TONYA SOLIS v. BATON ROUGE GENERAL HEALTH SYSTEMS (2026)

In this workers’ compensation case, the employer appeals the judgment of the Office of Workers’ Compensation that awarded the employee supplemental earnings benefits, penalties, attorney fees, and costs. For the reasons that follow, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

On November 27, 2021, Tonya Solis was working as a contract, part-time Emergency Room (ER) nurse at Baton Rouge General Medical Center (Baton Rouge General) when she slipped and fell near an ice machine. Ms. Solis worked the remainder of her shift, which was Friday and Saturday, and continued to work her weekend shifts until December 11, 2021, when she was restricted from regular duty by her treating physician, Dr. Stephen Rynick. At the time of her fall, Ms. Solis was treating with Dr. Rynick for pre-existing back and neck issues. After stopping work with Baton Rouge General, Ms. Solis was able to continue her full-time sedentary job with Aetna/CVS as a Utilization Review (UR) nurse for approximately one year and five months.¹ Ms. Solis stopped working at the Aetna/CVS job on May 8, 2023, due to her ongoing back issues and was terminated on February 23, 2024, as she was unable to return to work.² No indemnity benefits have been paid by Baton Rouge General.

On March 30, 2022, Ms. Solis filed a workers’ compensation claim against Baton Rouge General, seeking wage benefits, penalties, costs, attorney fees, and judicial interest. The matter proceeded to trial before the Office of Workers’ Compensation (OWC) on May 16, 2024, at which testimonial and documentary evidence was adduced. Ms. Solis was the only witness to testify at trial, and she introduced thirty-one exhibits into evidence, all of which were admitted without objection. Baton Rouge General also introduced six exhibits into evidence without objection. At the conclusion of the trial, the OWC took the matter under advisement and requested post-trial briefs.

The OWC issued written reasons for judgment and signed a judgment in accordance with those reasons on June 28, 2024. The OWC ruled in favor of Ms. Solis and against Baton Rouge General, determining that Ms. Solis injured her neck and back as the result of a work-related fall on November 27, 2021. The judgment ordered Baton Rouge General to pay Ms. Solis supplemental earnings indemnity benefits from December 11, 2021, through the date of the trial in the amount of $94,361.00;³ supplemental earnings benefits in the amount of $743.00 [per week] beginning on May 16, 2024, until further notice of the court;⁴ a penalty in the amount of $2,000.00 and attorney fees in the amount of $2,000.00 for Baton Rouge General's failure to pay supplemental earnings benefits; a penalty in the amount of $2,000.00 and attorney fees in the amount of $2,000.00 for Baton Rouge General's failure to timely controvert and investigate the accident; a penalty in the amount of $250.00 and attorney fees in the amount of $1,000.00 for Baton Rouge General's failure to provide the second medical opinion report; and all costs in the amount of $4,030.69.

Baton Rouge General suspensively appealed from the judgment and asserts that the trial court legally erred 1) in awarding supplemental earnings benefits; 2) in calculating the applicable average weekly wage and in determining the amount of supplemental earnings benefits to be paid; 3) by failing to consider the supplemental and intervening accidents and their effect on Ms. Solis's purported disability; 4) by finding that Ms. Solis had been injured in an “accident” as that term is defined under LSA-R.S. 23:1021; and 5) in awarding penalties and attorney fees.

STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Shelton v. Smitty's Supply, Inc., 2017-1419 (La.App. 1 Cir. 6/12/18), 253 So.3d 157, 163, writs denied, 2018-1195, 2018-1199 (La. 11/14/18), 256 So.3d 258, 291. An appellate court cannot set aside the factual findings of the OWC unless it determines there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Id. If the OWC's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier-of-fact, it would have weighed the evidence differently. Id. Determinations as to whether the employee has discharged his burden of proof are factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Young v. Smitty's Supply, Inc., 2023-0092 (La.App. 1 Cir. 9/29/23), 376 So.3d 903, 908, writ denied, 2023-01570 (La. 1/24/24), 378 So.3d 68.

