Dunlap v. Madison Parish School Board

61 So. 3d 833, 2011 La. App. LEXIS 426, 2011 WL 1380022
CourtLouisiana Court of Appeal
DecidedApril 13, 2011
DocketNo. 46,139-WCA
StatusPublished
Cited by9 cases

This text of 61 So. 3d 833 (Dunlap v. Madison Parish School Board) 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
Dunlap v. Madison Parish School Board, 61 So. 3d 833, 2011 La. App. LEXIS 426, 2011 WL 1380022 (La. Ct. App. 2011).

Opinion

STEWART, J.

| Plaintiff-Appellant, Marie Carter Dunlap, is appealing a judgment rendered in favor of DefendanL-Appehee, Madison Parish School Board (hereinafter referred to as “school board”). For the following reasons, we amend with remand and affirm as amended.

FACTS

Dunlap was employed as a cafeteria worker for Madison Parish Middle School in Tallulah, Louisiana for approximately 20 years. She also worked part time for Delta American Health Care from March 27, 2005, to February 27, 2008.

On October 13, 2005, she was injured at work while working at Madison Parish Middle School when a hanging iron mixing bowl, weighing approximately 13 pounds, fell on her. Dunlap was later diagnosed with bilateral carpal tunnel syndrome, migraine headaches, and depression on April 3, 2008. On October 17, 2008, she filed a [835]*835disputed claim for compensation, seeking permanent total disability benefits, or in the alternative, supplemental earnings benefits, the payment of medical expenses, an order reopening case # 05-07968,1 attorney fees and penalties, and court costs.

The trial on this matter was held on-June 19, 2009. At trial, Dunlap argued that she continued to suffer from headaches and blurred vision from her 2005 accident. She also claimed that she also suffered from depression as a result of the 2005 accident.

|2The school board alleged that any indemnity benefits due for claimant’s head injury of October 13, 2005, had prescribed. Additionally, the school board asserted that there is no medical evidence to support Dunlap’s contention that any of her current conditions are related to the October 13, 2005, accident.

On September 28, 2009, the Worker’s Compensation Judge (hereinafter referred to as “WCJ”) determined that during the trial, the parties stipulated to:

1. Dunlap’s average weekly wage of $243.02 and corresponding weekly indemnity of $162.02;
2. Payment of outstanding medical expenses for the 2008 injury, if found to be related;
3. Payment of court costs related to the filing fees;
4. The school board failed to timely approve surgery for the bilateral carpal tunnel syndrome; and
5. A penalty of $1,000.00 and an attorney fee of $5,000.00 was to be paid to resolve past and future fee and penalty claims relating to this claim due to the lapse in time between the recommendation for surgery and its approval.2

The WCJ ruled that Dunlap’s migraine headaches, vision problems, neck problems, depression and obesity were not related to the accident that occurred in 2005. She also found that Dunlap was not entitled to compensation benefits arising from the loss of her second job as a sitter, because she was hired to sit only with her mother who had passed away. After Dunlap’s motion for a new trial was denied, the instant appeal ensued.

JjLAW AND DISCUSSION

CAUSATION

In her first assignment of error, Dunlap asserts that the WCJ erred in determining that her migraine headaches, vision problems, neck problems, depression and obesity were not related to the October 13, 2005, accident.

In a workers’ compensation case, the appropriate standard of review to be applied by the appellate court to the WCJ’s finding of fact is the manifest error or clearly wrong standard. Dean v. South-mark Const,, 03-1051 (La.7/6/04), 879 So.2d 112. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Harris v. Casino Magic, 38,137 (La.App.2d Cir.1/28/04), 865 So.2d 301. Unless shown to be clearly wrong, the WCJ’s factual findings of work-related disability will not be disturbed where there is evidence which, upon the trier of fact’s reasonable evaluation of [836]*836credibility, furnishes a reasonable, factual basis for those findings. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Blanson v. GM Inland Fisher Guide, 33,498 (La.App. 2 Cir. 6/23/00), 764 So.2d 307.

An employee is entitled to worker’s compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, Inc. 2002-1539 (La.7/2/03), 851 So.2d 1135; Scott v. Super 1 Foods, 45,636 (La.App. 2 Cir. 9/29/10), 48 So.3d 1133. 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. 23:1021(1). Although the worker’s compensation law is liberally construed in favor of coverage, the claimant’s burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred and the resulting disability is related to an on-the-job injury. McLin, supra; Hofler v. J.P. Morgan Chase Bank, N.A. 46,047 (La.App. 2 Cir. 1/26/11), 57 So.3d 1128. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Key v. Insurance Company of North America, 605 So.2d 675 (La.App. 2 Cir.1992).

An employee’s preexisting disease or infirmity does not disqualify her worker’s compensation claim, if the work-related injury either aggravated or combined with the disease or infirmity to produce the disability for which compensation is claimed. Poland v. Kroger, No. 404, 32,576 (La.App. 2 Cir. 12/8/99), 747 So.2d 711, writ denied, 2000-0853 (La.4/7/00), 759 So.2d 764. The causal connection between the disability and the on-the-job injury can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared, and there is ^sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and the disabling condition. Scott, supra.

When a claimant proves that before the accident he had not exhibited disabling symptoms, but that commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the activation of the disabling condition, a claimant’s work injury is presumed to have aggravated, accelerated or combined with any preexisting disease or infirmity to produce his disability. Kendrick v. Solo Cup, 44,303 (La.App. 2 Cir. 6/3/09), 15 So.3d 295; Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2 Cir.1991). 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, then the claimant fails to carry his burden of proof. Lubom, supra.

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61 So. 3d 833, 2011 La. App. LEXIS 426, 2011 WL 1380022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-madison-parish-school-board-lactapp-2011.