Lee v. Kenyan Enterprises

938 So. 2d 1216, 2006 La. App. LEXIS 1835, 2006 WL 2422909
CourtLouisiana Court of Appeal
DecidedAugust 23, 2006
DocketNo. 41,308-WCA
StatusPublished
Cited by2 cases

This text of 938 So. 2d 1216 (Lee v. Kenyan Enterprises) 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
Lee v. Kenyan Enterprises, 938 So. 2d 1216, 2006 La. App. LEXIS 1835, 2006 WL 2422909 (La. Ct. App. 2006).

Opinion

CARAWAY, J.

hThe employee slipped and fell, injuring her back while performing her work duties at a supermarket. The employer paid temporary total disability benefits for one year but terminated benefits after learning of the employee’s extensive medical history that included a prior back injury. The employer also denied the employee’s medical claim for a discography. The employee filed a disputed claim for reinstatement of benefits and payment for the medical procedure. The workers’ compensation judge (“WCJ”) denied relief after determining that the employee presented insufficient proof of a disability or causation. The employee appeals that decision. Finding no manifest error in the judgment, we affirm.

Facts

On October 29, 2002, Mae Rean Lee reported to her job as a pastry cook at the Piggly Wiggly in Springhill, Louisiana, which is owned by the defendant (hereinafter “Piggly Wiggly”). After completing some tasks, Lee decided to take a break. On her way to the bathroom, Lee slipped on residual floor grease and fell, injuring her lower back, buttocks, shoulder and wrist. A co-worker assisted Lee up from the floor and she continued working for approximately thirty minutes after she fell. When her left hand and wrist began to swell, Lee’s manager sent her to the hospital. Her back pain did not diminish.

Lee initially went to Springhill Medical Center for treatment. She later saw Dr. [1218]*1218Clinton McAlister, an orthopedic specialist, on November 11, 2002. He prescribed physical therapy and anti-inflammatory medication. |<When her pain persisted, Dr. McAlister scheduled an MRI and referred her to Dr. Pierce Nunley for a spinal evaluation. Dr. Nunley first saw Lee on February 10, 2003. He continued the physical therapy but Lee obtained no relief. The MRI showed degenerative changes at L5-S1 with disc herniation. Dr. Nunley recommended a discography. When Piggly Wiggly denied payment, however, Lee instituted a disputed claim for medical treatment in June 2003, including a claim for penalties and attorney fees.

Piggly Wiggly answered, noting Lee’s continued receipt of indemnity and medical benefits. It exercised its choice of physicians to determine the necessity for the discography. Accordingly, Dr. Carl Goodman evaluated Lee to furnish a second opinion. He concluded she was not a candidate for surgery after reviewing two MRI’s, one from before the accident and the other from January 2003. Dr. Goodman compared the two MRI’s to determine that Lee was not manifesting any new injury that could be related to her accident and was thus capable of performing the same work activities as she did before.

In July 2003, Lee was deposed and questioned about her medical history. Based upon allegations that Lee’s deposition testimony and discovery responses directly contradicted her medical and employment records, Piggly Wiggly defended Lee’s claim asserting forfeiture of benefits pursuant to La. R.S. 23:1208. Piggly Wiggly also ceased paying Lee indemnity benefits in October 2003, although it continued to pay for her medical expenses, excluding the discography, until the time of trial.

hAt trial, the parties stipulated to Lee’s average weekly wage of $146.00, the payment of indemnity benefits through October 9, 2003, and Piggly Wiggly’s payment of medical benefits with the exception of the discography. In denying the entirety of Lee’s claims, the WCJ ruled as follows:

The court has concluded that claimant was not a credible witness. It further finds that other witnesses and other evidence have discredited or cast serious doubt upon claimant’s allegations of complete freedom of back pain prior to the alleged work related accident on October 29, 2002. It also finds that she has completely failed to carry her burden of demonstrating by clear and convincing evidence that she has any residual disability from the said alleged accident. She has a long and well documented history of previous back injuries and lower back pain, as well as injuries to other parts of her body. Despite her assertions to the contrary, she has had numerous work related and motor vehicle accidents.

This appeal by Lee followed.

Discussion

An employee is entitled to receive TTD benefits only if she proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment. Nelson v. City of Grambling, 31,303 (La.App. 2d Cir.12/9/98), 722 So.2d 358, writ denied, 99-0073 (La.2/26/99), 738 So.2d 588; Knotts v. Snelling Temporaries, 27,773 (La.App. 2d Cir.12/6/95), 665 So.2d 657; Johnson v. Temple-Inland, 95-948 (La.App. 3rd Cir.1/31/96), 670 So.2d 388, writ denied, 96-0544 (La.4/19/96), 671 So.2d 919. This is the standard of proof which a claimant must satisfy when she files a disputed claim form seeking an award of TTD benefits after the employer or insurer terminates voluntary payments of TTD benefits. Brantley v. Delta 4Ridge Implement, Inc., 41,190 (La.App. 2d Cir.6/28/06), [1219]*1219935 So.2d 308. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than is nonexistence. Id.

Since the 1989 amendment to La. R.S. 23:1221(l)(d), maximum medical improvement alone has not been the standard for the termination or eligibility of TTD benefits. Mitchell v. AT & T, 27,290 (La.App. 2d Cir.8/28/95), 660 So.2d 204, writ denied, 95-2474 (La.12/15/95), 664 So.2d 456. Upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to supplemental earnings benefits (SEB’s). Nelson v. City of Grambling, supra; Foster v. Liberty Rice Mill, 96-438 (La.App. 3d Cir.12/11/96), 690 So.2d 792.

To qualify for SEB’s, a plaintiff is required to prove by a preponderance of the evidence that a work-related injury resulted in the inability to earn 90% or more of the pre-injury wages. La. R.S. 23:1221(3)(a); Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The purpose of SEB’s is to compensate the injured employee for the wage-earning capacity she has lost as a result of her accident. Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra.

Under La. R.S. 23:1221(3)(a), an employer may preclude an award of SEB’s by establishing that the employee is physically able to perform a | r,certain job and that the job was offered to the employee, or that the job was available to the employee in his or the employer’s community or reasonable geographic region. Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra. Once the employer demonstrates the employee is capable of work, and appropriate work is available, then the claimant must prove by clear and convincing evidence, unaided by a presumption of disability, that she is unable to perform the employment offered. Nelson v. City of Grambling, supra; Foster v. Liberty Rice Mill, supra.

In support of her claims at trial, Lee submitted certified copies of her medical records from Springhill Medical Center and Dr. Nunley into evidence. Lee also testified. In opposition, Piggly Wiggly submitted the deposition of Dr.

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938 So. 2d 1216, 2006 La. App. LEXIS 1835, 2006 WL 2422909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-kenyan-enterprises-lactapp-2006.