Linda F. Mitchell v. Alliance Compressors

• Court: Louisiana Court of Appeal
• Decided: April 5, 2006
• Docket: WCA-0005-1186
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

05-1186

LINDA MITCHELL

VERSUS

ALLIANCE COMPRESSORS

**********

APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 02-07611 HONORABLE JAMES L. BRADDOCK WORKERS’ COMPENSATION JUDGE

J. DAVID PAINTER JUDGE

Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter, Judges.

AFFIRMED.

Amy, J., dissents.

George A. Flournoy Flournoy & Doggett (APLC) P.O. Box 1270 Alexandria, LA 71309 Counsel for Plaintiff-Appellee: Linda Mitchell

Mark A. Watson Todd A. Vance Stafford, Stewart & Potter P.O. Box 1711 Alexandria, LA 71309 Counsel for Defendant-Appellant: Alliance Compressors PAINTER, Judge.

In this workers’ compensation case, Defendant, Alliance Compressors, appeals

the finding of the workers’ compensation judge (WCJ) that Plaintiff, Linda Mitchell,

suffered an occupational disease. Alliance Compressors further appeals the WCJ’s

subsequent awards of supplemental earnings benefits (SEB), medical benefits,

vocational rehabilitation, and penalties and attorney’s fees. For the following

reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mitchell began work at Alliance Compressors in August 1999 as an assembly

worker in the kitting department. In May of 2001, Mitchell injured her left shoulder

at work and was treated by Dr. John P. Sandifer and Dr. Baer Rambach. Dr. Rambach

released her to return to work in September 2002, and she returned to work at

Alliance in the sub-assembly department.

In April 2003, Mitchell was assigned to the scroll department. In that

department, she worked as an op-10 operator. In that capacity, Mitchell was required

to gather the parts as they came down a conveyor belt in a basket holding twelve parts

and to manually lift them into a machine. The parts are called scrolls and weigh

about eight to twelve pounds each. Mitchell testified that the machine was about

shoulder height for her. When the scrolls exited the machine, Mitchell had to spray

them off and carry them to a different room. Once the parts were brought back from

the other room, Mitchell had to put them back into the basket and push them back out

on the line so that they could go to the next area. This work was of a repetitive

nature. Mitchell’s job duties in the scroll department also involved “tooling” her

machine which entailed changing out damaged tools in the machine using tools that

weighed up to seven pounds. Mitchell was also required to clean the machine several

1 times a day and to sweep around her area. Mitchell’s normal shift was from 6:00 a.m.

to 6:00 p.m. on Friday, Saturday, and Sunday.

After being in the scroll department for several months, Mitchell began

experiencing problems in her upper back and shoulders. On January 28, 2004, she

returned to Dr. Sandifer. He prescribed Bextra and told Mitchell she could return to

work. She did return to work, but testified that she was still in pain. On February 28,

2004, Mitchell felt shooting pains from the upper-center part of her back, through

both of her shoulders and neck. At that time, she reported the injury, filled out an

incident report, and went to the hospital.

Alliance Compressors set up an appointment for Mitchell with Dr. Mary Long

on March 2, 2004. Dr. Long diagnosed back pain and prescribed a muscle relaxant

and analgesics. Dr. Long also recommended a physical therapy consult. Mitchell

saw Dr. Long on March 4 and March 5, 2004. Dr. Long ordered an MRI and x-ray

of the thoracic spine. These studies were done on March 9, 2004.

Mitchell’s last day of work at Alliance was March 5, 2004. By letter dated

March 15, 2004, Mitchell was fired by Alliance.

Mitchell saw Dr. M. E. Milstead on May 3, 2004 and continued under his care

through the trial of this matter. Dr. Milstead diagnosed Thoracic Outlet Syndrome

(TOS) and recommended physical therapy. Thoracic Outlet Syndrome is a condition

where the blood vessels and/or nerve bundles coming out of the neck and underneath

the collarbone are compressed or irritated. Dr. Milstead also ordered an EMG and

MRIs. The EMG studies were done on May 17, 2004 by Dr. David Adams and were

normal. There was no evidence of radiculopathy, neuropathy, myopathy, or any nerve

injury or damage. The MRIs of the cervical spine and both shoulders were

performed on May 20, 2004 and were normal. She also had negative Tinel’s and

2 Adson’s tests. However, Dr. Milstead was firm in his diagnosis of TOS. His

progress report, dated May 24, 2004, indicated his opinion that her symptoms were

related to the thoracic outlet since all of the work-up looking for disc problems was

negative. On March 3, 2005, Dr. Milstead’s exam did show a strong positive Tinel’s

sign over both supraclavicular regions with positive Adson’s tests on both sides.

On February 1, 2005, Mitchell filed a first supplemental and amending claim,

asserting that she was disabled as of March 1, 2004, as a result of “an occupational

disease and/or repetitive work duties in her work environment[.]”

