STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-1195
CLARA EVANS
VERSUS
HAMPTON INN
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, PARISH OF RAPIDES DISTRICT 02, NO. 06-03795 HONORABLE JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
J. DAVID PAINTER JUDGE
Court composed of Sylvia R. Cooks, J. David Painter, and Shannon J. Gremillion, Judges.
AFFIRMED.
Mark Ackal P.O. Box 52045 Lafayette, LA 70505-2045 Counsel for Defendant-Appellant: Hampton Inn
George A. Flournoy P.O. Box 1270 Alexandria, LA 71309 Counsel for Plaintiff-Appellee: Clara Evans PAINTER, Judge.
Defendant, Hampton Inn, appeals the workers’ compensation judge’s ruling in
favor of Clara Evans. The WCJ found that Evans established that her carpal tunnel
syndrome was related to her work activities, that she was entitled to medical benefits
including a carpal tunnel release surgery, and that she was entitled to temporary total
disability benefits. The WCJ further awarded penalties for failure to authorize
medical treatment and failure to pay indemnity benefits as well as attorney’s fees. For
the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Evans had been employed by Hampton Inn since September of 2004. In 2006,
she held the position of executive housekeeper. One of her duties included “deep
cleaning” bathrooms. This involved Evans getting down on her hands and knees and
scrubbing the tile floors in the bathrooms with a small brush. Evans usually “deep
cleaned” two rooms per day. Evans testified that she was right-handed. On May 8,
2006, Evans was seen at Huey P. Long Medical Center by Dr. Ernest Kelly for
complaints of right-hand pain which she reported had been bothering her for about
two months. According to Evans, her right hand would swell, go numb, and tingle.
She was diagnosed with cervical arthritis and given a volar splint for her right hand.
She was also given a work excuse from Dr. Kelly which indicated that she should be
placed on light duty for two weeks. She returned to work on May 9, and this was her
last day at work. Evans was sent home after a verbal argument with a co-worker and
told that there was no light duty work for her to do.
Evans testified that she reported an injury to her right hand from deep cleaning
the bathrooms to the assistant manager, Elaine Sparks, and that she told the manager,
1 Tarak Patel, that she was having problems with her right hand which she associated
with her housekeeping duties at the hotel. Sparks and Patel denied that they had been
told these things. Evans saw several physicians over the next few months. On
October 11, 2006, an EMG showed severe right carpal tunnel syndrome with mild C6
root irritation on the right side. On November 2, 2006, Evans’ physician, Dr. Clark
Gunderson, recommended a right carpal tunnel release. Dr. Gunderson opined that
Evans’ carpal tunnel syndrome was causally connected to or brought about by her
work activities.
Evans filed the instant disputed claim for compensation against Hampton Inn
seeking weekly indemnity benefits, medical treatment, and penalties and attorney's
fees. Hampton Inn denied all of Evans’ claims and further alleged that she forfeited
her right to receive any benefits due to her fraudulent statements. Following a trial
on the merits, the WCJ held that Evans had proven that her carpal tunnel syndrom
was work-related and was, therefore, entitled to temporary total disability benefits
retroactive to May 10, 2006 (subject to credit for vacation paid by Hampton Inn)1,
medical travel expenses, prescription expenses, and medical expenses without
discount per the fee schedule, and for all future work-related medical expenses
incurred after judgment pursuant to the fee schedule. The WCJ denied Evans’ claims
for sanctions but awarded $2,000.00 in penalties for failure to authorize medical
treatment and $2,000.00 in penalties for failure to pay indemnity benefits. Attorney's
fees in the amount of $5,000.00 were also awarded. Evans filed a motion for partial
new trial and a motion to recuse the WCJ. Both motions were denied. This appeal
1 We note that the judgment indicates May 11, 2007 as the date. However, this is inconsistent with the WCJ’s oral reasons for judgment.
2 was then perfected by Hampton Inn. We note that Evans has neither answered the
appeal nor filed her own appeal.
DISCUSSION
This court has recently noted:
The standard of review applied to factual findings in workers’ compensation matters is the manifest error standard. This standard, which is based upon the reasonableness of the factual findings in light of the record reviewed in its entirety, is well established in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993).
