Rhonda Powell v. the Opelousas Housing Authority

• Court: Louisiana Court of Appeal
• Decided: November 6, 2013
• Docket: WCA-0013-0534
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

WCA 13-534

RHONDA POWELL

VERSUS

THE OPELOUSAS HOUSING AUTHORITY

**********

APPEAL FROM THE OFFICE OF WORKERS‟ COMPENSATION - Number 4 PARISH OF ST. LANDRY, NO. 11-01020 ADAM C. JOHNSON, WORKERS‟ COMPENSATION JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Sylvia R. Cooks, Marc T. Amy, and Billy Howard Ezell, Judges.

AFFIRMED.

Gloria A. Angus Angus Law Firm, LLC P. O. Box 2337 Opelousas, LA 70571 (337) 948-8800 COUNSEL FOR PLAINTIFF/APPELLANT: Rhonda Powell

K. Renee C. Willis Johnson, Stiltner & Rahman 2237 S. Acadian Thruway Baton Rouge, LA 70808 (225) 231-0875 COUNSEL FOR DEFENDANT/APPELLEE: The Opelousas Housing Authority EZELL, Judge.

Rhonda Powell appeals a judgment of the Office of Workers‟ Compensation

finding that she is not entitled to benefits for a mental incident resulting in injury.

For the following reasons, we affirm.

FACTS

Mrs. Powell was employed by the Opelousas Housing Authority (OHA) as a

property manager of Development 1 in 2010. She had been employed with the

OHA for twenty-nine-and-a-half years. There were two additional developments

managed by two other property managers.

Mrs. Powell explained that she received her work assignments from the

computer/fax when she would get to work in the mornings. The assignments were

usually sent by Diane Reed, the assistant director who was in charge of the three

property managers. Mrs. Powell testified that, on the morning of March 10, 2010,

she received a fax with a work assignment. The assignment required her to

transfer seven residents out of homes into another unit that had not been

“modified”. “Modification” of a unit is the preparation of the unit for occupancy

by cleaning and making repairs. Mrs. Powell stated that she only had three days to

complete this task. Testimony at trial, revealed that this type of task normally

requires at least six days.

Mrs. Powell testified that she knew she would have to violate the law by

moving the residents into unmodified units or get fired due to prior reprimands.

She was previously reprimanded twice by the new executive director Jo Ann Tyler.

In December 2009, Ms. Tyler wrote Mrs. Powell up because she refused to follow

an order given by Ms. Tyler. In February 2010, Mrs. Powell was reprimanded for negative comments expressed to other employees about employees and Board

members.

Mrs. Powell stated she got frightened upon receiving the faxed order and

asked Rose Collins, a secretarial helper in the office, to get help. Michael Reed

and Willie Pickney were maintenance men that worked for the OHA. Mrs. Powell

told them she was sick. Mr. Reed drove Mrs. Powell in her car to her house, and

Mr. Pickney followed them in another vehicle. They dropped her off and went

back to work.

When Mrs. Powell‟s husband got home, he noticed that Mrs. Powell did not

look well and had been crying. She allegedly told him about getting the fax. Mrs.

Powell complained she had a headache, so Mr. Powell called their family doctor,

Dr. Theodore Deblanc, and scheduled an appointment for his wife.

Mrs. Powell saw Dr. Deblanc on March 12, 2010. At that time, Dr. Deblanc

ordered Mrs. Powell not to return to work for three weeks and prescribed

medications. She returned to see Dr. Deblanc on March 30, 2010, reporting three

more episodes of anxiety. She also requested that Dr. Deblanc fill out a Family

and Medical Leave Act form.

Through her husband‟s employee assistance program, Mrs. Powell was

referred to a licensed clinical social worker, Patricia Lafleur. Ms. Lafleur saw Mrs.

Powell on April 15, 2010. When Ms. Lafleur first saw Mrs. Powell, she was

taking Paxil and Xanax. She was depressed, anxious, irritable, hallucinating, and

had trouble sleeping. She was also experiencing paranoia symptoms. Ms. Lafleur

testified that Mrs. Powell felt pressured at work and was concerned she was being

pushed to do things that were not legal. Ms. Lafleur opined that Mrs. Powell was

2 in need of more intensive counseling, and by her third visit Mrs. Powell agreed to

go to Oceans Behavioral Hospital.

Oceans provided outpatient care for a year under the care of Dr. Samir

Salama, a psychiatrist. Dr. Salama testified that Mrs. Powell had a history of

anxiety and depression, which had most likely increased due to a problem at work.

When Mrs. Powell was discharged from Oceans, she was referred back to Ms.

