Cook v. Dewey Rusk Flooring

642 So. 2d 234, 93 La.App. 3 Cir. 1643, 1994 La. App. LEXIS 2246, 1994 WL 417001
CourtLouisiana Court of Appeal
DecidedAugust 10, 1994
Docket93-1643
StatusPublished
Cited by7 cases

This text of 642 So. 2d 234 (Cook v. Dewey Rusk Flooring) 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
Cook v. Dewey Rusk Flooring, 642 So. 2d 234, 93 La.App. 3 Cir. 1643, 1994 La. App. LEXIS 2246, 1994 WL 417001 (La. Ct. App. 1994).

Opinion

642 So.2d 234 (1994)

William COOK, Plaintiff-Appellant,
v.
DEWEY RUSK FLOORING, Defendant-Appellee.

No. 93-1643.

Court of Appeal of Louisiana, Third Circuit.

August 10, 1994.
Rehearing Denied October 11, 1994.

*235 Dorwan Gene Vizzier, Alexandria, for William Cook.

Mark Alan Watson, Alexandria, for Dewey Rusk Flooring.

Before KNOLL, THIBODEAUX and SAUNDERS, JJ.

SAUNDERS, Judge.

This is a workers' compensation case. Plaintiff-appellant, William Cook, appeals from the judgment of the hearing officer in favor of his employer, defendant-appellee, Dewey Rusk Flooring, wherein it was held that plaintiff was not entitled to further indemnity benefits. Cook was found to be entitled to continued medical treatment relating to his elbow injuries as ordered by Dr. John T. Weiss, his treating physician. The hearing officer did not find these elbow injuries disabling. The hearing officer also found Cook to be entitled to reimbursement of the difference between a temporary total disability weekly benefit rate of $190.67 and the rate actually paid Cook, $160.00 per *236 week, together with legal interest from date of judicial demand until paid.

After our review of the record and appellate briefs, we do not find that the hearing officer clearly erred in the findings of fact or as a matter of law and thus, we affirm.

FACTS

On June 15, 1987, Cook was helping his employer, Dewey Rusk Flooring, lay flooring in a new classroom building being constructed at Louisiana State University in Baton Rouge, Louisiana. While laying the flooring on a second floor stairwell landing, plaintiff lost his balance and fell off that landing to the first floor level. Cook fractured both elbows in the fall and was treated by Dr. Weiss, an orthopedic surgeon. Dr. Weiss released the plaintiff to light duty approximately two months later, on August 11, 1987, and defendant's workers' compensation insurer paid Cook temporary total disability benefits until August 30, 1987.

After the August 11th visit, Cook did not return to Dr. Weiss until November of 1987, at which time Dr. Weiss released Cook to full work duty. Cook saw Dr. Weiss again in February and then in May of 1988, at which time Cook complained of vague soreness. Dr. Weiss recommended that Cook return in six months if he continued to have problems.[1] The record reflects that Cook's medicals were paid in December of 1988 for treatment by Dr. Weiss through 1988.

No further claims for medical treatment or expenses were made by Cook until the filing of this disputed claim on June 12, 1990. Cook claims that he is entitled to additional medical treatment for complaints related to his neck, as well as supplemental earnings benefits.

The hearing officer found that Cook failed to prove that he is entitled to any further benefits, with the exception of medical treatment for the original injury to his elbows in June of 1987.

ASSIGNMENTS OF ERROR

The crux of this case hinges on whether the hearing officer erred in finding that Cook was not entitled to medical benefits for his neck pain. Further, we must look at whether the hearing officer properly found that plaintiff was not entitled to supplemental earnings benefits after August 31, 1987.

June 16, 1987—May 1988:

Dr. Weiss, plaintiff's treating physician, first saw Cook June 16, 1987, and treated him for the fracture of the radial head in both elbows. Cook was seen again by Dr. Weiss on June 23 and 30, July 7 and 21, and August 11 of 1987, at which time Cook was told that he could return to light duty work and to come back in three weeks. He did not show up for his October 5, 1987, appointment but returned on November 9, 1987, at which time the left elbow had healed without problems, while the right elbow remained a little sore. At this time, he was released to full duty and told to return in three months. He returned on February 15, 1988, at which time Cook complained of some numbness in his left arm. Dr. Weiss sent him to Dr. Arsham Naalbandian, a neurologist, who saw him March 1, 1988. Dr. Naalbandian did a nerve conduction study and an EMG of the upper left extremity and cervical paraspinals. Dr. Naalbandian's examination revealed no abnormalities and was negative for any type of cervical or radicular problem, although he did find that the left ulnar nerve seemed a little sensitive. Cook's next visit to Dr. Weiss was in May of 1988. At this visit, Cook was sore but had good range of motion.

November 18, 1989/Shoulder Pain:

On November 18, 1989, one and one-half years after his last visit to Dr. Weiss, Cook went to the emergency room of Rapides Regional Medical Center at 3:00 a.m. and again around 6:00 p.m. complaining of pain in his right scapula muscle or shoulder area. His shoulder was x-rayed with negative findings and he was given a muscle relaxant and anti-inflammatory drugs. He was diagnosed as having a muscle strain. Cook did not return to Dr. Weiss, his treating physician at this time.

*237 As to the connexity between Cook's June 1987 elbow injury and November 1989 shoulder pain, the hearing officer found that "in view of his activities over the past sixteen months [prior to November of 1989] there is no way of relating these [November 18, 1989] spasms to his job injury of two and one-half years ago [June 15, 1987 to November 18, 1989]."[2]

The hearing officer found that these shoulder complaints, which first manifested in November of 1989, were unrelated to his job injury two and one-half years earlier, in June of 1987. Additionally, the hearing officer did not find Cook a credible witness stating that "this gentlemen will say whatever is necessary to obtain the results that he desires under any circumstances."

February 7, 1991/Neck Pain:

Cook was in jail from June 30, 1990, through January 28, 1991. Cook testified that he sought medical attention for his neck while in jail without success, although we note that he went to the hospital several times while in jail for an eye problem unrelated to this case. After his release from jail, Cook's attorney made him an appointment and he again saw Dr. Weiss on February 7, 1991. Dr. Weiss' notes reflect that Cook complained that he experienced pain in his left elbow, left arm and right neck base while in jail. This is Cook's first complaint of neck pain.

In support of his claim that he had injured his neck at the time of the accident, Cook testified that, on the day of the accident, his "chin was busted up and bleeding" and that the walk-in clinic "had put a butterfly stitch type thing in it here ... like a bandaid." By contrast, we note that the records of the Walk-In Medical Center, which Cook went to immediately after the accident, do not mention treatment of any cuts or abrasions to Cook's chin.

Dr. Weiss noted that Cook told him in February of 1991 that he had hit his chin on the concrete when he fell in June of 1987 and showed Dr. Weiss a "tiny little scar" on his chin. Dr. Weiss also noted that Cook had not mentioned any injury to his chin, when he examined him on June 16, 1987, the day after the accident. Dr. Weiss' notes make no mention of any complaint of neck pain until February 7, 1991.

Cook's February 7, 1991, visit to Dr. Weiss was his last. Dr. Weiss found the physical examination of Cook's neck unremarkable and the X-rays of Cook's neck taken February 7, 1991, all appeared quite normal with no instability. At this time, Dr. Weiss also x-rayed Cook's left elbow with normal results.

Dr.

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Bluebook (online)
642 So. 2d 234, 93 La.App. 3 Cir. 1643, 1994 La. App. LEXIS 2246, 1994 WL 417001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-dewey-rusk-flooring-lactapp-1994.