No. 20-00876 The Honorable Diane Lundeen, Workers' Compensation Judge Presiding

Jeffrey C. Napolitano Jeffrey I.Mandel Metairie, Louisiana Attorneys for Appellant, Sanderson Farms, Inc.

Gloria A.Angus Attorney for Appellee, Opelousas, Louisiana Jamilyn Calhoun

BEFORE: WHIPPLE, C.J., GUIDRY AND WOLFE, JJ.WOLFE, J. In this workers' compensation case, the employer appeals a judgment 

### rejecting its claim that the employee committed fraud and awarding the employee benefits, penalties, and attorney fees. We affirm. FACTS 

### On January 31, 2018, Jamilyn Calhoun slipped and fell while working atthe 

### Sanderson Farms chicken processing plant in Hammond, Louisiana. Ms. Calhoun 

### worked inthe deboning department,where chickenwas moved along fourassembly lines and x-rayed. 

### In the floor underneath the lines were approximately one - foot - wide drains with heavy metal perforated covers to allow cleaning ofthe processing

area. 

### The accident occurred when Ms. Calhoun slipped on a plastic bag while 

### walking to herworkarea,which caused her footto slip into whatshe described as a partially opened floor drain. Ms. Calhoun fell forward, with her left knee striking the concrete floor. 

### After her coworkers assisted her up, she immediately reported 

### the accident to the appropriate personnel and was seen by the Sanderson Farms safety and health nurse. 

### On the day ofthe accident, Sanderson Farms authorized Ms. Calhoun to seek 

### emergency medical care for her knee at North Oaks Medical Center. Thereafter, Sanderson Farms' workers' compensation administrator paid benefits to, and on behalfof,Ms. Calhoun related to her knee injury. On June 22, 2018, Ms. Calhoun 

### had arthroscopic knee surgery performed by orthopedic surgeon Dr. Brian Kindl. 

### After her surgery, Ms. Calhoun participated in physical therapy, but continued to experience pain and her condition worsened. In November 2018, a routine eye exam led to the discovery ofa right optic 

### nerve hemorrhage and swelling ofthe optic nerves in both ofMs. Calhoun's eyes. She underwent an emergency lumbar puncture to relieve the pressure, then sought treatment from an ophthalmologist, a neurologist, and a physical medicine 2rehabilitation ( pain management) specialist. The opthalmologist, Dr. Patrick

O' Sullivan, diagnosed Ms. Calhoun with a pseudotumor cerebri, or a buildup of 

### spinal fluid that caused intracranial pressure, which was relieved by the lumbar puncture and subsequently treated with medication. The neurologist, Dr. Patrick Glynn, opined that Ms. Calhoun experienced post - concussion syndrome with symptoms of lumbar and cervical disc injury. 

### Based on the history Ms. Calhoun provided, Dr. Glynn believed the post - concussion syndrome was related to her work

accident. The pain management specialist, Dr. John Nyboer, thought Ms. Calhoun needed further orthopedic evaluation for her knee and would benefit from physical 

### therapy for her back. Sanderson Farms disputed that any of Ms. Calhoun' s medical conditions 

### beyond her knee injury were a result ofher January 2018 slip and fall; therefore, neither Sanderson Farms nor its workers' compensation administrator authorized 

### treatmentforanything otherthan the knee injury. Theyfurtherdetermined thatpain management was not medically necessary. Ms. Calhoun filed a disputed claim for compensation with the Office of Workers' Compensation. She alleged that when she fell at work on January 31, 

### 2018, she not only struck her knee on the concrete floor, but also hit her head. She asserted that she began treatment at North Oaks at Sanderson Farms' direction, 

### claiming Sanderson Farmsfailedto inform ofher righttochoose herownphysician. She maintained that she began complaining ofheadaches shortly afterthe accident 

### and, despite telling Dr. Kindl ofsymptoms ofaccident - related injuries besides the injury to her knee, he did not seek approval fortreating those injuries. Thus, Ms. Calhoun requested a change of her choice of orthopedist from Dr. Kindl. She requested Dr. Joseph Bozzelle as her choice of physician in the field of pain

management. Finally, Ms. Calhoun contended that Sanderson Farms failed to

3

### reasonablycontrovertherclaims,entitling herto penalties, attorneyfees, andjudicial



### interest from date ofdemand for its failure to timely pay benefits. Sanderson Farms denied that Ms. Calhoun was entitled to another choice of physician or a change to her choice of physician and denied that it unreasonably 

### delayed or denied payment of any benefits or acted in an arbitrary or capricious

manner. 

