Glascock v. Georgia-Pacific Corp.

635 So. 2d 474, 1994 La. App. LEXIS 868, 1994 WL 116186
CourtLouisiana Court of Appeal
DecidedMarch 30, 1994
Docket25677-CA
StatusPublished
Cited by17 cases

This text of 635 So. 2d 474 (Glascock v. Georgia-Pacific Corp.) 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
Glascock v. Georgia-Pacific Corp., 635 So. 2d 474, 1994 La. App. LEXIS 868, 1994 WL 116186 (La. Ct. App. 1994).

Opinion

635 So.2d 474 (1994)

Winston W. GLASCOCK, Plaintiff-Appellee,
v.
GEORGIA-PACIFIC CORPORATION, Defendant-Appellant.

No. 25677-CA.

Court of Appeal of Louisiana, Second Circuit.

March 30, 1994.

*475 Kean, Miller, Hawthorne, D'Armond, McCown & Jarman by Brian F. Blackwell and Cynthia M. Chemay, Baton Rouge, for defendant-appellant.

Travis M. Holley & Associates by Travis M. Holley, Bastrop, for plaintiff-appellee.

Before SEXTON, NORRIS and BROWN, JJ.

NORRIS, Judge.

Mr. Winston Glascock filed a claim for worker's compensation on September 12, 1991 for a shoulder injury which occurred on June 1, 1990. The administrative hearing officer overruled appellant Georgia-Pacific Corporation's exception of prescription, finding that Glascock's injury did not become disabling until September 17, 1990, and awarded him temporary total disability benefits of $276 per week from September 15, *476 1990 through January 25, 1991, and thereafter, supplemental earnings benefits (SEBs) of $888.09 per month. Georgia-Pacific appeals the hearing officer's ruling on its exception of prescription and the award of SEBs. For the reasons expressed, we affirm.

Facts

Glascock is a 50 year old with low average intelligence, poor literacy, a tenth grade education (he later earned his GED with some difficulty), and has performed predominantly unskilled manual labor throughout his life. He held various unskilled positions during his 13-year employment with Georgia-Pacific and its predecessor Olinkraft. While working as a laminator helper in the finishing department, he developed severe pain in both wrists. By early 1990, the pain caused him to change to a lower-paying position making pallets. In June 1990, Glascock sustained a shoulder injury when he fell from a railroad car and grabbed a ladder with his left hand. He stated in deposition that he felt immediate pain, but was able to resume his job duties after approximately 30 minutes. Glascock Dep., June 9, 1992, p. 12. For this reason, he did not report the accident when it occurred. He also stated that he felt pain that evening, but "didn't pay much attention to it."

He worked through the pain, which worsened in the evenings. Eventually, on August 7, 1990, Glascock saw Dr. Warren Daniel for the shoulder pain. According to Glascock, Dr. Daniel gave him pain pills and he went back to work the next day. Still suffering pain, he then went to the emergency room at Glenwood Regional Medical Center on September 7 and saw Dr. Teri O'Neal, who diagnosed fibromyalgia and told him to apply heat and wear a sling for two days. Dr. O'Neal believed that Glascock could return to work on September 11. On September 10, Glascock saw Dr. Sidney Bailey who diagnosed tenderness in the subdeltoid bursa and injected the area with a local anesthetic and cortisone. Dr. Bailey told him to return to work the next day. Over the next few days, the pain became more severe, radiating down his entire arm. Glascock worked until September 14 when he was no longer physically able to perform his duties at Georgia-Pacific; he has not worked since. On September 17, Glascock was admitted to Glenwood where he was treated by Dr. Sidney Bailey and remained for four days. Dr. Bailey conducted numerous tests, including two MRIs, cervical spine x-rays, bone scan and arthrogram, but all proved negative. It was not until December 1990 that an incomplete tear of the shoulder rotator cuff tendons and a torn glenoid labrum were diagnosed and the frayed tendons and torn labrum were removed. Since the surgery, he has regained 90 percent of the normal range of motion in his shoulder. According to Dr. Bailey, he presently suffers from a 10 percent residual disability in his shoulder and has certain physical restrictions. At the end of January 1991, Dr. Bailey suggested that he perform only light sedentary activities below shoulder height. Even after additional strengthening, Dr. Bailey recommended that he lift no more than an occasional 15-20 pounds and frequent 5-10 above shoulder height. In Dr. Bailey's opinion, Glascock should not lift anything over 20 pounds above shoulder height.

Georgia-Pacific sent Glascock to Paul Procell, an occupational therapist, for an evaluation of his present physical abilities. Mr. Procell also noted certain physical limitations and suggested that he lift and handle 30 pounds only occasionally (0-33% of an 8 hour work day), 15 pounds frequently (34-66%) and 5-7 pounds constantly (67-100%). He imposed no restrictions on sitting, standing or walking in general.

Georgia-Pacific also requested an evaluation from Faerie Sledge, a disability case manager for Conservco, regarding work available to Glascock with his present disability. Ms. Sledge found that based on his past employment history, education, age, and the labor market in general, he could return to other unskilled, minimum wage, light duty work available in his geographic area.

Action of the hearing officer

On December 18, 1991, the hearing officer overruled Georgia-Pacific's exception of prescription, finding that Glascock sustained a developmental injury and his shoulder pain did not become disabling until September 17, *477 1990. Glascock's shoulder claim was never actually tried; it was submitted based on the transcript and proffers from a previously held hearing regarding his worker's comp claim for carpal tunnel syndrome, which he developed while working as a laminator helper at Georgia-Pacific.

In that case, the same hearing officer found Glascock temporarily and totally disabled from September 15, 1990, through January 15, 1991. The decision was based solely on Glascock's hand and wrist injuries; the hearing officer refused to consider any evidence pertaining to the shoulder injury. The hearing officer ordered Georgia-Pacific to pay Glascock $276 per week for the term of the carpal tunnel disability, related medical expenses, legal interest and costs and penalties, but declined to award SEBs based on a physician's testimony that he had sufficiently recovered from the carpal tunnel injuries and could return to his job making pallets. In an unpublished opinion, No. 24,203-CA, we upheld the finding that SEBs were not warranted "in light of the conflicting evidence regarding plaintiff's continued disability and his capacity for performing light duty work involving the repetitive use of his hands."

Similarly, in the instant case, after considering evidence regarding the shoulder injury, the hearing officer ordered Georgia-Pacific to pay temporary total disability benefits from September 15, 1990 through January 25, 1991 with credit for prior benefits paid. However, she specifically found that after January 25, the shoulder injury prevented Glascock from performing his pallet-making job, and he was only able to return to light duty, minimum wage work earning significantly less than 90 percent of his pre-accident wages. She awarded SEBs of $888.09 per month until he is physically capable of earning 90 percent of pre-accident wages or 520 weeks and all related medical expenses.

Georgia-Pacific appeals, asserting first, that Glascock did not suffer a developmental injury within the meaning of La.R.S. 23:1209 because he knew immediately after the accident that he was injured, and second, that he was not entitled to SEBs because he failed to prove that he was unable to earn 90 percent of his pre-injury wages.

Prescription

The findings of an administrative hearing officer in a worker's compensation case are subject to the same standard of review as a district court. Key v. Insurance Co. of N. Amer.,

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Cite This Page — Counsel Stack

Bluebook (online)
635 So. 2d 474, 1994 La. App. LEXIS 868, 1994 WL 116186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glascock-v-georgia-pacific-corp-lactapp-1994.