Karen Grant v. McConnell Painting Corp. and LUBA Casualty Insurance Company

• Court: Louisiana Court of Appeal
• Decided: January 15, 2020
• Docket: 53,100-WCA
• Status: Published

Opinion

Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 53,100-WCA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

KAREN GRANT Plaintiff-Appellant

versus

McCONNELL PAINTING CORP. Defendants-Appellees AND LUBA CASUALTY INSURANCE COMPANY

Appealed from the Office of Workers’ Compensation, District 1-W Parish of Caddo, Louisiana Trial Court No. 17-07688

Linda Lea Smith Workers’ Compensation Judge

KAREN GRANT In Proper Person

LUNN IRION LAW FIRM LLC Counsel for Appellees By: Walter S. Salley Joseph Martin Lattier

Before PITMAN, GARRETT, and McCALLUM, JJ. GARRETT, J.

The claimant, Karen Grant, appeals a judgment wherein a workers’

compensation judge (“WCJ”) dismissed her disputed claim for

compensation with prejudice on the basis that she failed to prove she had an

accident within the course and scope of her employment with McConnell

Painting Corporation. We affirm the WCJ’s decision.

FACTS

The claimant began working for the employer as a painter in October

2016. Her employment was terminated in July 2017.

In November 2017, the claimant filed a disputed claim for

compensation with the Office of Workers’ Compensation in which she

alleged that she suffered an injury to her right wrist on December 18, 2016.

She asserted that she was working at the Louisiana Boardwalk at 1:45 a.m.

She stated that she was told to clean up the shop area and pour up the paints

into their rightful paint buckets. When she grabbed a full, five-gallon

bucket, it “pulled” her hand and “[immediately] my wrist popped.” She

stated that the supervisor was notified an hour later. The claimant alleged

that she was totally incapacitated as a result. In January 2018, the employer

and its insurer, LUBA Casualty Insurance Company (“LUBA”), filed their

answer.

Trial was held in November 2018. Both sides admitted into evidence

the claimant’s medical records and her personnel and payroll records from

the employer. In addition to testifying herself, the claimant presented the

testimony of her son-in-law and coworker, Phibulus Carhee. The defendants presented the testimony of Marc McConnell, the employer’s

project manager; Robert McConnell, the employer’s president; and Joe

Burks, a supervisor who worked for the employer.

Occurrence of alleged accident

In support of her claim that she was injured at work, the claimant

presented her own testimony and that of her son-in-law, Carhee. Both

testified that on December 18, 2016, they were working in the shop, which

was a storage space where the employer kept its equipment while painting

the Boardwalk’s exterior walls. Carhee was washing paint buckets in one

room, while the claimant was in another room, pouring paint from five-

gallon buckets to one-gallon buckets for use on the job. The claimant

testified that she grabbed what she believed was an empty five-gallon bucket

and began to walk away. However, the bucket was full. The claimant

testified that when the bucket dropped down, she felt her right wrist pop.

Carhee testified that he did not see the alleged incident, but he heard the

claimant holler that she had hurt herself. When he went to check on her, he

observed a five-gallon bucket on the floor and the claimant was holding her

right arm. She showed him a knot on top of her wrist. Both testified that

she contacted Burks, their supervisor, and that Burks looked at her arm, said

she had an “open wrist,” and told her to wrap it with blue tape.

In contrast, Burks testified that the claimant never told him she was

involved in a work-related accident and that he only learned that she was

claiming the occurrence of such an accident after she was laid off in July

2017. Marc McConnell testified that he was unaware of a work-related

accident involving the claimant. Robert McConnell testified that he first

became aware of the alleged work accident in September 2017.

2 Medical treatment

The claimant testified that she first sought medical attention for her

wrist on January 10, 2017, and was told by her physician, Dr. Larry Daniels,

that she had a ganglion cyst. However, Dr. Daniels’ records show that the

claimant was seen for several issues, including “[m]usculoskeletal pain,” on

December 15, 2016, three days before the alleged accident. The

musculoskeletal pain was described as “Location: right hand (top of hand).

The pain is aching and throbbing. The pain is aggravated by lifting,

movement and pushing. Hand dominance: right.” Her pain was rated as

7/10. Her condition was assessed as “[g]anglion cyst of finger of right

hand.” At trial, the claimant insisted that these medical records were wrong.

