Leonard v. Wal-Mart Stores, Inc.

582 So. 2d 332, 1991 La. App. LEXIS 1793, 1991 WL 101469
CourtLouisiana Court of Appeal
DecidedJune 5, 1991
DocketNo. 91-CA-78
StatusPublished
Cited by3 cases

This text of 582 So. 2d 332 (Leonard v. Wal-Mart Stores, 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
Leonard v. Wal-Mart Stores, Inc., 582 So. 2d 332, 1991 La. App. LEXIS 1793, 1991 WL 101469 (La. Ct. App. 1991).

Opinion

GOTHARD, Judge.

Wanda Leonard sued her employer Wal-Mart, Inc. and its insurer, National Union Insurance Company, for worker’s compensation alleging that defendants failed to pay all benefits and medical expenses associated with a work related injury she sustained on September 24, 1988. Additionally, Leonard asserted that this refusal by the defendants was arbitrary and capricious.

On September 24, 1988, in the course and scope of her employment as a part-time cashier at Sam’s Wholesale, a subsidiary of Wal-Mart, Inc., Ms. Leonard injured her right shoulder lifting a box of copy paper. She was sent to St. Jude Hospital by a supervisor, treated for a pulled muscle, and released. Ms. Leonard returned to work three days later and reinjured her shoulder lifting cases of soft drinks.

About six weeks after her injury Leonard began receiving worker’s compensation benefits. These benefits were paid for about six months when, on the basis of a report prepared by Dr. Gordon Nutik, the orthopedic surgeon appointed by the state, defendants terminated the payments. Plaintiff filed this suit in response.

[334]*334The trial court ruled in favor of the defendants. In the reasons for judgment, the court explained the ruling by stating its finding that “after the examination by Dr. Nutik, plaintiff was neither permanently totally nor temporarily totally disabled within the meaning of La.R.S. 23:1221.” The court further ruled that plaintiff was not entitled to supplemental earnings benefits under the cited statute.

On appeal plaintiff argues that the trial court erred in ruling that the defendants were justified in terminating benefits and in refusing to find defendants arbitrary and capricious in the termination.

The evidence reflects that plaintiff is a twenty-five year old woman who had worked as a part-time cashier at Sam’s for about two years prior to the injury. She is a high school graduate who has had training as partial completion of a course at Moller’s Beauty College. Additionally, Ms. Leonard has experience as a bank teller. Ms. Leonard testified that she began that training after her injury, but was unable to complete it due to the pain in her right shoulder. Ms. Leonard also testified that she had applied for a cashier’s position at East Jefferson Hospital the week before the trial and would accept the job if it were offered to her since she felt physically able to perform the job. There is no testimony as to the actual rate of pay the East Jefferson position offered but Ms. Leonard did testify that the position was full-time as opposed to the part-time position she held at Sam’s. She was being paid at the rate of $6.00 per hour while employed at Sam’s.

Cynthia Lua, a representative of Sam’s Wholesale, testified that Ms. Leonard could return to the store and would be given “light duty” such as checking memberships of customers as they enter the store or receipts as they leave. In that capacity, Ms. Leonard would receive the same rate of pay she previously received. Ms. Lua further testified that she personally tried on three occasions to telephone Ms. Leonard to inform her of this opportunity but was unable to reach her. Ms. Leonard testified that she did not receive any telephone messages from anyone at Sam’s and had not inquired into the possibility of light duty work at Sam’s.

Ms. Leonard testified that when she injured her shoulder in September, 1988 she was sent to the company doctor, Dr. Riley. Dr. Riley referred her to an orthopedic specialist, Dr. Shoji. Dr. Shoji treated Ms. Leonard for about one month. Neither Dr. Riley nor Dr. Shoji testified at trial. The plaintiff was also treated by Dr. Eddington, who was deceased at the time of trial, and Dr. Epps who did not testify.

Medical evidence offered at trial on plaintiff’s behalf was presented by Dr. Henry Evans, an expert in family medicine. Ms. Leonard first consulted Dr. Evans over one year after the accident on November 15, 1989 at the request of her attorney. Dr. Evans testified that his patient provided him with a history of her injury and treatment and complained of pain in her right shoulder and neck. X-rays taken by Dr. Evans showed no sign of fractures, dislocations or any other bone abnormality. Dr. Evans’ diagnosis was chronic bursitis of the right shoulder with capsulitis.

Ms. Leonard returned to Dr. Evans on November 29, 1989. Ms. Leonard underwent EMG studies of her right shoulder which were subsequently interpreted to demonstrate some inflammation of the joints. Therapy and medication prescribed after that visit were effective in improving Ms. Leonard’s condition. When Dr. Evans saw the plaintiff for the last time on February 9, 1990 she reported she felt improvement, and the physical examination at that time revealed improved range of motion of the right shoulder with only minimal tenderness. Dr. Evans testified that plaintiff should avoid repetitive lifting but indicated that with continued treatment she should recover fully.

Dr. Evans prepared three reports which were directed to the worker’s compensation carrier. Two reports, dated November 30, 1989 and February 2, 1990 respectively, do not indicate that the plaintiff is disabled and unable to work. The third report dated February 28, 1990 is the first indication given by Dr. Evans that the plaintiff is disabled. That report stated that Ms. [335]*335Leonard was temporarily totally and completely disabled from employment. Dr. Evans further testified that, when he last saw Ms. Leonard on February 9, 1990 she “was rapidly approaching the point at which she could certainly return to work....” The projection of that prognosis was two to four weeks.

Dr. Michael Taylor, a chiropractor, testified that he saw Ms. Leonard on January 17, 1990 on a referral from Dr. Evans for an independent diagnostic work-up. One series of tests revealed no abnormal data. A second test indicated a weakness in muscles around the affected area. Dr. Taylor explained that his function was simply to perform diagnostic tests, not to render a disability rating.

Dr. Gordon Nutik, an orthopedic surgeon who examined the plaintiff on February 14, 1989 at the request of the Office of Worker’s Compensation, testified that he received a complete history from the patient. Dr. Nutik conducted a physical examination and diagnostic tests. The results of those procedures revealed that the patient was able to walk in a normal manner and did not need support for her neck. The doctor found a normal cervical lordosis and no pain upon palpation about the cervical spine, trapezius or sternomastoid muscles. There was no spasm at the neck muscles. Cervical compression tests were negative and the patient enjoyed normal neck motion; although, she did complain of some pain on the right side when she extended her neck. The neurological examination of the upper extremities was within normal limits and no atrophy was measurable. There was no swelling or bruising and normal range of the right shoulder muscle was possible. However, there was pain palpation anteriorly over the long head of the biceps tendon.

The X-rays of the cervical spine did not reveal any obvious fractures or dislocation. Nor did X-rays of the right shoulder reveal any injuries.

Dr. Nutik opined that, based on the subjective findings, the patient had likely sustained soft tissue sprains about her neck and right shoulder causing tendonitis about the right shoulder. Consequently Dr.

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Bluebook (online)
582 So. 2d 332, 1991 La. App. LEXIS 1793, 1991 WL 101469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonard-v-wal-mart-stores-inc-lactapp-1991.