Friedley v. Alexander Electrical, Inc.

836 So. 2d 430, 2002 La.App. 1 Cir. 0292, 2002 La. App. LEXIS 3987, 2002 WL 31895090
CourtLouisiana Court of Appeal
DecidedDecember 20, 2002
DocketNo. 2002 CA 0292
StatusPublished
Cited by1 cases

This text of 836 So. 2d 430 (Friedley v. Alexander Electrical, 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.

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Friedley v. Alexander Electrical, Inc., 836 So. 2d 430, 2002 La.App. 1 Cir. 0292, 2002 La. App. LEXIS 3987, 2002 WL 31895090 (La. Ct. App. 2002).

Opinion

JgPETTIGREW, J.

In this case, defendants appeal a judgment of the Office of Workers’ Compensation finding that claimant’s preexisting condition was aggravated during the course and scope of her employment and awarding claimant supplemental earnings benefits and medical benefits. For the reasons that follow, we amend and affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Lisa Friedley, was employed by Alexander Electrical, Inc. to perform construction work. On December 6, 2000, as Ms. Friedley was attempting to cover and protect a threading machine from the rain, a co-worker walked behind her and accidentally struck her hand, knocking Ms. Friedley to the ground. Ms. Friedley was taken to the safety department, where she was told to go home and apply ice to her hand. She returned to work the following day, but was taken to a doctor1 who ordered x-rays of her hand. The doctor advised Ms. Friedley that she had a cyst on the fifth metacarpal of her left hand and recommended that she see a specialist. In the meantime, the doctor wrapped Ms. Friedley’s hand and sent her back to work with a light-duty restriction.

Ms. Friedley subsequently saw Dr. David Pope, an orthopedic surgeon. Dr. Pope diagnosed Ms. Friedley with a tumor on the fifth metacarpal of her left hand and recommended the tumor be removed. Dr. Pope then referred Ms. Friedley to one of his partners, Dr. Robert Brennan, an orthopedic surgeon who specializes in problems associated with the hand.

According to Dr. Brennan, the type of tumor on Ms. Friedley’s finger is not caused by trauma. Dr. Brennan explained that this type of tumor did not form over the course of a couple of days. Although Dr. Brennan indicated the tumor was probably benign, he noted that Ms. Fried-ley was at a high risk of fracturing the affected finger because of the weakened condition of the bone. Dr. Brennan al[433]*433lowed Ms. Friedley to continue to work, 13but advised her not to do any lifting and to take preventative measures when performing repetitive activities in order to avoid placing stress on her finger. Dr. Brennan testified that once the tumor was removed, Ms. Friedley would have a splint or cast on her hand for four to six weeks, followed by range of motion exercises.

Ms. Friedley testified that she experienced pain in her finger immediately following the December 6, 2000 accident and that she was told the pain would not subside unless the tumor was removed. Ms. Friedley indicated that since the accident, her left hand has been in a half-cast splint. From December 6, 2000 until January 30, 2001, at which time her employment was terminated, Ms. Friedley performed light duty work such as office work, running errands, answering the phone, and sweeping. According to Ms. Friedley, she has not been employed since January 30, 2001.

On February 16, 2001, Ms. Friedley filed a disputed claim for compensation seeking wage benefits and medical treatment. Following a hearing, the workers’ compensation judge found that Ms. Friedley injured her left hand in the course and scope of her employment by aggravating a preexisting tumor. In a judgment rendered on September 6, 2001, the workers’ compensation judge ordered as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that:
1. The claimant ... injured her left hand by accident in the course and scope of her [employment] with the defendant on December 6, 2000; said injury aggravated and made symptomatic a pre-ex-isting tumor.
2. The claimant is awarded Supplemental Earnings Benefits at the Temporary Total Disability rate from January 31, 2001 and continuing under the Act, together with legal interest of 8.241% on each installment's it came due until paid; said award totaling $9792.09, without interest, on the date of trial.
3. The claimant is awarded surgical removal of the tumor and all related costs under the fee schedule and all costs of these proceedings.
4. No penalties or attorney’s fees are awarded as the claim was reasonably controverted.

It is from this judgment that Alexander Electrical, Inc. and its insurer, CNA Insurance Companies (hereinafter collectively referred to as defendants), have appealed, assigning the following specifications of error:

|41. The workers’ compensation judge committed legal error in assigning a legal presumption that the plaintiffs tumor was caused by or worsened because of her employment, where the uncontra-dicted medical evidence from two ortho-paedic surgeons shows otherwise.
2. The workers’ compensation judge committed legal error in awarding workers’ compensation indemnity benefits in the complete absence of any evidence to support such an award.
3. The trial court committed manifest error in ordering the employer to pay for the surgical excision of a pre-existing tumor that was not worsened by any employment-related incident.

ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

Defendants argue that because both Dr. Berryhill2 and Dr. Brennan indicated that trauma could not cause the type of tumor on Ms. Friedley’s hand, the workers’ compensation judge erroneously ap[434]*434plied the causal presumption between the December 6, 2000 accident and the tumor. Defendants further contend that because there is no evidence that Ms. Friedley’s tumor was caused or worsened by a work-related injury, there is no factual or legal justification for them to be ordered to bear the cost of surgical removal of the tumor. While we note that the evidence is clear that such a tumor is not caused by trauma, the evidence also indicates that the effects of the tumor on Ms. Friedley’s finger did not become symptomatic until the December 6, 2000 accident.

The law is well established that an employer takes an employee as it finds her. The fact that disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. Barber Brothers Contracting Company v. Cuccia, 98-0675, p. 3 (La.App. 1 Cir. 4/1/99), 734 So.2d 820, 822, writ denied, 99-1258 (La.6/18/99), 745 So.2d 31. As noted by the supreme court in Doucet v. Baker Hughes Production Tools, 93-3087 (La.3/11/94), 635 So.2d 166 (per curiam), an employee’s disability is compensable if a preexisting condition or disease is activated or precipitated into a disability manifestation as a result of work:

A plaintiff-employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the j ¡^disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition. [Citations omitted]. This presumption is not a conclusive one; rather, it compels the defendant to come forward with sufficient contrary evidence to rebut it.

Doucet, 93-3087 at 3, 635 So.2d at 167-168 (citing Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829, 831 (La.1982)).

Ms. Friedley testified that prior to the December 6, 2000 accident, she had not experienced any problems with her hand.

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836 So. 2d 430, 2002 La.App. 1 Cir. 0292, 2002 La. App. LEXIS 3987, 2002 WL 31895090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedley-v-alexander-electrical-inc-lactapp-2002.