Connor v. Family Dollar Store

36 So. 3d 339, 2009 La.App. 1 Cir. 1537, 2010 La. App. LEXIS 458, 2010 WL 1170109
CourtLouisiana Court of Appeal
DecidedMarch 26, 2010
Docket2009 CA 1537
StatusPublished
Cited by12 cases

This text of 36 So. 3d 339 (Connor v. Family Dollar Store) 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
Connor v. Family Dollar Store, 36 So. 3d 339, 2009 La.App. 1 Cir. 1537, 2010 La. App. LEXIS 458, 2010 WL 1170109 (La. Ct. App. 2010).

Opinions

WHIPPLE, J.

I ¡/This matter is before us on appeal by defendant, Family Dollar Store (“Family Dollar”), from a judgment of the Office of Workers’ Compensation (“OWC”) in favor of claimant, Sylvia Connor, awarding her SEBs, past medical benefits, penalties and attorney’s fees. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The record discloses that on February 21, 2006, Connor was injured while in the course and scope of her employment with Family Dollar, where she was employed as the store manager and was earning an average weekly wage of $649.50. Specifically, while assisting a customer, Connor ascended a ladder to retrieve a mirror for a customer and injured her back while [343]*343descending the ladder with the mirror in hand. At the time of the accident, Connor had been working for Family Dollar for approximately eight months.

Prior to her employment with Family Dollar, Connor had sustained an injury in 2008, while employed at John’s Curb Market (a/k/a Bohning & Company, Inc.). At that time, Connor had been referred by her employer to Dr. Michael Dunn, a family practitioner, for treatment of her 2003 injury, who subsequently diagnosed her condition as a thoracic and lumbar strain. Dr. Dunn also referred Connor to Dr. Paul Van Deventer, an orthopedic surgeon, in 2003, due to continued complaints associated with Connor’s reflex sympathetic dystrophy and thoracic outlet syndrome. In a report dated December 18, 2003, Dr. Van Deventer had restricted Connor to sedentary/light duty employment. However, in January of 2004, Dr. Dunn released her to return to full-duty work at John’s Curb Market. Thereafter, Conner was consistently employed and worked until her 2006 injury.

In connection with the February 2006 accident and injuries, Family Dollar also referred Connor to Dr. Dunn for treatment. Dr. Dunn diagnosed her |scondition as a thoracic strain and placed her on modified duty. On June 20, 2006, Dr. Dunn released Connor, but with permanent restrictions of sedentary work and specific instructions that she sit at least thirty minutes of every hour. On July 10, 2006, Dr. Dunn continued Connor’s sedentary restrictions and recommended a consultation for pain management and rehabilitation. Instead, on July 25, 2006, Family Dollar referred Connor to Dr. Robert Steiner, an orthopedic surgeon, for a second opinion.

After evaluation, Dr. Steiner opined that Connor had sustained a thoracic strain/ sprain and recommended a bone scan of the chest and thoracic spine for further evaluation of her symptoms. After a bone scan was performed on August 18, 2006, Dr. Steiner issued a report, dated September 1, 2006, wherein he advised that he saw no objective evidence of injury to her thoracic spine and felt that Connor had achieved maximum medical improvement (“MMI”). Dr. Steiner agreed that Connor should be placed on lightysedentary work restrictions based on Dr. Paul Van Deven-ter’s 2003 orthopedic report and Connor’s previous history of thoracic outlet surgery, brachial plexus surgery, and surgery for reflex sympathetic dystrophy, but opined that these work restrictions were necessary as a result of her previous medical history, and not the February 21, 2006 accident.

Even before receiving Dr. Steiner’s report, on June “31,” 2006, Family Dollar generated a separation notice, which it placed in Connor’s personnel file, terminating her employment and stating as the purported reason that she “failed to return from a leave of absence.”1 Additionally, on October 16, 2006, Family Dollar terminated Connor’s benefits, contending that she had reached MMI and had been released from treatment for her injury. However, Connor’s pain had 14worsened at that point and had not improved. Because no further medical treatment was authorized by Family Dollar, Connor was forced to seek relief through emergency room visits.

[344]*344On October 30, 2007, Connor began treatment with a physician of her choice, Dr. Courtney Russo, an orthopedist at Audubon Orthopedics and Sports Medicine. Dr. Russo ordered a bone scan and an MRI of her lumbar, thoracic, and cervical spine. Thereafter, Dr. Russo opined that Connor had sustained a thoracic and lumbar strain as a result of the 2006 accident at Family Dollar. Based on these findings, Dr. Russo restricted her to sedentary work, recommended epidural injections and referred her to Dr. Patrick Waring for pain management. However, authorization for the recommended epidural injections and pain management referral was denied by Family Dollar’s workers’ compensation carrier, Risk Enterprise Management.

Connor filed disputed claims for compensation against her former employers for both the 2003 and 2006 accidents, which claims were consolidated before the OWC. Bohning <& Company, Inc. filed a cross claim against co-defendant, Family Dollar, denying any liability and contending that Connor’s injuries were sustained as a result of the 2006 accident at Family Dollar. On October 23, 2007, Bohning & Company, Inc. also filed a motion for summary judgment, contending that it was entitled to judgment in its favor because: (1) the thoracic/lumbar strain sustained by Connor in 2003 had completely resolved by April of 2004; (2) Connor had been asymptomatic upon her return to work; and (3) Connor had remained asymptomatic until her 2006 accident. The motion for summary judgment was initially denied by the OWC, but on January 15, 2008, Bohning & Company, Inc. re-urged its motion for summary judgment, based on the deposition of Dr. Steiner taken on November 10, 2008, during discovery. In the deposition, Dr. Steiner modified his previous opinion and concluded that | sConnor’s current problems were unrelated to the 2003 accident. Specifically, Dr. Steiner testified that when he had compiled his previous report, he was not aware that: (1) Connor had continued to work in a full-duty capacity following the 2003 injury; (2) Connor thereafter had only missed one week of work and had returned to full duty after the 2003 injury; (3) her back problems had resolved in that Connor had experienced no further back pain and no leg pain since January of 2004; and (4) Connor had continued to do heavy labor from April of 2004 until the accident of February 21, 2006. Based on this information, Dr. Steiner concluded that the sprain/strain Connor sustained in 2003 had resolved. Dr. Steiner candidly acknowledged that when preparing his previous report, he did not have any information concerning Connor’s symptomatology and work history between 2004 and 2006, and, thus, did not realize that she had been basically asymptomatic and working for two years before the 2006 accident. Thus, he concluded that “the diagnosis is thoracic strain as a result of the 2006 incident.”

Given this testimony, on January 28, 2009, the OWC granted the motion for summary judgment and dismissed Con-nor’s claim against Bohning & Company, Inc.2 However, despite the revised testimony of its own doctor, and the ruling of the OWC, Family Dollar steadfastly refused to pay or reinstate supplemental earnings benefits and medical benefits to Connor.

Thus, the matter proceeded to trial against Family Dollar on March 12, 2009. On May 7, 2009, the OWC rendered judgment, finding that Connor had sustained a compensable injury to her thoracic spine on February 21, 2006, as a result of an accident occurring in the course and scope [345]

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Connor v. Family Dollar Store
36 So. 3d 339 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
36 So. 3d 339, 2009 La.App. 1 Cir. 1537, 2010 La. App. LEXIS 458, 2010 WL 1170109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connor-v-family-dollar-store-lactapp-2010.