TRIAL TESTIMONY AND EVIDENCE

At the trial, Ms. Solis testified that she was a contract ER nurse with Baton Rouge General, working Friday and Saturday nights, from 7 p.m. to 7 a.m. Ms. Solis testified that she began working for Baton Rouge General in February of 2021, and worked approximately three or four thirteen-week contracts prior to her accident. Ms. Solis testified that on the day of her accident, she was running to get medication for a patient who was having a seizure and had to run past the ice and water machine. She stated that there was water on the floor near the ice machine and that she slipped on the water and fell on her rear end. Ms. Solis also testified that another nurse saw her fall and helped her up. Ms. Solis further testified that she reported her fall to the charge nurse, who informed her to report the fall to Marsha Bond, Baton Rouge General's ER Director. Ms. Solis stated that after she fell, she finished her shift. However, on Sunday morning when she woke up, Ms. Solis stated she “felt like a truck ran over” her. Ms. Solis testified that she had severe pain in her lower back and neck pain going into her right arm and left shoulder blade. Ms. Solis testified that on December 1, 2021, she sent an email to Ms. Bond, who asked Ms. Solis to fill out an incident report, which she did on December 2, 2021.

Ms. Solis further stated that she worked at Baton Rouge General the two weekends after the accident because she took ibuprofen and rested. However, she stated she asked not to work the trauma rooms those weekends because she could not do any heavy lifting.⁵ After her fall, Ms. Solis scheduled a tele-visit with Dr. Rynick for December 6, 2021, and he told her to limit her position to light duties. Ms. Solis testified that on January 6, 2022, she emailed Ms. Bond, informing her that she had not been contacted by anyone from Baton Rouge General regarding the incident report she filled out. Ms. Solis sent another email to Ms. Bond on January 10, 2022, stating again that she had not been contacted.⁶ On January 11, 2022, someone from Baton Rouge General contacted Ms. Solis, informing her to go to its Employee Health department. Ms. Solis went to Employee Health on January 14, 2022, at which time x-rays were taken, and Baton Rouge General placed Ms. Solis on sedentary duty.

Ms. Solis acknowledged her history of neck and back issues. She testified that in 2013, she had an anterior cervical discectomy and fusion of C-5/C-6 and C-6/C-7. Ms. Solis stated that the surgery was successful and that she had no further treatment of her neck after 2016.⁷ With regard to her lower back, Ms. Solis testified that she did not have any problems before her fall at issue herein. She stated that she did have sciatica, or nerve pain, in October of 2021, but Dr. Rynick gave her a steroid injection, and her pain went away. Ms. Solis stated that after 2016, she did not miss any work because of neck or back issues and that she was not under the care of any pain management doctors.

After her fall, Ms. Solis believed that the pain would subside and that she could continue working with Baton Rouge General under a new contract. However, Ms. Solis testified that after being placed on light duty, she knew she could not fulfill her contract requirements as an ER nurse for the January 14, 2022 contract she signed, and following discussions with Ms. Bond, they decided to cancel the contract. Further, Ms. Solis testified that her pain had increased and her treatment with Dr. Rynick had not alleviated her symptoms.⁸ She stated that she was currently taking various pain medications, including oxycodone, and could not work as an ER nurse while taking controlled substances. Ms. Solis testified that Dr. Rynick told her that she could not work as an ER nurse again.

In his October 17, 2023 deposition, Dr. Rynick testified that Ms. Solis had preexisting neck and back issues that were aggravated by her fall.⁹ Dr. Rynick stated that Ms. Solis's first office visit after the fall was on January 17, 2022. Based on his physical examination, Dr. Rynick diagnosed Ms. Solis with cervical radiculopathy, cervical spondylosis with facet syndrome, and lumbar spondylosis with facet syndrome. Dr. Rynick testified that Ms. Solis's neck and lumbar facet symptoms were not an issue before her fall. He believed that her symptom progression was accelerated by the fall and that Ms. Solis had become more symptomatic after the fall. He further testified that his physical findings on examination correlated with Ms. Solis's complaints since the fall and that his treatment of Ms. Solis subsequent to her fall was related to the fall.

Dr. Rynick concluded that Ms. Solis's axial low back pain after the accident was related, more likely than not, to her fall and that the fall also accelerated Ms. Solis's neck pain and radicular issues from C-5 that she had prior to the fall. Notably, in an additional medical opinion requested by Baton Rouge General in July of 2022, Dr. Jeremy Comeaux, Sr. agreed with Dr. Rynick that Ms. Solis's complaints were a combination of pre-existing neck and back injury as well as aggravation. Dr. Comeaux also agreed that Ms. Solis should continue the work restrictions recommended by Dr. Rynick.

