Thomas v. Wal-Mart

849 So. 2d 592, 2003 WL 21041391
CourtLouisiana Court of Appeal
DecidedMay 9, 2003
Docket2002 CA 1356
StatusPublished
Cited by5 cases

This text of 849 So. 2d 592 (Thomas v. Wal-Mart) 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
Thomas v. Wal-Mart, 849 So. 2d 592, 2003 WL 21041391 (La. Ct. App. 2003).

Opinion

849 So.2d 592 (2003)

Elouise THOMAS
v.
WAL-MART.

No. 2002 CA 1356.

Court of Appeal of Louisiana, First Circuit.

May 9, 2003.

*593 Robert A. Lenter, Ruben Hernandez, Jr., Metairie, for Plaintiff-Appellee Elouise Thomas.

*594 Frank A. Flynn, Lafayette, for Defendant-Appellant Wal-Mart.

Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.

PETTIGREW, J.

In this case, defendant appeals a judgment of the Office of Workers' Compensation awarding claimant temporary total disability benefits, penalties, and attorney fees in connection with a work-related accident. For the reasons that follow, we amend and affirm.

FACTS AND PROCEDURAL HISTORY

On January 29, 2001, claimant, Elouise Thomas, filed a disputed claim for compensation with the Office of Workers' Compensation averring entitlement to workers' compensation benefits. Ms. Thomas alleged that on October 22, 2000, during the course and scope of her employment with Wal-Mart, she injured herself while she was stocking merchandise in the stationery department. According to Ms. Thomas, her foot became tangled up in some shrink wrap on a large pallet, causing her to fall to the floor and strike her right knee.

Immediately following the accident, Ms. Thomas experienced pain in her right knee and was limping, but managed to complete her shift, which ended at 6:00 a.m. After returning home following her shift, Ms. Thomas notified Addie Bogan, personnel manager at Wal-Mart, that she had fallen. At that time, no accident report was generated as Ms. Thomas indicated that she was not hurting. However, later that afternoon, Ms. Thomas again contacted Ms. Bogan, indicating that she was in pain and needed medical treatment. It was then that Ms. Bogan advised Ms. Thomas to return to the store to complete an accident report and an associate's statement.

Ms. Bogan subsequently scheduled an appointment for Ms. Thomas with Dr. Lianter Albert on October 24, 2000. Dr. Albert took x-rays, which revealed no signs of acute bony trauma, and prescribed Arthrotec and crutches for Ms. Thomas. Dr. Albert's diagnosis was that Ms. Thomas had sustained a contusion to her right knee. He advised Ms. Thomas to stay off of work for two days and return to see him at that time. On October 26, 2000, Dr. Albert released Ms. Thomas to return to "light duty" work at Wal-Mart. According to the record, Ms. Thomas returned to Wal-Mart and answered the phones for a few days. Ms. Thomas was then asked to handle "light returns" by assisting other associates in gathering returns and other merchandise that had been placed on shelves or racks and putting them back in their appropriate places.

Dwain Paul, support manager at Wal-Mart, testified that he was in contact with Ms. Thomas and her doctors during this time to insure that she was being accommodated within her particular restrictions. At some point after Ms. Thomas began doing "light returns," she complained to Mr. Paul that she was having problems with her knee and was not able to stand for long periods of time. It was at that time that Mr. Paul accommodated Ms. Thomas with a motorized handicapped cart to assist her with her duties. However, after she began using the motorized cart, Ms. Thomas started complaining of back pain associated with the use of the cart. When asked if he did anything to further accommodate Ms. Thomas, Mr. Paul testified that it was around this time that she stopped reporting to work.

According to Ms. Thomas' medical records, she only saw Dr. Albert on three occasions. Dr. Albert then referred Ms. Thomas to Dr. Jeffrey C. Fitter at the Morgan City Orthopedic Clinic. Dr. Fitter's *595 records, which consist of various letters dictated by Dr. Fitter for the benefit of Claims Management, Inc. (Wal-Mart's workers' compensation carrier), were introduced into evidence at the hearing of this matter. A summary of Dr. Fitter's treatment of Ms. Thomas follows.

Ms. Thomas first saw Dr. Fitter on November 15, 2000, at which time Ms. Thomas was complaining of right knee pain. Dr. Fitter noted that Ms. Thomas was "quite overweight." Ms. Thomas was walking with a limp and still using a crutch, sometimes two, to assist her in walking. Dr. Fitter found that Ms. Thomas had a sprained right knee and significant degenerative changes. Dr. Fitter advised Ms. Thomas to continue with light duty work at Wal-Mart and prescribed a light wrap-around splint for her knee.

On December 1, 2000, Dr. Fitter found that Ms. Thomas was still symptomatic and unable to bear full weight because of pain in her right knee. It was during this visit that Ms. Thomas told Dr. Fitter that she was using a motorized cart to get around the store. Ms. Thomas complained that her legs had been swelling "quite a bit," but Dr. Fitter noted her history of venous stasis. Dr. Fitter indicated that Ms. Thomas' "recovery from her knee injury is complicated by her severe overweight condition, making mobility very difficult." He noted further that Ms. Thomas' "mobility won't increase until symptoms of right knee pain improve." Dr. Fitter advised Ms. Thomas to continue with her present light duty restrictions on the job and return in two weeks.

During her next visit with Dr. Fitter on December 15, 2000, Ms. Thomas was still complaining of persistent right knee pain and swelling of the entire right leg. She also indicated that she had been experiencing a degree of lower backache. Dr. Fitter noted that both of Ms. Thomas' legs were swollen, with the right one more so than the left. Ms. Thomas was wearing support stockings at the time, something that she had been doing for venous insufficiency prior to her work injury. Dr. Fitter recommended that Ms. Thomas continue with light duty work and continue to wear the support stockings. Dr. Fitter further noted that with Ms. Thomas' severe overweight condition and lower extremity edema, he was not optimistic that she would improve in the near future.

Ms. Thomas returned to see Dr. Fitter on January 11, 2001, at which time Ms. Thomas indicated that she had been seen by Dr. Gary Wiltz who advised her to stop working.[1] Dr. Fitter found no significant change in Ms. Thomas' condition, noting that she was still suffering from a lower backache and still showed signs of venous insufficiency in both legs. In a letter concerning this office visit, Dr. Fitter stated as follows with regard to Ms. Thomas' prognosis:

She has significant degenerative disease in her right knee as well as severe venous insufficiency in both legs. These conditions are aggravated by her severe overweight problem and could make it unlikely that this patient is going to return to ambulatory status in the near future. Additionally she appears to be developing chronic low back problems which are probably also referable to her overweight condition. I have no objection to her being off work at this time. *596 The record contains an "Accident and Illness Report" dated January 11, 2001, wherein Dr. Fitter indicated that Ms. Thomas should not work for one month.

The next correspondence in Dr. Fitter's records is a February 13, 2001 letter generated in response to a fax from Claims Management, Inc. wherein Dr. Fitter outlined the "complex nature" of Ms. Thomas' problems. The following is an excerpt from this letter, detailing Ms. Thomas' medical history and prognosis:

While I have been treating Ms. Thomas for a contusion or sprain of the [right] knee she has several pre-existing medical conditions which have seriously complicated and prolonged her management. Ms.

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Bluebook (online)
849 So. 2d 592, 2003 WL 21041391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-wal-mart-lactapp-2003.