Taylor v. Columbian Chemicals

744 So. 2d 704, 1999 La. App. LEXIS 2968, 1999 WL 974454
CourtLouisiana Court of Appeal
DecidedOctober 27, 1999
Docket32,411-WCA
StatusPublished
Cited by17 cases

This text of 744 So. 2d 704 (Taylor v. Columbian Chemicals) 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
Taylor v. Columbian Chemicals, 744 So. 2d 704, 1999 La. App. LEXIS 2968, 1999 WL 974454 (La. Ct. App. 1999).

Opinion

744 So.2d 704 (1999)

Teresa TAYLOR, Plaintiff-Appellant,
v.
COLUMBIAN CHEMICALS, Defendant-Appellee.

No. 32,411-WCA.

Court of Appeal of Louisiana, Second Circuit.

October 27, 1999.

*706 Street & Street by C. Daniel Street, Monroe, Counsel for Plaintiff-Appellant.

Gibbens, Blackwell & Stevens by J. Louis Gibbens, New Iberia, Counsel for Defendant-Appellee.

Before NORRIS, C.J., and STEWART and GASKINS, JJ.

NORRIS, Chief Judge.

The claimant, Teresa Taylor, and the employer, Columbian Chemicals Co., both appeal various aspects of a judgment of the Workers Compensation Judge ("WCJ"). For the reasons expressed, we amend the judgment to delete an offset of medical expenses under La. R.S. 23:1212 and award all such expenses incurred. We otherwise affirm.

Factual and procedural background

Teresa Taylor was employed at Columbian in Swartz, Louisiana as a general clerk earning $8.89 an hour. On September 27, 1996 she was carrying a mail crate into the Administration Building when she slipped and fell in a puddle of rainwater. She landed "flat on her bottom," with the mail crate coming down on her legs. She suffered immediate low back pain, for which she was taken to St. Francis Medical Center in Monroe. X-rays showed nothing broken, so she was sent home. In the month or so after the accident, she saw her family doctor in Mer Rouge, Dr. Spires. He gave her some treatments that "stung real bad," and eventually ordered a CT scan of her lumbar spine; this was normal.

Ms. Taylor testified that because of her back, she stayed off work two weeks, receiving full pay. Records from both St. Francis and Dr. Spires are silent as to whether she reported a knee injury. However, she testified that within a few days after the accident, her right knee was bruised and swollen, that she showed this to her co-workers at Columbian, and that shortly before Thanksgiving she could not walk because of knee pain. Nevertheless she continued working for several months.

In March 1997, nearly six months after the accident, she went to a Monroe orthopedist, Dr. Gavioli, with complaints about her back and knee. Dr. Gavioli ultimately decided that Ms. Taylor's back problems were chiefly degenerative, but had been temporarily aggravated by the fall. As for her knee, he found "rather exquisite tenderness" and some crepitus, and suspected a torn meniscus. He stated in his office report, "She was not exactly sure how it [the knee pain] began. It might have been when she was picking up some boxes." The doctor's records suggest that Ms. Taylor first attributed her knee injury to the work-related accident on May 14, 1997, after they had discussed possible arthroscopic surgery. Ms. Taylor, however, insisted that on her first visit to Dr. Gavioli in March she told him the knee injury occurred when the mail crate fell on her leg. At any rate, Dr. Gavioli testified that the type of injury she described could "definitely" cause torn knee cartilage.

Ms. Taylor opted for the knee surgery, but Columbian would not approve it for *707 comp payment. Instead, she used hospitalization insurance she had "through Columbian." This covered all but $550.20 of her medical expenses. Dr. Gavioli operated on July 27, finding no torn meniscus, only some rough cartilage which he removed. He instructed her to stay off the knee for four to six weeks. Ms. Taylor filed the instant disputed claim in late August 1997.

Dr. Gavioli approved her to return to regular duty work on September 3. He testified she would have difficulty squatting and climbing stairs, "although that was not really a severe or uncommon problem."

Ms. Taylor missed six weeks of work post-operatively, drawing sick leave equal to 60% of her normal wages. She testified that after Dr. Gavioli released her, she continued to suffer nagging knee pain, and her knee sometimes "gave way" on her, resulting in several missed days of work through the end of 1997.

Ms. Taylor left Columbian at the end of December 1997 because the employer was closing the Swartz plant. She received a severance package that paid her wages through July 1998. She moved to Shreveport and testified at trial that she has worked two temporary clerical jobs. She feels she cannot do all the lifting required because of her knee. In June 1998, about one month prior to trial, she saw a Shreveport orthopedist, Dr. Etheredge, who recommended light duty work only. However, she told the WCJ that had Columbian not closed its doors, she would still be working there today.

The parties went to trial in July 1998, stipulating Ms. Taylor's employee status, a work-related accident, and a comp rate of $237.18 per week. Ms. Taylor testified on her own behalf and offered documentary evidence of her medical treatment and expenses. Aside from cross examining Ms. Taylor, Columbian presented no evidence.

The WCJ ruled from the bench that Ms. Taylor had proved a work-related knee injury and was entitled to temporary, total benefits for the six weeks following her knee surgery. This was at the stipulated amount, but subject to a credit for disability benefits received. The WCJ further awarded her all medical expenses "except those expenses already paid by other insurance," or a total of $550.20. Finding that Columbian made not "one shred of investigation to find out about that knee," the WCJ assessed penalties of $2,000 and attorney fees of $4,000. Citing Ms. Taylor's own testimony, the WCJ rejected the claim for SEB. Finally, the WCJ assessed costs to Columbian. Ms. Taylor appealed devolutively, and Columbian has answered. We will address Columbian's arguments first.

Discussion: Causation and medical benefits

By its first assignment of error Columbian contests the award of medical benefits for Ms. Taylor's knee surgery. The thrust of the argument is that she did not prove that a work-related accident caused the knee condition or necessitated the surgery. In support it cites her apparent failure to report a knee injury at the emergency room, to her family doctor, or to her treating orthopedist, Dr. Gavioli, until nearly six months after the accident, and her failure to produce any other corroborating evidence. It also argues that Dr. Gavioli's finding of causation should be discounted because of Ms. Taylor's inconsistent statements.

An employee is entitled to compensation benefits if she receives a personal injury by accident arising out of and in the course of her employment. La. R.S. 23:1031 A. The employee has the burden of proving, by a preponderance of the evidence, that her disability is related to an on-the-job injury. Walton v. Normandy Village Homes Ass'n Inc., 475 So.2d 320 (La.1985); Stevens v. Wal-Mart Stores, 27,977 (La.App. 2 Cir. 11/1/95), 663 So.2d 543. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact *708 sought to be proved is more probable than not. Id. For the employee to recover, she must show that her employment somehow caused or contributed to the disability, but she need not establish the exact cause. Id.; Andrews v. Music Mountain Water Co., 25,634 (La.App. 2 Cir. 4/6/94), 637 So.2d 571, writ denied 94-1190 (La.6/24/94), 640 So.2d 1356. A claimant's own testimony may be sufficient to prove causation by a preponderance of the evidence, provided (1) no other evidence discredits or casts serious doubt upon the claimant's version of the incident, and (2) her testimony is corroborated by circumstances surrounding the alleged incident. Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992); Lubom v. L.J.

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744 So. 2d 704, 1999 La. App. LEXIS 2968, 1999 WL 974454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-columbian-chemicals-lactapp-1999.