Lee v. Winn-Dixie of Louisiana, Inc.

593 So. 2d 961, 1992 La. App. LEXIS 122, 1992 WL 14096
CourtLouisiana Court of Appeal
DecidedJanuary 30, 1992
Docket91-CA-1681
StatusPublished
Cited by5 cases

This text of 593 So. 2d 961 (Lee v. Winn-Dixie of Louisiana, 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
Lee v. Winn-Dixie of Louisiana, Inc., 593 So. 2d 961, 1992 La. App. LEXIS 122, 1992 WL 14096 (La. Ct. App. 1992).

Opinion

593 So.2d 961 (1992)

Clementine LEE
v.
WINN-DIXIE OF LOUISIANA, INC.

No. 91-CA-1681.

Court of Appeal of Louisiana, Fourth Circuit.

January 30, 1992.

Roy H. Maughan, Jr., Maughan, Atkinson & Martin, Ltd., Baton Rouge, for plaintiff/appellant.

Dennis Paul Juge and Kristi L. Stroebel, Sutherland, Juge, Horach & Dwyer, New Orleans, for defendant/appellee.

Before SCHOTT, C.J., and CIACCIO and PLOTKIN, JJ.

PLOTKIN, Judge.

Plaintiff, Clementine Lee, appeals a judgment from the Office of Workers' Compensation, which dismissed her workers' compensation suit against defendant, Winn-Dixie of Louisiana, Inc., and annulled a previous preliminary judgment. We affirm.

Facts

On October 23, 1989, Ms. Lee was working as the deli manager at the Winn-Dixie store on Chef Menteur Highway in New Orleans. Sometime in the early afternoon, Ms. Lee was discovered on the floor of the deli freezer, surrounded by cases of pies, by a co-employee, Greg Parker, who initially thought that Ms. Lee was unconscious. Just prior to this discovery, Ms. Lee had *962 been moving cases of frozen pies from the freezer to a work area. When Mr. Parker went into the freezer to try to help Ms. Lee, she was conscious. He helped her stand up, and she walked out of the freezer on her own. Mr. Parker testified at trial that Ms. Lee had no visible signs of physical injury, but that she rubbed her temples.

Mr. Parker testified that he asked Ms. Lee if she was alright, and she replied in the affirmative. He said that she recognized him and that nothing indicated that she did not know what was going on. She sat down for five or ten minutes, then went back to work. Shortly thereafter, Mr. Parker went to lunch. When he returned some 45 minutes later, Ms. Lee had completed some of her work. Around 3 p.m., Ms. Lee went to the front of the store.

The store manager, Julian Raymond Rickerson, testified that around 3 p.m. that day, Ms. Lee called pursuant to store policy to tell him she was leaving and to ask him to find out whether an accident report had been filed. When he saw her, she recognized him and she seemed fine. Mr. Walker saw Ms. Lee at the time clock around this time.

Ms. Lee then returned to the deli and told Mr. Walker that she was going out for some air. She then left the store, leaving her purse and keys under the deli counter. Mr. Walker thought that was unusual because Ms. Lee's shift was over and it was time for her to go home.

When Ms. Lee had not returned within a reasonable amount of time, Mr. Walker became concerned and went out into the parking lot to look for her. He found that Ms. Lee's car was still in the parking lot. When he was unable to locate Ms. Lee, he called her husband. When Mr. Lee got Mr. Walker's message, he came to the store and the two of them went to look for Ms. Lee.

Ms. Lee was eventually located by the local police some 36 hours after she left the store. When discovered, Ms. Lee had apparently completely lost her memory. She was taken to the emergency room at Methodist Hospital, where she was diagnosed as suffering from retrograde "psychogenic amnesia." Medical tests indicated that the amnesia was not caused by any organic or toxic condition.

At the time of trial, Ms. Lee claimed that she had not regained much of her memory. Her husband testified that she cannot go out alone, she cannot handle money, and she is unable to recognize people.

Ms. Lee filed a workers' compensation claim against Winn-Dixie, alleging that her condition was caused by the incident in the freezer. A preliminary judgment for failure to timely answer the claim was entered against Winn-Dixie on July 27, 1990 pursuant to LSA-R.S. 23:1316. After a hearing on the matter, the Office of Workers' Compensation entered a judgment dismissing plaintiff's claim and annulling the preliminary judgment, apparently on the basis of the fact that the petition had not been properly served on the defendant's registered agent for service of process. Plaintiff appeals, claiming first the dismissal of her claim was improper and, alternatively, that the annulment of the preliminary judgment was improper.

Dismissal of Worker's Compensation Claim

In dismissing the plaintiff's claim, the hearing officer found as follows:

The testimony, both medical and lay, preponderated in favor of the defendant, in that, (1) the claimant was not suffering from "psychogenic amnesia", [sic] (2) there was no accident or incident precipitating or causing or contributing to any alleged amnesia.

The hearing officer also found that "[n]either the testimony of the claimant nor her husband were [sic] worthy of belief."

We find no manifest error on the part of the hearing officer in dismissing the claim. The burdens of proof applicable to workers' compensation suits have been defined by the Louisiana Supreme Court as follows:

As in other civil suits the employee in a worker compensation proceeding initially has the burden of establishing his disability *963 and its causal relation with the employment accident by a preponderance of the evidence. In order for the employee to recover, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found. A claimant's disability is presumed to have resulted from an accident, however, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and the disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.

Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320, 324 (La. 1985).

The plaintiff in the instant case claims that she is entitled to the presumption that her alleged disability was caused by the work-related incident in the defendant's freezer. Her arguments are without merit, however, for the following reasons.

First, the trial judge found specifically that the plaintiff failed to prove that she was indeed suffering from any disability. Although the plaintiff's medical expert, Dr. George Bishop, testified unequivocally that Ms. Lee was suffering from psychogenic amnesia, the defendant's medical expert, Dr. Richard Roniger, disagreed. Dr. Roniger, who prepared a report based on an interview with the plaintiff and review of medical records, stated that memory loss was "one" of the "outstanding features" of the plaintiff's "presentation." Dr. Roniger felt that psychogenic amnesia "would be a consideration" in diagnosing the plaintiff, but stated that he did not feel that psychogenic amnesia was "necessarily the case." He noted that the outstanding feature of the medical records was the fact that the other doctors could not find any neurological or organic reason for the plaintiff's alleged condition. Significantly, Dr. Roniger stated that he thinks that the incident at Winn-Dixie had nothing to do with the plaintiff's condition.

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Bluebook (online)
593 So. 2d 961, 1992 La. App. LEXIS 122, 1992 WL 14096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-winn-dixie-of-louisiana-inc-lactapp-1992.