Guillory v. Wal-Mart Stores, Inc.

796 So. 2d 772, 1 La.App. 3 Cir. 127, 2001 La. App. LEXIS 2133, 2001 WL 1161151
CourtLouisiana Court of Appeal
DecidedOctober 3, 2001
Docket01-127
StatusPublished
Cited by10 cases

This text of 796 So. 2d 772 (Guillory v. Wal-Mart Stores, 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.

Bluebook
Guillory v. Wal-Mart Stores, Inc., 796 So. 2d 772, 1 La.App. 3 Cir. 127, 2001 La. App. LEXIS 2133, 2001 WL 1161151 (La. Ct. App. 2001).

Opinion

796 So.2d 772 (2001)

Connie GUILLORY
v.
WAL-MART STORES, INC.

No. 01-127.

Court of Appeal of Louisiana, Third Circuit.

October 3, 2001.

Michael W. Robinson, Pucheu, Pucheu, & Robinson, Eunice, LA, Counsel for Plaintiff/Appellant Connie Guillory.

Frank A. Flynn, Allen & Gooch, Lafayette, LA, Counsel for Defendant/Appellee Wal-Mart Stores, Inc.

*773 Court composed of HENRY L. YELVERTON, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.

SULLIVAN, Judge.

Connie Guillory Kennedy appeals the dismissal of her workers' compensation claim based upon a finding that she failed to prove her present symptoms were the result of a work-related accident.[1] For the following reasons, we affirm.

Discussion of the Record

Mrs. Kennedy alleges that she injured her neck and upper back on November 4, 1995, as she lifted a seventy-five pound mixing bowl while working in the bakery department of the Wal-Mart store in Jennings, Louisiana. She reported that her back was hurting to her immediate supervisor, but she completed her shift that day. The next day, she could not complete her shift, and an accident report was prepared with the notation that she reported pain in the "mid to lower back (left side)" while "lifting up on the mixing bowl." (Emphasis added.) She did not report to work again after November 5, 1995.

On Monday, November 6, 1995, at Wal-Mart's recommendation, Mrs. Kennedy was seen by Dr. John Sebatier, who diagnosed a thoracic muscle strain. Dr. Sebatier advised no lifting or straining for five days and recommended a return visit the following Friday.

On November 7, 1995, Mrs. Kennedy was seen by a physician of her choosing, Dr. Bobby Deshotel. At this visit, Mrs. Kennedy reported that she developed a sharp pain in her upper back while picking up a heavy mixing bowl. Dr. Deshotel noted tenderness in the upper back that went through the left shoulder and arm. With a diagnosis of cervical/thoracic radiculitis on the left, he prescribed anti-inflammatory and pain medication.

On Saturday, November 11, 1995, Mrs. Kennedy was involved in an unrelated accident in which the pickup truck she was driving rolled over into a ditch where it landed upside down. Mrs. Kennedy was temporarily suspended by her seat belt and then fell on her bottom before she was able to climb out of the vehicle. State Trooper Ross McCain, who investigated the accident, testified that the truck apparently rolled over at a slow speed when Mrs. Kennedy misjudged the edge of the ditch while making a U-turn. Neither Mrs. Kennedy nor her future husband, who was riding with her, reported any injuries, although Trooper McCain stated that Mr. Kennedy appeared "shaken up" and nervous. On his accident report, Trooper McCain noted light to moderate damage on the front and driver's side of the pickup truck.

Two days after this accident, on Monday, November 13, 1995, Mrs. Kennedy returned to Dr. Deshotel's office. At trial, she testified that she only accompanied her future husband, who needed some "nerve" medication, and that Dr. Deshotel did not examine her. However, Dr. Deshotel's office notes reflect that Mrs. Kennedy reported her back was still hurting, but now with pain in the mid back that goes into both arms and into her buttocks. In his deposition, Dr. Deshotel interpreted his notes as recording new complaints of pain that were not consistent with those of her first visit. Dr. Deshotel also testified that Mrs. Kennedy did not inform him of the rollover accident. He further stated that being tossed around in a truck, even at a *774 slow speed, could produce neck and back strains.

