Kidd v. Brown Radiator & Frame

890 So. 2d 796, 2004 WL 3094458
Louisiana Court of Appeal·Decided December 22, 2004·No. 38,729-WCA·Published·Cited by 7 cases

Opinion

890 So.2d 796 (2004)

Fred D. KIDD, Sr. Plaintiff-Appellee,
v.
BROWN RADIATOR & FRAME Defendant-Appellant.

No. 38,729-WCA.

Court of Appeal of Louisiana, Second Circuit.

December 22, 2004.

*798 Eskridge E. Smith, Jr., Linda S. Blackman, Bossier City, Counsel for Appellant.

Fred D. Kidd, Sr., In Proper Person.

Before BROWN, STEWART and CARAWAY, JJ.

CARAWAY, J.

In this workers' compensation action, the defendant-employer appeals the judgment awarding its employee temporary total disability benefits for an eight month period and ordering an independent medical examination ("IME") of the employee by a court-selected physician after the benefits ceased. This court initially dismissed the defendant's appeal finding that the two rulings of the workers' compensation judge ("WCJ") were incongruent and interlocutory, and therefore not appealable. Kidd v. Brown Radiator & Frame, 38,279 (La.App.2d Cir.7/2/04), 877 So.2d 358, 2004 WL 1752600. Upon the defendant's application for writs to the Louisiana Supreme Court, the court reversed our conclusion of an interlocutory, non-appealable judgment and remanded for an opinion on the merits. Kidd v. Brown Radiator & Frame, 04-1961 (La.11/15/04), 887 So.2d 463. Finding sufficient evidence of a work-related accident and causation of the disability by that accident, we now affirm the WCJ's grant of benefits and the further order for an IME.

Facts

On September 9, 2002, Fred Kidd, Sr. was in his fifth year of employment with Brown Radiator and Frame, Inc. performing alignment work for the company. Kidd was paid a weekly draw of $300 which was deducted at the end of each month from his 50 percent commission salary. From his commissions, Kidd estimated he earned $40,000-45,000 annually and received five days of vacation.

During the afternoon hours of September 9, 2002, Kidd claimed he was attempting to obtain an air hose when he slipped and fell on an alignment rack injuring his right arm and shoulder. Chris Tramble, *799 another employee, acknowledged witnessing Kidd's fall and assisting him up afterwards, although he also made contradicting statements indicating that he did not see the mishap. Both Kidd and Chris Tramble recalled that Mike Tramble and Mitchell Jordan, the shop foreman, were nearby and that Jordan asked Kidd if he was okay. Mike Tramble denied witnessing the fall but admitted to observing Kidd get up from a lying down or seated position holding his shoulder on the day of the accident. Jordan denied knowing about or witnessing Kidd's accident until after receiving notice of the workers' compensation claim in November 2002. Jordan did recall, however, that Kidd complained of a "crick" in his neck during September or October, 2002.

The business records of Brown indicate Kidd continued to work until October 30, 2002, missing only two days for blood pressure problems. Kidd claimed he could no longer perform work by September 21, 2002, because of a "crick" in his neck that had moved into his shoulder. He stayed on the job only until September 22.

Randy Brown, the shop's owner, recalled that Kidd called the office on October 31 complaining that his shoulder was hurting and that he needed to go to the doctor. Kidd called Brown on November 1 to inform him that his doctor had told him not to go back to work until he met with an orthopedic doctor on November 6, 2002. On November 7, Kidd informed Brown he was scheduled for physical therapy the rest of the week and another doctor's appointment on November 11, 2002. When Brown did not hear from Kidd, he called him on November 13, 2002. Then, Kidd told Brown he had undergone an MRI and he would receive the results on November 21. Brown told Kidd to let him know if he would need surgery so that he could employ temporary help until Kidd's return. Brown never heard from Kidd after November 21, 2002, and was surprised to receive notice of the workers' compensation claim on November 30, 2002, because Kidd had never indicated that his shoulder problems were work related. Kidd and Chris Tramble claimed Brown told Kidd to report to the unemployment office. Kidd filed a claim for workers' compensation benefits on November 20, 2003, after he was turned away from the unemployment office.

The medical evidence presented at trial demonstrates that Kidd first visited E.A. Conway Medical Center in Monroe, LA, on September 22, 2002, with complaints of a sore throat, a stiff and painful neck on his right side and hypertension. Kidd next reported to Dr. Thomas St. Clair Williams on September 27, 2002, complaining of neck stiffness and hypertension. Dr. Williams noted neck tenderness in the right lower neck and trapezius muscle and questioned whether Kidd might have had a cervical strain with muscle spasm. Dr. Williams' notes do not reflect that a work-related event was the cause of Kidd's neck problems. At that time, Dr. Williams also diagnosed Kidd with probable diabetes.

Kidd saw Dr. Williams for follow-up visits on October 1 and 15, 2002, although only for diabetes and hypertension. On October 31, 2002, Kidd reported to Dr. Williams with complaints of worsening right shoulder and back pain. Dr. Williams diagnosed Kidd with bursitis of the right deltoid, arthralgia (pain) in the right shoulder and cervical strain. Kidd received an injection for the pain. Kidd had gone to the E.A. Conway emergency room the night before with neck stiffness radiating to the right arm which had worsened the day before.

Kidd next visited the E.A. Conway Orthopedic Clinic for an evaluation of his neck and right arm pain and stiffness on *800 November 6 and 7, 2002. The hospital notes from those visits show that despite Dr. Williams' diagnosis, Kidd desired to see an orthopedic specialist. Kidd reported having a "crick in his neck" since September 2002. X-rays of the area revealed mild multilevel degenerative change without evidence of fracture nor any evidence of soft tissue swelling or mass. Kidd was diagnosed with brachial plexitis, or a type of neurological pain in the shoulder of unknown origin. Further tests revealed no evidence of a Pancoast's tumor and revealed only mild thoracic spondylosis. Kidd returned for a follow-up visit on November 11, 2002. His physician could offer Kidd nothing further regarding his diagnosis.

Kidd's final documented visit with Dr. Williams occurred on December 17, 2002. Kidd claimed to have been diagnosed by E.A. Conway physicians with nerve damage to his right arm due to his cervical problems and that he had lost his job. Dr. Williams also noted that Kidd had been diagnosed with carpal tunnel syndrome.

A final letter written by Dr. Williams on February 18, 2003, set forth the doctor's treatment of Kidd since September 27, 2002, when Kidd "loosely mentioned" a work-related fall. Dr. Williams wrote of Kidd's progressive weakness, neck pain and discomfort during his visits with him and opined that Kidd's "significant fall" possibly caused a potential disruption of his right rotator cuff tendon. In the letter, the doctor concluded that Kidd was "relatively incapacitated" secondary to the injury and had been referred to LSU Shreveport Orthopedic Clinic for an evaluation of the problem. Dr. Williams envisioned possible surgical intervention and noted that Kidd was "truly incapacitated" and unable to perform his job duties. He also believed Kidd would not be able to return to gainful employment until a surgeon released him to do so after corrective surgery was done, if possible. Dr. Williams estimated a minimum six month recovery period for Kidd.

Kidd agai

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