Brown v. Kwok Wong

836 So. 2d 315, 2002 WL 31894420
CourtLouisiana Court of Appeal
DecidedDecember 20, 2002
Docket2001 CA 2525
StatusPublished
Cited by16 cases

This text of 836 So. 2d 315 (Brown v. Kwok Wong) 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
Brown v. Kwok Wong, 836 So. 2d 315, 2002 WL 31894420 (La. Ct. App. 2002).

Opinion

836 So.2d 315 (2002)

Twanda BROWN
v.
KWOK WONG (Mandarin Seafood Restaurant) and Louisiana Restaurant Association Self Insurers Fund.

No. 2001 CA 2525.

Court of Appeal of Louisiana, First Circuit.

December 20, 2002.

*317 William Ritzie, Jr. Baton Rouge, for Plaintiff/Appellee, Twanda Brown.

Douglas J. Cochran Michael McKay Baton Rouge, for Defendants/Appellants, Kwok Wong and Louisiana Restaurant Association Self Insurers Fund.

Before: CARTER, C.J., WHIPPLE and CIACCIO,[1] JJ.

WHIPPLE, J.

Defendants, Kwok Wong and Louisiana Restaurant Association Self Insurers Fund, appeal the OWC judgment, ordering that plaintiff, Twanda Brown, was entitled to, among other things, medical treatment for her back injury, an MRI, temporary total disability benefits until released by her treating physician and penalties and attorney's fees for defendants' failure to pay benefits due. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Twanda Brown was employed as a cook by Kwok Wong d/b/a Mandarin Restaurant. On January 3, 2000, she suffered a work-related accident when, after placing a pan of food on the buffet table, she slipped and fell, striking her back. Brown continued to work for the remainder of the day and also for the remainder of that week. However, on January 10, 2002, Brown requested and was granted permission from her employer to seek medical treatment for pain in her foot and ankle. She was treated at the Baton Rouge General Medical Center and released that day, with instructions that she could return to work provided she did not attempt any repeated bending, stooping or squatting.

The following week, on January 18, 2000, Brown was seen by Dr. Thad Broussard, an orthopedic surgeon who had previously treated Brown. Brown told the doctor that she had been injured at work and that as a result of the accident, she was suffering from ankle, knee and leg pain on the right side, as well as back pain. Dr. Broussard diagnosed her condition as an acute low back syndrome and an acute contusion and sprain to the right ankle, for which he prescribed physical therapy and pain medication. Dr. Broussard also restricted Brown from returning to work.

*318 When Brown returned to Dr. Broussard on January 31, 2000, Dr. Broussard concluded that Brown's condition was improving. Thus, he released her to return to work as of February 1, 2000. Although Brown attempted to return to work, she was unable to perform her work duties, due to continuing pain in her back. Thus, Brown returned to Dr. Broussard on March 1, 2000, again complaining of pain in her back. At that time, Dr. Broussard again restricted Brown from work and ordered an MRI of the back. However, authorization for payment for the MRI ordered by Dr. Broussard was denied by the Louisiana Restaurant Association Self-Insurers Fund, the workers' compensation insurer for Mandarin Seafood Restaurant.

Upon learning of the denial of authorization for the MRI, Dr. Broussard restricted Brown from work indefinitely, stating that he was unable to authorize Brown's release or return to work in the absence of this diagnostic test. Nonetheless, the Louisiana Restaurant Association Self-Insurers Fund unilaterally ceased paying Brown weekly indemnity benefits as of January 28, 2000, and refused to authorize any medical treatment for her back problems, contending that any back injury was unrelated to the work accident in question.

Accordingly, Brown filed a disputed claim for compensation, seeking authorization for further medical treatment, reinstatement of weekly indemnity benefits and penalties and attorney's fees. Following a hearing, the workers' compensation judge found that Brown's back injury was causally related to the work accident and, accordingly, that Brown was entitled to medical treatment for the back injury, including the MRI ordered by her treating physician. The workers' compensation judge further found that Brown was entitled to temporary total disability benefits until such time as her treating physician releases her to return to work.

With regard to penalties and attorney's fees, the workers' compensation judge found that there was "absolutely positively no reason" to controvert the back claim and that the insurer had been "totally unreasonable" in controverting the claim. Accordingly, the workers' compensation judge awarded Brown $2,000.00 in penalties and $5,000.00 in attorney's fees, pursuant to LSA-R.S. 23:1201(F).