DISCUSSION

On appeal, Baton Rouge General contends that Ms. Solis did not prove that she had an accident and, if she did have an accident, failed to prove that she was entitled to benefits. Additionally, Baton Rouge General asserts that Ms. Solis's pre-existing back and neck issues and subsequent accidents are the cause of her current condition and that the fall at issue herein did not aggravate her pre-existing back and neck issues.

Assignment of Error Number Four The Occurrence of an Accident

An employee in a workers’ compensation action must establish “personal injury by accident arising out of and in the course of his employment.” LSA-R.S. 23:1031(A). An accident is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” LSA-R.S. 23:1021(1). As in other civil actions, the employee in a compensation action has the burden of establishing a work-related accident. Bridges v. Gaten's Adventures Unlimited, L.L.C., 2014-1132 (La.App. 1 Cir. 4/2/15), 167 So.3d 992, 998.

The employee's testimony alone may be sufficient to discharge this burden of proof, provided that no other evidence discredits or casts serious doubt upon the employee's version of the incident and the employee's testimony is corroborated by the circumstances following the alleged incident. Corroboration of the employee's testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id. The factfinder's determinations as to whether the employee's testimony is credible and whether he has discharged his burden of proof are factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Thus, if the OWC's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Id. at 998-99.

Although Ms. Solis testified as to the circumstances of her fall and the medical evidence corroborates her testimony as to this issue, Baton Rouge General nevertheless argues that Ms. Solis failed to prove an accident causing injury, as the accident was unwitnessed and Ms. Solis had pre-existing neck and back issues. However, reviewing the record in its entirety, and because Ms. Solis's testimony alone provides a reasonable factual basis, we find no manifest error in the OWC's factual finding that Ms. Solis had a work-related accident on November 27, 2021.¹⁰ Baton Rouge General's assignment of error that Ms. Solis did not sustain an accident in the course and scope of her employment is without merit.

Assignments of Error Numbers One, Two, and Three Supplemental Earning Benefits

In these assignments of error, Baton Rouge General contends that the OWC erred in its award of supplemental earnings benefits (SEBs) to Ms. Solis. First, Baton Rouge General contends that Ms. Solis did not meet her burden of proving that she was unable to earn 90% or more of her pre-accident average weekly wage, entitling her to SEBs. Baton Rouge General maintains that the OWC prematurely shifted the burden of proof to Baton Rouge General and argues that Ms. Solis did not establish at trial that she was unable to earn 90% or more of her pre-accident average weekly wage because of the injuries she sustained in the work accident. Therefore, according to Baton Rouge General, the burden never shifted from Ms. Solis to Baton Rouge General.

The purpose of SEBs is to compensate the injured employee for the wage-earning capacity he lost as a result of his accident. Young, 376 So.3d at 915. Under LSA-R.S. 23:1221(3)(a)(i), an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. Poissenot v. St. Bernard Parish Sheriff's Office, 2009-2793 (La. 1/9/11), 56 So.3d 170, 174; Young, 376 So.3d at 915.

Louisiana Revised Statutes 23:1221(3)(a), provides, in pertinent part:

(3) Supplemental earnings benefits.

(a)(i) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits, payable monthly, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his wages by fifty-two and then dividing the product by twelve.

Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in an inability to earn 90% or more of wages at the time of the injury under the facts and circumstances of the individual case. It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic location. See LSA-R.S. 23:1221(3)(c)(i); Poissenot, 56 So.3d at 174. A claimant is not entitled to SEBs when his inability to earn wages equal to 90% of his pre-injury wages is due to circumstances other than his work-related injury. Young, 376 So.3d at 915.

The burden of proof does not shift to the employer merely because an employee proves he is unemployed at the time of trial or unable to obtain the same type of job as before the accident. Poissenot, 56 So.3d at 178; Young, 376 So.3d at 915. The OWC must consider all factors that might bear on an employee's ability to earn a wage in determining whether the injured employee has met his burden of showing an inability to earn 90% of his pre-injury wages, including factors such as the employee's medical condition, efforts at obtaining employment post-injury, and actual work history after the accident. Arretteig v. Our Lady of the Lake Hospital, Inc., 2013-1603 (La.App. 1 Cir. 3/21/14), 142 So.3d 1048, 1051-52.

As illustrated by the jurisprudence below, this analysis is dependent on the facts and circumstances of each case, and courts are to be mindful of the jurisprudential tenet that workers’ compensation law is to be liberally construed in favor of coverage. See Poissenot, 56 So.3d at 174. Whether a claimant has carried his burden of proof is a question of fact subject to the manifest error or clearly wrong standard of appellate review. Id.; Young, 376 So.3d at 915.