Lollis v. Shaw Global Energy Services, 07-395 p. 3 (La.App. 3 Cir. 10/03/07), 966
So.2d 1118, 1120. If the conclusions of the fact finder are reasonable in light of the
record reviewed in its entirety, we cannot reverse, even if we would have weighed the
evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).
Furthermore:
Generally, an injured employee is entitled to receive benefits for an injury that arises out of, and in the course of, his employment. La.R.S. 23:1031. Specifically, La.R.S. 23:1031.1 governs workers’ compensation claims for occupational disease. “An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” La.R.S. 23:1031.1(B). A claimant asserting an occupational disease must prove by a preponderance of evidence that there is a disability which is related to an employment-related disease, that the disease was contracted during the course of employment, and that the disease is a result of the work performed. Hymes v. Monroe Mack Sales, 28,768 (La.App. 2 Cir.10/30/96), 682 So.2d 871. The causal link between an employee’s occupational disease and work-related duties must be established by a reasonable probability. Id.
Rose v. Maison Deville Care Center, 05-1307, pp. 2-3 (La.App.3 Cir. 4/5/06), 927
So.2d 625, 627, writ denied, 06-1054 (La. 9/1/06), 936 So.2d 205.
3 This court has also recognized:
As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992):
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West,supra.
Lollis, 966 So.2d at 1120-21.
Louisiana Revised Statutes 23:1031.1 governs workers’ compensation claims
for occupational disease and provides, in pertinent part, as follows:
B.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-1195
CLARA EVANS
VERSUS
HAMPTON INN
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, PARISH OF RAPIDES DISTRICT 02, NO. 06-03795 HONORABLE JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
J. DAVID PAINTER JUDGE
Court composed of Sylvia R. Cooks, J. David Painter, and Shannon J. Gremillion, Judges.
AFFIRMED.
Mark Ackal P.O. Box 52045 Lafayette, LA 70505-2045 Counsel for Defendant-Appellant: Hampton Inn
George A. Flournoy P.O. Box 1270 Alexandria, LA 71309 Counsel for Plaintiff-Appellee: Clara Evans PAINTER, Judge.
Defendant, Hampton Inn, appeals the workers’ compensation judge’s ruling in
favor of Clara Evans. The WCJ found that Evans established that her carpal tunnel
syndrome was related to her work activities, that she was entitled to medical benefits
including a carpal tunnel release surgery, and that she was entitled to temporary total
disability benefits. The WCJ further awarded penalties for failure to authorize
medical treatment and failure to pay indemnity benefits as well as attorney’s fees. For
the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Evans had been employed by Hampton Inn since September of 2004. In 2006,
she held the position of executive housekeeper. One of her duties included “deep
cleaning” bathrooms. This involved Evans getting down on her hands and knees and
scrubbing the tile floors in the bathrooms with a small brush. Evans usually “deep
cleaned” two rooms per day. Evans testified that she was right-handed. On May 8,
2006, Evans was seen at Huey P. Long Medical Center by Dr. Ernest Kelly for
complaints of right-hand pain which she reported had been bothering her for about
two months. According to Evans, her right hand would swell, go numb, and tingle.
She was diagnosed with cervical arthritis and given a volar splint for her right hand.
She was also given a work excuse from Dr. Kelly which indicated that she should be
placed on light duty for two weeks. She returned to work on May 9, and this was her
last day at work. Evans was sent home after a verbal argument with a co-worker and
told that there was no light duty work for her to do.
Evans testified that she reported an injury to her right hand from deep cleaning
the bathrooms to the assistant manager, Elaine Sparks, and that she told the manager,
1 Tarak Patel, that she was having problems with her right hand which she associated
with her housekeeping duties at the hotel. Sparks and Patel denied that they had been
told these things. Evans saw several physicians over the next few months. On
October 11, 2006, an EMG showed severe right carpal tunnel syndrome with mild C6
root irritation on the right side. On November 2, 2006, Evans’ physician, Dr. Clark
Gunderson, recommended a right carpal tunnel release. Dr. Gunderson opined that
Evans’ carpal tunnel syndrome was causally connected to or brought about by her
work activities.