She denied that Dr. Daniels told her she had a ganglion cyst at this

appointment. She stated that she was experiencing problems with her right

thumb, probably due to arthritis flaring up in cold weather.

The medical records reflect that on January 10, 2017, the claimant

was seen by Dr. Daniels for “Follow Up of Anxiety, Follow Up of

Hypertension and cyst.” They state that the claimant had a “ganglion cyst to

right hand.” She was referred to the Orthopedic Surgery Department at

University Health.

On May 3, 2017, she was seen at University Health. According to the

recorded medical history for this visit, the claimant stated that she began

working for a painting company in October 2016 and the work required her

to do a lot of heavy house cleaning and rolling out paint. Three months after

she started, she developed what she describes as a “knot” on top of her right

hand. She stated it popped out acutely and it was extremely painful. An

ultrasound determined that there was no ganglion cyst but a mild widening

3 of the scapholunate joint. A subsequent MRI showed a complete tear of the

right scapholunate ligament and degenerative disease of the right wrist. The

claimant was treated several times by Dr. Marjorie Rachel Chelly. After an

appointment on July 10, 2017, Dr. Chelly recorded that the claimant “denies

any trauma to her wrist prior” and that she informed the claimant “she had a

chronic tear of her SL [scapholunate] ligament. I told her that I could not

tell her when this occurred. She seems to believe this is from her job but

cannot give me an event that caused this problem. I told her that some

people can develop an injury to the wrist which does not manifest itself until

much [later].”

In her outpatient clinic notes pertaining to a follow-up appointment

with the claimant on September 13, 2017, Dr. Chelly stated that they had an

extensive conversation and a “difficult time communicating.” The claimant

was adamant her injury happened at work. The doctor further stated:

I continued to tell her that unfortunately there is no way for me to say that this was a work-related injury. Given her age and the chronic nature of this issue and the fact that she already has wrist arthritis, it was difficult for me to say that this occurred acutely. The fact that she already has wrist arthritis points to me that this is a chronic issue that has been going on for a little bit longer than she states. . . . Again, I tried to explain to her that there was no way for me to say that this was related to her job given her age and some of the findings on MRI and the fact that she already has wrist arthritis, and again I told her that this was something that she needed to discuss with her employer, but I could not say with certainty that this was related to her job or an injury she claims to have happened at her job. I could only go by the information that I have currently. She was not happy with this answer, and then continued to tell me that this was Workman’s Comp and that this should be an issue with Workman’s Comp.

The claimant testified that she was dissatisfied with Dr. Chelly’s

failure to schedule surgery. An adjuster for LUBA arranged for her to see

Dr. Diego Miranda, an orthopedic wrist surgeon, on November 28, 2017.

4 According to the claimant, Dr. Miranda told her that she had a five-inch tear,

was totally incapacitated from returning to work, and required surgery as

soon as workers’ compensation approved the procedure.1 The claimant

testified that this appointment was the last one she had related to her alleged

work-related injury.

Other claims

The claimant testified as to other work-related issues. In February

2017, she sent a certified letter requesting a meeting with Jack McConnell,

who is apparently the owner of McConnell Painting, about sexual

harassment claims she made against Burks, her supervisor.2 She filed a

complaint with the National Labor Relations Board (“NLRB”) and later the

Equal Employment Opportunity Commission (“EEOC”) concerning the

sexual harassment claims. In April 2017, she filed a complaint with the

Occupational Safety and Health Administration (“OSHA”), alleging that

Burks allowed workers to drink and that a worker fell from a ladder and

busted up his leg. The claimant was terminated in July 2017. She testified

that she believed she was fired in retaliation for the OSHA complaint.

Burks testified that he had worked for the employer for 29 years and

had been a supervisor for 24 to 25 years. He denied trying to date the

claimant or sexually harassing her. He also denied cutting her hours after

1 Dr. Miranda’s medical report states that the claimant presented with a right wrist injury that “occurred at work last year in December” and that she was not treated for the injury until about “3w ago.” He suggested a “[r]ight wrist reconstruction of scapholunate ligament with graft.” The traumatic onset date given in the report was “12/28/16.” 2 This letter was included in the employer’s business records, along with a note by Jack McConnell in which he stated that the claimant declined his offer to move her to another crew and his offer of a meeting.

