Howell v. Service Merchandise Co., Inc.

663 So. 2d 96, 1995 La. App. LEXIS 2303, 1995 WL 468349
CourtLouisiana Court of Appeal
DecidedAugust 9, 1995
Docket95-79
StatusPublished
Cited by14 cases

This text of 663 So. 2d 96 (Howell v. Service Merchandise Co., 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
Howell v. Service Merchandise Co., Inc., 663 So. 2d 96, 1995 La. App. LEXIS 2303, 1995 WL 468349 (La. Ct. App. 1995).

Opinion

663 So.2d 96 (1995)

Dorothy A. HOWELL, Plaintiff-Appellee,
v.
SERVICE MERCHANDISE COMPANY, INC., Defendant-Appellant.

No. 95-79.

Court of Appeal of Louisiana, Third Circuit.

August 9, 1995.

*97 James C. Downs, Alexandria, for Dorothy Howell.

Stephen C. Resor, New Orleans, for Service Merchandise Co.

Before LABORDE, WOODARD, and AMY, JJ.

WOODARD, Judge.

This appeal arises from an action for temporary total disability workers' compensation benefits.

FACTS

Plaintiff, Dorothy Howell, was injured when a co-worker dropped a box containing a compact stereo onto her face during the course of her employment for defendant, Service Merchandise Company, Inc. She was struck on the bridge of her nose, knocking her glasses from her face. She was able to avoid falling to the ground by bracing herself against some boxes stacked nearby. She alleges that this accident aggravated her previously existing back problems, which in turn caused her to sink into chronic pain syndrome and depression. She was fifty-five years of age at the time.

Howell continued to work for Service Merchandise despite her depression, increasing pain in her neck and back, and numbness in her legs until she was overtaxed during the 1992 Christmas rush. She voluntarily resigned her position at Service Merchandise on December 16, 1992.

Service Merchandise paid medical benefits on Howell's behalf through December 16, 1992, but refused to pay temporary total disability (TTD) benefits after that date. Howell filed a claim for disputed benefits on March 31, 1993, alleging that she was disabled as a result of a mental injury. The parties settled all claims for the period between April 15, 1992 and December 17, 1993, prior to trial on August 4, 1994. The hearing officer rendered judgment in Howell's favor *98 on August 29, 1994, finding that she was temporarily and totally disabled since December 17, 1993 as a result of a mental injury attributable to the April 15, 1992 workplace accident.

Service Merchandise now appeals, complaining that the hearing officer erred in (1) finding that Howell's back condition was attributable to the April 15, 1992 accident; (2) finding that any such aggravation caused her to suffer a mental injury; (3) finding that any such mental injury caused her to be temporarily and totally disabled; and (4) assessing Howell's psychologist's fee against Service Merchandise.

LAW

An appellate court may reverse a hearing officer's decision regarding a claim for workers' compensation benefits only if she has committed manifest error therein. Bruno v. Harbert International, 593 So.2d 357 (La.1992). Consequently, we must affirm the hearing officer's findings if they are reasonable in light of the record viewed as a whole. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

I. INJURY

To obtain workers' compensation benefits, an employee must prove by a preponderance of the evidence that she suffered a personal injury as a result of an accident arising out of and in the course of her employment. La.R.S. 23:1031. However, a mental injury or illness caused by a physical injury to the employee's body, such as Howell claims in the case sub judice, shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence. La.R.S. 23:1021(7)(c). Aggravation of a pre-existing injury can itself constitute a disabling injury, Doucet v. Baker Hughes Production Tools, 93-3087 (La. 3/11/94); 635 So.2d 166; a fortiori, it may also satisfy the physical injury requirement necessary to prove a disabling mental injury.

Service Merchandise does not dispute that Howell was involved in a workplace accident. Therefore, Howell must prove by a preponderance of the evidence that the workplace accident aggravated her pre-existing medical problems, and by clear and convincing evidence that the aggravation of the pre-existing problems caused her to suffer a mental injury.

A. Physical Injury

Howell clearly experienced pain in her neck, back, and hip prior to the accident as a result of injuries that she sustained in a 1988 automobile accident. To mitigate this pain, she began to visit Dr. Karri Gramlich, a chiropractor, on March 18, 1992. Dr. Gramlich saw Howell on the day before her workplace accident, and her notes indicate that Howell was in considerable pain at the time. Howell alleges, however, that the areas of her neck and back injured in the accident were not the same areas that hurt before and that her pain became much more severe and constant afterwards. She testified that she was no longer able to bend over or lift heavy objects after the accident, whereas she had been able to do so beforehand. Her daughter, who saw her three to four times per week, testified that Howell was not suffering any major health problems before the accident and that her problems attributable to the automobile accident had resolved.

In evaluating the evidence, the uncontradicted testimony of a witness should be accepted as true, even if she is a party, in the absence of circumstances casting suspicion on the reliability of her testimony. Hopes v. Domtar Industries, 627 So.2d 676 (La.App. 3 Cir.1993). There is no objective reason to discount Howell's credibility, whom Dr. John Patton, her treating neurosurgeon, testified was neither malingering nor attempting to deceive him regarding her problems. In fact, Dr. Ronald Pryor, a clinical psychologist, testified that Howell actually tried to deny some of her emotional complaints. Moreover, the hearing officer observed Howell's demeanor and explicitly stated that she was impressed by her candor. Such credibility determinations by the hearing officer are entitled to great weight because only she has observed "the variations in demeanor and *99 tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO, 549 So.2d 840 (La.1989).

Significantly, Howell began to experience numbness and weakness in her left leg and foot after the accident, which she had not suffered before. Dr. Gramlich recommended neurosurgical and orthopedic evaluation to ascertain the cause of this symptom, which can be indicative of serious problems. Several of her physicians also observed this symptom.

Dr. Gramlich also noted that Howell exhibited mild muscle spasms in the cervical area of her back prior to the accident but that afterwards, she exhibited moderate to severe muscle spasms in the entire cervical and upper thoracic spine. Dr. Gramlich's diagnosis of Howell changed after the accident from "cervical disc syndrome, cervical kyphosis, cervical myofascitis, thoracic subluxation, and disorder of sacroiliac joint" to "cervical sprain/strain, cervical neuralgia, thoracic brachial neuritis/radiculitis, and thoraco/lumbar sprain/strain."

Dr. Ray Beurlot, Howell's treating orthopedic surgeon, opined, on the basis of an EMG/nerve conduction study, that Howell suffers from L5 radiculopathy on the left side and diminished amplitude of the peroneal nerve. Dr. Beurlot stated that he could not relate this problem to the accident to a "reasonable degree of medical certainty," but that her injury was consistent with and could have been caused by such an accident.

Dr. Patton confirmed Dr. Beurlot's diagnosis of L5 radiculopathy.

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663 So. 2d 96, 1995 La. App. LEXIS 2303, 1995 WL 468349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-service-merchandise-co-inc-lactapp-1995.