In Duhon v. Holi Temporary Services, Inc., 97-0604 (La.App. 4 Cir. 10/1/97), 700 So.2d 1152, 1155, the court found the employee, largely based on subjective complaints of pain, did not shift the burden where he “failed to show that there is no available employment within the scope of his physical and educational limitations” when “[v]irtually any job could be expected to pay” what he was earning pre-injury. In Smith v. Hamp Enterprises, Inc., 95-2343 (La.App. 4 Cir. 4/17/96), 673 So.2d 267, 269-70, the appellate court found the trial court improperly shifted burden to the employer where the employee failed to prove that he could not work and the employee had made no attempt to look for other employment. Even so, the Smith court recognized “that the more obviously and severely disabling an injury is, the less extrinsic evidence should be required to establish an initial prima facie case of entitlement to [SEBs].” Id. See also Baker v. River City Trading Co., Inc., 31,423 (La.App. 2 Cir. 1/20/99), 733 So.2d 40.

By contrast, in Weaver v. Louisiana Wholesale Drug Co., 2015-747 (La.App. 3 Cir. 3/2/16), 186 So.3d 366, writ denied, 2016-0631 (La. 5/20/16), 191 So.3d 1071, the employer argued the trial court improperly shifted the burden to it to show another job was available to an employee when the employee failed to provide she was unable to earn at least 90 percent of her pre-injury wages. Even though the employee presented no evidence of other employment opportunities, the court, in finding that the burden did shift to the employer, noted the employee's use of her right hand was restricted from the time of her injury until at least the time of the filing of the litigation and the court inferred that the employee was only able to work with her left hand on any job; the employee had been a model employee; and the employee was a credible witness. Because the employee had never been released without restrictions, the court found “her injury prevented her from earning at least 90% of her pre-injury income.” Id. at 370. In Adams v. Georgia Gulf Lake Charles, LLC, 2017-723 (La.App. 3 Cir. 6/27/18), 249 So.3d 1066, 1074-75, writ denied, 2018-1272 (La. 11/5/18), 255 So.3d 1053, though plaintiff, who had occupational hearing loss, did not present evidence of any “economic” disability, the employee “established a prima facie case for entitlement to SEB for his occupational hearing loss because ․ [he] only had a high school diploma, had been working at the plant for the past forty years, was sixty-five years old, had a work restriction that prevented him from working in most work environments at Georgia Gulf, and was making four times minimum wage at the time of his occupational illness.” Further, in Rareshide v. Mobil Oil Corp., 97-1376 (La.App. 4 Cir. 4/22/98), 719 So.2d 494, 501, writ denied, 98-1595 (La. 10/9/98), 726 So.2d 28, the court found the employee, who suffered an occupational disease that prevented him from returning to work as a crane operator, shifted the burden to the employer to show that there were jobs available to the employee within his work restriction and geographic region that would allow him to earn 90% of his pre-injury wages given the employee's “age, limited education, and specialized work history[.]” See also Rachal v. Wal Mart Corp., 2015-97 (La.App. 3 Cir. 6/3/15), 165 So.3d 441, 445-46.

Baton Rouge General suggests that the OWC focused only on Ms. Solis's inability to return to her prior employment as an ER nurse, rather than focusing on whether she could earn 90% of her pre-injury wages. However, the OWC in its written reasons recognized Ms. Solis's burden of proof, stating that in order for Ms. Solis to receive SEBs under LSA-R.S. 23:1221(3)(a)(i), she was required to prove that she was unable to earn 90% or more of her pre-injury average weekly wage due to her injury. Even so, Baton Rouge General maintains that Ms. Solis failed to meet her initial burden and the OWC prematurely shifted the burden to it.