5 she filed the sexual harassment claim against him. He asserted that, if her

hours were reduced, it was weather-related or because work slowed down.

Marc and Robert McConnell testified about receiving a phone call

from a person who identified himself as Carhee, in which the caller stated

that the claimant was lying about her claims against the employer. Marc

testified that he answered the phone call and was told by the caller that the

claimant was making up the sexual harassment claims, but he could not

testify against her because she was family. Marc transferred the call to

Robert, who testified that the caller told him the claimant was “just making

everything up.” He took this as applying to both the workers’ compensation

and the sexual harassment claims. Robert further testified that the NLRB

denied the sexual harassment claim and that the matter had gone to the

EEOC.

On rebuttal, Carhee denied that he ever called Marc and Robert

McConnell. He testified that he saw Burks sexually harass the claimant on a

daily basis, but he never reported it to anyone but Burks, his supervisor.

During her testimony, the claimant admitted that, while working for

the employer, she was receiving Supplemental Security Income (“SSI”) but

failed to properly report her work income. As a result, while she was still on

SSI at the time of trial, she was being required to repay $25 per month.

Ruling

At the conclusion of the trial, the WCJ gave oral reasons for ruling in

which she expressed concerns about the claimant’s credibility. Among other

things, the WCJ cited the lack of medical treatment immediately after the

alleged work accident, as well as the fact that there was no reported history

of a work accident until the claimant went to University Health and Dr.

6 Miranda many months after the alleged injury. The WCJ specifically

observed that the claimant’s testimony was directly contradicted by the

medical report of December 15, 2016. Given the claimant’s lack of

hesitation in filing other complaints against the employer, the WCJ said she

could not understand why the claimant would not have also filed a written

workers’ compensation claim. As to the claimant’s credibility, the WCJ

noted the issue with her receipt of SSI and her failure to properly report her

work income. After weighing all of the evidence and in light of the issues

with the claimant’s testimony, the WCJ ruled that the claimant did not meet

her burden of proof and did not establish by a preponderance of the evidence

that she had an accident on December 18, 2016, while in the course and

scope of her employment, which resulted in any objective signs of injury

that caused a loss of wage-earning capacity. Judgment dismissing the

claimant’s suit with prejudice was signed December 17, 2018.

The claimant appealed. No longer represented by counsel, she filed a

pro se brief which was, at best, difficult to follow. She asserted that the

WCJ’s ruling was based on bias and prejudice, that the WCJ somehow

“profiled” her character, and that “defamation” of her character “was and

still under the gun.” She attached a copy of the transcript of the WCJ’s oral

reasons for judgment, which she annotated in various spots, expressing her

disagreement with the WCJ’s stated reasons. In one place, she stated that

the WCJ’s decision was not based on the law, but on what the WCJ felt

about an unspecified 20-year statute of limitations.

In their appellate brief, the defendants contended that the WCJ

properly dismissed the claimant’s suit. In support of their argument, they

specifically cited the following: (1) the claimant’s failure to make a timely

7 written report of a workers’ compensation claim while she was able to make

written complaints pertaining to sexual harassment; (2) the medical evidence

which shows the claimant’s failure to mention a work accident to Dr.

Daniels until an appointment in August 2017, the recitation in the University

Health records that the claimant was unable to give Dr. Chelly a specific

event which caused the right wrist problem, and Dr. Chelly’s inability to

relate the wrist issue to the claimant’s work; (3) the claimant’s ability to

continue working for the company for more than six months after the alleged

accident; and (4) the symptoms the claimant displayed three days before the

alleged accident, as noted in Dr. Daniel’s records.

LAW

The plaintiff in a workers’ compensation action bears the burden of

establishing the causation of an injury to a work-related accident by a

preponderance of the evidence. Thomas v. GM Benefits & Serv. Ctr., 48,718

(La. App. 2 Cir. 1/15/14), 132 So. 3d 464; Harrison v. Madison Parish Sch.

Bd., 47,496 (La. App. 2 Cir. 11/21/12), 108 So. 3d 153. A work-related

accident is an unexpected or unforeseen actual, identifiable, precipitous

event happening suddenly or violently, with or without human fault, and

directly producing at the time objective findings of an injury which is more

than simply a gradual deterioration or progressive degeneration. La. R.S.