### Sanderson Farms asserted a reconventional demand, alleging that Ms. Calhoun committed fraud by making material misrepresentations forthe purpose of obtaining workers' compensation benefits in violation of La. R.S. 23: 1208. Sanderson Farms alleged that after she was diagnosed with the pseudotumor cerebri, 

### Ms. Calhoun fabricated the story ofhitting her head when she fell at work in an attempt to include treatment for additional conditions within her workers' compensation claim. Sanderson Farms claimed that Ms. Calhoun misrepresented the mechanics of her fall; that she hit her head and was rendered unconscious as a result of the fall; that as a result ofthe fall she suffered injuries to her eyes, head, 

### spine, or any area of her body other than her knee; that she was denied or not informed ofher right to a choice ofphysician and was directed to certain providers; that she was forced to sign blank forms; and that a scheduled functional capacity 

### exam was canceled by Dr. Kindl. Thus, Sanderson Farms contended that Ms. Calhoun forfeited herworkers' compensation benefits and should be ordered to pay

restitution. In an amended and supplemental petition, Ms. Calhoun claimed that Sanderson Farms violated La. R.S. 23: 120$ 

### when it worked up her claim as one for 

### her left knee only, falsified records, and intentionally denied that she suffered head injuries to avoid paying benefits, and intentionally terminated benefits. 

### Afterafour-daytrial,the Workers' Compensation Judge (WCJ) found thatas 

### a result oftheJanuary 31, 2018 workplace accident, Ms. Calhoun sustained injuries to her neck, back, shoulder, elbow, thigh, left knee, 

### and head, including postconcussion syndrome, forwhich she was entitled to medical care; however,the WCJ 4found that Ms. Calhoun failed to prove that the pseudotumor cerebri was caused,



### accelerated, or aggravated by the accident or any occupational disease. The WCJ 

### ordered Sanderson Farms to pay outstanding medical bills for necessary care from Dr. Glynn, Dr. Nyboer, and Dr. Bozzelle, and to pay $ 11, 000.00 in penalties and 

### attorneyfees forfailingtotimelyauthorize orpayfornecessary medical care forthe

accident. The WCJ further determined that Ms. Calhoun was entitled to temporary 

### total disability benefits inthe amountof $ 41, 589.07, subjectto acreditfor indemnity benefits already paid. 

### Additionally,the WCJ authorized Ms. Calhoun to change her choice of physician from Dr. Kindl to Dr. Bozzelle. The WCJ determined that neither Ms. Calhoun nor Sanderson Farms committed fraud. The WCJ' sjudgment

was signed November 9, 2021. 

### Sanderson Farms now appeals, contending the WCJ erred in finding that Ms. Calhoun experienced a concussion and suffers from post - concussion syndrome, that 

### Ms. Calhoun did not commit fraud, in allowing Ms. Calhoun to change her choice of physician to Dr. Bozzelle, and in awarding Ms. Calhoun penalties and attorney 

### fees for its failure to properly authorize medical treatment. INJURY/FRAUD 

### Sanderson Farms contends that the WCJ's ruling that Ms. Calhoun sustained 

### a concussion and suffers from post - concussion syndrome is unsupported by the totality ofthe evidence in this case. Rather, Sanderson Farms contends the record establishes that Ms. 

### Calhoun lied about hitting her head when she fell, being 

### renderedunconscious, and experiencing headaches. Sanderson Farmspoints outthat 

### its records do not reflect any report ofa head injury or headache on the day ofthe accident. Similarly, Sanderson Farms points outthere is no mention ofahead injury or headaches in the statement Ms. Calhoun gave to the adjuster who handled the

workers' compensation claim. Sanderson Farms maintains thatthere is no objective 

### evidencethat Ms.Calhoun hitherhead when she fell atworkandthat sheonly began E

### claiming that she did ten months post - accident, after she was diagnosed with the pseudotumor cerebri. Sanderson Farms contends that Ms. 