Evans filed the instant disputed claim for compensation against Hampton Inn
seeking weekly indemnity benefits, medical treatment, and penalties and attorney's
fees. Hampton Inn denied all of Evans’ claims and further alleged that she forfeited
her right to receive any benefits due to her fraudulent statements. Following a trial
on the merits, the WCJ held that Evans had proven that her carpal tunnel syndrom
was work-related and was, therefore, entitled to temporary total disability benefits
retroactive to May 10, 2006 (subject to credit for vacation paid by Hampton Inn)1,
medical travel expenses, prescription expenses, and medical expenses without
discount per the fee schedule, and for all future work-related medical expenses
incurred after judgment pursuant to the fee schedule. The WCJ denied Evans’ claims
for sanctions but awarded $2,000.00 in penalties for failure to authorize medical
treatment and $2,000.00 in penalties for failure to pay indemnity benefits. Attorney's
fees in the amount of $5,000.00 were also awarded. Evans filed a motion for partial
new trial and a motion to recuse the WCJ. Both motions were denied. This appeal
1 We note that the judgment indicates May 11, 2007 as the date. However, this is inconsistent with the WCJ’s oral reasons for judgment.
2 was then perfected by Hampton Inn. We note that Evans has neither answered the
appeal nor filed her own appeal.
DISCUSSION
This court has recently noted:
The standard of review applied to factual findings in workers’ compensation matters is the manifest error standard. This standard, which is based upon the reasonableness of the factual findings in light of the record reviewed in its entirety, is well established in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993).
Lollis v. Shaw Global Energy Services, 07-395 p. 3 (La.App. 3 Cir. 10/03/07), 966
So.2d 1118, 1120. If the conclusions of the fact finder are reasonable in light of the
record reviewed in its entirety, we cannot reverse, even if we would have weighed the
evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).
Furthermore:
Generally, an injured employee is entitled to receive benefits for an injury that arises out of, and in the course of, his employment. La.R.S. 23:1031. Specifically, La.R.S. 23:1031.1 governs workers’ compensation claims for occupational disease. “An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” La.R.S. 23:1031.1(B). A claimant asserting an occupational disease must prove by a preponderance of evidence that there is a disability which is related to an employment-related disease, that the disease was contracted during the course of employment, and that the disease is a result of the work performed. Hymes v. Monroe Mack Sales, 28,768 (La.App. 2 Cir.10/30/96), 682 So.2d 871. The causal link between an employee’s occupational disease and work-related duties must be established by a reasonable probability. Id.
Rose v. Maison Deville Care Center, 05-1307, pp. 2-3 (La.App.3 Cir. 4/5/06), 927
So.2d 625, 627, writ denied, 06-1054 (La. 9/1/06), 936 So.2d 205.
3 This court has also recognized:
As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992):
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West,supra.
Lollis, 966 So.2d at 1120-21.
Louisiana Revised Statutes 23:1031.1 governs workers’ compensation claims
for occupational disease and provides, in pertinent part, as follows:
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.
....
D. Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months' employment by a preponderance of evidence.
4 In this case, Hampton Inn argues that “the finding by the WCJ that Evans
sustained a work related accident that resulted in her injuries, specifically that her
carpal tunnel syndrome is work-related, is not supported by the record, is manifestly
erroneous, is clearly wrong and must be reversed.” We do not agree.
We first consider Hampton Inn’s argument that it is presumed that Evans’
carpal tunnel syndrome was not caused by her job duties because it manifested itself
less than twelve months after Evan became responsible for deep cleaning bathroom
floors. This presumption, however, is rebuttable and can be overcome if a claimant
can prove “by a preponderance of the evidence that the disease was contracted during
her employment, specifically proving that there is a disability which is related to an
employment-related disease, the disease was contracted during the course of
employment, and the disease is a result of the work performed.” Johnson v. Johnson
Controls, Inc., 38,495, p. 12 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 931-32 (citing
Ball v. Wendy’s Intern. Inc., 36,922 (La.App.2d Cir.03/05/03), 839 So.2d 1208, writ
denied, 03-0978 (La.05/30/03), 845 So.2d 1056). The WCJ can consider medical
reports admitted into evidence or expert testimony to determine whether a claimant
has overcome the presumption. Id. (citing Fite v. Louisiana Title Co., 02-2607 (La.
