Douglas v. Heart's Desire, L.L.C.

108 So. 3d 826, 2013 WL 163480, 2013 La. App. LEXIS 48
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2013
DocketNo. 47,596-WCA
StatusPublished

This text of 108 So. 3d 826 (Douglas v. Heart's Desire, L.L.C.) 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
Douglas v. Heart's Desire, L.L.C., 108 So. 3d 826, 2013 WL 163480, 2013 La. App. LEXIS 48 (La. Ct. App. 2013).

Opinion

BROWN, Chief Judge.

| defendant, Heart’s Desire, L.L.C., appeals from the judgment of the Workers’ Compensation Judge (“WCJ”) finding that claimant, Barbara Douglas, proved by a preponderance of the evidence that she suffered a work-related accident. For the reasons stated herein, we reverse that judgment.

Facts and Procedural Background

Claimant, Barbara Douglas, filed a claim for benefits under the Louisiana Workers’ Compensation Act against her employer, defendant, Heart’s Desire, L.L.C. Defendant provides home services to individuals requiring house cleaning, bathing assistance, food preparation, transportation, and other services that are not of a medical nature. Claimant had been employed by defendant to work as a sitter, and she had worked in that capacity for approximately one year. At the time of the alleged accident, January 17, 2011, claimant was assisting her patient, Vicky McElroy, exit a vehicle. Mr. McElroy slipped, and in the process of helping him up, claimant states that she felt a “pop” in her back. Claimant continued to work as a sitter for Mr. McElroy and other clients until January 29, 2011, at which time she took herself off work.

Claimant sought medical treatment at E.A. Conway Medical Center on January 27, 2011. The hospital records for this visit reflect a complaint of numbness in the right thigh area for two weeks, with an indication of low back pain. The records, however, do not mention a work-related accident. Claimant, thereafter, informed her supervisor, Rita Isaac, of the alleged | ^work-related accident on January 31, 2011, and requested that workers’ compensation pay for her medical care.

On February 1, 2011, claimant underwent an EMG nerve conduction study at the Green Clinic in Ruston, Louisiana. The referring physician was Dr. Steven Venters of the Union General Rural Health Clinic in Farmerville, Louisiana, where claimant had long been a patient due to an extensive history of hip problems. The reason for claimant’s referral to the Green Clinic was listed as “numbness of lower extremities” by Dr. Venters and as “right thigh numbness and low back pain” by the Green Clinic. Based upon the results of the EMG nerve conduction study, Dr. Michael Ehrlich recommended that claimant undergo an MRI of her lumbar spine.

On February 3, 2011, claimant was seen by Lynette Wade, a nurse practitioner at the Union General Rural Health Clinic. Ms. Wade referred claimant to the Medical Center of South Arkansas for an MRI of her lumbar spine. The MRI was done on February 7, 2011, and showed a right fora-minal disc protrusion with mass effect upon the right L2 nerve root at level L2-3, and at L4-5 there is a broad disc bulge and small left foraminal protrusion without significant nerve root impairment, but with mild central canal stenosis. Thereafter, Ms. Wade made an appointment for claimant to see Dr. Counts at the Orthopedic Clinic of Monroe on February 21, 2011. When claimant reported for her appointment, however, the doctor refused to see her because the workers’ compensation carrier had denied her claim.

[828]*828This matter went to trial before the WCJ on February 9, 2012. At the conclusion of the trial the WCJ issued her ruling in open court. The WCJ | sfound that claimant had sustained her burden of proving a compensable accident; awarded temporary total disability benefits retroactive to the last date of employment; allowed claimant her choice of physicians in the field of orthopedics and neurology; ordered reimbursement of all out-of-pocket expenses paid as a result of the accident; and awarded a penalty of $2,000 against defendant for its failure to pay disability benefits; a penalty of $2,000 for defendant’s failure to approve medical treatment; and $7,500 in attorney’s fees.

Discussion

An employee is entitled to workers’ compensation benefits if she receives a personal injury by accident arising out of and in the course of her employment. La. R.S. 28:1031. An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 28:1021(1).

A claimant must prove by a preponderance of the evidence that an employment accident occurred and that the accident had a causal relationship to the disability claimed. Modicue v. Graphic Packaging, 44,049 (La.App.2d Cir.02/25/09), 4 So.3d 968. A causal relationship is established when the employee proves that before the accident she was in good health, but commencing with the accident the symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable possibility of causal connection between the accident and [4the disabling condition. Poland v. Kroger, No. 404, 32,576 (La.App.2d Cir.12//08/99), 747 So.2d 711, writ denied, 00-0583 (La.04/07/00), 759 So.2d 764.

If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to carry her burden of proof. Green v. Tompson Home Health, 46,593 (La.App.2d Cir.09/21/11), 73 So.3d 490, writ denied, 11-2460 (La.01/20/12), 78 So.3d 143. The trier of fact’s determinations as to whether a worker’s testimony is credible and whether the worker discharged her burden of proof are factual determinations, not to be disturbed upon review unless manifestly erroneous or clearly wrong. Id.; Lowe v. Skyjacker Suspensions, 45,058 (La.App.2d Cir.03/03/10), 32 So.3d 340.

In the case sub judice, claimant’s case consists of her testimony, the testimony of Mr. McElroy, and her medical records. Claimant testified that prior to the accident she had never experienced any back problems or pain, nor had she had any problems with her thigh. According to claimant’s stated time line of events, she went to Union General on January 12, 2011, complaining of right hip pain. On January 17, 2011, she hurt her back trying to help Mr. McElroy out of her car. She tried to work through the pain, but on January 27, 2011, it became so unbearable she had to go to E.A. Conway Medical Center. According to her, this was the first time she sought medical attention for her back and thigh following the accident. Claimant testified that at some point after her visit to E.A. Conway she took|fione her clients to Union General, where she encountered Ms. Wade. Claimant stated that Ms. Wade asked her why she was walking with a limp, and claimant informed [829]*829her about her right thigh numbness. As a result of this encounter, claimant testified, Ms. Wade arranged for the EMG/nerve conduction study to be administered at Green Clinic on February 1, 2011.

Our thorough review of the medical records, however, leads us to question the accuracy of claimant’s testimony. Dating back approximately 4 ½ years prior to the alleged accident, claimant’s records reflect multiple complaints involving her thigh and/or back. On November 3, 2006, Union General’s records reflect that Ms. Wade entered in the “Impression” section of her records “Sciatica.” On an October 31, 2008, Clinical SOAP Note, Ms.

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Related

Lowe v. Skyjacker Suspensions
32 So. 3d 340 (Louisiana Court of Appeal, 2010)
Modicue v. Graphic Packaging & Liberty Mutual Insurance Co.
4 So. 3d 968 (Louisiana Court of Appeal, 2009)
Poland v. KROGER, 404
747 So. 2d 711 (Louisiana Court of Appeal, 1999)
Green v. Thompson Home Health
73 So. 3d 490 (Louisiana Court of Appeal, 2011)

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Bluebook (online)
108 So. 3d 826, 2013 WL 163480, 2013 La. App. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-v-hearts-desire-llc-lactapp-2013.