### Calhoun willfully misrepresented that she hit her head and suffered headaches as a result of her workplace accident. Consequently, Sanderson Farms contends that Ms. Calhoun should forfeit all workers' compensation benefits. The Workers' Compensation Act provides coverage to an employee for 

### personal injury by accident arising out of and in the course and scope of her employment. La. R.S. 23: 103 1 ( A). An employee must prove the chain of causation 

### required bythe Workers' Compensation Act by establishing by a preponderance of the evidence thatthe accident was work-related,thatthe accident caused the injury, and thatthe injury caused the disability. Headley v. Textron Systems, 2020-1174 La.App. Ist Cir.4/26/21), 324 So.3d 1080, 1085. The employee' s testimony alone 

### may be sufficientto discharge her burden ofproving an accident, provided that no other evidence discredits or casts serious doubt upon the employee' s version ofthe incident; 

### and the employee' s testimony is corroborated by the circumstances following the alleged incident. 

### Corroboration ofthe employee' s testimony may be 

### provided by the testimony ofco-workers, spouses, friends, orby medical evidence. Stupp Bros., Inc. v. Alexander, 2017- 1151 ( 

### La. App. 1st Cir.2/20/18), 243 So.3d 22, 35The determination ofwhether an employee has carried her burden ofproof is factual. Thus, the WCJ' s factual findings are reviewed on appeal for manifest error. 

### Headley, 324 So.3dat 1085. In applyingthe manifesterrorstandard,thiscourt must determine whetherthe WCJ' s conclusion was reasonable, not whether the WCJ was right or wrong. 

### Headley, 324 So.3d at 10$5. Ifthe WCJ' s findings are reasonable in light ofthe record reviewed in its entirety, the court ofappeal may not reverse, 

### even ifconvinced that itwould have weighedthe evidence differently ifithad been sitting as the trieroffact. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 RLa. 1990). Where two permissible views of the evidence exist, the WCJ' s choice



### between them cannot be manifestly erroneous or clearly wrong. Stobart v. State 

### through Dept. of Transp. and Development, 617 So.2d 880, 883 ( La. 1993). Further, the manifest error standard demands great deference to the WCJ' s findings that are based on determinations of a witness' s credibility. Shelton v. Smitty's 

### Supply, Inc., 2017- 1419 ( La. App. 1st Cir. 6/ 12/ 18), 253 So.3d 157, 163, writs denied, 2018- 1195 ( La. 11/ 14/ 18), 256 So.3d 258 and 2018- 1199 ( La. 11/ 14/ 18), 256 So.3d 291; see also Rosell v. ESCO, 549 So.2d 840, 844 ( La. 1989). This 

### applies equallyto the trieroffact' s evaluation ofexperttestimony. Guyv. Kelps & 

### Will Prop Shop,2018-0956 (La.App. 1st Cir.2/26/19), 272 So.3d 570, 576. 

### It is undisputedthatMs.Calhoun did slipand fall atworkonJanuary31, 2018. Ms. Calhoun testified at trial that when she slipped, she fell forward onto the

concrete. She described being " flat on [ her] face" and unable to get up without

assistance. 

### After being helped to her feet, she was embarrassed, disoriented, and dizzy. She testified she did notat first realize that she hit her head, focusing instead on the obvious injuryto her leg. Ms. Calhoun stated that she had a headache on the 

### day ofthe accident, but generally related itto falling and her leg injury. 

### Immediately following the accident, 

### Ms. Calhoun waited nearly two hours until the plant's safety and health nurse, Robert Cade, arrived. Nurse Cade did not perform a physical exam upon his arrival and instead asked Ms. Calhoun how she felt and what she thought needed to be done. Nurse Cade then sent her home with 

### instructionsto elevate her leg and ice herknee, andto call ifshethought she needed to see a doctor. 

### Later that day, Ms. Calhoun notified Nurse Cade that she wanted to seek medical attention and was instructed to return to the plant to complete workers' 

### compensation paperwork. According to NurseCade, Sanderson Farm' spracticewas forthe nurse to complete as much ofthe paperwork as possible to ensure that it was 7legible. Although Ms. Calhoun testified that she told Nurse Cade she had a

headache, on the accident investigation report Nurse Cade identified the type of 

### injury as only " Left Knee Injury." On the employer' s report of illness form, he 

### likewise identified Ms. Calhoun' s injury as one to her left knee. On another form 

### depicting an anatomical drawing,Nurse Cade circled the left knee and rightthigh to identify the location ofMs. Calhoun' s injuries. Both Nurse Cade and Ms. Calhoun 

