Linda Dronet v. E-Z Mart

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-0212

LINDA DRONET

VERSUS

E-Z MART

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 02-01219
HONORABLE CHARLOTTE L. BUSHNELL,
WORKERS’ COMPENSATION JUDGE

**********

JIMMIE C. PETERS
JUDGE

**********

Court composed of Chief Judge Ned E. Doucet, Jr., Sylvia R. Cooks, Billie
Colombaro Woodard, Jimmie C. Peters, and Billy H. Ezell, Judges.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Cooks, J., concurs in part and dissents in part and assigns written reasons.
Woodard, J., dissents and assigns written reasons.

Richard E. Wilson
Cox, Cox, Filo & Camel
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLANT:
Linda Dronet

Shannon Dartez
Hurlburt, Privat & Monrose
Post Office Drawer 4407
Lafayette, LA 70502
(337) 237-0261

COUNSEL FOR DEFENDANT/APPELLEE:
E-Z Mart

PETERS, J.

In this workers’ compensation case, Linda Dronet appeals a judgment denying

her claim for indemnity benefits on the basis that the claim had prescribed. For the

following reasons, we affirm in part, reverse in part, and remand for further

proceedings.

DISCUSSION OF THE RECORD

Linda Dronet began employment with E-Z Mart as a manager on June 1, 1996.

Allegedly, she injured her hands during the course of her employment on September

14, 1998. Thereafter, she was diagnosed with carpal tunnel syndrome in both hands

and reflex sympathetic dystrophy of the right hand. Ms. Dronet’s injury necessitated

medical treatment, including two surgeries on her right hand. E-Z Mart paid medical

benefits and indemnity benefits in connection with the carpal tunnel syndrome.

Ms. Dronet returned to work at E-Z Mart in July of 1999, resulting in E-Z Mart

discontinuing payment of indemnity benefits on August 3, 1999. Still, Ms. Dronet

continued to undergo regular medical examinations and treatment, and E-Z Mart

continued to pay her medical expenses.

Ms. Dronet claims that in August of 2001 she reinjured her right hand in the

course of her employment with E-Z Mart while “mopping the floors” with an

“industrial-sized mop.” Following this alleged reinjury, Ms. Dronet continued to

maintain her monthly appointments with her orthopedic surgeon. However, although

Ms. Dronet testified that she did inform the doctor that she reinjured her hand, the

doctor did not record the new work accident. The doctor did, however, limit Ms.

Dronet to part-time work on August 27, 2001. Ms. Dronet discontinued working on

January 21, 2002, but E-Z Mart refused to pay indemnity benefits.

On February 18, 2002, Ms. Dronet filed the instant 1008 claim for indemnity

benefits,1 penalties, and attorney fees, but she alleged September 14, 1998, as the date

of her injury. E-Z Mart filed a peremptory exception of prescription. The WCJ held

a hearing on only the exception of prescription and thereafter granted the exception.

Ms. Dronet now appeals.

OPINION

Louisiana Revised Statutes 23:1209(A) provides in part:

In case of personal injury . . . all claims for payments shall be
forever barred unless within one year after the accident or death the
parties have agreed upon the payments to be made under this Chapter, or
unless within one year after the accident a formal claim has been filed as
provided in Subsection B of this Section and in this Chapter. Where
such payments have been made in any case, the limitation shall not take
effect until the expiration of one year from the time of making the last
payment, except that in cases of benefits payable pursuant to R.S.
23:1221(3) this limitation shall not take effect until three years from the
time of making the last payment of benefits pursuant to R.S. 23:1221(1),
(2), (3), or (4).

(Footnote omitted.)

Ms. Dronet appeals the judgment of prescription on the basis that she sustained

a new injury in August 2001 from a work accident, although the new injury was an

aggravation of her preexisting injury. Thus, she contends that because she sustained

a new injury, her claim is not subject to an exception of prescription based on the

September 1998 injury. E-Z Mart contends that Ms. Dronet’s “current medical

conditions are clearly a continuation of the conditions diagnosed back in 1998

according to the medical evidence.”

Initially, even assuming that E-Z Mart is correct in its assertion that Ms.

Dronet’s current medical conditions are a continuation of her 1998 injury, we find that

as a matter of law Ms. Dronet’s claim for supplemental earnings benefits has not

prescribed. Specifically, as set forth above, a claim for benefits payable pursuant to

1
Ms. Dronet did not specify the type of indemnity benefits she sought.

2

La.R.S. 23:1221(3), i.e., supplemental earnings benefits, is not barred until the

expiration of three years from the time the last payment was made for temporary total

disability benefits, permanent total disability benefits, supplemental earnings benefits,

or permanent partial disability benefits. See La.R.S. 23:1209(A). In the instant case,

because E-Z Mart paid temporary total disability benefits for the 1998 injury until

August 3, 1999, Ms. Dronet’s claim filed on February 18, 2002, or two years and six

and one-half months after the last payment of indemnity benefits, is timely for the

payment of supplemental earnings benefits arising out of the original 1998 injury. See

generally Dufrene v. Video Co-op, 02-1147 (La. 4/9/03), 843 So.2d 1066. However,

any claim for temporary total disability benefits arising out of the 1998 injury is not

timely because more than one year has elapsed since the making of the last payment

of indemnity benefits for the 1998 injury. Accordingly, we reverse the grant of the

exception of prescription as to any claim for supplemental earnings benefits.

