Weller v. Brown

724 So. 2d 230, 1998 WL 917135
CourtLouisiana Court of Appeal
DecidedNovember 6, 1998
Docket97 CA 2155
StatusPublished
Cited by6 cases

This text of 724 So. 2d 230 (Weller v. Brown) 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
Weller v. Brown, 724 So. 2d 230, 1998 WL 917135 (La. Ct. App. 1998).

Opinion

724 So.2d 230 (1998)

Ms. Earl Mae WELLER
v.
Margie BROWN, d/b/a Cattleman's Restaurant and Rockwood Insurance Company.

No. 97 CA 2155.

Court of Appeal of Louisiana, First Circuit.

November 6, 1998.

*231 David T. Butler, Jr., Baton Rouge, for Defendant-Appellant Louisiana Insurance Guaranty Association.

James Maughan, Baton Rouge, for Plaintiff-Appellee Ms. Earl Mae Weller.

BEFORE: FITZSIMMONS and GUIDRY, JJ., and CHIASSON, J. Pro Tem.[1]

GUIDRY, J.

In this worker's compensation case, appellant seeks review of the trial court's finding that the appellee remains totally and permanently disabled as a result of an earlier work-related injury. We reverse.

FACTS

Appellee, Earl Mae Weller, was employed as a waitress by Margie Brown, d/b/a Cattleman's Restaurant. On April 1, 1976,[2] while acting in the course and scope of her employment, Ms. Weller slipped on a wet cement floor, and landed on her coccyx (tailbone).[3] The fall was witnessed by at least one other restaurant employee. Immediately thereafter, Ms. Weller was evaluated in the emergency room of Earl K. Long Medical Center (hereafter referred to as "Earl K. Long") and released. Despite the fact that she returned to work that day, she continued treatment as a patient of the Office of Family Services, primarily at Earl K. Long, for continued complaints of lower back pain. Ms. Weller was fired on April 18, 1976, for allegedly threatening to sue her employer. On May 21, 1976, Ms. Weller assumed employment elsewhere as a cook on a tugboat and she maintained a number of other jobs of similar nature until March 22, 1977, when she ceased work of any nature. From that time, Mrs. Weller alleges that she has continuously experienced severe pain around her tailbone/lower back area; and, as a result, has been unable to work. Thus, she has continued to collect workers' compensation benefits for the last twenty-two years.

PROCEDURAL HISTORY

Appellee, Earl Mae Weller, initially brought suit against her employer, Margie Brown, and her workers' compensation insurer, Rockwood Insurance Company,[4] for the recovery of workers' compensation benefits. On January 22, 1979, the matter was tried and judgment rendered in favor of Ms. Weller, finding her totally and permanently disabled and entitled to full statutory benefits, but denied her claim for penalties and attorney's fees. In accordance with these findings, a judgment was signed on February 13, 1979, assessing weekly compensation benefits in the amount of $80.78 from March 22, 1977, until paid. Defendants were also cast for total and permanent compensation from that date forward for as long as Ms. Weller's disability continued, subject to statutory limitations. In addition, Ms. Weller was granted medical and drug expenses which were reasonable and necessary and which were incurred from the date of the trial for as long as her disability continued. After Rockwood Insurance Company was denied its request for a new trial, it unsuccessfully appealed this decision.[5]

Thereafter, LIGA petitioned the Nineteenth Judicial District Court for a termination and/or modification of the February 13, 1979 judgment. Trial was held on May 5, *232 1997. The trial court concluded that Ms. Weller remained totally and permanently disabled and LIGA was ordered to continue to pay her the sum of $80.78 per week as weekly disability benefits. LIGA was further ordered to pay for all travel for treatment of her work-related injury, including past and future travel expenses. Additionally, LIGA was ordered to pay for all unpaid chiropractic treatment rendered by Dr. Sidney Mouk. Finally, the trial court concluded that Ms. Weller was allowed to seek treatment from her chiropractor once a week and that LIGA was to pay those charges as long as they do not exceed what is reasonable and customary. From this judgment which was signed on June 25, 1997, LIGA now suspensively appeals.

ASSIGNMENT OF ERRORS

1. Whether Earl Mae Weller remains totally and permanently disabled as a result of her April 1, 1976, employment-related accident.

2. Whether medical and chiropractic treatment and mileage expenses resulting therefrom are reasonable and necessary and causally connected to Ms. Wellers' workers' compensation accident.

DISCUSSION

The x-ray of Ms. Weller's back, taken immediately following the accident, in the emergency room at Earl K. Long Medical Center, revealed a bruised tailbone. Ms. Weller now alleges, approximately twenty-two years later, that this injury warrants constant medical attention, in addition to causing pain so grave that she cannot assume employment. Appellant argues that Ms. Weller is not permanently and totally disabled, at present; but, alternatively, argues that if such a condition does exist, the disability is not causally related to her 1976 employment-related injury.

Surveillance Evidence

A surveillance tape contained in the record forcefully contradicts the existence of Ms. Weller's ailments, or at least the degree to which they plague her. The surveillance video reveals Ms. Weller performing various daily activities without any visible signs of discomfort or physical limitations. Specifically, she was seen driving to and from several stores; lifting groceries from the basket to the car and from the car to her house; walking comfortably and extensively at a rapid pace; and bending over to remove the gas cap underneath her license plate in the rear of her vehicle as she pumped gas into her vehicle. Most compelling was the footage of Ms. Weller actually bending completely over onto the ground, resting on her knees and maneuvering the upper portion of her body in order to look under the rear bumper of her car. After performing this feat, she entered an auto parts store, then exited the store and repeated the maneuver once again. It appeared as if she was performing some type of repair to the vehicle.

Medical Evidence

Dr. Sidney Mouk, a chiropractor, has been treating Ms. Weller twice a week for her injury, since 1976. He has diagnosed her as having an atypical disc lesion or a ruptured disk. However, Dr. Mouk testified that his diagnosis is the product of his reliance on the representations of Ms. Weller. He has never examined her to arrive at any objective findings of his own. The surveillance tape of Ms. Weller calls into question the physical limitations she reported to Dr. Mouk. The Louisiana Supreme Court has provided the following guidance in instances such as this:

Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination....

Mack v. Imperial Trading Co., 95-537 (La. App. 5 Cir. 11/28/95), 665 So.2d 536, 539-540 (quoting Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992)).

In Bustamante v. Schwegmann Giant Supermarkets, Inc., 96-1519 (La.App. 4 Cir. 4/9/97), 691 So.2d 1379, writ denied, 97-1403 (La.9/19/97), 701 So.2d 170, the only medical evidence in support of plaintiff's disability *233 was testimony by his physician. When the court determined that the doctor's testimony was based upon the false representations the claimant made to the doctor, the court rendered the doctor's findings useless and reversed the trial court's judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
724 So. 2d 230, 1998 WL 917135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weller-v-brown-lactapp-1998.