Sparrow v. City of Jeanerette

210 So. 3d 460, 16 La.App. 3 Cir. 656, 2016 La. App. LEXIS 2357
CourtLouisiana Court of Appeal
DecidedDecember 21, 2016
Docket16-656
StatusPublished

This text of 210 So. 3d 460 (Sparrow v. City of Jeanerette) 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
Sparrow v. City of Jeanerette, 210 So. 3d 460, 16 La.App. 3 Cir. 656, 2016 La. App. LEXIS 2357 (La. Ct. App. 2016).

Opinion

GREMILLION, Judge.

liThe City of Jeanerette appeals the judgment of the Workers’ Compensation Judge (WCJ) in favor of Kirk A. Sparrow, which awarded Mr. Sparrow temporary total disability benefits (TTD), medical expenses, penalties, and attorney fees. For the reasons that follow, we affirm in part and reverse in part.

FACTS

Mr. Sparrow was employed by the City as a laborer on January 7, 2015, when he allegedly injured his back. Mr. Sparrow’s fiancé suffers from a seizure disorder, and on that day he was late for work because his fiancé had suffered a seizure. He testified that, on January 7, he and his crew were deployed to the city barn to cut old utility poles into two- to two-and-a-half-foot sections for burial. According to Mr. Sparrow, he lifted a section of pole and felt “a pull” in his back. He emitted an exclamation of some sort, which he is certain others on his crew overheard.

That Mr. Sparrow yelled after lifting a section of pole was corroborated by his fellow employee, Mr. Cornell Penny, who was standing beside Mr. Sparrow when this occurred and testified that he not only heard Mr. Sparrow yell, but also had heard his back pop. Mr. Penny also testified that Ms. Elizabeth “Cindy” Moore, who was nearby, also heard this, because she asked Mr. Sparrow if he was all right and told their supervisor, Ms. Gwen Colar, that he was injured.

The testimonies of Mr. Sparrow and Mr. Penny were categorically contradicted by the deposition testimonies of Ms. Moore, Ms. Colar, and Ms. Elaine Thomas, who each denied that Mr. Sparrow had lifted as much as a single piece of wood; in Ms. Colar’s words, “He never once picked nothing up.” All three of the ladies recall Mr. Sparrow stating that his back was already injured and that he went to the barn and retrieved a dolly onto which to load the sections.

| ?Mr. Edward Broussard, though, did see Mr. Sparrow lift a section of pole. He also noticed that Mr. Sparrow was acting injured. Mr. Broussard asked if he was all right, and Mr. Sparrow replied that he hurt his back.

The next morning, Mr. Sparrow testified, he awoke and was unable to move because of his back pain. He further testified that he phoned the city barn secretary, Ms. Roberta Charles, and Ms. Colar, and told them he had injured his back the day before. Ms. Colar told Mr. Sparrow to go to the doctor and bring in “papers,” which Mr. Sparrow interpreted as requiring that he bring a doctor’s excuse.

Mr. Sparrow, though, did not seek medical attention for his back until January 16, 2015, when he saw Dr. Ruth Smothers of the Iberia Comprehensive Community Health Center in New Iberia, Louisiana. Dr. Smothers ordered X-rays and MRIs of Mr. Sparrow’s lumbar spine. The MRIs, though, were postponed. On January 21, Dr. Smothers referred Mr. Sparrow to outpatient rehabilitation at Iberia Medical Center. On March 11, 2015, Dr. Smothers ordered MRIs because Mr. Sparrow was not responding to physical therapy. Those MRIs were never taken.

