Freeman v. Best Western Richmond Suites Hotel

711 So. 2d 438, 97 La.App. 3 Cir. 1462, 1998 La. App. LEXIS 891, 1998 WL 195639
CourtLouisiana Court of Appeal
DecidedApril 22, 1998
Docket97-1462
StatusPublished
Cited by3 cases

This text of 711 So. 2d 438 (Freeman v. Best Western Richmond Suites Hotel) 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
Freeman v. Best Western Richmond Suites Hotel, 711 So. 2d 438, 97 La.App. 3 Cir. 1462, 1998 La. App. LEXIS 891, 1998 WL 195639 (La. Ct. App. 1998).

Opinion

711 So.2d 438 (1998)

Madlyn FREEMAN, Plaintiff-Appellee,
v.
BEST WESTERN RICHMOND SUITES HOTEL, Defendant-Appellant.

No. 97-1462.

Court of Appeal of Louisiana, Third Circuit.

April 22, 1998.

*439 Todd A. Townsley, Lake Charles, for Madlyn Freeman.

Mark Alfred Ackal, Lafayette, for Best Western Richmond Suites Hotel.

Before THIBODEAUX, COOKS and AMY, JJ.

THIBODEAUX, Judge.

Defendant-appellant, Best Western Richmond Suites Hotel, appeals a judgment from the Office of Workers' Compensation granting weekly indemnity benefits to an injured employee, Madlyn Freeman. The judge found that Freeman proved by a preponderance of the evidence that an unwitnessed, work-related accident occurred, and that she did not make willful misrepresentations that would cause her to forfeit benefits pursuant to La.R.S. 23:1208 or La.R.S. 23:1208.1. We find that the workers' compensation judge was not manifestly erroneous. Indeed, she was manifestly correct. Therefore, the judgment appealed from is affirmed.

I.

ISSUES

The issues presented for resolution of this appeal are:

1. whether Freeman failed to answer truthfully about prior back injuries before beginning employment with Best Western, so as to forfeit her right to receive benefits pursuant to 23:1208.1;
2. whether Freeman failed to answer truthfully about prior back pain or injuries after the on-the-job injury allegedly occurred, so as to forfeit her right to receive benefits pursuant to 23:1208; and,
3. whether Freeman proved by a preponderance of the evidence that an unwitnessed, work-related accident occurred.

II.

FACTS

Madlyn Freeman alleges that she sustained a herniated disc in her lower back during the course and scope of her employment as a housekeeper at the Best Western Richmond Suites Hotel in an unwitnessed accident on June 16, 1996. Freeman claims to have felt a "pop" in her lower back and began to experience severe pain when she attempted to arise from her knees after cleaning a bathtub at work that morning. *440 She reported to the executive housekeeper on duty, Alberta Dixon, that she could not continue to work because of the pain in her back. Dixon permitted her to go home.

Freeman visited the emergency room at West Calcasieu-Cameron Hospital on the morning of June 17, 1996. She continued to experience significant back pain that week, so she went to the emergency room at Moss General Regional Hospital on June 21, 1996, where she was diagnosed as having sustained a herniated disc at L5-S1 by an emergency room physician. She was directed to remain off work until the condition improved. Freeman has not returned to work since June 16.

Charlotte Fontenot, general manager for Best Western, was contacted by Freeman's attorney on June 27, 1996 and asked to approve payment of medical expenses for Freeman. Fontenot found that an injury report had not been completed and also stated that she was not aware of a work-related injury having occurred. Consequently, she did not approve payment at the time. Immediately thereafter, Fontenot conducted a brief investigation of the matter.

First, she contacted executive housekeepers Gustavia Duhon and Alberta Dixon. Dixon was on duty on June 16th and stated that although she was aware that Freeman had not returned to work since the day she left complaining of back pain, Freeman had not reported to her that she had hurt herself while working. Duhon stated that she spoke with Freeman on June 17th and was only told by Freeman that she would not be in that day because her back was hurting "really bad." She told Fontenot that Freeman never mentioned that she hurt her back at work. Dixon added that approximately one week after Freeman was hired, she asked for a back support belt. Dixon asked Freeman if she had back problems but Freeman only responded that her back had flared up again. Fontenot then spoke with Nell Chapman, a housekeeper assigned to work with Freeman on June 16th. Chapman stated that Freeman arrived late for work that morning with bloodshot eyes, that she moved slowly, and complained that she did not feel well and that her back was hurting. Chapman also reported that Freeman stated she had been zydeco dancing the night before. This was contradicted at trial by Freeman's own testimony and that of her daughter. They both contend that Freeman did not go zydeco dancing that night, but remained home the entire evening and socialized with her daughter and a few friends until approximately midnight.

Freeman's personnel records show that she was hired on May 31, 1996 after passing the company's preemployment physical and after completing a medical history questionnaire and a second injury fund questionnaire. On both forms she denied having a history of any back pain or injury.

Claims adjuster Philip Moory of Summit Consulting Claim Center investigated Freeman's claim. Moory questioned four persons who worked with Freeman at the Chateau Charles Hotel prior to her employment at Best Western. They all told him, and later testified, that they had either heard or witnessed Freeman complaining of back pain while working there, although she was always observed as being able to perform her job duties well. Moory, however, concluded that Freeman's complaints were evidence of the existence of back problems or pain before beginning her employment with Best Western, and surmised that her responses on the preemployment questionnaires, in which she denied a history of back problems, were untruthful and, thus, a violation of La.R.S. 23:1208.1. He also believed that it was more probable that Freeman had injured herself on the night of June 15th while zydeco dancing and was already in pain when she arrived at work on June 16th, which is why she did not immediately report the occurrence of the injury to her supervisors.

Moory took a recorded statement from Freeman on August 12, 1996, shortly before a scheduled mediation conference was held. Freeman continuously denied having prior back problems or pain or ever having made complaints regarding back pain or injury. He concluded that her responses were untruthful and were being made in order to obtain benefits and, therefore, she had effectively forfeited her right to receive workers' compensation benefits according to La.R.S. 23:1208, as well.

*441 On February 4, 1997, Freeman was seen by Dr. Frank Robbins for treatment of the pain she was continuing to experience. Dr. Robbins has been practicing medicine since 1952, is board qualified in surgery and emergency medicine, and has performed operative orthopaedics as a part of his surgical practice since the 1950s. Dr. Robbins was the only medical doctor to testify at trial and was accepted by the court as an expert witness.

He testified that his examination of the patient revealed a parasential herniated disc at the L5-S1 level, and he attributed the disc herniation to the bending and straining activity Freeman engaged in on June 16, 1996, while cleaning a bathtub at work. Dr. Robbins testified that a person can experience localized back pain for weeks or months, with the fibrous band becoming weakened and finally herniating, and it was very probable that it occurred in this case as a result of Freeman's actions in cleaning the bathtub on June 16, 1996. His review of medical records from the hospitals previously attended by Freeman, failed to establish a record of any sort of back problems prior to June 16th, and further served to buttress his opinion. Dr.

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711 So. 2d 438, 97 La.App. 3 Cir. 1462, 1998 La. App. LEXIS 891, 1998 WL 195639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-best-western-richmond-suites-hotel-lactapp-1998.