Nevertheless, Ms. Dronet may maintain a claim for temporary total disability

benefits if she proves that she sustained an aggravation of her preexisting injury in

August of 2001 through a work accident.2 As a matter of law, “[p]reexisting disease

or infirmity of the employee does not disqualify a claim if the work-injury aggravated,

accelerated, or combined with the disease or infirmity to produce . . . disability for

which compensation is claimed.”Walton v. Normandy Village Homes Ass’n, Inc., 475

So.2d 320, 324 (La.1985). Still, the employee has the burden of establishing a

work-related accident. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). “A

worker’s testimony alone may be sufficient to discharge this burden of proof,

2
Even though Ms. Dronet’s 1008 form specifies the date of injury as being September 14,
1998, her attorney explained at trial that the date was “just a typo.” We find that the pleadings were
expanded in any event by the admission of evidence without objection regarding the alleged new
injury of August 2001. See La.Code Civ.P. art. 1154: “When issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in all respects as if they had
been raised by the pleading.”

3

provided two elements are satisfied: (1) no other evidence discredits or casts serious

doubt upon the worker’s version of the incident; and (2) the worker’s testimony is

corroborated by the circumstances following the alleged incident.” Id. at 361.

Corroboration of the employee’s testimony may be provided by the testimony of

fellow workers, spouses or friends as well as by medical evidence. Id. In determining

whether the employee has discharged her burden of proof, the WCJ should accept as

true a witness’s uncontradicted testimony, even though the witness is a party, unless

there are circumstances that cast suspicion on the reliability of this testimony. Id. The

WCJ’s determinations as to whether the employee’s testimony is credible and whether

she has discharged her burden of proof are factual determinations which we may not

disturb on review unless they are clearly wrong. Id.

According to Ms. Dronet, she reinjured her right hand while she was “mopping

the floors” with an “industrial-sized mop.” She described the incident as follows:

“[I]t looked like just a bolt of lightening went through my hand, and it hurted [sic] me,

and ever since then the hand is progressively getting worse . . . . It is not getting any

better.” There is no testimony or medical evidence to corroborate Ms. Dronet’s

testimony. In fact, at the time of the alleged new injury in August of 2001, Ms.

Dronet was already under the monthly care of Dr. R. Dale Bernauer, a Lake Charles,

Louisiana orthopedic surgeon, in connection with the preexisting injury. While Ms.

Dronet testified that she did inform Dr. Bernauer of her new injury, he did not record

any new injury. Yet, following the monthly exam of August 27, 2001, the doctor did

record that Ms. Dronet stated that she was working full time. Moreover, within the

months preceding the alleged new injury, Dr. Bernauer reported that Ms. Dronet

continued to have pain in her hand and that her hand was tender and reddened.

Further, just two months prior to the alleged new injury, Ms. Dronet also saw a Dr.

4

Ronald S. Kober, “complaining of severe pain in [her] right hand,” and the doctor

suggested a stellate ganglion block.

Apparently, the WCJ found that Ms. Dronet failed to prove she sustained a new

injury in August of 2001. We find that the foregoing evidence and lack of

corroboration provided the WCJ with a reasonable basis for her factual findings. We

do note that Dr. Bernauer stated in a letter to Ms. Dronet’s attorney dated July 25,

2002, that he was of the opinion that Ms. Dronet’s “employment as a cashier did

aggravate her condition.” However, pursuant to La.R.S. 23:1021(1), an accident is

defined in part as “an unexpected or unforeseen actual, identifiable, precipitous event

happening suddenly or violently . . . and directly producing at the time objective

findings of an injury which is more than simply a gradual deterioration or progressive

degeneration.” (Emphasis added.) The WCJ could have concluded that Dr.

Bernauer’s opinion in that regard established only that Ms. Dronet’s condition was a

gradual deterioration resulting from her job duties as a cashier, and not that Ms.

Dronet sustained an aggravation of her condition from an actual, identifiable,

precipitous event.

Further, while Dr. Bernauer did reduce Ms. Dronet to part-time work following

the alleged new injury, he did so without giving any reason for this action other than

the fact that Ms. Dronet informed him at that time that she was working full time.

Additionally, when Dr. Bernauer gave Ms. Dronet a full work excuse some five

months after the alleged work accident, he did not give any reason for doing so other

than that Ms. Dronet was having some problems at work. Without more, we do not

find that the WCJ was clearly wrong in rejecting Ms. Dronet’s assertions of a new

injury. While we might have weighed the evidence differently, we cannot overturn

the WCJ’s factual findings unless they are clearly wrong. Thus, we affirm the WCJ’s

5

grant of the exception of prescription as it relates to temporary total disability benefits.