### signed the forms, although Ms. Calhoun claims thatwhen she signed the formsthey were blank. Nurse Cade testified that Ms. Calhoun did not complain to him about 

### her head andthat he remembered Ms. Calhoun suffering aknee injury. In its written reasons forjudgment, the WCJ described Ms. Calhoun' s medical 

### history following the accident as " complex." On the night of the accident, Ms. 

### Calhoun reported to the emergency room fortreatment ofher knee. She estimated that before her arrival, she had taken 800 milligrams of Ibuprofen to treat her pain. 

### Shetestifiedthatshe informedthe emergencyroom personnel shetookthe Ibuprofen 

### for a headache and leg pain; however, there is no documentation ofa headache in the emergency room records. 

### She admittedly did not inform them that she hit her head, contending that she did not realize it atthe time. Ms. Calhoun' s brother,James Calhoun, met her at the emergency room and testified that he noticed a " knot" on her head near her hairline. Ms. Calhoun stated that it was not until several days afterthe accidentthatshe noticed asmall bump and 

### scab on herhead, butshe did not immediately relate ittothe accident. She explained thatwhenthe accident occurred,her long,thickhairwas dyed red andwornwrapped around her head. 

### Additionally, because it was cold in the plant, she was wearing a 

### hairnet,cap,and scarfon herhead,with ahoodie thatwas also pulled overherhead. Ms. Calhoun explained that she initially thought nothing ofthe bump on her head 

### and attributed herheadachesto her leg injury, only later realizing the relationship of the headaches to her head injury. N.Angeliki Kleamenakis, the adjuster for Sanderson Farms' workers'

compensation administrator, testified that she reviewed the documentation 

### submitted by Sanderson Farms before taking Ms. Calhoun's statement on February 5, 2018. 

### During the statement, Ms. Kleamenakis did not ask Ms. Calhoun ifshe hit her head. As part of the investigation of the workers' compensation claim, Ms. Kleamenakis reviewed the surveillance video ofthe accident and was satisfied that Ms. Calhoun fell and injured her knee. Ms. Kleamenakis testified that the video showed Ms. Calhoun fall forward to her knees. Ms. Kleamenkais conceded that Ms. Calhoun could have been flat on her stomach and that it could not be determined from the video ifMs. Calhoun struck her head. 

### In extensive written reasons forjudgment, the WCJ thoroughly detailed Ms. Calhoun' s medical treatment after the fall, which focused on her knee injury until the discovery ofthe pseudotumor cerebri. The WCJ summarized:

The first documented account that Ms. Calhoun was experiencing 

### headaches was in aNorth Oaks medical note dated February 23, 2018, less than one month after the accident. The review of systems shows Constitutional, positive for malaise and fatigue". " Neurological, positive for weakness and headaches". 

### On May 25, 2018, physical therapist Laurie Neal noted under her neurological assessment that Ms. Calhoun' s " Affect/Mood" was " Anxious, Disorganized". In June 

### 2018, the patienthistory [from] Southern Surgical Hospital [(where Dr. Kindl performed the knee surgery)] again shows that Ms. Calhoun 

### complained that she was having headaches. On September 26, 2018, Ms. Calhoun reported to Anatomix Physical Therapy that she wasn't 

### feeling well today and probably [would] goto Lake [A]fter [H]ours". On November 4, 2018, Ms. Calhoun reported to Dr. Kindl " chronic headaches" which she indicated had come about since her accident. In 

### November 2018, Ms. Calhoun reported to Dr. O' Sullivan falling in January 2018 and hitting her head. On February 5, 2020, Dr. Glynn, a neurologist, diagnosed her with post -[ concussion] syndrome amongst other things. Dr. Bozzelle agreed with this diagnosis. Ms. Calhoun 

### reported her head injury to Dr. Bozzelle in February 2020. Dr. Glynn testified that post - concussion syndrome included symptoms of headaches, dizziness, disorientation, short term memory loss, difficulty with concentration, cognitive changes, and personality and mood changes. Dr. Glynn 

