CAROL JOSEPH v. AT (2023)

I respectfully dissent and would grant this writ application to vacate the appellate court ruling and remand for de novo review.

The Office of Workers’ Compensation (“OWC”) judge allowed the admission of testimony by Paul Fontana of the Fontana Center (who performed a Functional Capacity Evaluation of the plaintiff), which attempts to cast the plaintiff as a symptom magnifier (a/k/a malingerer) using her Waddell test results; however, such use is prohibited by the Louisiana Administrative Code, Title 40, Part I, § 2017(A)(1)(c)(x), which states: “Waddell Signs cannot be used to predict or diagnose malingering.” The admission of this testimony tainted the OWC's factfinding process.

When one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable and, if the record is otherwise complete, an appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Evans v. Lungrin, 97-0541, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. When such a prejudicial error of law skews the trial court's finding of a material issue of fact, the appellate court is required to, if it can, render judgment on the record by applying the correct law and determining the essential material facts de novo. Id.

In this case, the Fontana FCE concluding the plaintiff was a symptom magnifier and/or malingerer influenced the opinion of Dr. Duval, who relied upon and repeated the FCE opinion that the plaintiff could do sedentary work. The acceptance into evidence of the Fontana FCE report, violating Louisiana Administrative Code, Title 40, Part I, § 2017(A)(1)(c)(x), and Dr. Duval's testimony based on that FCE report, was prejudicial error that skewed the OWC's findings of fact. Therefore, I would vacate the Third Circuit's ruling and remand for a de novo review.

HUGHES, J., dissenting.