Herein, following her injury, Ms. Solis and Ms. Bond mutually decided that Ms. Solis was unable to maintain her new contract with Baton Rouge General scheduled to begin on January 14, 2022. Ms. Solis's position with Baton Rouge General was a part-time position where she worked a twelve-hour shift on both Friday and Saturday nights. Despite Ms. Solis not being able to continue her part-time physically demanding job as an ER nurse, she was able to continue working her full-time sedentary job for a time (approximately one year and five months) as a UR nurse with Aetna/CVS. Further, her position at Baton Rouge General, though only part-time, was a substantially higher paying job.¹¹ Given her full-time work schedule, any other job at Baton Rouge General or with another employer would have to be during the weekend with Dr. Rynick's restrictions of no lifting, carrying, pushing, or pulling over five pounds. Additionally, Ms. Solis would be restricted to sitting or walking for no more than fifteen minutes at a time. Considering the restrictions placed on her employment, Ms. Solis's continued employment with Aetna/CVS following the accident, the substantially higher salary she earned with Baton Rouge General compared to her full-time employment with Aetna/CVS, and mindful that we must liberally construe the workers’ compensation law in favor of coverage, we cannot find any legal or manifest error in the OWC's factual finding that Ms. Solis met her burden to show that she was unable to earn 90% or more of her average pre-injury wage. At that point, the burden shifted to Baton Rouge General, which put forth no evidence to meet its burden of proof under LSA-R.S. 23:1221(3)(c)(i).

Baton Rouge General next contends that even if Ms. Solis met her initial burden of proving entitlement to SEBs, the OWC erred in failing to calculate Ms. Solis's average weekly wage. The OWC found that at the time of her accident, Ms. Solis was earning $2,921.31 per week at Baton Rouge General and $1,601.63 at Aetna/CVS. Baton Rouge General contends that the OWC's calculation was only an “approximate” average weekly wage, arguing that Ms. Solis failed to present the necessary evidence to perform an appropriate calculation.¹² We disagree.

Louisiana Revised Statutes 23:1021(13)(a) provides, in pertinent part:

(13) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:

(a) Hourly wages.

(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or

(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or

(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

(iv) A part-time employee, as defined in R.S. 23:1021(9)[13] and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:

(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.

(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.

Subsection (aa) obligates the employer of a part-time employee in successive employments who suffers a compensable injury to pay the benefits due under the workers’ compensation law.¹⁴ The benefits due the part-time employee are provided for in LSA-R.S. 23:1221 and, in this particular instance, SEBs, based on the average monthly wages of the employee as set forth in LSA-R.S. 23:1221(3)(a)(i).

In looking for guidance in interpreting the language of LSA-R.S. 23:1021(13)(a), Baton Rouge General relies on the fourth circuit case of Gracianette v. Emeril's Restaurant, 99-0981 (La.App. 4 Cir. 4/5/00), 761 So.2d 34, as providing the appropriate wage basis for the calculation of the average weekly wage of part-time employees who are employed on an hourly basis. However, Ms. Solis asserts that the second circuit case of Phillips v. United Parcel Service, 28,110 (La.App. 2 Cir. 2/28/96), 669 So.2d 1375, is more similar to her case and therefore more instructive.¹⁵

In Gracianette, the claimant was working part-time as a bartender at Emeril's Restaurant when she suffered an injury in the course and scope of her employment. The claimant was left with permanent restrictions that she contended kept her from working as a bartender. At the time of her injury, the claimant was also working full-time as a real estate agent. Gracianette, 761 So.2d at 36. The claimant was able to continue working in her full-time job and post-accident actually earned more than the combined wages from both jobs at the time of injury. Therefore, because the claimant was unable to show the inability to earn 90% of her pre-injury wage, she was not entitled to SEBs. Gracianette, 761 So.2d at 40-41.

To the contrary, in Phillips, the claimant worked full-time at a bank and had a part-time job at UPS. After he was injured at the UPS job, he could not continue working at UPS, but was able to continue to work at the bank. Phillips, 669 So.2d at 1376. The claimant made more at the bank than at the UPS job, and UPS refused to pay SEBs. The second circuit held that to determine the wage basis in order to calculate the SEBs due under LSA-R.S. 23:1221(3) for an employee in such circumstances, the claimant's bank wages must be included in both the pre-accident and post-accident SEB wage comparison, or not included at all. Phillips, 669 So.2d at 1377-79.

Although neither decision is directly on point, we find that this matter is more akin to Phillips. Unlike the Gracianette case, where the claimant earned more post-accident working her full-time job than she did before her injury, Ms. Solis suffered a wage loss after her accident as a result of her injury. However, here, unlike in Phillips, Ms. Solis earned more at her part-time job pre-accident than she did at her full-time job pre-accident. Nevertheless, when calculating Ms. Solis's average weekly wage using her wages from either Baton Rouge General only or when calculating the average weekly wage including wages from Baton Rouge General and Aetna/CVS, both before and after her accident, Ms. Solis's post-accident earnings are less than 90% of her pre-accident earnings.¹⁶ See Phillips, 669 So.2d at 1378. Further, as found by the OWC, there was no showing that Ms. Solis was able to earn wages equal to 90% or more of her pre-accident wages.