Following trial of this matter, the WCJ rendered judgment in favor of Mitchell,

finding that her wages were $504.70 per week; that she was entitled to SEB based on

zero earnings, beginning March 6, 2004 and continuing in accordance with La.R.S.

23:1221(3), together with legal interest from due date; and that Alliance Compressors

was responsible for payment of all work related medical expenses incurred prior to

April 15, 2005 in the full amount of each expense, without any reduction, together

with legal interest from due date. The judgment also ordered Alliance Compressors

to pay $4,000.00 in penalties for failure to pay indemnity and medical benefits, to

provide meaningful vocational rehabilitation, and to pay attorney’s fees in the amount

of $7,500.00.

Alliance Compressors now appeals and asserts three assignments of error.

First, Alliance Compressors urges that the WCJ erred in finding that Mitchell

established that she sustained an occupation disease because Mitchell did not

introduce any evidence that her condition was characteristic of and peculiar to her

trade, business or occupation. Second, Alliance Compressors argues that the WCJ

erred in finding that Mitchell was entitled to SEB, medical benefits, and vocational

rehabilitation. Third, Alliance Compressors asserts that the WCJ erred in finding that

3 it did not reasonably controvert Mitchell’s claim such that the awards of penalties and

attorney’s fees were improper.

DISCUSSION

At the outset, we are mindful that the standard of review for factual findings

in a workers’ compensation case is the manifest error or clearly wrong standard of

review. Thomas v. Alliance Compressors, 04-1034 (La.App. 3 Cir. 12/8/04), 889

So.2d 424, writ denied, 05-0086 (La. 3/18/05), 896 So.2d 1010 (citing Banks v.

Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d

551, 556). Thus, it is not for us to determine whether the trier of fact was right or

wrong, but whether the conclusion was a reasonable one. Id. Therefore, if the

conclusions of the factfinder are reasonable in light of the record reviewed in its

entirety, we cannot reverse, even if we are convinced that we would have weighed the

evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Louisiana Revised Statutes 23:1031.1(B) governs workers’ compensation

claims for occupational disease and provides, in pertinent part, as follows:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

A plaintiff bears the burden of proving, by a preponderance of the evidence,

that the disease at issue was contracted during the course of her employment and that

the disease was the result of the nature of the work performed. Thomas, 889 So.2d

424 (citing Dunaway v. Lakeview Regional Med. Ctr., 02-2313, p. 5 (La.App. 1 Cir.

8/6/03), 859 So.2d 131, 134). In Comeaux v. Star Enterprise/Motiva Enterprise, 02-

4 24, p.8 (La.App. 1 Cir. 12/20/02), 836 So.2d 359, 364 (citations omitted), the court

stated:

The causal link between his illness and work-related duties must be established by a reasonable probability. The claimant will fail if he shows only a possibility that the employment caused the disease, or that other causes not related to the employment are just as likely to have caused the disease.

We are further mindful that, “[i]n Louisiana, it is well settled that an employee's

disability is compensable if a pre-existing condition or disease is activated or

precipitated into a disabling manifestation as a result of work.” Austin v. Howard

Discount Stores, Inc., 569 So.2d 659, 654 (La. App. 2 Cir. 1990) (citing Hammond

v. Fidelity & Casualty Co. of New York, 419 So.2d 829 (La.1982) and Duncan v.

State, DOTD, 556 So.2d 881 (La.App. 2d Cir.1990)).

In this case, Alliance argues that there was no evidence to show that TOS is

characteristic of or peculiar to Mitchell’s trade or occupation and makes much of Dr.

Milstead’s testimony that TOS is common, specifically in females, and in overhead

activities such as fixing hair and applying make-up. Alliance also argues that the

TOS manifested itself less than twelve months into Mitchell’s work in the scroll

department such that it is presumed that the TOS was not caused by her job duties.

We find these arguments to be without merit.

We first consider Alliance’s argument that it is presumed that the TOS was not

caused by Mitchell’s job duties because it manifested itself in December of 2003, less

than twelve months after Mitchell was transferred to the scroll department in April

of 2003. This presumption, however, is rebuttable and can be overcome if a claimant

can prove “by a preponderance of the evidence that the disease was contracted during

her employment, specifically proving that there is a disability which is related to an

employment-related disease, the disease was contracted during the course of

5 employment, and the disease is a result of the work performed.” Johnson v. Johnson

Controls, Inc., 38,495, p. 12 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 931-32 (citing

Ball v. Wendy's Intern. Inc., 36,922 (La.App. 2d Cir.03/05/03), 839 So.2d 1208, writ

denied, 03-0978 (La.05/30/03), 845 So.2d 1056). The WCJ can consider medical

reports admitted into evidence or expert testimony to determine whether a claimant

has overcome the presumption. Id. (citing Fite v. Louisiana Title Co., 02-2607

(La.06/27/03), 852 So.2d 983).

Here, the WCJ made no mention of the presumption stated in La. R.S.

