Cousin v. Slidell Memorial Hospital

857 So. 2d 576, 2002 La.App. 1 Cir. 2600, 2003 La. App. LEXIS 2559, 2003 WL 22220117
Louisiana Court of Appeal·Decided September 26, 2003·No. No. 2002 CA 2600·Published·Cited by 2 cases

Opinion

GAIDRY, J.

Plaintiff, Curtis Cousin, claims that he was injured in the course and scope of his employment with Slidell Memorial Hospital. The Office of Workers’ Compensation (OWC) judge, Robert Varnado, Jr., denied Cousin’s claim after finding that Cousin failed to carry his burden of proof that an accident occurred, and Cousin appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Cousin claims that several hours into his shift on August 15, 2001, while using a stripping machine to remove wax from the floors at Slidell Memorial Hospital, he injured his neck. According to Cousin’s trial testimony, he was tilting the stripping machine to get some wax up when the machine lurched forward, jerking him. He felt a pop in his neck with immediate onset of neck and shoulder pain. He continued to perform his duties and did not immediately report an accident or injury to his supervisor because he did not think anything of it. Some time later, he was having a “slight pain” in the area where he felt the pop, so he approached a nurse. He did not tell the nurse what had happened, but instead requested Tylenol for a headache. He then went back to work stripping the floors, but was only able to work approximately thirty more minutes because he began experiencing a stiffening and pain in the area where he had felt the pop. He became scared that he was having a heart attack because his brother had died at a young age from heart problems, so he went to look for his supervisor, Gilbert Rhodes. While looking for Rhodes, he ran into nurse Christell Olivo and told her that he was scared and asked her about the pain running down his left side. Cousin testified that, “to his knowl[578] edge,” he told Olivo that the pain had labegun while he was operating the stripping machine. Olivo then escorted him to the emergency room and presented him to the triage nurse, Barbara Boles. Cousin initially testified that he was scared that he was having a heart attack and could not recall what he told Boles about his pain or how it began. Later, he testified that he did not know why he had been checked out for heart problems in the emergency room because he did not tell anyone that he thought he might be having a heart attack. He admitted on cross-examination that as far as he knows he did not tell Boles that he had been stripping floors when the pain began, but contradicted his earlier testimony by stating that he told Boles that he felt a pop in his neck, which caused the onset of the pain.

Cousin testified that Rhodes came to see him once while he was in the emergency room. Cousin testified that Rhodes stuck his head in the curtain and asked him how he was doing, he replied that he was fine, and Rhodes left. He said that he did not tell Rhodes what had happened because Rhodes did not ask him. Cousin testified that he did not ask to fill out an accident report that night because that was Rhodes’ job, not his. Cousin admitted that he had been instructed to fill out a First Report of Injury immediately after an incident that caused pain, and in fact had filled out such a report immediately after a previous work-related injury, but did not do so in this case because “it wasn’t no pain. Wasn’t that great of pain.”

When Cousin was discharged from the emergency room at five o’clock the following morning, he went home without speaking to anyone about the accident or how it occurred. Cousin claimed that he called Michael Parker the next morning to report the accident. He stated that he told Parker about the stripping machine, but not the pop in his neck, and Parker told him to fill out a report.

|4Cousin went to see Dr. Clinton Sharp, his family physician, on August 17, 2001, two days after the alleged accident, complaining of left shoulder and arm pain. He told Dr. Sharp at this time that the pain had started while he was operating a stripping machine and that he had gone to the emergency room. Dr. Sharp did a chest x-ray, which was normal, and recommended that Cousin have an MRI, which was not done.1

On August 24, 2001, Cousin went to see Dr. Miguel Culasso at the Instant Family Care Medical Center complaining of pain in his left arm, which had begun on August 15, 2001 when he was at work stripping floors and felt a pop in his left shoulder. This is the first time that Cousin mentioned the pop to anyone.

Cousin ultimately was referred to Dr. Gutnisky, a neurosurgeon, who performed a cervical fusion and discectomy. Dr. Gut-nisky testified that there is no way to tell, other than by the history given by Cousin, whether his herniated disc was caused by a degenerative condition or a traumatic injury-

It is uncontested that Cousin had preexisting problems with his neck. On July 25, 2001, Cousin went to the VA Hospital complaining of intermittent neck pain over a period of two weeks and a headache in the back of his head and upper neck lasting for three weeks. On August 9, 2001, Cousin went to Dr. Sharp complaining of neck pain and stiffness and numbness in his hands. Dr. Sharp diagnosed him with [579] cervical arthralgia. Cousin testified that his pre-existing neck problem was different from the pain he had after the accident and also that the pre-existing neck problem had been fully resolved by the time of the accident.

At trial, evidence was presented that contradicted Cousin’s testimony. Nurse Christell Olivo testified that Cousin approached her in the hallway of | Bthe hospital and told her that he was having left arm, neck, and chest pain. She testified that she does not recall Cousin indicating to her what he was doing when the pain began, but did state that if Cousin had told her that he was operating a stripping machine and felt a pop in his neck and the onset of pain, she would not have suspected a heart problem and would have instructed him to file an accident report.

Barbara Boles, the triage nurse, testified that Cousin presented to her complaining of “left chest pain, to his neck, down his left shoulder, and left arm.” He told her that he had been having these symptoms for three days. When asked if anything relieved the pain he was experiencing, Cousin told Boles that sitting and relaxing helped. Furthermore, when asked if he had been involved in any kind of accident, Cousin denied injury. Boles testified that Cousin did not tell her about the pop he felt in his neck while he was operating the stripping machine, and if he had, she would have indicated on her report that this was a work-related illness and that he was a Workwise client and would have advised him to fill out an accident report. If he had even mentioned that he had been stripping floors when the pain began, without mentioning the pop, she still would have taken these additional actions.

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Cousin v. Slidell Memorial Hospital, 857 So. 2d 576, 2002 La.App. 1 Cir. 2600, 2003 La. App. LEXIS 2559, 2003 WL 22220117 (La. Ct. App. 2003).

857 So. 2d 576 (Cousin v. Slidell Memorial Hospital) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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