23:1021(1).

While the worker’s testimony alone may be sufficient to discharge the

burden of proving a work-related accident, it will be inadequate where (1)

other evidence discredits or casts serious doubt upon the worker’s version of

the incident; or (2) the worker’s testimony is not corroborated by the

circumstances following the alleged incident. Such corroboration may

8 include medical evidence and the testimony of a spouse, fellow workers, or

friends. Thomas v. GM Benefits & Serv. Ctr., supra; Slater v. Mid-South

Extrusion, 43,343 (La. App. 2 Cir. 8/13/08), 989 So. 2d 252.

A claimant’s lack of credibility on factual issues can serve to diminish

the veracity of her complaints to a physician. Thomas v. GM Benefits &

Serv. Ctr., supra; Green v. Thompson Home Health, 46,593 (La. App. 2 Cir.

9/21/11), 73 So. 3d 490, writ denied, 11-2460 (La. 1/20/12), 78 So. 3d 143.

Whether the claimant has carried her burden of proof and whether

testimony is credible are questions of fact to be determined by the WCJ.

Bradford v. Webster Par. Police Jury, 48,981 (La. App. 2 Cir. 5/14/14), 139

So. 3d 39. The trial court is in a superior position to evaluate the credibility

of witnesses than is the appellate court. Harris v. City of Bastrop, 49,534

(La. App. 2 Cir. 1/14/15), 161 So. 3d 948. The trier of fact’s determinations

as to whether the worker’s testimony is credible and whether the worker

discharged the burden of proof are factual determinations, not to be

disturbed upon review unless clearly wrong. Harris v. City of Bastrop,

supra; Green v. Thompson Home Health, supra.

The WCJ’s factual findings are subject to manifest error review.

Johnson v. Manitowoc Co., 52,264 (La. App. 2 Cir. 9/26/18), 256 So. 3d

463, writ denied, 18-1759 (La. 1/8/19), 260 So. 3d 592. In applying the

manifest error or clearly wrong standard, the court must determine not

whether the trier of fact was wrong, but whether the fact finder’s conclusion

was a reasonable one. Stobart v. State through Dep’t of Trans. & Dev., 617

So. 2d 880 (La. 1993). The fact finder’s choice between two permissible

views of the evidence cannot be clearly wrong. Johnson v. Manitowoc Co.,

supra.

9 DISCUSSION

Based upon her consideration of the evidence and her credibility

findings, the WCJ concluded that the claimant had not carried her burden of

proving that a work-related accident occurred. After reviewing the record,

we disagree with the claimant’s contention that the WCJ was clearly wrong

in these factual determinations.

There were no witnesses to the claimant’s alleged accident. The only

other employee in the shop was Carhee, the claimant’s son-in-law, and he

was in an adjoining room. When he went into the room where the claimant

was in response to her cry that she had hurt herself, he saw a paint bucket on

the floor and a knot on the top of the claimant’s wrist. However, Burks

denied that he had been called by the claimant about any work injury.

Furthermore, the claimant’s medical records indicate that she had

already sought medical attention from Dr. Daniels for a painful condition

with the top of her right hand three days before the alleged accident. The

first mention of her right wrist problem possibly being work-related is found

in her University Health records in May 2017. However, Dr. Chelly noted

that, while the claimant seemed to believe this condition was related to her

job, she could not cite the doctor to an event that caused it. Dr. Chelly

further recounted in her notes that, based on the information she had, she

could not say that the claimant’s wrist issue was related to her employment.

Additionally, the WCJ considered the claimant’s failure to make any

written complaint of her alleged work-related injury to her employer until

after she was terminated in July 2017. Given the claimant’s demonstrated

willingness to make other workplace complaints in writing, her failure to do

likewise for a workers’ compensation claim is somewhat suspect.

10 Based on the foregoing, we find no manifest error in the WCJ’s

decision that the claimant failed to carry her burden of proof. Accordingly,

we affirm the judgment below.

CONCLUSION

We affirm the judgment dismissing Karen Grant’s claim with

prejudice. Costs of this appeal are assessed to the claimant, Karen Grant.

AFFIRMED.