Slater v. Mid-South Extrusion

989 So. 2d 252, 2008 La. App. LEXIS 1113, 2008 WL 3399038
CourtLouisiana Court of Appeal
DecidedAugust 13, 2008
Docket43,343-WCA
StatusPublished
Cited by11 cases

This text of 989 So. 2d 252 (Slater v. Mid-South Extrusion) 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
Slater v. Mid-South Extrusion, 989 So. 2d 252, 2008 La. App. LEXIS 1113, 2008 WL 3399038 (La. Ct. App. 2008).

Opinion

989 So.2d 252 (2008)

Cedric SLATER, Plaintiff-Appellee
v.
MID-SOUTH EXTRUSION, Defendant-Appellant.

No. 43,343-WCA.

Court of Appeal of Louisiana, Second Circuit.

August 13, 2008.

*253 Robert A. Dunkelman, Scott Chafin, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, Shreveport, for Defendants-Appellants Mid-South Extrusion, Inc. and Travelers Property Casualty Company of America.

Samuel Thomas, Tallulah, for Plaintiff-Appellee.

Before BROWN, STEWART and GASKINS, JJ.

GASKINS, J.

In this worker's compensation case, the employer and its insurer appeal from a ruling by a worker's compensation judge (WCJ) that denied their fraud claims and awarded medical benefits in favor of the claimant, Cedric Slater. We reverse and render.

FACTS

Beginning in 1996, the claimant was employed as a maintenance utility technician by Mid-South Extrusion, Inc. (MSE), a manufacturer of plastic film. His work duties included mowing and weed-eating the grass and taking care of machinery on MSE's property.

According to the claimant, he injured his left shoulder and both wrists on or about September 8, 2004, while carrying buckets of oil at work. The claimant subsequently asserted that he developed carpal tunnel syndrome as a result of this incident. However, when he reported complaints of left arm numbness to an ER doctor on September 14, 2004, he mentioned only driving for the two days prior to the hospital visit; no mention was made of any work-related incident that could have caused or contributed to the condition.

On October 26, 2004, the claimant was riding the company mower on an incline when it flipped over. He had previously been instructed not to use the mower in this area due to the steepness of the slope and to use the weed-eater on that grass instead. He was sent to Monroe Medical Center (MMC), where he underwent a *254 drug test pursuant to his employer's policy. According to the claimant, MMC gave him Lortab for his back pain.

Due to his complaints of low back pain, MMC referred the claimant to Dr. Douglas Brown, an orthopedic specialist. Dr. Brown saw him once, on November 8, 2004. The claimant thereafter complained that an injection he was given at Dr. Brown's office caused him jaw pain, and he stated that he did not want to see Dr. Brown again.[1] However, he continued with Dr. Brown long enough to undergo an MRI, which showed mild disc bulging or wide-based protrusion at L5-S1. Dr. Brown declined to give the claimant Lorcet, instead requesting that the claimant receive all of his medications from MMC.

The claimant saw Dr. J.D. Patterson, who was apparently his primary care physician, on November 23, 2004, and December 3, 2004. He was given several prescriptions, including Lorcet Plus. It was determined that the claimant should see another orthopedist.

The claimant was then referred by Dr. Patterson to Dr. A.E. Dean, an orthopedic surgeon, who saw him twice. During the initial visit on December 15, 2004, the claimant's subjective complaints were so out of proportion to the objective findings that Dr. Dean had a nurse observe him leaving. Although the claimant had walked with a cane, ambulated slowly and told the doctor that he could not drive due to problems with his back and leg, the nurse reported that once he left the building and went around the corner, he picked up the cane, walked with a normal gait, and drove away.[2] Dr. Dean saw him again on January 14, 2005. Despite the claimant's complaints that he was no better, Dr. Dean felt that he could return to regular work duty as of January 24, 2005. Dr. Dean also declined to give the claimant Lortab.

On December 20, 2004, the claimant began seeing Dr. Tammy Jones, a doctor of osteopathy to whom he had been referred after being diagnosed as HIV-positive. Although she testified that she only saw him for management of his HIV condition, she prescribed Lortab for him on a few occasions, beginning in July 2006. However, she testified that, had she known of Dr. Dean's refusal to give the claimant pain medications in January 2005, she would not have prescribed Lortab for him.

In the meantime, the claimant—who had previously been written up for other safety violations—was cited by his employer for the incident in which he flipped over the mower. MSE suspended him for the mower incident and then fired him due to his record of safety violations.

On May 24, 2005, the claimant filed a disputed claim for compensation form with the Office of Workers' Compensation (OWC) concerning the alleged back injury. He requested medical expenses, weekly benefits, penalties and attorney fees. On June 9, 2005, the employer and its insurer, Travelers Property Casualty Company of America, filed a general denial. By joint motion, the instant suit was consolidated with an already pending claim concerning *255 the injuries he allegedly sustained in September 2004.

In January 2006, the defendants filed an amended answer in which they raised La. R.S. 23:1208, which provides for forfeiture of workers' compensation benefits when a claimant resorts to fraud and misrepresentation in seeking those benefits. In particular, they referred to the claimant telling Dr. Dean that he was unable to drive and exhibiting extreme difficulty walking during Dr. Dean's examination, only to then be observed walking to his car in a normal manner and driving away.

The matter was tried on May 16, 2007. The parties stipulated as to the claimant's employment. In addition to his own testimony, the claimant presented the testimony of Robert Hartman, MSE's manager of human resources, and the deposition of Dr. Jones. The defendants presented the testimony of Lance Joslin, MSE's maintenance manager. Among other things, they also admitted the medical record of Dr. Brown and the deposition and medical records of Dr. Dean. The defendants introduced the deposition of Dr. George Belchic, an orthopedic surgeon who treated the claimant's carpal tunnel syndrome; he opined that the claimant had polyneuropathy which was related to his HIV infection. Dr. Belchic could not relate the claimant's polyneuropathy or carpal tunnel syndrome to any work activities.

On August 9, 2007, the WCJ ruled that, as to the mowing incident, the claimant was involved in an accident within the course and scope of his employment and was entitled to medical treatment for his low back injuries. However, the WCJ held that he was not entitled to indemnity benefits and that his claims for carpal tunnel syndrome and shoulder injuries were denied. The WCJ found a lack of medical evidence showing a correlation between the claimant's first alleged incident and any alleged shoulder injury. Additionally, the defendants' fraud claims were denied. Judgment in conformity with the WCJ's ruling was signed on November 16, 2007.

The defendants appealed.

LAW

An employee is entitled to receive workers' compensation benefits for personal injuries from an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). In a workers' compensation action, the plaintiff must establish the occurrence of a work-related accident by a preponderance of the evidence. Thomason v. Wal-Mart Stores, Inc., 37,520 (La. App. 2d Cir.9/4/03), 852 So.2d 1283, writ denied, 2003-2774 (La.12/19/03), 861 So.2d 573.

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Cite This Page — Counsel Stack

Bluebook (online)
989 So. 2d 252, 2008 La. App. LEXIS 1113, 2008 WL 3399038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slater-v-mid-south-extrusion-lactapp-2008.