However, Baton Rouge General argues that the OWC erred in failing to consider subsequent accidents by Ms. Solis and their effect on the award of SEBs. Baton Rouge General contends that Ms. Solis slipped and fell at Dr. Rynick's office on March 29, 2023, fell off of a toilet in May of 2023, and fell getting out of the shower on February 5, 2024. Baton Rouge General asserts that these accidents were ignored by the OWC, unrelated to her employment, and caused most of her medical complaints. According to Baton Rouge General, the fall on March 29, 2023, was the reason why Ms. Solis stopped working at her full-time job at Aetna/CVS and suffered a reduction of income. Nevertheless, even if were we to agree that Ms. Solis's inability to continue her job at Aetna/CVS was not due to her fall while working as an ER nurse, Ms. Solis's post-accident earnings were less than 90% of her pre-accident earnings from the two combined jobs after the accident. Given our manifest error standard of review and in light of Ms. Solis's medical restrictions that Dr. Rynick testified were related to her fall, we are compelled to find that the OWC did not err regarding the award of SEBs to Ms. Solis.

Assignment of Error Number Five Penalties and Attorney Fees

Lastly, Baton Rouge General contends that penalties and attorney fees were incorrectly awarded as it reasonably controverted Ms. Solis's claim for benefits. Although the workers’ compensation law is to be liberally construed with regard to benefits, penal statutes are to be strictly construed. Chauvin v. Terminix Pest Control, Inc., 2011-1006 (La.App. 1 Cir. 6/28/12), 97 So.3d 476, 485. The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the OWC's findings shall not be disturbed absent manifest error. Id.

An employer or insurer shall be assessed with penalties and attorney fees for the failure to timely pay disability or medical benefits unless “the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” See LSA-R.S. 23:1201(F)(2). The crucial inquiry is whether the employer had an articulable and objective reason to deny payment at the time it took action. The claimant bears the burden of proving his entitlement to statutory penalties and attorney fees due to the employer's failure to timely pay workers’ compensation benefits. Young, 376 So.3d at 916.

Here, the OWC awarded a penalty in the amount of $2,000.00 and attorney fees in the amount of $2,000.00 for Baton Rouge General's failure to pay SEBs and a penalty in the amount of $2,000.00 and attorney fees in the amount of $2,000.00 for Baton Rouge General's failure to timely controvert and investigate the accident.¹⁷ In its reasons for judgment, the OWC noted that the accident occurred on November 27, 2021, and that Ms. Solis filed an accident report on December 2, 2021.¹⁸ The OWC also found that Baton Rouge General waited until September of 2023 to request wage records from Aetna/CVS in order to determine what if any SEBs were owed to Ms. Solis and concluded that Baton Rouge General failed to give any objective reason for not starting indemnity benefits.

The record shows that as of July of 2022, after Dr. Comeaux's additional medical opinion, Baton Rouge General was aware of Ms. Solis's work status with Baton Rouge General, that both Dr. Rynick and Dr. Comeaux were in agreement that Ms. Solis aggravated her pre-existing neck and back issues when she fell, that Ms. Solis was restricted to sedentary duty, and that she was unable to return to work as an ER nurse. Following a thorough review of the record before us, we find no manifest error in the OWC's finding that Baton Rouge General did not reasonably controvert Ms. Solis's claim before denying benefits or in the OWC's assessment of penalties for Baton Rouge General's failure to timely pay SEBs and failure to timely investigate the accident.

However, Louisiana Revised Statutes 23:1201(J) provides, in pertinent part:

Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section․ .

Under LSA-R.S. 23:1201(J), only one award of attorney fees can be made in connection with a hearing on the merits, even when multiple violations of LSA-R.S. 23:1201 have occurred. Lee v. Smitty's Supply, Inc., 2024-0460 (La.App. 1 Cir. 12/20/24), 404 So.3d 916, 929; Shelton, 253 So.3d at 171. Because Ms. Solis is entitled to only one award of attorney fees, the OWC's second award of attorney fees in the amount of $2,000.00 for Baton Rouge General's failure to timely controvert and investigate the accident, is reversed. See Shelton, 253 So.3d at 171.