Lafleur for outpatient counseling. Ms. Lafleur saw Mrs. Powell four more times

and observed that Mrs. Powell had learned some coping skills and was a

completely different person.

In November 2010, Mrs. Powell was notified by Ms. Tyler that her sick

leave was exhausted. She informed Mrs. Powell that she would be terminated

unless she could return to work. Mrs. Powell responded indicating that she

objected to the termination and would appeal the “adverse discriminatory,

retaliatory, harassing employment practices.”

On February 9, 2011, Mrs. Powell filed a disputed claim for compensation

claiming that she had a nervous breakdown on March 10, 2010. Mrs. Powell

claimed that Ms. Tyler refused to address the extraordinary amount of work

assigned to her and that she denied her request to timely complete the tasks. She

also claimed that Ms. Tyler made many threats to terminate her.

On June 8, 2011, Mrs. Powell was evaluated by Dr. Douglas de Mahy to

assess her mental status regarding the presence of a potentially disabling

mental/psychiatric condition in conjunction with her application for social security

disability. Mrs. Powell is currently receiving social security disability benefits,

and testified that she did not know she had a workers‟ compensation claim until

3 she saw Dr. de Mahy. However, she filed her claim on February 9, 2011,

approximately four months before she was evaluated by Dr. de Mahy.

A trial on the matter was held on October 10 and 11, 2012. On November

21, 2012, the workers‟ compensation judge (WCJ) issued an oral ruling finding

that Mrs. Powell failed to meet her burden of proof by clear and convincing

evidence as required by La.R.S. 23:1021(8)(b). The WCJ then dismissed her claim

against the OHA and its insurer, the Louisiana Workers‟ Compensation

Corporation. Judgment was signed on January 7, 2013. Mrs. Powell then filed the

present appeal.

DISCUSSION

Mrs. Powell argues that the decision of the WCJ should be reversed because

her testimony was uncontradicted and corroborated by witness and physician

testimony in addition to the evidence introduced at trial. She argues that the facts

corroborate her testimony of an injury on the job on March 10, 2010.

Workers‟ compensation benefits are available for a mental injury caused by

mental stress when the “mental injury was the result of a sudden, unexpected, and

extraordinary stress related to the employment and is demonstrated by clear and

convincing evidence.” La.R.S. 23:1021(8)(b).

In order to recover workers‟ compensation benefits for a mental injury it

must be triggered by an accident; “an unexpected and unforeseen event that occurs

suddenly or violently.” Fontenot v. Interstate Distrib. Co., 09-1526, p. 5 (La.App.

3 Cir. 5/12/10), 37 So.3d 1095, 1098 (quoting Adams v. Temple Inland, LA, 03-187,

p. 5 (La.App. 3 Cir. 11/5/03), 858 So.2d 855, 859, writ denied, 03-3327 (La.

2/13/04), 867 So.2d 695). “It is insufficient for the claimant to show that his

4 mental injury is „related to general conditions of employment, or to incidents

occurring over an extended period of time.‟” Id.

The Supreme Court has held that “„the legislature intended to restrict

recovery under subsection [8](b) to those mental injuries that result from stresses

which, by their nature, are sudden, unexpected, and extraordinary in the usual

course of employment in that working environment.‟” Manuel v. Northrop-

Grumman, 04-480, pp. 2-3 (La.App. 3 Cir. 9/29/04), 883 So.2d 502, 504 (quoting

Partin v. Merchants & Farmers Bank, 01-1560, p. 12 (La. 3/11/02), 810 So.2d

1118, 1125).

In finding that Mrs. Powell failed to meet her burden of proving by clear and

convincing evidence that she suffered a mental injury caused by mental stress, the

WCJ stated: “In assessing Ms. Powell‟s testimony, based upon her gestures, tone

of voice, responses and reactions to questions, and overall demeanor, the Court

does not find Ms. Powell‟s testimony credible regarding the March 10, 2010 fax.”

Determinations by the workers‟ compensation judge as to whether the

claimant‟s testimony is credible and whether the claimant has discharged his

burden of proof are factual determinations and will not be disturbed upon review in

the absence of manifest error or unless clearly wrong. Lestage v. Nabors Drilling

Co., 10-728 (La.App. 3 Cir. 12/8/10), 54 So.3d 133, writ denied, 11-88 (La.

2/25/11), 58 So.3d 458.

Only Mrs. Powell and Ms. Collins worked in the building together. Ms.

Collins testified that Mrs. Powell told her she was sick and going home. Mr. Reed,

who drove Mrs. Powell home, testified that Mrs. Powell did not tell him that

anything had happened at work. She only told him that she was sick. Neither Ms.

Collins nor Mr. Reed knew anything about a fax.

