Moore v. Popeye's Fried Chicken

697 So. 2d 5, 1997 WL 349484
CourtLouisiana Court of Appeal
DecidedJune 20, 1997
Docket96 CA 1889
StatusPublished
Cited by5 cases

This text of 697 So. 2d 5 (Moore v. Popeye's Fried Chicken) 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
Moore v. Popeye's Fried Chicken, 697 So. 2d 5, 1997 WL 349484 (La. Ct. App. 1997).

Opinion

697 So.2d 5 (1997)

Clifton R. MOORE
v.
POPEYE'S FRIED CHICKEN and RISCORP.

No. 96 CA 1889.

Court of Appeal of Louisiana, First Circuit.

June 20, 1997.

*6 David P. Sirera, Covington, for Defendants-Appellants.

Cassandra Krebs Beasley, Covington, for Plaintiff-Appellee.

Before SHORTESS, FOGG and PARRO, JJ.

SHORTESS, Judge.

Clifton R. Moore (plaintiff) filed a claim for workers' compensation benefits against his former employer, Pontchartrain Foods, Inc., d/b/a Popeyes Fried Chicken[1] (defendant), alleging he sustained a shoulder injury on September 4, 1995, while in the course and scope of his employment.[2] After a hearing, the workers' compensation hearing officer rendered a decision in favor of plaintiff, awarding him temporary total benefits from September 4, 1995, through November 9, 1995, penalties of $2,000.00, and attorney fees of $5,000.00. Defendant appealed.[3] Plaintiff then answered the appeal seeking additional attorney fees.

FACTUAL BACKGROUND

On September 4, 1995, plaintiff was working as a seasoner trainee at a Popeyes restaurant in Covington. Plaintiff, who was 44 at the time of his injury, testified he is a Vietnam-era veteran who suffered brain damage in a military-service-related accident. He draws a military-disability pension and is followed by a caseworker. Although he obtained a GED and had two years of nursing training in the service, he testified he can no longer read or write well because of his injury.

Plaintiff attends church two to three times a week and relies on his church for assistance. Bryan L. Bilac, the assistant pastor at plaintiff's church, testified he was well acquainted with plaintiff before the accident. Plaintiff's usual mode of transportation is by bicycle, but before he bought the bike, Bilac frequently gave him rides. Church members filled out job applications for plaintiff, including his application to work for defendant. Plaintiff had been working for defendant only two weeks before his injury.

Plaintiff's version of the accident

Plaintiff testified, and his time card shows, he came to work at 4:00 p.m. on September 4, 1995. He rode his bicycle to work and parked it behind the restaurant. After he had worked about two hours, he went to the freezer to get a crate of chickens. The crates, which were full of chickens and ice, were stacked one atop the other. The top crate was completely over his head. He stepped on one of the bars of a rack to reach the crate, grabbed it, and pulled it down. He felt "a kind of a draft through" his left shoulder, "[l]ike a nerve pain coming out." He continued to work and told no one about the injury. He stated he did not normally talk to the other employees but just did his work. This was corroborated by J. Brad Gallo, a co-employee, who testified plaintiff was not a talkative person.

About thirty minutes later, his boss told him there was no more work for him to do that evening. His time card shows he clocked out at 6:42 p.m. He left the restaurant, got his bike, went to the Delchamps store across the street from Popeyes, and then went straight home.

*7 Plaintiff noticed a swollen lump on his shoulder when he got home. He called his caseworker, who told him to go back to Popeyes, report the accident, and have them send him to a doctor. Instead, he decided to wait until the next day. When he awoke, his shoulder was sore. He rode his bicycle to Popeyes, arriving about 8:00 a.m. A different manager was on duty than had been the night before. He told the manager he hurt himself while at work the previous evening. She told him to go to the doctor and defendant would "take care of that."

Plaintiff called Dr. Tania A. Levi, who told him to go to the emergency room. He bicycled to the emergency room of St. Tammany Parish Hospital, where he was x-rayed and his arm placed in a sling. He was given a prescription for pain medication. He bicycled to a pharmacy to have the prescription filled. Someone from the pharmacy called defendant for authorization to fill the prescription as a workers' compensation claim, but defendant refused to give authorization. Plaintiff was then forced to call Bilac, his pastor, for financial aid in buying the medication. Bilac drove to the pharmacy, paid for the prescription with church funds, and then drove plaintiff to Popeyes to deliver a note from the doctor stating plaintiff could not work. Plaintiff was treated by Levi and by an orthopedist, Dr. Paul M. Doty, until he was released to return to full-duty work on November 9, 1995.

Defendant's actions following the accident

Defendant stipulated to the term of plaintiff's disability but denies he was injured while on the job. Angie C. Leggitt, defendant's administrative assistant who routinely handles workers' compensation claims, testified she began receiving calls for authorization of plaintiff's medical treatment on September 5. She told the first caller she had no knowledge of the claim and denied authorization. Later that afternoon, Levi's nurse called her. She asked the nurse how plaintiff claimed to be injured. The nurse then read the doctor's statement to her which indicated plaintiff had an on-the-job injury. Leggitt stated she denied the claim because plaintiff "never officially came in and said" he hurt himself on the job.

Leggitt testified that during the first three days following plaintiff's injury she got a "barrage of phone calls" from plaintiff's doctors, pharmacies, pastor, and caseworker, and from plaintiff himself. She did not try to contact plaintiff, but she spoke to him when he called wanting to know why she had denied his claim. She told him defendant's employee handbook required him to report an injury immediately. He replied that he could not read the handbook. She testified she looked at his employment application and saw that he had served in the military. She stated that to her "that meant he could read."

Although she testified she does not normally investigate claims before deciding whether to deny them, Leggitt talked to Ruby Walsh, the manager on duty the night of plaintiff's injury, Wanda Williams, the manager on duty the next morning, and Bessie L. Williams, who was working the night of plaintiff's injury. She did not look at time records or question the employees who were working that night or speak to any other employees who were working during plaintiff's shift. Based on her conversations with those three women, she completed the accident report. Her report gives the following description of the accident:

Claims to have hurt himself while lifting 30 lb. cases of chicken and restacking. He continued to work remaining shift—including moving 2, 36 lb. cases of milk for another employee. He finished his shift— got on his bicycle and left for the day. He never said anything to anyone with reference to having hurt himself. He did not show any signs of having problems lifting other items.
He came to the store the next morning to tell the manager on duty that he was going for medical treatment. He did not inform the mgr. how he hurt himself. We believe he might have fallen from his bicycle on his way home.

Leggitt stated she got the information that plaintiff finished his shift from Walsh. Walsh testified plaintiff probably came to work at 4:00 p.m. His shift was normally over between 6:00 p.m. and 8:00 p.m. She thought his shift ended at 8:00 p.m. on the *8 day of his injury, although he could have gotten off earlier. She recalled that it was getting dark when plaintiff left.

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Cite This Page — Counsel Stack

Bluebook (online)
697 So. 2d 5, 1997 WL 349484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-popeyes-fried-chicken-lactapp-1997.