Murphy v. Graphic Packaging, Inc.

112 So. 3d 1040, 2013 WL 1442526, 2013 La. App. LEXIS 695
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 47,834-WCA
StatusPublished
Cited by2 cases

This text of 112 So. 3d 1040 (Murphy v. Graphic Packaging, 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
Murphy v. Graphic Packaging, Inc., 112 So. 3d 1040, 2013 WL 1442526, 2013 La. App. LEXIS 695 (La. Ct. App. 2013).

Opinion

DREW, J.

11 Graphic Packaging appeals a judgment finding that Mary Murphy sustained carpal tunnel syndrome in both hands as a result of her employment.

We reverse.

FACTS

Mary Murphy worked for Graphic Packaging for over three decades, beginning in 1977. She retired from Graphic on November 20, 2011. She spent her last four years of employment for the company as a machine tender for three years, and then as a back tender for one year. Murphy began working as a back tender when a machine was shut down and another machine tender had more seniority.

As a machine tender, Murphy mainly worked on Graphic’s No. 5 paper machine, which had nine water filters. It was her job to clean the five-foot long filters with high-pressure hoses. Each filter was contained inside a tube. Murphy used a pry bar first to remove a cap from atop a tube, then to pull the filter up. She then removed the filter and cleaned it. She then put the filter back into the tube and screwed the cap back onto the tube.

Murphy stated that she began experiencing pain and swelling about two years before she retired. The symptoms started in her right hand and were later repeated in her left hand. Murphy said she also used the high-pressure hose to clean the machine’s pan, clean the floor, and perform other routine cleaning. She had to hold the hose with both hands while doing those tasks. When Murphy was asked which job duty caused her more pain and discomfort in her hands, she replied that it was cleaning the |2water filters with high-pressure hoses. She notified her supervisors that it was painful when she pulled the filters out of the tubes. She had not had problems with her right hand prior to that. After she complained, the company assigned employees to help her with pulling out the filters.

Murphy went to Dr. J.D. Patterson, her family doctor, for treatment of her symptoms. He gave her pain medications and told her to alternate heat and ice. She returned to him when the pain would not abate.

Dr. Douglas Brown, an orthopedic surgeon, examined Murphy on March 28, 2010, on a consultation from Dr. Patterson.1 Murphy reported having right hand and wrist pain for over two weeks. Dr. [1042]*1042Brown’s impression was carpal tunnel syndrome. Murphy was given a night splint for the hand, but was to continue working. Dr. Brown referred Murphy for an EMG nerve conduction study. The study, performed by Dr. James Potts on April 13, 2010, showed bilateral carpal tunnel syndrome of moderate severity and right cubi-tal tunnel syndrome of moderate severity.

Dr. Brown next examined Murphy on May 17, 2010. He noted the nerve conduction study results. After finding Murphy to be veiy symptomatic over the right carpal tunnel, he requested a right carpal tunnel release of the median and ulnar nerves of the wrist.

On September 17, 2010, Murphy filed a disputed claim for compensation in which she asserted that she sustained an injury on May 28, 2010, while cleaning water filters.

IsMurphy was treated by Dr. Richard Ballard, an orthopedic surgeon, on October 25, 2010. She gave a history to Dr. Ballard that she:

• had worked in manufacturing for many years handling product;
• had injured herself six months earlier pulling water filters;
• developed pain and numbness in both arms, with the symptoms getting progressively worse;
• had been treated by Dr. Brown; and
• had the nerve conduction study, the results of which she shared.

Dr. Ballard’s impression was bilateral carpal tunnel syndrome. He thought she would benefit from bilateral carpal tunnel releases.

TRIAL

As part of this litigation, Graphic videoed a machine tender performing certain responsibilities of his job, including the cleaning of one filter. The video was shown to Drs. Ballard and Brown at their depositions. Dr. Brown stated that based upon what he saw in the video, there was not enough repetitive motion with the hands during the course of a day to cause Murphy’s carpal tunnel syndrome. Dr. Ballard could not say that he agreed or disagreed with Dr. Brown’s opinion.

Over Graphic’s objections at the February 2012 trial, the WCJ admitted into evidence a June 2011 affidavit from Troy Smith, Murphy’s coworker, on the grounds that Smith was unavailable. Smith had helped Murphy with her job duties. Smith disagreed with the video depiction of the filter cleaning. He related that: (i) unlike the filter in the video, the filters were so dirty that it took a hammer and pry bar to remove the tops from the tubes; (ii) it took at least five minutes to clean each filter with a |4high-pressure water hose; (iii) Murphy had to use the high-pressure hose for other cleaning tasks; (iv) on a good day, Murphy would have to use the hose 8 to 10 times a day for an average of two hours; and (v) on a bad day, Murphy would use the hose 15-20 times a day for an average of four hours.

The WCJ found that the video showing the cleaning of a filter was not an actual and accurate depiction of Murphy’s job duties. The WCJ further reasoned that since Dr. Brown relied on the video when making his determination, she could not place significant weight on his opinion.

The WCJ quoted a lengthy excerpt from Dr. Ballard’s deposition in which he stated that what he saw on the video was “fairly hand-intensive” and it was possible those hand movements caused the carpal tunnel syndrome. The WCJ also noted that Murphy was one of the most credible witnesses to have testified in her courtroom, and that her testimony regarding her job duties was supported by Smith and even by Todd [1043]*1043Johnson, who testified on behalf of Graphic.

The WCJ found that Murphy’s carpal tunnel syndrome in both hands was an occupational disease. Graphic was ordered to pay for all workers compensation benefits owed because of the carpal tunnel syndrome.

DISCUSSION

Affidavit

The WCJ ruled that Smith was unavailable based on the efforts to take his deposition. The affidavit was made available to defense counsel on June 30, 2011. A deposition was set up for September 7, 2011, but was cancelled by Graphic. The company then attempted to depose Smith on [¿February 1, 2012, but he did not appear because a subpoena was not issued. A subpoena was issued for a February 13, 2012, deposition, but Smith again did not appear because the subpoena showed only the date, but not the time.

We find that Smith did not meet the definition of unavailability under La. C.E. art. 804. Murphy did not show that she had been unable to procure his presence at trial. All that was shown at trial was that Graphic had been unable to depose him because of the defects in the two subpoenas.

We recognize that relaxed rules of evidence apply to workers’ compensation proceedings. See La. R.S. 23:1317. Nevertheless, the WCJ abused its discretion in admitting this hearsay evidence on the grounds of unavailability. Furthermore, the affidavit was executed after Dr. Brown’s deposition and was clearly an attempt to undermine the basis of his conclusion. In any event, the admission of the affidavit was of little import as Murphy’s medical evidence was lacking.

Occupational Disease

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson v. Manitowoc Co.
256 So. 3d 463 (Louisiana Court of Appeal, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
112 So. 3d 1040, 2013 WL 1442526, 2013 La. App. LEXIS 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-graphic-packaging-inc-lactapp-2013.