Frelow v. Mills

647 So. 2d 475, 1994 WL 680266
CourtLouisiana Court of Appeal
DecidedDecember 7, 1994
Docket94-799
StatusPublished
Cited by7 cases

This text of 647 So. 2d 475 (Frelow v. Mills) 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
Frelow v. Mills, 647 So. 2d 475, 1994 WL 680266 (La. Ct. App. 1994).

Opinion

647 So.2d 475 (1994)

Betty FRELOW, Plaintiff-Appellant,
v.
Jeanerette MILLS, Defendant-Appellee.

No. 94-799.

Court of Appeal of Louisiana, Third Circuit.

December 7, 1994.
Writ Denied March 10, 1995.

*476 Randall Scott Iles, De Ridder, for Betty J. Frelow.

Samuel Robert Aucoin, Lafayette, for Jeanerette Mills, et al.

Before YELVERTON, THIBODEAUX and PETERS, JJ.

THIBODEAUX, Judge.

The plaintiff, Betty Jane Frelow, appeals a judgment of the Office of Workers' Compensation Administration in favor of her employer, Jeanerette Mills, d/b/a Martin Mills, Inc., which denied her temporary total disability benefits. The administrative hearing officer concluded that Ms. Frelow did not prove that a work-related accident occurred.

Because the evidence amply demonstrates that the hearing officer was manifestly erroneous, we reverse. Additionally, we award statutory penalties and attorney fees of $7,500.00 for the arbitrary and capricious conduct of the employer in its refusal to pay temporary total benefits and medical expenses.

ISSUE

The issue presented for review is whether the hearing officer committed manifest error in finding Betty Frelow's injury was not a compensable accident under the Louisiana Workers' Compensation Act.

FACTS

In October, 1992, Betty Frelow filed this workers' compensation claim against her employer, Jeanerette Mills, (d/b/a Martin Mills, Inc.) without benefit of counsel. Ms. Frelow filed a 1008 form, contending her back was injured on August 6, 1992, while on the job. On November 16, 1992, her employer answered, and denied Ms. Frelow's injury occurred in the course of her employment. On November 30, 1992, Ms. Frelow retained counsel. After trial, the hearing officer denied her claim, stating in part:

"Frelow was a long-time employee who had actually been, for a short time, a member of management as a trainer. The Court finds it absolutely inconceivable that Frelow did not know she had to report all *477 accidents at the work place to some member of management. And yet, on August 6, 1992, Frelow complained of pain in her neck and arm to her instructor, her supervisor, the plant nurse and the safety supervisor. She did not tell any of these people she had had an accident at work. She denied to the nurse that she had had an accident. In her 1008 and claim data she denies having an accident at work. In a recorded statement given to Carol Wright, an insurance adjuster, on August 12, 1992 she denied having an accident at work. When she first saw Dr. Falterman on August 6, she did not given [sic] him a history of an accident at work. The same is true for her initial visit to Dr. Rivet (Rivet Deposition, page 10, lines 2-18).
The Court finds that Frelow's trial testimony concerning the alleged accident of August 6th was contradictory, less than credible and not supported by contemporaneous events. The testimony of her witnesses was also confusing and contradictory.
Therefore, the Court finds that Frelow has failed to show by a preponderance of the evidence that she was involved in a work related accident on August 6, 1992 in which she was injured and incurred a consequent disability."

Beginning in 1977, Ms. Frelow worked as a set sleeve seamstress at Jeanerette Mills for approximately two years. In 1981, Ms. Frelow returned to Jeanerette Mills and worked as a set sleeve seamstress until she was injured on August 6, 1992. Ms. Frelow has never participated in a civil lawsuit or filed a workers' compensation claim. Ms. Frelow has not been in any accident or had any other work injury.

In her job at the mill, Ms. Frelow sewed sleeves onto t-shirts. A set sleeve seamstress lifts and pulls bundles of t-shirts and sleeves onto her work table, and then sews the shirts. The bundles weigh between two and fifteen pounds each. In June, 1992, Ms. Frelow began experiencing soreness in her neck. She attributed this to fatigue from the long hours she was working at the time. However, on August 6, 1992, while performing her regular duties, Ms. Frelow reached over, picked up a bundle and experienced severe pain and numbness in her left hand. At the hearing, Ms. Frelow described her pain as excruciating; she felt a snap in her neck, and she was frightened by the numbness in her hands.

Immediately after experiencing this pain, Ms. Frelow went to her fellow floor worker, Ruth Blunt, and told her that her hand and neck were hurting. Ms. Blunt told Ms. Frelow to see the plant nurse. Ms. Frelow then went to Gina Reaux, the nurse. According to Ms. Frelow, the nurse did not conduct any sort of examination, did not discuss her symptoms, and gave her Aspercreme for the pain. Ms. Frelow attempted to return to her sewing station, but the pain was severe, and she could not work.

Ms. Frelow then informed Larry Judice, her supervisor, and Jim LeBlanc, the plant's safety director, about her injury and complained of pain. They advised her that she could see a doctor but at her own expense. The same morning, Ms. Frelow went to Dr. James Falterman, the company doctor.

Ms. Frelow testified she told Dr. Falterman how she lifted bundles at work. Dr. Falterman diagnosed her problem as a pinched nerve, and recommended light duty work. Ms. Frelow attempted light duty for one week, but her neck pain increased. Dr. Falterman gave her a two week leave of absence; Ms. Frelow has been unable to work since August 6, 1992.

Ms. Frelow saw Dr. Falterman from August 6, 1992 through November 6, 1992. During her course of treatment, Dr. Falterman told Ms. Frelow to stop paying for his services, because her injury was work related. When his treatment plan was not successful, he recommended a neurosurgeon, Dr. J. Robert Rivet.

Dr. Rivet attempted a conservative treatment plan of physical therapy, heat, and traction. These treatments did not improve Ms. Frelow's pain. Dr. Rivet recommended a myelogram, a post-myelogram CT scan, and a discogram. The tests indicated Ms. Frelow had a herniated disc at C5-6, and Dr. Rivet recommended fusion. An anterior cervical *478 diskectomy and fusion were performed in December, 1992.

Following the operation, Ms. Frelow improved for a while, and then pain in her neck and left arm returned. At the time of trial, Ms. Frelow was experiencing pain three to four days a week. She attempted physical therapy for approximately two months. Her pain did not improve. Dr. Rivet recommended another myelogram and post-myelogram CT scan, but these tests were not approved by her major medical carrier. Ms. Frelow is still under her doctor's care, and cannot return to her former employment.

LAW AND ANALYSIS

La.R.S. 23:1021(1) defines accident as follows:

"(1) `Accident' means 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."

In this case, the record strongly establishes that an accident occurred which entitles Ms. Frelow to workers' compensation benefits.

The plaintiff-employee in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Bruno v. Harbert International, Inc. 593 So.2d 357 (La.1992).

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Cite This Page — Counsel Stack

Bluebook (online)
647 So. 2d 475, 1994 WL 680266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frelow-v-mills-lactapp-1994.