### diagnosed Ms. Calhoun with post - concussion syndrome based on the history Ms. E

### Calhoun provided, noting that he accepted her history as truthful. It is obvious that



### the WO alsofound Ms.Calhountobe credible,concludingthatshe sustained ahead injury and suffered post - concussion syndrome as a result ofthe workplace accident. However, Sanderson Farms contends that Ms. Calhoun's credibility is undermined 

### by evidence that she falsely represented hitting her head and suffered from postconcussion syndrome as a result of her fall. As a result, Sanderson Farms argues 

### that this court should not only overturn the WCJ' s factual findings regarding the 

### injury butalso orderthat Ms.Calhoun forfeitall workers' compensation benefitsfor violating La.R.S. 23: 1208. 

### Louisiana Revised Statutes 23: 1208(A) prohibits any person from making a false statementorrepresentation forthepurpose ofobtaining workers' compensation benefits. This includes false statements or misrepresentations made to anyone, 

### including the employer, physicians, orinsurers, when madewillfullyordeliberately for the purpose of obtaining benefits. Plant Performance Services, LLC v. 

### Harrison,2017- 1286 (La.App. 1st Cir.416118), 249 So.3d 1, 6. An employee who is found to have made such prohibited false statements or misrepresentations forfeits any right to workers' compensation benefits. La. R.S. 23: 1208(E). Forfeiture of 

### benefits is a harsh remedy; therefore, La. R.S. 23: 1208 must be strictly construed. See Nabors Drilling USAv. Davis, 2003-0136 (La. 10/21/03), 857 So.2d 407, 414. 

### To prevail on a forfeiture claim,the employer must prove each element required by the statute: ( 1) that there was a false statement or representation; ( 2) that it was willfully made; and ( 3) that it was made for the purpose of obtaining workers' 

### compensation benefits. Savannah v.Smithy's Supply/Big4Trucking,2018- 1033 La. App. 1st Cir. 5/ 31/ 19), 280 So.3d 615, 620, writ denied, 2019-01286 ( La. 10/21/ 19), 

### 2'90 So.3d 1168. Likethe determination regardingthe employee'sburden 

### ofproving an injury related to the accident,the WCJ's determination asto whether

10an employee forfeited workers' compensation benefits is a factual issue subject to

the manifest error standard of review. 

### See Headley, 324 So.3d at 1089. Although Sanderson Farms emphasizes that there is no documentation of a 

### head injury or headaches in its own records, that documentation was largely attributable to Nurse Cade. 

### Sanderson Farm's documentationwas then used by Ms. 

### Kleamenakis to prepare the questions asked during Ms. Calhoun' s recorded

statement. However, the WCJ explained in written reasons that she found Nurse 

### Cade's testimony and documentation ofthe accidentto be unreliable, stating: Mr. Cade has a serious hearing problem which this court observed 

### posed difficulties for him in hearing the attorneys and the judge in a quiet courtroom during trial. More significantly, at the conclusion of his testimony, Mr. Cade admitted that he had neither heard nor 

### understood many ofthe questions thateither side had presented to him at trial due to his hearing loss despite trying to answer the same. Mr. Cadetestifiedthat dueto his hearing problems, he was neverreallysure 

### ofwhat anybody tells him. Mr. Cade also acknowledged that if Ms. 

### Calhoun reported injuries to him, including but not limited to her head, he may not have heard them to record them. In light of the WCJ' s determination that Nurse Cade' s factual account and testimony were unreliable, 

### and recognizing that Nurse Cade' s factual account 

### influencedthedocumentation byitsadjuster,wefindno errorintheWCJ's rejection of Sanderson Farms' argument offraud in this regard. 

