Darwin v. Paretti Imports, Inc.

138 So. 3d 1265, 13 La.App. 5 Cir. 764, 2014 WL 1921761, 2014 La. App. LEXIS 1260
CourtLouisiana Court of Appeal
DecidedMay 14, 2014
DocketNo. 13-CA-764
StatusPublished

This text of 138 So. 3d 1265 (Darwin v. Paretti Imports, Inc.) 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
Darwin v. Paretti Imports, Inc., 138 So. 3d 1265, 13 La.App. 5 Cir. 764, 2014 WL 1921761, 2014 La. App. LEXIS 1260 (La. Ct. App. 2014).

Opinion

JUDE G. GRAVOIS, Judge.

12AppeIIant/empIoyer, Paretti Imports, Inc. (“Paretti”), appeals a judgment rendered by the Office of Workers’ Compensation, District 7, awarding claimant/employee, Christopher Darwin (“claimant”), workers’ compensation benefits for psychological injuries sustained in a 2009 work-related accident, awarding claimant supplemental earnings benefits (“SEB”) from September 13, 2011 to December 1, 2011, and finding that claimant’s post-injury earning capacity was 50 percent of his pre-injury wages. Claimant answered the appeal, challenging the finding that claimant’s entitlement to SEB terminated on December 1, 2011. For the reasons that follow, we amend and affirm.

FACTS

On September 9, 2009, claimant, an automotive technician employed by Paretti, fell from a raised vehicle onto a concrete surface. Attempting to brace his fall, claimant extended his left arm in a “stiff arm” fashion and landed on his left palm. Claimant is left-handed. He initially experienced pain in his left elbow and received treatment the next day at East Jefferson General Hospital Occupational ^Medicine Clinic, where he was X-rayed, placed in a sling, and referred to an orthopedist. Around this time, in addition to the pain in his elbow, claimant began experiencing numbness in the ring and pinky fingers of his left hand. On September 14, 2009, Dr. Harold Stokes, the orthopedist, determined that claimant had sustained a radial head fracture to his left elbow, requiring surgery, which he performed the following day.

Following claimant’s recuperation from the surgery, on December 1, 2009, Dr. Stokes approved claimant’s return to work on full duty. Upon claimant’s return to work, Craig Diebold, Paretti’s service [1267]*1267manager, observed a decline of about 50 percent in claimant’s productivity, which he expected, as it would take time for claimant to re-acclimate himself to the physical rigors of the job, as well as learn new technical updates that occurred in his absence. However, claimant soon complained of discomfort in his left elbow, prompting Dr. Stokes to order a functional capacity evaluation (“FCE”), which was performed on February 1 and 8, 2010. The evaluation determined that claimant was capable of performing the work of a mechanic, but incapable of the lifting as claimant stated was required by his job. Based on claimant’s continued complaints of pain, a CT scan of his left elbow was conducted, which suggested the possibility that his fracture had not united. Claimant opted for surgery, which Dr. Stokes performed on April 20, 2010, wherein he replaced a portion of claimant’s left elbow joint with a prosthesis.

In June of 2010, claimant met with a clinical social worker, Anjeanne Weiss, complaining of stress, anxiety, depression, and trouble at work, among other things. Ms. Weiss referred claimant to another clinical social worker, Paul Shurte, for further therapy.

Meanwhile, upon claimant’s return to work following his second surgery, Mr. Diebold noticed an even further decline in claimant’s productivity, which he |4attributed to a lack of motivation on claimant’s part: “[I]t was like he just wasn’t motivated to get the next job. He wasn’t coming to pull the tickets.” “He would spend a lot of time sitting by his tool box and there was [sic] jobs stacking up. He just didn’t go get them.” Brian La-coste, the shop foreman, had a different assessment of the situation, testifying that upon claimant’s return to work after his injury, he put forth good effort and it was evident that he was trying. Additionally, claimant acknowledged that he was “sitting around some of the time,” but he explained this was on account of slow business: “When work does get slow on occasion, we go on basically a list for work.... [Y]ou have your name put on a list and as work comes in, they call you to come get it.”

Claimant again experienced discomfort in his left elbow and complained of numbness in the pinky and ring fingers of his left hand. On July 28, 2010, Dr. Stokes found irritation in claimant’s ulnar nerve, for which he recommended neurological testing. On August 5, 2010, a neurologist, Dr. Hugh Fleming, performed tests and found “moderate ulnar nerve slowing across [claimant’s] left elbow.” Over the next several weeks, the numbing sensation worsened, prompting Dr. Stokes to recommend surgery.

Prior to claimant’s third surgery, Elier Diaz, a vocational rehabilitation counselor, was retained on July 29, 2010 to assist claimant in overcoming his mental and physical disabilities in order to maximize his vocational potential. Also, on August 6, 2010, claimant met with the clinical social worker, Mr. Shurte, and continued to see him on a weekly basis for psychotherapy. After a couple of meetings, Mr. Shurte diagnosed claimant with “major depression” and recommended a psychiatric evaluation. Claimant met with a psychiatrist, Dr. John Bick, on September 1, 2010. Dr. Bick diagnosed claimant with “severe major depressive disorder,” recommended that he continue psychotherapy, and prescribed medication for him.

| ^Claimant underwent his third surgery on September 21, 2010. On December 20, 2010, Dr. Fleming performed neurological testing and found “marked improvement” in the condition of claimant’s ulnar nerve, a conclusion disputed by claimant who continued to experience numbness. On December 27, 2010, Dr. Stokes released [1268]*1268claimant to limited duty and restricted him to lifting no more than fifty pounds. Mr. Diebold and Mr. Lacoste testified that based on this fifty-pound restriction, there were no jobs in the shop that claimant was physically incapable of performing. They explained the heaviest object a mechanic would be required to lift without assistance is a rim and tire, which weighs approximately 30 to 40 pounds.

Sometime after claimant’s third surgery, in addition to the lingering pain in his left elbow and numbness in his fingers, claimant experienced pain radiating down from his neck. Believing he had a pinched nerve in his neck, claimant sought treatment from a chiropractor.

There is chronological confusion regarding claimant’s chiropractic treatment. The record indicates that claimant received chiropractic treatment for his neck on January 28, 2011. However, the record also reflects that a week before that, on January 21, 2011, in a meeting with Mr. Shurte, claimant informed Mr. Shurte that he had visited a chiropractor and that X-rays showed compressed disks in his neck. Furthermore, the record indicates that at claimant’s visit with Dr. Stokes on January 27, 2011, he informed Dr. Stokes of this chiropractic treatment. Despite this confusion, it is apparent that Mr. Shurte’s notes of January 21, 2011 are the first documented complaint of claimant’s neck pain.

Dr. Stokes, who had no prior knowledge of claimant’s neck pain, did not believe it was causally related to claimant’s September 9, 2009 injury. On February 3, 2011, claimant requested that Dr. Stokes fax a cervical MRI order to his workers’ compensation carrier for approval. On account of claimant’s | ficomplaints of neck pain, Dr. Stokes felt a cervical MRI was appropriate and so faxed a recommendation therefor.

On March 10, 2011, claimant underwent a second functional capacity evaluation, in which he demonstrated an ability to return to work as a mechanic with a limitation on his left arm to medium level work. One notable restriction recommended by the FCE was for claimant to avoid the repetitive lifting of more than 35 pounds from the ground. Following a meeting with Dr.

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Bluebook (online)
138 So. 3d 1265, 13 La.App. 5 Cir. 764, 2014 WL 1921761, 2014 La. App. LEXIS 1260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darwin-v-paretti-imports-inc-lactapp-2014.