23:1031.1(D). However, the record shows that Mitchell’s symptoms manifested

themselves well within the initial twelve month period of her employment in the

scroll department. With this presumption in place, Mitchell had to prove by a

preponderance of the evidence that her TOS was contracted during her employment.

Based on the medical records introduced into evidence and the deposition testimony

of Dr. Milstead, the WCJ concluded that Mitchell had TOS and that it was made

symptomatic by her employment at Alliance. Even though the WCJ may not have

considered the presumption in favor of Alliance, we cannot say that the final

determination on this particular issue was in error because we find no manifest error

in the WCJ’s conclusion that Mitchell suffered from TOS and that Mitchell carried

her burden of proving that her employment aggravated that condition.

This circuit has repeatedly recognized that TOS “is akin to carpal tunnel

syndrome and is included as an occupational disease under La.R.S. 23:1031.1.”

Doumite v. KVHP-Fox 29, 04-427, pp. 6-7 (La.App. 3 Cir. 10/20/04), 884 So.2d

1283, 1288. The record in this case indicates that Mitchell gradually began

experiencing pain in her upper back and shoulder while working in the scroll

department at Alliance, where her duties included repetitive lifting and pulling of

6 parts. She was examined by several doctors before being diagnosed with TOS by Dr.

Milstead in May of 2004. Dr. Milstead was unequivocal in his testimony that the

work Mitchell was doing definitely aggravated the thoracic outlet and brought on the

symptoms of TOS. There was absolutely no evidence that her condition was anything

other than TOS. Based on our review of the record in its entirety, we find that there

is enough evidence to find that Mitchell established a causal link between her illness

and her work-related duties by a reasonable probability. Therefore, we find no

manifest error in the WCJ’s finding that Mitchell suffered from a compensable

occupational disease and that she met her burden of proving that her employment

caused the symptoms of TOS to manifest themselves.

Alliance next argues that the WCJ erred in finding that Mitchell was entitled

to SEB, medical expenses, and vocational rehabilitation. This argument is based on

Alliance’s position that Mitchell failed to prove that she suffered an occupational

disease. Alliance apparently does not contest the award at a zero rate beginning

March 6, 2004, but contests the fact that it was awarded at all. Since we find that

Mitchell did prove that she suffered from an occupational disease and that it was

related to her work duties, this assignment of error is without merit. And, we note,

as did the WCJ, that Alliance did not show that it had jobs available or offered any

position to Mitchell that she could perform, what the jobs paid, or that Mitchell

refused said jobs. Further, Alliance offered no vocational rehabilitation to assist

Mitchell in returning to work.

Finally, in its third assignment of error, Alliance argues that the WCJ erred in

finding that it did not reasonably controvert this claim and in awarding penalties and

attorney’s fees as a result thereof. We disagree. “The determination of whether an

employer should be cast with penalties and attorney fees is essentially a question of

7 fact, and the trial court’s finding must not be disturbed on appeal absent manifest

error.” Thomas, 889 So.2d at 428. The employer has a continuing duty to

investigate, assemble, and assess factual information before it denies benefits. Id.

(citing George v. Guillory, 00-591(La.App. 3 Cir. 11/2/00), 776 So.2d 1200). It is

this court’s duty to “ascertain whether the employer or his insurer engaged in a

nonfrivolous legal dispute or possessed factual and/or medical information to

reasonably counter the factual and medical information presented by the claimant

throughout the time he refused to pay all or part of the benefits allegedly owed.”

Doumite, 884 So.2d at 1291 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p.

9 (La. 12/1/98), 721 So.2d 885, 890).

Alliance refused to pay benefits based on its assertion that there was no

accident and that there was no proof of an occupational disease. Here, as in Thomas,

it is clear that Alliance had knowledge that Mitchell sustained an injury. Alliance

sent Mitchell to Dr. Long, who recommended a physical therapy consult on March

2, 2004. No such consult was ever approved by Alliance. Alliance did receive copies

of Dr. Milstead’s reports. Even after Dr. Milstead diagnosed TOS, Alliance never

inquired as to what disability status Dr. Milstead placed on Mitchell or what work

restrictions he placed upon her. Nor did Alliance send Mitchell back to Dr. Long or

another doctor to determine if a causal relationship existed or to refute Dr. Milstead’s

diagnosis. Therefore, we find that Alliance failed to meet its duty to investigate

Mitchell’s claim. Accordingly, we find no manifest error in the WCJ’s conclusion

that Alliance failed to reasonably controvert Mitchell’s claim for benefits and his

award of penalties and attorney’s fees in this matter.

8 Mitchell does not ask for additional attorney’s fees for work done on the

present appeal, and no answer has been filed requesting such relief. Therefore, we

are precluded from awarding any additional attorney’s fees.

DECREE

For all of the aforementioned reasons, the judgment of the WCJ is affirmed in

its entirety. Costs of this appeal are assessed to Defendant-Appellant, Alliance

Compressors.