5 Ms. Tyler confirmed that Mr. Reed reported that he drove Mrs. Powell home

because she was sick. Later she received notification that Mrs. Powell was under

the care of a doctor and would be out for some time. She never received any

notification that her illness was work-related. It was not until she received the

workers‟ compensation notice that Ms. Tyler became aware that Mrs. Powell was

claiming a work-related illness. Ms. Tyler testified that she did not send Mrs.

Powell a fax on March 10, 2010. She stated that she was not aware of any fax sent

to Mrs. Powell notifying her that she had a certain number of days to perform a

task.

The disputed claim for compensation makes no mention of a fax. It only

asserts that claimant had a nervous breakdown because Ms. Tyler refused to

address the extraordinary amount of work assigned to Mrs. Powell and refused her

request for an assistant to help timely complete the tasks. The claim form also

stated that Ms. Tyler made many threats to terminate Mrs. Powell.

Ms. Tyler testified that it takes six to fourteen days to modify a unit for

occupancy. She agreed that you could not move a tenant into a unit that is not

ready for occupancy as it is against HUD‟s rules and regulations. She further

acknowledged that it is almost impossible to move a tenant in three days unless the

unit is in good shape when the tenant moves out.

Ms. Tyler testified that she was not aware of any extra work or deadlines

placed on Mrs. Powell around March 10, 2010. She had the same responsibilities

and was treated the same as the property managers of Development 2 and

Development 3.

The Powells testified that Mrs. Powell had only had an anxiety attack one

other time, when they were building a house in 2001. Mr. Powell testified that his

6 wife was prescribed Paxil at that time and may have taken it for two to three years.

However, Dr. Deblanc‟s medical records indicate that Mrs. Powell continued to

receive treatment for depression and anxiety throughout the years. In June of 2005,

Mrs. Powell was continuing to be prescribed Paxil. In October of 2005, she

reported that she was “under a great deal of work stress.” She was prescribed Paxil

in May 2006. Valium was prescribed for her in May 2006. In December 2006,

Mrs. Powell reported depression. Again, Paxil continued to be prescribed in

February 2007. Mrs. Powell requested a refill of Paxil in October 2007. In 2009,

Mrs. Powell was prescribed Paroxetine. She reported being stressed a lot.

Dr. Deblanc‟s progress notes indicate that when he first examined Mrs.

Powell in March 2010 that she was having panic attacks more often than normal,

had to put her head between her legs to calm down, and was stressed out. Later,

she reported three more anxiety attacks. No mention is made of a fax.

Ms. Lafleur reported that Mrs. Powell was reprimanded in February which

caused her anxiety issues. Ms. Lafleur testified that it was her understanding Mrs.

Powell broke down at work on March 10, 2010, and had to be taken home. Ms.

Lafleur testified that Mrs. Powell felt pressured and that the agency was biased and

unfair. Ms. Lafleur did not indicate that Mrs. Powell had received a fax.

Dr. Samir testified that Mrs. Powell had a history of depression which was

intensified by stressors with her employer that happened prior to her admission at

Oceans.

Dr. de Mahy, the social security doctor, noted that Mrs. Powell reported she

had a breakdown at work and “complained that the heavy workload and the

demanding attitude of her supervisor resulted in a subsequent hospitalization [in]

an intensive outpatient therapy.” She related that her breakdown occurred at work

7 in March 2010. She related that she was “concerned about her ability to deal with

normal work demands particularly working under a demanding and aggressive

supervisor.” She also reported that “she harbors intense resentment for her former

supervisor and the way she was treated.” Mrs. Powell was “concerned that she

will be overly sensitive and misinterpret normal supervisory expectations as

demanding.”

Mr. Powell testified that when he got home, Mrs. Powell told him that she

had received a fax from the main office about transferring tenants into units that

were not available. Mrs. Powell agreed that she showed the fax to her husband but

did not have a copy of it for trial. She testified that she did not know if she

destroyed it or if it was in a binder at her home.

Based on the above testimony and evidence, we find that the WCJ‟s decision

is reasonably supported by the record. The only people who stated anything about

Mrs. Powell getting a fax were her and her husband. The fax itself was never

introduced into evidence. Furthermore, the record establishes that Mrs. Powell had

a history of depression and anxiety attacks years before March 10, 2010. It is

obvious that Mrs. Powell was adjusting to working with a new director. The

record as a whole indicates that Mrs. Powell was continuing to feel pressured at

work which resulted in a breakdown on March 10, 2010. We find no manifest

error in the WCJ‟s decision that there was no sudden and unforeseen event on

March 10.

For the above reasons, the judgment of the Office of Workers‟

Compensation is affirmed. All costs are assessed to Rhonda Powell.