### Sanderson Farms also contends that Ms. Calhoun falsely represented that she was rendered unconscious aftershe fell,noting she made no such representation until 2020. Further, Sanderson Farms contends Ms. Calhoun' s testimony that Dr. Glynn 

### told her she likely suffered unconsciousness was contradicted by Dr. Glynn' s 

### testimony that Ms. Calhoun reported to him that she lost consciousness when she struck her head. 

### Ms. Calhoun admitted that she did not initially report a loss ofconsciousness 

### to anyone, explainingthatshe did notrealize it atthetime. Following discovery of the pseudotumor cerebri, Dr.O' Sullivan referred herto Dr.Glynn for a neurological

11consult; however, she did not see Dr. Glynn until 2020, when his treatment was

authorized inthis proceeding. She explained that when she told Dr. Glynn about the 

### fall, he questioned her about how quickly she was able to get up and how many seconds she remained on the floor. She testified that based on her responses and 

### symptoms, he stated it was more than likely that she lost consciousness for a few

seconds. Ms. Calhoun stated that it was only in hindsight, 

### considering her symptoms, the medical findings, and with the benefit of Dr. Glynn' s observation, that she came to realize she lost consciousness when she fell. Dr. Glynn testified in his deposition that when he met with Ms. Calhoun, she 

### reported striking her head and a subsequent loss of consciousness for an undetermined amount oftime. He later clarified that he always asks patients with a 

### history ofa head injury ifthey lost consciousness and often theydo notknow ifthey did, but are unable to recollect a period oftime following the injury. He explained, So ... you take that as a - - as a loss ofconsciousness orthe same significance as a 

### loss of consciousness if somebody has a period of time where they don't really recollect what had happened." 

### He confirmed that since Ms. Calhoun reported being 

### disoriented after the accident and was unsure of what immediately followed, he noted that she reported a loss of consciousness. 

### Considering Dr. Glynn' s 

### explanation, which the WCJ specifically referenced in herwritten reasons, we find that Sanderson Farms failed to prove that Ms. Calhoun made false representations in this regard. Sanderson Farms next claims Ms. Calhoun misrepresented when she saw Dr. Bozzelle in relation to her consultation with Dr. Glynn. She first testified that she 

### saw Dr.Bozzelle the day after she consulted with Dr.Glynn. She explained that she told Dr. Bozzelle she lost consciousness when she fell because that was what Dr. Glynn told her. 

### When her testimony of seeing Dr. Bozzelle after Dr. Glynn was challenged on cross examination, Ms. Calhoun clarified that she did see Dr. Bozzelle 12

### first and was told to call him after seeing Dr. Glynn. She stated that Dr. Bozzelle' s



### treatment plan was affected bythe riskofincreasing hercranial pressure. Thus, Ms. 

### Calhountestified that she called Dr.Bozzellethe dayafterherappointmentwith him 

### to relay Dr. Glynn's neurological assessment and reported that she briefly lost consciousness after the fall. 

### Sanderson Farms additionally argues on appeal that Ms. Calhoun lied about the reason she changed her choice ofphysician in the specialty ofpain management. Dr. O' Sullivan referred Ms. Calhoun to Dr. Nyboer, an expert in the fields of physical medicine, rehabilitation, and pain management, and Ms. Calhoun saw Dr. Nyboer in April 2019. Both Ms. Calhoun and her brother James, who went with her to the appointment, testified that Dr. Nyboer would not treat Ms. Calhoun as a

workers' compensation patient. 

### Sanderson Farms contends that testimony was 

### contradicted by Dr.Nyboer' s testimony that he had no limitation on the number of workers' compensation patients he treated. 

### The WCYs rejection ofSanderson Farms' arguments regarding the date Ms. Calhoun saw Dr.Bozzelle andthe reasons for seeking apain management specialist other than Dr. Nyboer essentially required the WCJ to make a credibility determination. 

### Obviously, the WCJ found that Ms. Calhoun was credible and truthful in her explanations. The WCJ is in a superior position to observe and review the demeanor ofthewitnesses and evaluate credibility. Stupp Bros., Inc., 243 So.3d at 37. 

### Although another factfnder may have made a different credibility determination and weighed the evidence differently,the WCJ was notclearlywrong 

### in rejecting Sanderson Farms' attack on Ms. Calhoun' s credibility and correlative claim that she forfeited all workers' compensation benefits. 

