Merriett v. Budget Build Lumber & Supply, Inc.

6 So. 3d 326, 8 La.App. 3 Cir. 1090, 2009 La. App. LEXIS 360, 2009 WL 530063
CourtLouisiana Court of Appeal
DecidedMarch 4, 2009
Docket2008-1090
StatusPublished
Cited by1 cases

This text of 6 So. 3d 326 (Merriett v. Budget Build Lumber & Supply, 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
Merriett v. Budget Build Lumber & Supply, Inc., 6 So. 3d 326, 8 La.App. 3 Cir. 1090, 2009 La. App. LEXIS 360, 2009 WL 530063 (La. Ct. App. 2009).

Opinion

SULLIVAN, Judge.

11 Pamela Merriett appeals a judgment rendered by the Office of Workers’ Compensation (OWC) in her favor and against her employer, Budget Build Lumber & Supply, Inc. (Budget). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Merriett was injured on April 3, 2002, when she twisted her right knee after stepping into a hole in the concrete floor of her workplace. She filed a petition for damages and a disputed claim for compensation with the OWC against Budget *328 and its insurer, Louisiana Retailers Mutual Insurance Company, (hereinafter sometimes referred to collectively as “defendants”) on April 2, 2007. Therein Ms. Merriett assei’ted that she had suffered a work-related accident on April 3, 2002, for which she was receiving weekly benefits, but that defendants had refused to pay for certain of her medical expenses. These included treatment by Dr. Maurice Gremil-lion, her family physician, as well as medication prescribed by him, and the mileage expenses that she had incurred in attempting to get the aforementioned treatment and prescriptions. She further asserted that she had been unable to schedule an appointment with Dr. Robert Haimson, an orthopaedist, regarding a possible knee replacement, because Dr. Haimson’s office required that the insurer schedule all appointments, which it refused to do. In addition, Ms. Merriett requested that she be awarded statutory penalties and attorney fees.

Prior to the March 14, 2008 trial of this matter, the parties stipulated that Ms. Merriett was injured in an accident within the course and scope of her employment and that indemnity benefits were being paid. On the morning of trial, the parties additionally stipulated that Ms. Merriett’s average weekly wage was |2$429.88 and that her workers’ compensation rate was $286.59. Following the trial, the matter was taken under advisement. The workers’ compensation judge (WCJ) rendered her decision in open court on May 28, 2008, and a written judgment was signed on June 4, 2008. It provided that “there be judgment herein in favor of claimant, PAMELA MERRIETT, for indemnity benefits, medical expenses, and mileage expenses but only for the period of April 3, 2002 through July 6, 2002.” All of Ms. Merriett’s remaining claims were denied, and the matter was dismissed with prejudice.

Ms. Merriett now appeals, assigning the following errors:

1. The WCJ erred in finding that plaintiffs disability ended on July 7, 2002.
2. The WCJ erred in denying plaintiffs claims for medical expenses.
3. The WCJ erred in denying plaintiffs claims for penalties and attorney fees.
4. The WCJ erred in refusing to award plaintiff treatment and disability benefits for her left knee and back.

DISCUSSION

The Louisiana Supreme Court set out the standard of review to be employed in workers’ compensation cases in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (citations omitted):

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error — clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable Devaluations of credibility.” Central Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” *329 Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that the mere existence of a pre-existing condition alone does not foreclose the receipt of workers’ compensation benefits where there is evidence that the on-the-job accident aggravated or accelerated the claimant’s pre-existing condition. Bush v. Avoyelles Progress Action Comm., 07-685 (La.App. 3 Cir. 10/31/07), 970 So.2d 63.

In its ruling, the WCJ stated:

This court is persuaded that claimant had a pre-existing degenerative arthritic condition prior to April 3rd, 2002. This court is also persuaded that her preexisting condition was in fact aggravated by the occurrence of an accident when claimant stepped into a hole, twisting her right knee, while working in the course and scope of her employment with defendant.
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[W]hile this Court finds that claimant was involved in a work-related accident on April 3, 2002, this Court also finds that the injury resulting from that occurrence resolved and any additional problems involving claimant’s right knee [are] due to her pre-existing degenerative arthritic condition and her non-work-related fall of July 2002.
There was no objective evidence proving a correlation between claimant’s April 2002 accident and her complaints of left knee, back, neck, shoulder and arm pain. Her individual testimony and allegations are insufficient to meet her burden of proving causation in regard to complaints from those areas. This Court has found substantial evidence of claimant’s lack of credibility and her testimony regarding a correlation cannot form the basis for a decision in her favor.

1 ¿Assignment of Error No. 1

Ms. Merriett claims that the WCJ erred in finding that her disability ended on July 7, 2002. We have reviewed the record in its entirety and find that it supports the WCJ’s finding that, although Ms. Merriett was injured in an April 3, 2002 work-related accident, any disability resulting therefrom had resolved before she re-injured her knee on July 6, 2002, when she slipped in her carport due to condensation.

Ms. Merriett testified that before working at Budget, she and her husband had owned a metal roofing business. She stated that she had injured both of her knees in 2001 when she was pushing metal sheets up to her husband, and that she had sought treatment with Dr. Gremillion. His notes indicated that she had pain in both knees at her March 14, 2001 visit. He "wrote several prescriptions for Ms. Merriett and ordered her to stay off of her knees.

According to Ms. Merriett, she called Dr. Gremillion’s office on the date that she was injured, and she was prescribed pain medications and advised to stay off of the injured knee. She had nevertheless continued to work as usual and had not actually been examined by a physician in relation to the accident until she sought treatment at defendants’ request from Dr. John Passman, an orthopaedist and the partner of Dr. Haimson, on May 16, 2002. Dr. Passman was of the opinion that Ms. Mer-riett had suffered a collateral ligament sprain.

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6 So. 3d 326, 8 La.App. 3 Cir. 1090, 2009 La. App. LEXIS 360, 2009 WL 530063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merriett-v-budget-build-lumber-supply-inc-lactapp-2009.