06/27/03), 852 So.2d 983). We further note that, in brief, Hampton Inn quotes
La.R.S. 23:1031.1 as reading “an overwhelming preponderance of the evidence” and
goes on to discuss the meaning of this phrase and the legislative intent involved.
However, Acts 2001, No. 1189, § 1, effective June 29, 2001, at the end of subsection
D, substituted “a preponderance” for “an overwhelming preponderance.” Therefore,
we find no merit in Hampton Inn’s argument that a higher burden of proof than
“preponderance” applies to this case where the injury occurred in 2006.
5 In any event, the WCJ made no mention of the presumption stated in La. R.S.
23:1031.1(D) in this case. However, the record shows that Evans’ symptoms
manifested themselves well within the initial twelve month period of her employment
as executive housekeeper. With this presumption in place, Evans had to prove by a
preponderance of the evidence that her carpal tunnel was contracted during her
employment. Evans did testify that she was required to deep clean bathrooms prior
to her promotion to executive housekeeper. Based on the record as a whole and the
deposition testimony of Dr. Gunderson, the WCJ concluded that Evans had carpal
tunnel syndrome caused by her housekeeping duties. Even though the WCJ may not
have considered the presumption in favor of Hampton Inn, we cannot say that the
final determination on this particular issue was in error, because we find no manifest
error in the WCJ’s conclusion that Evans suffered from carpal tunnel syndrome and
that she carried her burden of proving that her employment caused that condition.
Hampton Inn acknowledges that Dr. Gunderson opined that scrubbing floors
was the cause of Evans’ carpal tunnel syndrome. It asserts that this opinion was
based upon false and unreliable information provided to him by Evans. The WCJ
found Evans to be a credible witness and was in the best position to make this
determination. “A worker is not required to relate her history to a doctor with
mathematical precision and the imprecise histories given are insufficient to show
manifest error when the overall tenor of [plaintiff’s] complaints of pain as portrayed
in her medical records related the onset of symptoms to her work.” Johnson, 873
So.2d at 933. The medical records in this case show that Evans complained of right
hand pain and numbness dating back to April or May of 2006, and that she mainly
related it her job duties. Therefore, we find no manifest error in the trial court’s
6 conclusion that Evans’ carpal tunnel syndrome was related to her duties with
Hampton Inn.
Dr. Gunderson also opined that Evans was disabled and unable to work.
Hampton Inn submitted no evidence to the contrary. Therefore, we find no manifest
error in the WCJ’s conclusion that Evans is entitled to temporary total disability
benefits.
Hampton Inn also contends that Evans failed to prove the necessity of the
treatment and the causal connection between the treatment and the employment
related accident by a preponderance of the evidence such that the WCJ erred in
awarding medical benefits. Again, we do not agree. We have already found that
Evans proved that her carpal tunnel syndrome was related to her employment duties
at Hampton Inn. The totality of the records supports the WCJ’s finding that Evans
proved that she is entitled to recover her medical expenses and medical care.
Therefore, we find no manifest error in this ruling. Furthermore, we agree that since
Hampton Inn denied the claim from outset, it “is not entitled to rely on the fee
schedule benefits after making a total denial of the claim and forcing the claimant to
seek medical treatment unilaterally.” Smith v. Roy O. Martin Lumber Co., 03-1441,
p.8 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, 668, writ denied, 04-1311 (La. 9/24/04),
882 So.2d 1144.
Finally, Hampton Inn contends that the WCJ erred in awarding penalties and
attorney’s fees. The determination of whether an employer should be cast with
penalties and attorney’s fees is a question of fact, and the trial court's finding cannot
be disturbed absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930
(La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.10/13/00), 771
7 So.2d 650. “The employer has a continuing duty to investigate, assemble, and assess
factual information before it denies benefits.” Mitchell v. Alliance Compressors,
05-1186, p. 8 (La.App. 3 Cir. 4/5/06), 926 So.2d 127, 133. Here the WCJ found that
Hampton Inn failed to do a proper investigation and failed to send Evans to any
healthcare provider to obtain any medical information as to connexity and causality
of her carpal tunnel syndrome. We agree and find no manifest error in the award of
penalties or attorney’s fees.
DECREE
For the foregoing reasons, we affirm the judgment of the WCJ. Costs of this
appeal are assessed against Defendant-Appellant, Hampton Inn.