Harris v. Casino Magic

865 So. 2d 301, 2004 La. App. LEXIS 71, 2004 WL 135844
CourtLouisiana Court of Appeal
DecidedJanuary 28, 2004
Docket38,137-WCA
StatusPublished
Cited by19 cases

This text of 865 So. 2d 301 (Harris v. Casino Magic) 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
Harris v. Casino Magic, 865 So. 2d 301, 2004 La. App. LEXIS 71, 2004 WL 135844 (La. Ct. App. 2004).

Opinion

865 So.2d 301 (2004)

Marion HARRIS, Plaintiff-Appellant
v.
CASINO MAGIC, Defendant-Appellee.

No. 38,137-WCA.

Court of Appeal of Louisiana, Second Circuit.

January 28, 2004.

*302 The Young Firm by Timothy J. Young, New Orleans, Shannon V. Lobell, for Appellant.

Lunn, Irion, Salley, Carlisle & Gardner by Walter S. Salley, Shreveport, for Appellee.

Before WILLIAMS, STEWART and MOORE, JJ.

MOORE, J.

On February 20, 2001, claimant Marion Harris filed a disputed claim for compensation against Casino Magic seeking compensation benefits for back injuries he attributed to a slip and fall accident at work on March 19, 2000. Trial was held before the Office of Workers' Compensation ("OWC") on October 8, 2002, and the record was held open for the submission of additional medical evidence and depositions. During this time, the workers' compensation judge ("WCJ") who heard the case retired, and the case was submitted to a successor judge for a decision. The WCJ found that Harris failed to prove that his back injury was caused by his slip and fall and rejected his claim for compensation. Harris now appeals. For the reasons that follow, we reverse and remand.

Facts

At the time of the accident, Harris was a 67-year-old maintenance technician for Casino Magic, a riverboat casino on the Red River docked at Bossier City, Louisiana. He testified that while he was on lunch break, he entered one of the restrooms and suffered a fall when his feet "just slid out from under me." He "laid there a minute checking [himself] out to see if [he] had broken anything." Finding nothing broken, he went back to the break room. No one witnessed the incident, but Harris related the incident to one of his co-workers, Me-Shell Cook.

The following day, Harris reported the accident to his immediate supervisor, David Ashley. Ashley was off on the day *303 of the accident. The record contains a Casino Magic "Incident Statement," signed by Harris, Ashley and Me-Shell Cook, wherein Harris wrote the following account:

While going to lunch, I entered into the mens RR in the hold of the boat. Upon entering I slipped due to soap and water residue on the floor slightly injuring my right side hip/ankle. There were no signs propped up on the outside or placed in the middle of the floor. The only sign was propped—"leaning" against the wall (bulkhead) with the mop bucket—no sign posted. Reported to other employees on shift—then reported to my supervisor the following day 3-20-2000.

Harris did not obtain or seek medical treatment for any injuries sustained from the fall until five months later on August 25, 2000. He testified that although he was sore from the fall, he did not believe he had been injured. Harris visited Dr. Rheams on March 21, 2000, two days following the accident, but he did not mention the fall or the injury; he only complained about recent weight loss. Dr. Rheams stated in his deposition that he would have made a notation on the patient's record if Harris had complained of any back or lower extremity pain.

Harris visited Dr. Rheams next on May 9, 2000 for an upper respiratory infection. Again, there is also nothing in the medical record of this visit regarding any complaint of any back pain or lower extremity pain, nor did Dr. Rheams recall that Harris made any such complaint.

During this time, Harris continued to work. In July of 2000, he applied for and was awarded a promotion from Maintenance Technician to Maintenance Supervisor, taking David Ashley's place on the swing shift (3:00 p.m. to 11:00 p.m.).[1] Ashley moved to the graveyard shift as maintenance supervisor.

On August 25, 2000, five months after the accident, Harris visited Dr. Wen Liu, a specialist in internal medicine, complaining of low back pain. Referring to his notes, Dr. Liu stated that Harris told him and his nurse that he had fallen two months earlier in a Casino Magic bathroom. He told Dr. Liu that his back pain had started approximately one month ago and had worsened in the past two weeks. Dr. Liu's examination notes state that Harris had left back tenderness two to three centimeters off midline. He notes that Harris could elevate both legs to 90 degrees. He suspected that Harris had possible lumbar disc herniation. Dr. Liu ordered an X-ray which showed moderate spondylolysis (disintegration of the vertebrae) of the lumbrosacral spine and a questionable spondylolysis of L-5 on left side. Dr. Liu stated that spondylolysis is associated with age and normal wear and tear. However, the L-5 "questionable" spondylolysis could indicate a herniated disc.

Harris returned to see Dr. Liu on September 26, 2000, with continued back pain and additional complaints of pain radiating in the left groin area and left leg. The doctor believed the additional complaint could be caused by disc herniation with nerve compression symptoms and recommended an MRI. The MRI radiologist reported *304 a possible disc herniation at L4-L5, and Dr. Liu subsequently referred Harris to Dr. Carl Goodman, an orthopedist.[2]

Dr. Goodman first examined Harris on October 17, 2000. Dr. Goodman testified by deposition that he related a history of an accident on March 19, 2000 and symptoms of back pain increasing three months prior to the date of the office visit. He noted that Harris said he was still working full-time in a supervisory job with very little physical work. Harris told Dr. Goodman that his pain was 100 per cent in his back, but he did experience some numbness and tingling in is left leg. Harris denied any prior back problems.

Dr. Goodman's physical examination involved several tests to determine any nerve encroachment problems. All the tests were negative, indicating that there was no nerve root involvement. The tests did not reveal any objective findings, but his review of the radiology studies led him to believe that Harris had some degenerative changes between the L3-L4 and L4-L5 vertebrae. Dr. Goodman said that there was no way to determine what caused these changes or how long Harris had this condition. Dr. Goodman ultimately diagnosed lumbar strain and sprain along with degenerative lumbar disc disease. Dr. Goodman recommended that Harris continue with the medication therapy prescribed by Dr. Liu and believed that Harris could continue working.

In January 2001, Harris returned to see Dr. Liu with continuing complaints of back pain and a history of falling on the wet floor at work. Dr. Liu recommended that Harris not work where he had to walk on slippery floors, but was of the opinion that Harris could work if not required to lift heavy objects. Harris saw Dr. Goodman again in March 2001 with a complaint of increased numbness in his right foot.

Harris resigned his position with Casino Magic shortly after this visit due to his back pain. He is currently receiving social security retirement benefits, and said that he would like to work but has not looked for work because of his back pain.

In April 2001, Harris returned to see Dr. Liu with the same complaints of back pain; Dr. Liu maintained his recommendation that he should do only mild lifting and limited sitting and standing at a job.

From July 2002 through October 2002, Harris saw Dr. Pierce Nunley, an orthopedist, and underwent physical therapy that reduced his back pain. The visits to Dr. Nunley cost $2,515.00 and the physical therapy cost $1,346.77, neither of which were paid by Casino Magic.

On November 6, 2002, Dr. Goodman reexamined Harris, repeating his original diagnosis, but he was ambivalent about Harris' return to work.

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Bluebook (online)
865 So. 2d 301, 2004 La. App. LEXIS 71, 2004 WL 135844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-casino-magic-lactapp-2004.