Lolis v. Petrin Corp.

928 So. 2d 123, 2005 La. App. LEXIS 2604, 2005 WL 3489539
CourtLouisiana Court of Appeal
DecidedDecember 22, 2005
DocketNo. 2004 CA 2716
StatusPublished

This text of 928 So. 2d 123 (Lolis v. Petrin Corp.) 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
Lolis v. Petrin Corp., 928 So. 2d 123, 2005 La. App. LEXIS 2604, 2005 WL 3489539 (La. Ct. App. 2005).

Opinion

HUGHES, J.

1 ?This appeal challenges a ruling that a workers’ compensation claimant failed to sustain his burden of proving entitlement to indemnity benefits and to continued medical benefits. We affirm.

BACKGROUND

On March 15, 2001 while in the course and scope of his employment with Petrin Corporation, appellant Eric Lolis tripped and fell over a pipe rack at the work site and landed on his back. He did not return to work for Petrin following the incident, but made a claim for workers’ compensation benefits, claiming that he had injured his back in the fall. Petrin refused to pay Lolis medical or indemnity benefits, disputing the fact of an accident and any resulting disability.

On May 24, 2001 Lolis filed this disputed claim for compensation with the Office of Workers’ Compensation (OWC), seeking to recover medical expenses, temporary total disability benefits, supplemental earnings benefits, attorney’s fees, and penalties. The parties stipulated that Lolis was employed by Petrin at the time of the alleged work injury, that Lolis’s average weekly wage was $388.00, and that the Louisiana Workers’ Compensation Corporation (LWCC) provided workers’ compensation coverage to Petrin for the incident at issue.

At trial, Lolis testified that prior to being employed by Petrin, he had worked for a number of mortgage companies doing loan origination work and had worked for approximately 15 companies at temporary job assignments at construction sites. Personnel records introduced into evidence jointly by the parties show that from December 10, 1999 through February 2, 2001, Lolis worked intermittently for a temporary employment |sagency, Labor Ready. These records reveal that for the year 2000, Lolis worked one day in March, six days in April, twenty-two days in May, six days in June, and for the year 2001, he worked nine days in January and two days in February.

In March of 2001, Petrin hired Lolis as a “fire watcher” on one of its welding crews. Lolis’s job was to stand watch where the welders were working to make sure no sparks or flames from the welding work caused a fire. On March 15, 2001, less than two weeks after he was hired by Petrin, Lolis arrived at the work site for the evening shift. He testified that he had been working about two hours when he left his post to go to the restroom. Lolis attested that as he was walking toward his work unit, he encountered a pipe rack, his leg became entangled in it, and while he was trying to free himself, he lost his balance and fell to the ground on his back. Petrin employees Eddie Nagin and Carol Lyons did not witness the fall, but saw Lolis on the ground as he was trying to [126]*126get up. Lolis stated that after his supervisor was informed of the accident, the supervisor told him he could leave for that evening. The Petrin employees testified, however, that a very angry Lolis told them he was quitting his job and to get him out of the plant.

The next morning, Lolis went to the Baton Rouge General Hospital’s emergency room complaining of back pain as a result of his fall at work. The x-rays taken of Lolis’s shoulder and cervical spine revealed no fractures or dislocations. Lol-is was diagnosed with musculoskeletal pain, and no restrictions were placed on his activities at that time. He returned to the hospital’s emergency room on April 6, 2001 with complaints of back pain. Again, he was diagnosed with musculoskeletal pain, and ibuprofen and flexeril were prescribed. Lolis’s discharge instructions did not restrict him |4from returning to work, but did contain a work/activity restriction of lifting no more than fifteen pounds until April 10, 2001.

Lolis testified that he called Petrin’s Human Resources Department to report the work accident a few days after it happened, making a claim at that time for compensation payments and medical benefits, which was denied. In support of his disability claim, Lolis introduced the deposition of Dr. James E. Hines III, a family practitioner who first treated Lolis on June 27, 2001 for back pain associated with the work injury. Dr. Hines could not locate records of Lolis’s initial visits, although he did recall treating Lolis on four occasions through December of 2001 for back pain. Dr. Hines diagnosed Lolis as having sustained a back strain with no signs of any disc injury or radiculopathy. In December of 2001, Dr. Hines opined that Lolis’s back condition was chronic because Lolis was still complaining of back pain nearly eleven months after the work accident, while low back strain injuries typically improve within six to eight weeks.

Dr. Hines testified that he filled out a disability form on January 16, 2002, attesting that Lolis was disabled from June 27, 2001 to an unknown time because of his back problem. He acknowledged that at the time he filled out the form, Lolis had not yet been seen by an orthopedic specialist. He further acknowledged that he was unaware that Lolis had in fact returned to work, and that this would change his opinion as to whether Lolis should work. He testified that in light of the length of time that had passed since the work incident, he believed that Lolis probably could work as of the date he filled out the disability form because Lolis’s condition had not progressed, but he still felt Lolis’s return to work was “foggy and ill advised.” Dr. Hines stated that he continued to treat Lolis until September 23, 2003 for back pain and other conditions, including diabetes. He opined that Lolis had reached |fihis maximum medical improvement as of October 21, 2003, and that he would be reluctant to release Lolis to return to work without a consult from an orthopedic specialist.

The remaining medical evidence showed that an MRI scan was taken of Lolis’s lumbar spine on March 20, 2002, which was normal. Lolis underwent physical therapy for lower back pain on four occasions in June of 2002. Thereafter, Lolis saw Dr. Theodore Knatt, an orthopedist, in August of 2002 complaining of back pain. Although Dr. Knatt recommended physical therapy, there is no indication of a disability finding by the doctor in the medical records produced at trial.

In March of 2003, a Functional Capacity Evaluation was performed on Lolis. The FCE report indicated that Lolis was capable of working a full-time job in the mid-medium physical demand level. The report set forth restrictions regarding sit[127]*127ting, squatting, stooping, and reaching. On November 3, 2003, Dr. William Hagem-ann of the Bone and Joint Clinic of Baton Rouge performed a physical examination of Lolis at the request of the LWCC. According to Dr. Hagemann’s report, the results of that examination were normal. Dr. Hagemann attested that Lolis appeared to have reached his maximum medical recovery and he could find no physical reasons to impose any restrictions on Lol-is’s employment activities.

Regarding Lolis’s work history, Lolis testified that he did not work for two to three months following the March 15, 2001 work accident, and returned to work only because he needed to support himself. He stated that his first employer following the work injury was Savard Staffing Services, where he worked on a garbage truck emptying trash, followed by a series of temporary jobs with Labor Finders, Labor Ready, and Lofton Staffing | ^Services. He testified that his back problem prevented him from working a normal 40-hour work week.

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928 So. 2d 123, 2005 La. App. LEXIS 2604, 2005 WL 3489539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lolis-v-petrin-corp-lactapp-2005.