CONCLUSION

For the above and foregoing reasons, that portion of the June 28, 2024 judgment that awarded $2,000.00 in attorney fees to Tonya Solis for Baton Rouge General Medical Center's failure to timely controvert and investigate the accident, is reversed. In all other respects, the June 28, 2024 judgment is affirmed. Costs of this appeal are assessed against Baton Rouge General Medical Center.

REVERSED IN PART AND AFFIRMED IN PART.

I respectfully disagree with the majority opinion, which affirms the OWC's award of supplemental earnings benefits. I do not think Ms. Solis carried her initial burden of proving her inability to earn 90% of her pre-injury wages.

As the majority acknowledges, proof that the claimant is unable to return to the same type of job she had before the accident does not satisfy the claimant's initial burden of proof. Gilley v. Parkview Baptist Sch., 2000-1937 (La. App. 1 Cir. 11/9/01), 804 So.2d 103, 106, aff'd, 2002-0623 (La. 10/25/02), 832 So.2d 975. Thus, although the record shows Ms. Solis can no longer work as an ER nurse, and was restricted to sedentary duty by Dr. Rynick, such is not proof that she cannot earn 90% of her pre-injury wages at some type of employment. At trial, Ms. Solis was not questioned regarding her efforts to obtain employment after the accident, and on appeal, she points to no documentary evidence in the record showing such efforts.

The OWC's reasons for judgment show the OWC impermissibly shifted the burden to Baton Rouge General to show that a suitable job existed and was available within Ms. Solis's physical capabilities and in a reasonable geographic region. This shifting of the burden of proof is a legal error. See Oubre v. Jacobs Eng'g Grp., 98-1129 (La. App. 1 Cir. 5/14/99, 739 So.2d 235, 237, writ denied, 99-1515, 99-2317 (La. 9/17/99), 747 So.2d 1108 and 569. Because the OWC used an incorrect legal standard, we must review the record and determine de novo whether plaintiff is entitled to supplemental earnings benefits. Id. After my de novo review, I think Ms. Solis failed to carry her burden of proof. I would reverse the judgment on the merits as well as to the attorney fee award.

FOOTNOTES

1.   Ms. Solis was hired by Aetna, but thereafter, CVS purchased Aetna. As a UR nurse, Ms. Solis worked from home and reviewed the medical records of Aetna/CVS's patients who were on the Medicare Advantage Plan when requests for certain levels of care had been made.

2.   Between May 8, 2023 and February 23, 2024, Ms. Solis was on an extended leave of absence with Aetna/CVS.

3.   On July 16, 2024, Ms. Solis filed a Motion to Amend Judgment, stating that the Judgment signed on June 28, 2024, contained a “typo” in that the order for the payment of supplemental earnings indemnity benefits from December 11, 2021, should have been through the date of trial rather than the date of the judgment. Ms. Solis pointed out that LSA-C.C.P. art. 1951 allows the amendment of the judgment without a contradictory hearing if the parties consent, or if the party submitting the amended judgment certifies that it has provided the amended judgment to all parties at least five days before the amendment and that no opposition has been received. Ms. Solis stated that counsel for defendant had been contacted and no objection had been received. Attached to the Motion to Amend Judgment were the Judgment, Written Reasons, Notice of Judgment mailed on July 1, 2024, and counsel's correspondence dated July 8, 2024. On July 17, 2024, the OWC ordered that the judgment be amended as prayed for.

4.   We note that the judgment does not indicate that the $743.00 amount is a weekly payment, although the parties do not dispute that this is a weekly amount.

5.   Ms. Solis stated that her job as an ER nurse included moving patients between stretchers and tables for medical tests, as they often could not move themselves.

6.   In her January 10, 2022 email to Ms. Bond, Ms. Solis described her symptoms after the fall, stating that she had pain in her lower back radiating down both legs, as well as numbness and tingling radiating down her right arm. Ms. Solis also stated that she had constant neck pain.

7.   Ms. Solis acknowledged that in 2016, she had a perineural cyst at C-7, which was putting pressure on her spinal cord, but that the cyst was removed, and Ms. Solis testified that she had no more neck problems.

8.   Ms. Solis testified that one of the reasons she stopped working for Aetna/CVS was because her legs would go numb and she would stand up and fall, and that these symptoms were getting progressively worse.

