Charles v. Lake Charles Memorial Hospital

959 So. 2d 571, 6 La.App. 3 Cir. 1590, 2007 La. App. LEXIS 1075, 2007 WL 1545663
CourtLouisiana Court of Appeal
DecidedMay 30, 2007
DocketNo. 06-1590
StatusPublished
Cited by3 cases

This text of 959 So. 2d 571 (Charles v. Lake Charles Memorial Hospital) 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
Charles v. Lake Charles Memorial Hospital, 959 So. 2d 571, 6 La.App. 3 Cir. 1590, 2007 La. App. LEXIS 1075, 2007 WL 1545663 (La. Ct. App. 2007).

Opinions

PICKETT, Judge.

_J_jThe defendant-appellant, Lake Charles Memorial Hospital, appeals a judgment of the Office of Workers’ Compensation, finding the claimant, Sheryl Charles, suffered an accident and is entitled to workers’ compensation benefits. Ms. Charles has answered the appeal, seeking attorney fees for work done on this appeal.

STATEMENT OF THE CASE

On May 26, 2002, Sheryl Charles injured her left knee while working as a certified nurse assistant at Lake Charles Memorial Hospital (LCMH). LCMH determined that the injury was covered under workers’ compensation and began paying Mrs. Charles temporary total disability payments. They also paid for all costs associated with the knee injury, including two knee surgeries and subsequent rehabilitation.

While undergoing physical therapy on March 12, 2004 at LCMH, Mrs. Charles alleged an electric stimulation machine malfunctioned and caused an electric shock to jolt through her body. She claimed this electric shock caused her to injure her back. LCMH investigated her claim that an accident occurred and determined that an accident did not occur. LCMH refused to authorize treatment for her back injury.

Mrs. Charles underwent a functional capacity evaluation on July 13, 2004. Dr. Stephen Flood, who treated Mrs. Charles for her knee injury, released her to return to work on August 6, 2004. This release only took into account the injury to her knee, not her complaints about her back injury following the March 12, 2004, accident. LCMH offered Mrs. Charles a position to return to work on January 10, 2005. When she failed to return to work, they terminated Mrs. Charles’ benefits.

Mrs. Charles filed a disputed claim for compensation on November 29, 2004, | ¡.alleging she injured her back when she was shocked while undergoing physical therapy for her knee. LCMH filed an answer denying that an accident occurred on March 12, 2004. A trial before the workers’ compensation judge (WCJ) was held on June 22, 2006, after which the WCJ took the matter under advisement. On September 26, 2006, the WCJ issued a judgment in favor of Mrs. Charles. In oral reasons for ruling dated October 2, 2006, she found that an accident occurred on March 12, 2004, that the accident caused aggravation of Mrs. Charles’ preexisting back condition, and that LCMH failed to reasonably controvert the claim. She awarded Mrs. Charles “all back payments,” as well as $2,000.00 in penalties and $6,000.00 in attorney fees.

LCMH now appeals that judgment, and Mrs. Charles has answered that appeal.

ASSIGNMENTS OF ERROR

The appellant, Lake Charles Memorial Hospital, asserts three assignments of error:

1. The trial court committed manifest factual error in finding that plaintiff received personal injury by accident arising out of and in the course of her employment with LCMH.

2. The trial court committed a reversible, prejudicial legal error in admitting into evidence the August 30, 2005 letter from plaintiffs counsel to Dr. Bernauer.

[574]*5743. The trial [court] erred in finding that LCMH failed to reasonably controvert plaintiffs claim and, thus, erred in awarding penalties and attorney fees.

The appellee, Sheryl Charles, answers the appeal, seeking attorney fees for work done on this appeal.

DISCUSSION

The first assignment of error involves the issue of whether an accident actually occurred on March 12, 2004. The WCJ found that an accident occurred. This is a ^finding of fact subject to review under the manifest error standard. Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112.

Mrs. Charles testified that while she was receiving electric stimulation to her knee, she suddenly felt a surge of pain all through her body. This pain caused her to scream and writhe on the treatment table. The physical therapist, Jerry Stillwell, testified that he heard Mrs. Charles scream, but his back was turned when she did, so he did not see her move. He testified that Mrs. Charles was grabbing at her shirt. He also stated that before he turned the machine off, there was an error code, though he did not record it. Mrs. Charles’ blood pressure increased, and she was taken to the emergency room until it returned to normal. All of this information was confirmed by Mr. Stillwell’s notes taken on March 12, 2004.

Bill Wilkie, the safety officer for LCMH, conducted an investigation of the incident. He testified that he was unable to duplicate the situation that Mrs. Charles claims occurred. He contacted the manufacturer of the device, and they could not explain the incident either. Based on this information, LCMH determined there was no accident. After she was released to go back to work regarding the original injury and failed to do so, Mrs. Charles’ worker’s compensation benefits were terminated.

The WCJ found Mrs. Charles’ story to be credible and the testimony of Mr. Still-well corroborated her version of events. We find there is ample evidence to support the finding of the WCJ that an accident occurred on March 12, 2004. Thus, there is no manifest error in this conclusion by the WCJ. This assignment of error lacks merit.

The second assignment of error concerns the admission of evidence. “The trial judge is accorded vast discretion concerning the admission of evidence, and his | ¿decision will not be reversed on appeal absent an abuse of that discretion.” Foster v. Rabolais Masonry, Inc., 01-1394, p. 6 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1164, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citation omitted).

The WCJ admitted a letter offered into evidence by Mrs. Charles over the objection of LCMH. The letter was written by Mrs. Charles’ attorney to Dr. Dale Ber-nauer, who treated Mrs. Charles’ back injuries which she claims arose out of the March 12, 2004 accident. The letter provided some background on the incident and then posed four questions, including a question about causation. The letter includes short handwritten notes, presumably from Dr. Bernauer, answering the questions posed. The letter is signed by Dr. Bernauer.

LCMH objected to the introduction of the letter, arguing that it was not competent evidence since it was not an affidavit or testimony under oath. Section 6209 of the Office of Workers’ Compensation (OWC) Hearing Rules states:

Expert medical testimony may be admitted by:
A. Reports of any health care provider certified as a true copy in accor[575]*575dance with the Louisiana Revised Statutes 13:3715.1.
B. Deposition.
C. Oral examination in open court proceedings; however, no more than two physicians may present testimony for either party except by order of the judge.
D. Any other manner provided by law.

The letter is not a certified copy of a medical report, a deposition, or an oral examination in open court.

Mrs. Charles argues that LCMH did not object to the letter within ten days of receiving it in September 2005, thus it is deemed admitted pursuant to OWC Hearing Rules section 5933(B). This section applies only to medical reports, and this letter is not a medical report. Thus, this section does not apply.

| ^Secondly Mrs.

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Bluebook (online)
959 So. 2d 571, 6 La.App. 3 Cir. 1590, 2007 La. App. LEXIS 1075, 2007 WL 1545663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-v-lake-charles-memorial-hospital-lactapp-2007.