### For the foregoing reasons, we find that the record reasonably supports the 

### WCJ's factual finding that Ms. Calhoun sustained a head injury as a result of her workplace accident and suffered from post - concussion syndrome, which was related 13thereto. We further find no merit to Sanderson Farms' arguments that Ms. Calhoun

made false statements or representations in violation of La. R.S. 23: 1208 and forfeited her right to benefits. CHOICE OF PHYSICIAN 

### On appeal, Sanderson Farms additionallycontends the WCJ erred in allowing Ms. Calhoun to change her choice of physician to Dr. Bozzelle. Sanderson Farm denies that Ms. Calhoun should be allowed to treat with a physician in the field of physical medicine or pain management, but argues that if she should be allowed to treat with such a physician, then she should be limited to her selection ofDr. Nyboer in that field. Pursuant to La. R.S. 23: 1121( B), the employee has the right to select one 

### treating physician in any field or specialty. After her initial choice ofphysician, the employee is required to obtain prior consent from the employer or the workers' 

### compensation carrier for a change oftreating physician within that same field or 

### specialty. However,the employee is notrequiredto obtain approval forchangingto atreating physician in anotherfield or specialty. La. R.S. 23: 1121( B)( 1). The WCJ recognized that Ms. Calhoun selected Dr. Kindl as her choice of physician. Dr. Kindl opined that Ms. Calhoun would benefit from treating with a pain management specialist. Pursuant to La. R.S. 23: 1121( B)( 1), Ms. Calhoun was entitled to change her choice ofphysician to one in a different specialty. Sanderson Farms argues, however, that it did not refer Ms. Calhoun to Dr. Nyboerand that she selected Dr. Nyboer as her choice ofphysician in the specialty

of physical medicine and pain management. Ms. Calhoun counters that she saw Dr. 

### Nyboeronlyonce andhe did nottreat heras aworkers' compensation patient. Thus, Ms. Calhoun disputes that she selected Dr. Nyboer as her choice ofspecialist in that field. The WCJ accepted Ms. Calhoun' s position that although she did consult one time with Dr. Nyboer, he did not treat her as a workers' compensation patient and 14

### therefore hewas notherchoice ofphysician in his specialty. Consideringthe unique

facts ofthis case, we are unable to conclude that the WCJ erred in finding that Ms. Calhoun is entitled to change her choice ofphysician from Dr. Kindl to Dr. Bozzelle. PENALTIES AND ATTORNEY FEES Finally, 

### Sanderson Farms contends the WCJ erred in assessing it with penalties and attorneyfees forfailingtotimelypayworkers' compensation benefits. Sanderson Farms maintains that Ms. Calhoun suffered a knee injury, which was treated as compensable and for which it paid benefits. Sanderson Farms contends that since Ms. 

### Calhoun did not assert a head injury until ten months after the accident, it had well-founded reasons for denying related treatment. Unless an employer reasonably controverts a workers' compensation claim, 

### its failure to pay benefits in accordance with the Workers' Compensation Act shall result in a penalty and reasonable attorney fees. See La. R.S. 23: 1201( F); Headley, 324 So.3d at 1086. 

### An employer reasonably controverts a claim when it has sufficient factual and/or medical information to counter the employee' s factual and/or medical information throughout the time it refused to pay all or part ofthe 

### benefits allegedly owed. Headley, 324 So.3d at 1086 (citing Brown v. Texas - LA Cartage, Inc., 98- 1063 ( La. 12/ l/98), 721 So.2d 885, 890 and Shelton, 253 So.3d at 169). Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment ofworkers' compensation benefits are penal in nature and must 

### be strictly construed. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant' s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. Alvis v. Peninsula 

### Gaming Partners, LLC,2020-0161 (La.App. 1stCir. 11112120), 316 So.3d 54, 60. 

### The crucial inquiry is whetherthe employer had an articulable and objective reason 

### to deny payment at the time it took action. Headley, 324 So.3d at 1086-87. The WCJ' s determination that an employer should be cast with penalties and attorney 15fees is a factual determination subject to the manifest error standard of review.



### Authement v. Shappert Engineering, 2002- 1631 ( La. 2125103), 840 So.2d 1181, 1188- 89. In her written reasons for judgment, the WCJ explained that Ms. Calhoun 

### made written demand for medical care by Dr. O' Sullivan, Dr. Nyboer, and Dr. Glynn. As Sanderson Farms' orthopedist had not yet evaluated Ms. Calhoun, the WCJ found that Sanderson Farms had no evidence to contradict Ms. Calhoun' s need for medical care from those doctors or dispute that the requested care was related to 

### herwork injury. Ms. Calhoun saw Sanderson Farms' orthopedist, Dr. Paul VanDeventer, in October 2019. He concluded that Ms. Calhoun' s back, shoulder, head, and neck 

