Read v. PEL-STATE OIL CO.

13 So. 3d 1191, 2009 La. App. LEXIS 957, 2009 WL 1393740
CourtLouisiana Court of Appeal
DecidedMay 20, 2009
Docket44,218-WCA
StatusPublished
Cited by8 cases

This text of 13 So. 3d 1191 (Read v. PEL-STATE OIL CO.) 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
Read v. PEL-STATE OIL CO., 13 So. 3d 1191, 2009 La. App. LEXIS 957, 2009 WL 1393740 (La. Ct. App. 2009).

Opinion

DREW, J.

L Sherry Read, who sustained a back injury at work, appeals a judgment denying her claim for workers’ compensation benefits. AIG Insurance Company has answered the appeal, seeking reimbursement for workers’ compensation benefits that it *1192 paid for an earlier knee injury sustained by Read.

We affirm.

FACTS

In 2001, Read began working for Pel-State Oil Company, which operates convenience stores. Read was employed first as a cashier, then as an assistant manager. Read injured her left knee at work on August 28, 2002. AIG was Pel-State’s workers’ comp insurer at the time. 1 AIG paid weekly indemnity benefits of $228.14 to Read until August 22, 2005.

On March 3, 2004, Read injured her back while attempting to free a barrel full of ice that had become stuck on a door threshold that Read had tried to roll the barrel across. Read sought medical treatment for her injured back and continued working at her job, but with a light-duty restriction.

Read lost her job on May 5, 2004, because continued employment with Pel-State violated the company’s anti-nepotism rules. Read’s daughter was a district manager for Pel-State.

Read filed a claim for compensation against Pel-State. An answer was filed by Pel-State and Bridgefield Casualty Insurance Company. Read amended her claim to add AIG as a defendant. Seeking reimbursement for benefits paid after March 4, 2004, AIG and Pel-State (in response to the [¡¡2002 accident) filed a cross-claim against Bridgefield. AIG and Pel-State (in response to the 2002 accident) also filed a third-party demand against Pel-State in which it was asserted that AIG incorrectly paid benefits to Read after September 1, 2003. 2

Following a trial on the merits, the WCJ rendered judgment dismissing: (i) Read’s claims for indemnity benefits and additional medical benefits against Pel-State and Bridgefield because of the March 2004 aggravation of her preexisting back injury; (ii) the cross-claim for reimbursement against Bridgefield; and (iii) the third-party demand against Pel-State.

Read has appealed the denial of her claims. AIG and Pel-State (in response to the 2002 accident) answered the appeal on the issue of reimbursement from Bridge-field.

DISCUSSION

Read argues on appeal that the WCJ erred in denying her claim for indemnity benefits related to the 2004 accident and for additional medical benefits.

An injured employee seeking temporary total disability (“TTD”) benefits must prove by clear and convincing evidence that he is physically unable to engage in any employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.4/7/04), 870 So.2d 515. To prove a matter by clear and convincing evidence means to |,.¡demonstrate that the existence of a disputed fact is highly probable, ie., much more probable than its nonexistence. Id. A claimant may prove disability through medical and lay testimony. The WCJ must weigh all of the evidence to determine if the claimant has met his burden of proving temporary total disability. Id.

Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. A workers’ *1193 compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Taylor v. Wal-Mart Stores, Inc., 40,179 (La.App. 2d Cir.9/21/05), 914 So.2d 579, writ not considered, 2006-0144 (La.4/17/06), 926 So.2d 500, cert. denied, 549 U.S. 1157, 127 S.Ct. 982, 166 L.Ed.2d 783 (2007).

After Read injured her knee in 2002, she missed several weeks of work and underwent arthroscopic knee surgery. She had returned to her normal job duties as assistant manager by March 2004. As assistant manager, her job duties included running the store, meeting with delivery people, stocking shelves and coolers, keeping the store clean, and working the register. She routinely had to pick up cases of beer, drinks, and groceries.

Read returned to work the day after her 2004 back injury, but testified that she could not do anything. Read was treated for her back injury on RMarch 9, 2004. She told the physician that her symptoms had completely resolved after an earlier lower back surgery, and that she had had no back symptoms since her surgery. The diagnosis was back and left leg pain due to lumbar radiculopathy. Suggested treatment was physical therapy, nonaddictive medication, and light-duty work. Read was directed to avoid repetitive bending or lifting more than 10 pounds. An MRI taken on March 26, 2004, showed mild degenerative changes at L2-3 and L5-S1.

Read apparently did not miss any work at Pel-State after hurting her back, and she was essentially working full-time while doing light-duty work at the store when she was fired. Read applied for unemployment compensation after losing her job. She testified that she has not tried to find another job because her back pain has been so bad at times that she could not move. She added that her back was hurting during the two months that she worked before her termination.

Read testified that her left knee had recovered enough by March 2004 that she would still be working but for her back injury. Read admitted that her preexisting back condition has caused occasional back flareups and problems since the late 1980s.

Read has a well-documented medical history involving her lower back and left knee. Introduced at trial were Read’s medical records and the depositions of four physicians who had treated her.

Read underwent a lumbar discectomy in 1988 after she hurt her back in a motor vehicle accident earlier that year. A 1991 MRI of the lumbar 1 ñspine showed desiccation at L4-5 and L5-S1, and a slight bulge at L4 and L5.

In 1992, Read was referred to the Pain Management Service at LSU Hospital in Shreveport for treatment of low back and left lower extremity pain. Read reported to the doctors at LSU that the 1988 lumbar discectomy had provided relief for four months, but then the symptoms began recurring in the same distribution and quality and with increased intensity.

Dr. William Bundrick, an orthopaedic surgeon, first treated Read’s left knee in April of 2003. Dr. Don Burt, Dr. Bun-drick’s partner, treated Read on September 18, 2003. It was noted during that visit that Read was having considerable pain in the low back and left hip that radiated into the left leg. Read told Dr. Burt that she was doing well until she had to lift some heavy material at work. Dr. Burt’s impression was nerve root irritation *1194 possibly secondary to recurrent disc herniation at the L5-S1 level.

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Bluebook (online)
13 So. 3d 1191, 2009 La. App. LEXIS 957, 2009 WL 1393740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/read-v-pel-state-oil-co-lactapp-2009.