Atkins v. DG Foods

125 So. 3d 530, 2013 WL 5346307, 2013 La. App. LEXIS 1958
CourtLouisiana Court of Appeal
DecidedSeptember 25, 2013
DocketNo. 48,490-WCA
StatusPublished
Cited by3 cases

This text of 125 So. 3d 530 (Atkins v. DG Foods) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkins v. DG Foods, 125 So. 3d 530, 2013 WL 5346307, 2013 La. App. LEXIS 1958 (La. Ct. App. 2013).

Opinion

GARRETT, J.

|,A workers’ compénsation judge (“WCJ”) granted a default judgment finding that the claimant, Ray Atkins, contracted carpal tunnel syndrome (“CTS”) while employed at the defendant, DG Foods. Mr. Atkins was awarded indemnity and medical benefits, as well as penalties and attorney fees. DG Foods appealed. For the following reasons, we reverse the WCJ’s ruling, vacate the default judgment, and remand for further proceedings.

FACTS

Mr. Atkins became employed as a chicken deboner at DG Foods in January 2012. He ceased his employment at the end of March 2012. He filed a disputed claim for compensation on September 18, 2012, alleging injuries to his “wrist, shoulder, and hands” on February 22, 2012, and that he reported an accident and injury to DG Foods on February 24, 2012. He asserted that he was denied wage and medical benefits and an evaluation by a physician of his choice. He requested penalties and attorney fees in addition to indemnity benefits.

DG Foods did not answer the claim. The WCJ signed an order granting a preliminary default and set the matter for confirmation of default on December 10, 2012. At the hearing, Mr. Atkins appeared with counsel before the WCJ. No representative from DG Foods was present.

Mr. Atkins testified that he started work as a chicken deboner at DG Foods at the beginning of 2012. He claimed that this job required constant motion of the hands. Mr. Atkins said that his arm began to hurt on a Tuesday and the next morning he did not have any feeling in his hand. He also stated that his wrist was swollen. He claimed that he showed his arm to |2the line leader and a “lady in the office.” He was told to go to a doctor and let the company know what was going on. Mr. Atkins went to the Morehouse Community Medical Centers, Inc. (“MCMC”), in Bas-trop. He was provided an unsigned document entitled “Certificate to Return to Work/School.” The unsigned document, dated February 20, 2012, was apparently generated by a Jaequlyn Sneed, LPN. The document provided:

Ray Atkins, had an appointment with Morehouse Community Medical Centers, Inc. at our Main Clinic site on 02/20/2012 05:55 PM. Ray is able to return to work/school with the following restrictions: Please note that due to medical problems Ray is not able to work constantly with his hands. He is not able to return to work until 2/22/2012.

[533]*533Mr. Atkins claimed he was also sent to E.A. Conway Hospital where a physician named Dr. Belchic did a nerve test and diagnosed him with CTS. He was given a brace for his arm, medication, and was instructed to follow up with his family physician.

Mr. Atkins testified that he notified DG Foods of his diagnosis, but was told that he had not been working at the company long enough to receive workers’ compensation benefits. He stated that he did not have any money to go to a doctor and, at the time of the hearing, had been out of work for 10 months. According to Mr. Atkins, while employed at DG Foods, he made $7.25 per hour and worked 40 hours per week.

In response to questioning by the WCJ, Mr. Atkins claimed that his arm began to hurt two or three days after he began work at DG Foods. He was told by personnel at DG Foods that the soreness would go away. Mr. Atkins claimed that he experienced discomfort in both hands. He asserted |sthat his left hand was swollen and he had a knot on his right wrist. He stated that he had previously worked on a seasonal basis for six or seven years at a warehouse making bales of cotton, beginning when he was 17 years old. Later, he worked for about two years as a porter at a car dealership, washing cars. That job ended when the dealership closed in 2009. Mr. Atkins testified that he had no other employment until he began working at DG Foods.

The WCJ determined that Mr. Atkins’ counsel was unfamiliar with the provisions of La. R.S. 23:1031.1(D). Because the claimant had been working at DG Foods for less than 12 months, he was presumed not to have contracted an occupational disease in the course of and arising out of his employment. However, the statutory presumption is rebuttable. After a brief recess, the WCJ allowed the attorney the opportunity to further address Mr. Atkins on this issue.

Mr. Atkins testified that he last washed cars at the car dealership in 2009. He denied any repetitive motion in washing cars and stated that he just sprayed them off and wiped them down. Mr. Atkins said that he developed CTS as a result of the work he was doing at DG Foods. He maintained that he had not received any treatment for his wrists prior to developing the condition at DG Foods.

On December 14, 2012, the WCJ signed a default judgment in favor of Mr. Atkins which confirmed the ruling made in open court on December 10, 2012. The WCJ found that on January 20, 2012, Mr. Atkins |4suffered an injury resulting in CTS while in the course and scope of his employment with DG Foods.1 Mr. Atkins was awarded temporary total disability (“TTD”) benefits of $290 per week from the date of the injury until he is released by his physician to return to his previous job or until DG Foods accommodates him within the restrictions provided by his physician. The WCJ found that Mr. Atkins was entitled to his choice of physician. [534]*534The WCJ found that DG Foods was arbitrary and capricious in failing to pay indemnity benefits to Mr. Atkins and awarded a penalty of $2,000. The WCJ also determined that DG Foods was arbitrary and capricious in failing to pay Mr. Atkins’ medical bills and in failing to authorize his choice of physician.2 An additional penalty of $2,000 was awarded. The WCJ awarded Mr. Atkins $4,000 in attorney fees. DG Foods suspensively appealed from the judgment.

DEFAULT JUDGMENT AND OCCUPATIONAL DISEASE

DG Foods essentially argues that Mr. Atkins failed to establish a prima facie case that he contracted CTS during the course of his employment with DG Foods because he did not present any medical |aevidence to prove his claim. The company asserts that the WCJ erred in confirming the default judgment and in granting benefits, penalties, and attorney fees to Mr. Atkins. This argument has merit.

Legal Principles

La. R.S. 23:1316.1, dealing with confirmations of default in workers’ compensation proceedings, provides:

A.A judgment by default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
B. A prima facie case shall include but not be limited to proof of the following:
(1) The employee’s average weekly wage.
(2) The existence of an employer-employee relationship at the time of the work-related accident.
(3) The occurrence of an accident arising out of and in the course of the employment, or the existence of an occupational disease.
(4) Entitlement to benefits under the provisions of this Chapter.
C. Medical evidence shall include oral testimony or certified medical records from all treating and all examining health care providers. All other evidence may be presented by sworn affidavit.

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Related

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256 So. 3d 463 (Louisiana Court of Appeal, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
125 So. 3d 530, 2013 WL 5346307, 2013 La. App. LEXIS 1958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkins-v-dg-foods-lactapp-2013.