Dr. Deshotel continued to treat Mrs. Kennedy, prescribing different medications and physical therapy for neck and upper back pain, as well as for pain in the right arm that subsequently developed. He testified that he never received insurance approval for X-rays, an MRI, and a visit to a specialist of his recommendation. Dr. Deshotel believed that Mrs. Kennedy's upper back problems were consistent with a lifting, hyperextension injury, although he also stated a rollover accident could result in compression of the neck and thoracic spine. Concerning the symptoms switching from the left to the right side, Dr. Deshotel stated that a posterior disc injury could produce that result, but without a CT scan or other testing he could not make that diagnosis.

At Wal-Mart's request, Mrs. Kennedy was examined by Dr. James Perry, an orthopedic surgeon in Lake Charles, Louisiana, on January 22, 1996. Mrs. Kennedy reported that she experienced pain in her neck and right arm while lifting a seventy-five pound mixing bowl on November 4, 1995. She did not inform Dr. Perry of the rollover accident of November 11, 1995. Dr. Perry noted mild tenderness of the paraspinal muscles of the neck, but he found no neurological deficits or significant spasm. X-rays revealed minimal degenerative disc disease in the cervical spine and a normal thoracic spine. Dr. Perry diagnosed a probable neck sprain and recommended a work-conditioning program in preparation for a return to normal activities. He considered Mrs. Kennedy capable of sedentary to light duty at that time. When presented with a description of the rollover accident, Dr. Perry could not say which of her complaints resulted from either the lifting incident or the automobile accident. However, he did state that his diagnosis of a neck sprain would be consistent with a rollover accident and that it would have been reasonable for Mrs. Kennedy to report that accident to him in her patient history.

On December 1, 1997, Mrs. Kennedy was examined by Dr. John Clifford, a neurosurgeon. She complained of a constant burning pain in the neck that radiated to the right elbow. She also reported tingling and numbness of the fourth and fifth fingers on the left hand. She related her symptoms to the accident at Wal-Mart, and again, she did not mention the rollover accident. Dr. Clifford noted that she held her right hand in a clawlike position for which he found no physiological reason. He also found no atrophy or weakness of the upper extremities. Although some of her complaints suggested a C7 radiculopathy, Dr. Clifford found no physical findings of a pathology in that area. He believed Mrs. Kennedy to be a significantly depressed patient who was somaticizing many of her symptoms. He did recommend that she undergo EMG testing.

On February 24, 1998, Mrs. Kennedy was seen by another neurosurgeon, Dr. William Foster. She told Dr. Foster that she has been unable to work since the accident at Wal-Mart due to neck pain, right arm pain, and, to a lesser extent, mild radicular pain on the left. She informed Dr. Foster of the rollover accident, but stated that it did not result in additional injuries or an aggravation of her previous complaints. In his examination, Dr. Foster noted tenderness over the medial scapular border and over the cervical and thoracic spines, with a slight drift of the right arm and weakness of the right hand grip as compared to the left. He also noted a diminished radial pulse on the right upon hyperabduction and left lateral rotation of the cervical spine. Dr. Foster explained that this last finding, called a *775 positive Adson's maneuver, is one component of thoracic outlet syndrome (TOS), or the compression of the neurovascular system in the anterior cervical region. Because Mrs. Kennedy's symptoms could be suggestive of a C8 radiculopathy, TOS, or an ulnar neuropathy, Dr. Foster recommended an MRI and EMG.

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Bluebook (online)
796 So. 2d 772, 1 La.App. 3 Cir. 127, 2001 La. App. LEXIS 2133, 2001 WL 1161151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillory-v-wal-mart-stores-inc-lactapp-2001.