[463]*463Mr. Sparrow presented to Dr. Smothers on April 10, 2015, with his original complaint of low back pain and a new complaint of pain in his shoulders. Dr. Smothers examined Mr. Sparrow’s shoulders and diagnosed him with rotator cuff sprain; however, she did not specify whether this was left, right, or bilateral.1

Initially, Dr. Smothers issued a “Certificate to Return to Work/ School” indicating that Mr. Sparrow was under her care from January 7, 2015 through January 21, 2015, and could return to full duty on January 22, 2015. A second certificate returned Mr. Sparrow to work with restrictions as of February 11, 2015. A third certificate indicated that between February 12, 2015 and April 14, 2015, Mr. Sparrow continued under Dr. Smothers’ care and was able to return to work without restrictions on April 15, 2015.

|3The City claims that the first notice it received that Mr. Sparrow was claiming entitlement to workers’ compensation benefits was its receipt of a letter of representation from his attorney on April 15, 2015. The next information the City received were the aforementioned January and February certificates from Dr. Smothers. The City obtained written statements from the members of Mr. Sparrow’s crew. Because Mr. Sparrow’s claim was already filed with the Office of Workers’ Compensation, the third-party administrator for the City assigned the matter to counsel. Based upon the handwritten statements from his co-employees, the City denied Mr. Sparrow’s claim.

Following trial, the WCJ ruled in favor of Mr. Sparrow and awarded him: weekly indemnity of $175.14 from January 7 through April 15, 2015; reimbursement for out-of-pocket expenses for January 15, 2015, March 11, 2015, and April 10, 2015, all from Iberia Comprehensive Clinic totaling $85.00; reimbursement for his insurance co-pay for March 31, 2015 in the amount of $6.35; reimbursement for his co-pay/deductible to Radiology Associates of Acadiana in the amount of $17.35; entitlement to return to Dr. Smothers and to obtain the lumbar MRI; a $1,000.00 penalty for faffing to investigate his claim “once reported at the scene”; a $1,000.00 penalty for “failure of the supervisors to properly investigate the claim once medical slips were submitted”; a $2,000.00 penalty for failure to pay weekly indemnity benefits; a $2,000.00 penalty for failure to pay medical benefits; and $10,000.00 in attorney fees. This appeal followed.

ASSIGNMENTS OF ERROR

The City assigns the following errors:

1. The Trial Court committefd] legal error in ordering the defendant to pay for the balance of the plaintiffs treatment in the amount of $6.39 for the date of service March 31, 2015. This is the balance of the radiology bills by Drs. David Fontenot and John LeMieux. See Plaintiff Exhibit No. 3. This treatment was done at Iberia Medical Center. See Defendant Exhibit No. 9, pgs. 65—75, and was for x-rays of the plaintiffs cervical spine and right shoulder. The plaintiff 14 initially made a claim for this, but withdrew this claim during trial (after an ALFAC [sic] claim form signed by the plaintiff indicated this injury was caused by lifting a T.V. on January 31, 2015). Record, p. 262.
[464]*4642. The Trial Court committed legal error when it ordered the defendant to pay for the plaintiffs medical treatment at Iberia Comprehensive Clinic on April 10, 2015. This treatment was for the plaintiffs shoulder pain. See Defendant Exhibit No. 5, pgs. 21-22. This part of the claim was withdrew [sic] by the plaintiff at trial. Record, p. 262.
3. The Trial Court committed legal error when it awarded the plaintiff disability benefits from January 7, 2015 through April 14, 2015. No one ever restricted the plaintiff from working from January 7, 2015 through January 16, 2015 (the date of his first medical treatment by Dr. SmothersD ]. Furthermore, Dr. Smothers released the plaintiff to return to work doing full duty without restrictions on January 22, 2015. See Defendant Exhibit No. 16, Deposition Exhibit No. 5.
4. The Trial Court committed manifest error and was clearly wrong when it ruled that the plaintiff met his burden of proving that he had an accident in the course of and arising out of his employment on January 7, 2015.
5. The Trial Court committed manifest error and was clearly wrong when it determined that the plaintiff injured his back during a work place accident on January 7, 2015.
6.

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210 So. 3d 460, 16 La.App. 3 Cir. 656, 2016 La. App. LEXIS 2357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sparrow-v-city-of-jeanerette-lactapp-2016.