### complaints were not caused by her fall; however, he agreed that some back and shoulder complaints were due to changes in her gait resulting from her knee injury. In summarizing Dr.VanDeventer' s testimony, the WCJ specifically noted that he was not provided with Ms. Calhoun' s complete medical records, including reports from Dr. Glynn and Dr. Nyboer. The WCJ further noted that Dr. VanDeventer did not examine Ms. Calhoun to determine ifshe suffered a concussion. Thereafter, in November 2020, 

### Sanderson Farms rejected all requests by Dr. Bozzelle for authorization oftreatment. 

### In assessing Sanderson Farms with penalties and attorney fees, the WCJ

explained:

Once Sanderson Farms had information contradicting Dr. VanDeventer' s findings, it had an obligation to investigate Ms. Calhoun' s requests for medical care before it denied the same. The 

### employerorinsurerhas acontinuing dutyto investigate and makeevery reasonable effort to assemble factual and medical information to ascertain whether a claim is compensable before denying benefits. Connor v. 

### Family Dollar Store, 2009- 1537 ( La. App. 1st Cir. 3/26/ 10), 36 So -

3d 339, 350, writ denied, 2010-0959 (La. 6/25110), 38 So.3d 344.] When Ms. Calhoun and subsequently Dr. Bozzelle requested additional medical care, [the] employer and its insurer had a 

### dutyto determinewhetherthe carewas due beforedenying benefits. A Lfailure to authorize benefits is a failure to furnish benefits[,] which



### leaves the employer or insurer subject to penalties and attorney' s fees. Sevin v. Chevrolet, 2008- 1362 ( La. 4130109), 24 So.3d 879, 889.] 

### When Ms. Calhoun's attorney sent the September 19, 2019, written demand stating that Ms. Calhoun needed medical care andthatthe care was relatedtothe accident,the adjusterhad adutyto determinewhether that care was due. When Dr. Bozzelle sent written requests for care related tothe accident,the adjusterdenied themwithin one daybecause the] insurer deemed all care other than the knee to be controverted without further investigation. An adjuster who ignores the possibility that an accident caused the medical condition when there is evidence of 

### causation, has failed to fulfill his dutyto investigate and to make every reasonable effort to assemble medical information to determine 

### whether the accident caused the injury before denying those benefits. Shelton, 253 So.3d at 171.] ... 

### Instead ofauthorizing any initial care, [ Sanderson Farms' workers' compensation administrator] sent Ms. Calhoun to its own orthopedist, Dr. VanDenter. Dr. VanDenter did not relate Ms. Calhoun' s problems to her accident. However, Dr.VanDeventer had limited information as 

### a direct result ofthe adjuster only sending him select portions ofsome medical records. Further, subsequent to Dr. VanDeventer' s opinion, defendants had information from Drs. Glynn, Nyboer, and Bozzelle 

### indicating that Ms. Calhoun needed medical care related to the subject accident. 

### While defendants were not unreasonable in denying care related to the pseudotumor cerebri ... defendants had an obligation to investigate Ms. Calhoun' s orthopedic and post -[concussion] 

### complaints further to determine their compensability. An insurer or employer which first receives a favorable medical report, but later 

### receives information indicating the possibility ofacontinuing disability 

### may not blindly rely on the earlier report to avoid attorney fees. Connor, 36 So.3d at 350.] 

### The blanket and ongoing denial of all 

### medical care related to any body part other than the knee was an unreasonable disregard of [ the] employer and insurer's duty to 

### investigate the claim before denying the same. This conduct was 

### whollywithintheircontrol. Therefore,penalties and attorney's fees are due for failure to authorize and/or pay formedical care timely. After careful review, we find that the WCJ' s determination is a permissible view of the evidence in this case. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous. Stobart, 617 So.2d at 883. Thus, 

### although we may have reached a different conclusion had we been sitting as the fact finder, we will not disturb the WCJ's 

### decision to assess Sanderson Farms with penalties and attorney fees.

17CONCLUSION



### Forthe foregoing reasons,the November 9, 2021 judgment is affirmed. Costs ofthis appeal are assessed to the appellant, Sanderson Farms. AFFIRMED,

18