Stevens v. Wal-Mart Stores, Inc.

663 So. 2d 543, 1995 La. App. LEXIS 2732, 1995 WL 637851
CourtLouisiana Court of Appeal
DecidedNovember 1, 1995
Docket27,977-CA
StatusPublished
Cited by27 cases

This text of 663 So. 2d 543 (Stevens v. Wal-Mart Stores, 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
Stevens v. Wal-Mart Stores, Inc., 663 So. 2d 543, 1995 La. App. LEXIS 2732, 1995 WL 637851 (La. Ct. App. 1995).

Opinion

663 So.2d 543 (1995)

David STEVENS, Plaintiff-Appellee
v.
WAL-MART STORES, INC., Defendants-Appellants.

No. 27,977-CA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 1995.
Rehearing Denied November 30, 1995.

*545 Theus, Grisham, Davis & Leigh by George M. Snellings, IV, Monroe, for Appellants.

Smith & Shadoin by R. Wayne Smith, Ruston, for Appellee.

Before NORRIS, WILLIAMS and STEWART, JJ.

NORRIS, Judge.

In this worker compensation case, Wal-Mart and its insurer, Claims Management Inc., appeal the hearing officer's rulings that the employee's claim has not prescribed and that his disability is related to his work at Wal-Mart. The employee, David Lee Stevens, separately appeals the denial of penalties and attorney fees. For the reasons expressed, we affirm.

Factual and procedural background

Stevens was a manual laborer in the receiving area at the former Ruston Wal-Mart store. He worked the night shift and earned $5.00 an hour. Early one Saturday morning in January 1993 he returned home from a shift and spent the next 24 hours or so around the house, sleeping on the couch and watching TV. At 3:30 Sunday morning, he suddenly awoke with a riveting pain in his left shoulder. He had never experienced any problems with his left shoulder before. The pain was so intense that he went to Lincoln General Hospital's emergency room, where he received cortisone and Demerol shots. This treatment, however, did not give him any relief. He attempted to return to work at Wal-Mart the following Monday night, but was in such pain that he could not work and left after a couple of hours. The following Wednesday he was admitted to the hospital and began a long series of tests.

Several tests, including x-rays and an EMG, were all negative. The doctors were at a loss to explain the debilitating pain. Dr. Dharam Gurwara, a neurologist in Ruston, described the condition as "probable idiopathic brachial neuritis," meaning an inflammation of a nerve in the brachial (shoulder) area, with no known cause. Dr. James Finley, an orthopedic surgeon in Ruston, diagnosed "possible brachial neuritis," an assessment which he later described as "basically no diagnosis."

After he was discharged from Lincoln General without improvement, Stevens saw Dr. David Cavanaugh, a neurosurgeon in Shreveport. He described the condition as "left arm pain of unclear etiology," and considered several possibilities, including a lesion, vascular disease, and brachial plexopathy (nerve damage). Dr. J.C. Johnston of Nacogdoches, Texas performed two MRIs, which were negative; he described Stevens's condition as "subacute left brachial plexopathy." After all this testing Stevens was still in great pain and had been unable to work since January 11. Despite their various hypotheses, the doctors could offer him no definite treatment. From the outset Stevens had told his supervisor (and some coworkers) at Wal-Mart that his injury was not work-related. He claimed his diagnostic and medical expenses on regular disability insurance, not on comp.

Dr. Cavanaugh referred Stevens to Dr. Donna Holder, a pain specialist and anesthesiologist in Shreveport, in early May. She referred him to one of the country's leading brachial neurosurgeons, Dr. David Kline at LSU Medical Center in New Orleans. Dr. Kline examined him and suspected that the suprascapular nerve might be damaged, but he could not be certain without operating. He therefore performed exploratory and reparative surgery in August and found that the ligaments around Stevens's suprascapular nerve had compressed or pinched the nerve. He repaired this, but found that an accessory nerve, the 11th cranial nerve, might also be damaged. The surgery yielded slight relief. Stevens is still unable to work; Dr. Holder testified that he would need an EMG and possibly further surgery to repair the other nerve. She also recommends implanting an electrical stimulation system in his spine or brain, and possibly spinal narcotics. Currently Stevens must take an oral narcotic, Methadone (a synthetic form of morphine), which renders him unsuitable for even sedentary work.

Immediately after the surgery Dr. Kline advised Stevens that his condition almost invariably arises from trauma, usually from *546 lifting something too heavy. He also said that the trauma generally occurs 12 to 48 hours before the onset of pain. Stevens then recalled that on his last full day of work he had tried to lift a boxed ping pong table. He got it about one inch off the ground, felt a twinge in his left arm, realized the box was too heavy, and let it back down. Stevens said he thought nothing of this at the time, as minor aches and pains are common in his line of work. In addition, he never associated that incident with his condition because the pain had suddenly attacked him some 36 hours after the lift.

With this new diagnostic information, Stevens returned to Wal-Mart on September 14 and submitted a comp claim with the personnel manager, Ms. Turner. This was, of course, eight months after the lifting incident. Ms. Turner told him that Wal-Mart would be "getting back in touch with him." Weeks passed without response, so Stevens began phoning the company's insurance representative, Ms. Braswell, in Bentonville, Arkansas. She repeatedly told him that his request was complicated because of the lapse of time between the incident and the filing of his claim, but that the company was working on it. In mid-February 1994, 13 months after the accident, the insurer advised Stevens by letter that it was rejecting his comp claim. Stevens filed the instant action with the Office of Workers' Compensation on February 24, 1994.

Wal-Mart and its insurer filed an exception of prescription which the hearing officer heard in separate proceedings in November 1994. The officer overruled the exception. Then, at trial in February 1995, Wal-Mart conceded Stevens's disability and contested only causation and the claim for penalties and attorney fees.

The hearing officer gave extensive oral reasons for judgment. In these she accepted Stevens's testimony as credible and found that his disability did indeed result from a job-related accident. She therefore awarded temporary, total disability benefits from January 8, 1993 until he is released to work by his treating physician, Dr. Holder. She also awarded all medical expenses incurred or to be incurred in connection with the accident.[1] Finally, stating this was an "unusual case" and citing the inconclusive diagnoses received until Dr. Kline operated, the hearing officer found that Wal-Mart's refusal to pay on demand was not arbitrary, capricious or without probable cause. She therefore denied Stevens's claim for penalties and attorney fees.

Applicable law

An employee is entitled to compensation benefits if he receives a personal injury by accident "arising out of and in the course of his employment." La.R.S. 23:1031 A. The employee has the burden of proving, by a preponderance of evidence, that his disability is related to an on-the-job injury. Walton v. Normandy Village Homes Ass'n Inc., 475 So.2d 320 (La.1985); Brown v. Blue Grass Liquor Co., 25,552 (La.App.2d Cir. 2/23/94), 632 So.2d 904. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Id. In order for the employee to recover, he must show that his employment somehow caused or contributed to the disability, but he need not establish the exact cause. Id.; Andrews v. Music Mountain Water Co., 25,634 (La.App.2d Cir.

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663 So. 2d 543, 1995 La. App. LEXIS 2732, 1995 WL 637851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-wal-mart-stores-inc-lactapp-1995.