Hale v. Pinecrest State School

505 So. 2d 987
CourtLouisiana Court of Appeal
DecidedJuly 15, 1987
Docket85-887
StatusPublished
Cited by7 cases

This text of 505 So. 2d 987 (Hale v. Pinecrest State School) 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
Hale v. Pinecrest State School, 505 So. 2d 987 (La. Ct. App. 1987).

Opinion

505 So.2d 987 (1987)

Betty HALE, Plaintiff-Appellee,
v.
PINECREST STATE SCHOOL, et al., Defendants-Appellants.

No. 85-887.

Court of Appeal of Louisiana, Third Circuit.

April 8, 1987.
Rehearing Denied May 5, 1987.
Writs Denied June 12, 1987.
Dissenting Opinion July 15, 1987.

*988 Stafford, Stewart and Potter, Paul Boudreaux, Alexandria, for defendant-appellant.

Fuhrer and Flournoy, George Flournoy, Alexandria, for plaintiff-appellee.

Before DOMENGEAUX, KNOLL and BROYLES [*], JJ.

KNOLL, Judge.

Pinecrest State School (hereafter Pinecrest) appeals the trial court's judgment awarding Betty Hale worker's compensation disability benefits, medical benefits, penalties and attorney's fees for her total and permanent disability resulting from her employment with Pinecrest. Pinecrest contends the trial court erred: (1) in refusing to allow the introduction of evidence regarding Hale's true reason for taking an indefinite leave of absence; (2) in granting Hale permanent and total disability benefits when she was unable to prove a job-related accident or injury; and (3) in awarding penalties and attorney's fees when Pinecrest was not arbitrary, capricious or unreasonable in its refusal to pay benefits, or in the alternative, if attorney's fees were appropriate, the trial court's award was excessive. Hale answered the appeal, *989 seeking a $1,500 increase in attorney's fees due to the appeal. We affirm in part and reverse in part.

FACTS

The learned trial judge handed down written reasons for judgment setting forth the facts of this case, which we incorporate herein:

"This is an action for worker's compensation. Plaintiff, Betty Hale, instituted suit for total and permanent disability benefits, reimbursement of medical and medical travel expenses, and penalties and attorney's fees against her former employer, Pinecrest State School. Pinecrest is self-insured; however, its workmen's compensation claims are investigated and administered by the office of risk management. The group health insurer for the State intervened to recover certain medical expenses paid on behalf of plaintiff should she be successful in her compensation claim.
Plaintiff, Ms. Hale, alleged an accidental injury to her neck and cervical spine on June 19, 1983, at which time she was employed as a payroll supervisor at Pinecrest State School. Mrs. Hale is the supervisor of the payroll department at Pinecrest State School and has been employed by Pinecrest for 17½ years. Prior to being employed at Pinecrest State School, Mrs. Hale worked at Allen Wallpaper and Glass Co. where she served in a clerical capacity doing bookkeeping, sales and light typing. She remained with Allen Wallpaper for 18 years. The last 5 years she served in the capacity as manager of the paint department. Mrs. Hale then entered the State Civil Service in 1966 and was placed at the Pinecrest State School in charge of payroll. Her responsibilities included supervision of four employees, meeting of payroll deadlines, checking employees timesheets, preparing insurance reports and reviewing invoices for group insurance. In addition, Ms. Hale was required to use the telephone in which she placed between her ear and neck and shoulder to allow her to look at invoices and computer printouts that were on top of her desk. Ms. Hale was required to work overtime and on weekends to meet payroll deadlines.
In summary, the evidence shows that Ms. Hale's duties as payroll supervisor required her frequently to turn her head from side to side, glancing at the payroll ledgers and required her to sit with her neck in a cocked position for long periods of time, whether talking on the telephone and/or reviewing insurance policies, payroll ledgers, timesheets, etc.
Ms. Hale testified that on Sunday, June 19, 1983, while working on the group insurance plans, she felt a severe pain in the shoulder area down into the arm. She did not report to work the next day due to the pain in her shoulder. On June 21, 1983, she reported to work and stated that the pain intensified to such an extent she was not able to work the whole day and called an orthopaedic, Dr. Douglas Gamburg, who saw her that same day.
Dr. Gamburg stated in deposition that plaintiff complained of pain in the left scapular. He stated that plaintiff had noticed this pain approximately one month prior to her visit. Dr. Gamburg was of the opinion that plaintiff had a C7 root disfunction probably related to a herniated disc at C6 on the left side. Dr. Gamburg stated that they did not discuss cause of the pain, however, he did say that placing the head and neck in an awkward position for prolonged periods of time can pre-dispose one of disc rupture. When Dr. Gamburg was asked by plaintiff's counsel whether turning the head, cocking the neck over the phone for long periods of time, and looking at ledgers many hours of the day can pre-dispose a ruptured disc, Dr. Gamburg answered that such activities would tend to put a lot of wear and tear on her neck, and he thought it would be a pre-disposing factor. Dr. Gamburg suggested to plaintiff that she see a neurosurgeon as soon as possible. *990 On July 13, 1983, plaintiff saw Dr. Charles Robert Neblett, a neuro-surgeon in Houston, Texas. Dr. Neblett performed a myelogram which showed a pinched nerve by the C6, 7 nerve root area. Surgery revealed a ruptured disc and a bone spur. Dr. Neblett stated that in his opinion it was more likely than not that plaintiff's work-related activities, that is, working over 40 hours per week, constantly turning of the head and shoulders, and doing such things as looking down before her books, comparing one book to another, and turning of the head from extreme left to center to extreme right and back and forth, caused the ruptured cervical disc. Dr. Neblett further stated that in his opinion, this plaintiff was not expected to return to any type work. However, on August 24, 1983, Dr. Neblett did allow plaintiff to return to her regular work duties due to her physical signs of improvement and neurological stabilization. Dr. Neblett noted that the plaintiff continued to need additional time for adequate healing to the cervical area and that she was to gradually increase her activities over the next five weeks. Over these five weeks, plaintiff's condition did not improve to a status in which the doctor thought she could perform her regular work duties. Thereupon, Dr. Neblett restricted those work activities that would put a long-term strain on her neck. He specified that he would not want plaintiff to do repetitive activity with the arms extended in front of her and was apprehensive that she could make an 8-hour work day.
Other evidence revealed that plaintiff spent some time reading books, magazines, painting and charcoal drawing, taking walks, and working in the garden. Dr. Neblett stated that these activities could relate to the ruptured disc, however, it was his opinion that it was very unlikely in comparison with the activities that she did in her work responsibility. Dr. Neblett did state that he could not determine at what point and time the disc would have ruptured when plaintiff became disabled or whether plaintiff became disabled as a result of an injury at work, home or no injury at all." (Deposition citations omitted.)

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