9.   Dr. Rynick testified that his medical records indicated that after August of 2013 and an intake note from November 21, 2015, he had nothing in his records for Ms. Solis until October of 2021. After an office visit on October 28, 2021, Ms. Solis was diagnosed with lumbar and cervical radiculopathy, and Dr. Rynick administered cervical and lumbar epidural steroid injections on November 1 and 22, 2021.

10.   We find Baton Rouge General's reliance on Ardoin v. Firestone Polymers, L.L.C., 2010-0245 (La. 1/19/11), 56 So.3d 215, to be misplaced. Therein, the claimant asserted that he was involved in an unwitnessed bicycle accident. Id. at 217. The supreme court held that the appellate court manifestly erred in finding that a work-related accident occurred, considering that the claimant did not report the accident until eighteen months later, after he was denied additional benefits, after he was denied a return to employment in a light-duty position, and failed to tell his doctor that he had suffered a work-related accident. Id. at 220-21. By contrast, in this matter, Ms. Solis reported the incident to Ms. Bond shortly after her fall and filed an accident report on December 2, 2021. Tami Caston, the workers’ compensation adjustor for Baton Rouge General, also prepared a First Report of Injury or Illness on December 2, 2021. Further, Ms. Solis scheduled a tele-visit with Dr. Rynick on December 6, 2021, as a result of the fall.

11.   In its written reasons, the OWC reversed the amounts that Ms. Solis earned at Baton Rouge General and at Aetna/CVS. At the time of her accident, Ms. Solis earned $2,921.31 per week at Baton Rouge General and $1,601.63 per week at Aetna/CVS.

12.   We note that Ms. Solis offered a proposed stipulation of an average weekly wage at Baton General of $2,921.31 and a compensation rate of $743.00. However, Baton Rouge General stated that no stipulations were being made. Further, the OWC determined the $2,921.31 amount based on Ms. Solis's last four weeks of employment with Baton Rouge General. Ms. Solis's gross pay for the two weeks of November 7, 2021 through November 20, 2021 was $6,763.62 and for the two weeks of October 24, 2021 through November 6, 2021 was $4,921.60. Adding these two numbers and dividing by four, results in an average weekly wage of $2,921.31. See LSA-R.S. 23:1021(13)(a)(iii). Additionally, Ms. Solis and Baton Rouge General both recognized that the maximum workers’ compensation rate applicable at the time of Ms. Solis's work accident was $743.00 per week.

13.   We note that a part-time employee is currently defined in LSA-R.S. 23:1021(11), not LSA-R.S. 23:1021(9), as “an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.”

14.   Baton Rouge General contends, and we agree, that because Ms. Solis was able to continue her full-time sedentary job with Aetna/CVS for approximately seventeen months, she did not incur a loss of income from other successive employments as a result of the injury at Baton Rouge General, and subsection (bb) does not apply. See Phillips v. United Parcel Service, 28,110 (La.App. 2 Cir. 2/28/96), 669 So.2d 1375, 1378.

15.   On February 25, 2022, counsel for Ms. Solis sent a demand to Baton Rouge General for payment of indemnity benefits, citing the Phillips decision. In refusing the demand, Baton Rouge General's counsel response was that reliance on the Gracianette case was more appropriate.

16.   If we include Ms. Solis's average weekly wages at the time of her accident from both employments ($2,921.31 plus $1,601.63), the combined average weekly amount that Ms. Solis earned the four weeks prior to her injury totaled $4,522.94. Ninety percent of that amount is $4,070.65. After her accident, Ms. Solis's earnings were limited to her income from Aetna/CVS, or $1,601.63 per week, which was less than the 90% amount. Even in February of 2022, which was Ms. Solis's highest earning month post-accident at Aetna/CVS, the amount she earned was still less than 90% of her average pre-injury wage.

17.   We note that Baton Rouge General does not specifically challenge the penalty and attorney fee award for Baton Rouge General's failure to timely provide the additional medical opinion report pursuant to LSA-R.S. 23:1125. Rather, Baton Rouge General contends that it reasonably controverted Ms. Solis's claim and that the OWC erred in awarding any penalty and attorney fee as provided in LSA-R.S. 23:1201.

18.   Ms. Solis argued that prior to trial, Baton Rouge General's only defense to the payment of SEBs was its reliance on the Gracianette case. She further contended that Baton Rouge General failed to respond to discovery and failed to investigate her claim.

McCLENDON, C.J.

GREENE, J. dissents and assigns reasons.