From the OWC judgment setting forth these awards, defendants appeal, assigning the following as error:

(1) The workers' compensation judge erred in finding that Brown had satisfied her burden of proof that she was entitled to temporary total disability benefits; and

(2) The workers' compensation judge erred in awarding penalties and attorney's fees for the actions of defendants.

ENTITLEMENT TO TEMPORARY TOTAL DISABILITY BENEFITS

(Assignment of Error No. 1)

In this assignment of error, defendants contend that Brown failed to satisfy her burden of proof that she was entitled to temporary total disability benefits. Specifically, defendants argue that Brown failed to establish a causal relationship between her alleged back injury and the work accident, contending that she did not complain of back pain until two weeks after the accident, that she failed to report two prior automobile accidents to her treating physician, and that Dr. Broussard could not reasonably relate her back complaints to the work accident. Contending that Brown did not present any medical documentation relating her back pain to her work-related fall, defendants argue she failed to prove that she suffered a back *319 injury as a result of the accident or that she was entitled to temporary total disability benefits as a result of her alleged injuries.

An employee has the burden of establishing the occurrence of an accident and the causal relationship between the accident and the resulting disability by a preponderance of the evidence. Augustus v. St. Mary Parish School Board, 95-2498, p. 3 (La.App. 1st Cir.6/28/96), 676 So.2d 1144, 1149. The consequences of a work-related disability are not always fully apparent at the time the accident occurs. LeBlanc v. Cajun Painting, Inc., 94-1609, p. 10 (La.App. 1st Cir.4/7/95), 654 So.2d 800, 806-807, writs denied, 95-1706, 95-1655 (La.10/27/95), 661 So.2d 1349, 1350.

Nonetheless, where the employee seeks workers' compensation benefits on the basis that he or she is temporarily totally disabled, the employee bears the burden of proving such disability by clear and convincing evidence. LSA-R.S. 23:1221(1)(c). While the workers' compensation laws are to be construed liberally in favor of the employee, that interpretation cannot lessen the employee's burden. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 280 (La.1993).

An employee's testimony alone may be sufficient to discharge the burden of clearly and convincingly proving temporary total disability where two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the employee's version of the incident; and (2) the employee's testimony is corroborated by the circumstances following the alleged incident. Williams v. Ravare Masonry Co., XXXX-XXXXX, pp. 2-3 (La.App. 3rd Cir.10/4/00), 774 So.2d 254, 256, writ denied, XXXX-XXXX (La.3/30/01), 788 So.2d 1194.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Guy v. Kelps & Will Prop Shop
272 So. 3d 570 (Louisiana Court of Appeal, 2019)
New Line Environmental & Canal HR v. Davis
205 So. 3d 921 (Louisiana Court of Appeal, 2016)
O'Bannon v. Moriah Technologies, Inc.
196 So. 3d 127 (Louisiana Court of Appeal, 2016)
Namias v. Sunbelt Innovative Plastics, LLC
190 So. 3d 745 (Louisiana Court of Appeal, 2016)
Prine v. Coastal Bridge Co.
157 So. 3d 732 (Louisiana Court of Appeal, 2014)
Lafayette Steel Erector, Inc. v. Constance
137 So. 3d 1251 (Louisiana Court of Appeal, 2014)
Chauvin v. Terminix Pest Control, Inc.
97 So. 3d 476 (Louisiana Court of Appeal, 2012)
Penton v. CITY OF HAMMOND POLICE DEPT.
991 So. 2d 91 (Louisiana Court of Appeal, 2008)
Hebert v. CG LOGAN CONST., INC.
942 So. 2d 77 (Louisiana Court of Appeal, 2006)
Virgil Hebert v. C.G. Logan Construction, Inc.
Louisiana Court of Appeal, 2006
Roussell v. St. Tammany Parish School Bd.
943 So. 2d 449 (Louisiana Court of Appeal, 2006)
Magee v. Abek, Inc.
934 So. 2d 800 (Louisiana Court of Appeal, 2006)
Roberts v. Thibodaux Healthcare Center
934 So. 2d 84 (Louisiana Court of Appeal, 2006)
Harrison v. Baldwin Motors
889 So. 2d 313 (Louisiana Court of Appeal, 2004)
Moran v. G & G CONST.
897 So. 2d 75 (Louisiana Court of Appeal, 2004)
Firmin v. St. Mary Parish School Board
843 So. 2d 1144 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
836 So. 2d 315, 2002 WL 31894420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-kwok-wong-lactapp-2002.