At the hearing on the exception, the WCJ stated: “This matter comes before the

Court on an Exception of Prescription filed on behalf of E-Z Mart.” Because the case

was not first submitted to the WCJ on the merits of Ms. Dronet’s claim, we cannot

render judgment on Ms. Dronet’s entitlement to supplemental earnings benefits other

than to determine that any claim in that regard has not prescribed. See Uniform

Rules—Courts of Appeal, Rule 1-3 (providing that “Courts of Appeal will review

only issues which were submitted to the trial court and which are contained in

specifications or assignments of error, unless the interest of justice clearly requires

otherwise). Thus, we remand this case for proceedings on the merits of Ms. Dronet’s

entitlement to supplemental earnings benefits, penalties, and attorney fees.

DISPOSITION

For the foregoing reasons, we reverse the WCJ’s grant of the exception of

prescription as to any claim Ms. Dronet has for supplemental earnings benefits. We

affirm the judgment in all other respects and remand this case for further proceedings

on the issues of supplemental earnings benefits, penalties, and attorney fees. We

assess fifty percent of the costs of this appeal to Linda Dronet and fifty percent to E-Z

Mart.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

6

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-212

LINDA DRONET

VERSUS

E-Z MART

COOKS, J., Dissents in part and Concurs in part.

I would reverse that portion of the judgment below granting the exception
of prescription as it relates to temporary total disability. I am satisfied the record
sufficiently establishes the claimant sustained an aggravation of her pre-existing
work related condition. I concur in that position of this court’s opinion finding
the claimant’s SEB claim has not prescribed. I do not feel as constrained as the
majority in proceeding to rule on the merits of the claimant’s SEB claim.

SRC

NUMBER 03-212

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

LINDA DRONET

Plaintiff - Appellant

Versus

E-Z MART

Defendant - Appellee

On appeal from Office of Workers’ Compensation - District 3 [ Number
02-01219], for the Parish of Calcasieu, State of Louisiana; Workers’ Compensation
Judge Charlotte L. Bushnell, presiding.

Woodard, J., dissenting.

I must respectfully disagree with the majority’s opinion because there is
nothing in the record or in the briefs, submitted on appeal, which suggests that these
parties sought a determination regarding Ms. Dronet’s right to receive SEB benefits;
thus, prescription, as it relates to SEBs, is not before us. As such, any holding on this
issue is inappropriate and unnecessary.
On the other hand, the parties, clearly, did expect us to reconcile the issue of
whether Ms. Dronet’s claim for TTDs had prescribed. The majority opinion disposed
of her claim for TTDs by concluding that the evidence presented could support a
finding that her reinjury was nothing more than a gradual deterioration resulting from
her job duties as a cashier and not an aggravation of her condition from an actual,
identifiable, precipitous event.
However, the evidence is contrary to the majority’s finding, which is based,
solely, on speculation. Ms. Dronet’s unrefuted testimony, describing the August
2001 accident and her report to her superiors; her effort to see Dr. Bernauer on the day
this incident occurred; her untainted credibility; and the medical evidence, indicating
an aggravation of her preexisting injuries, sufficiently demonstrate that she met her

burden of proving the existence of a second accident and reinjury; thus, beginning a
new prescriptive period.1

INJURY

In August of 2001, Ms. Dronet informed her employer that she reinjured her
right hand while “mopping the floors” with an “industrial sized mop” at the E-Z Mart
store she managed. She emphasized the awkward nature of the mop by stating: “I’m
not talking about a mop we mop our house with. I am talking about an industrial-
sized mop, and they’re very hard to handle.”
According to her testimony, the “extreme pain” she experienced the day of the
subject incident was markedly different from the pain she had been living with for
years. She gave the following testimony:

I have had pain since I have had my surgeries. But that day that I hurt
my hand with that mop . . . it looked like just a bolt of lightening went
through my hand, and it hurted me, and ever since then the hand is
progressively getting worse, you know. It is not getting any better.

(Emphasis added.) When Ms. Dronet was asked whether her hand had gotten any
better after her two surgeries, on November 5, 1998 and June 10, 1999, she responded:

Before I had my surgery [my hands] hurted [sic] me. They hurted [sic]
me so bad I couldn’t hardly do anything. Then after I had . . . the two
surgeries . . . I went back to work and I was able to perform my job
better than I was before I had my surgeries. And then after August [of
2001] . . . I just steady started declining. I mean, it got to the point
where I couldn’t do anything.

In addition, she was asked if she told anybody about her injury on the day of
the second accident, which was unwitnessed. She answered: “Yes, my assistant
manager, and I contacted my supervisor.” Ms. Dronet remembered telling them: “I
hurted [sic] my hand, you know. It was hurting, and it went up into where the incision
was, and it went up into the arm and stuff.”

1
See Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, writ
denied, 02-2150 (La. 11/22/02), 829 So.2d 1044.
2

“In evaluating the evidence, the uncontradicted testimony of a witness should
be accepted as true, even if she is a party, in the absence of circumstances casting
suspicion on the reliability of her testimony.”2 Co-workers, spouses, friends, or
medical evidence may provide corroboration of the claimant’s testimony.3

Proof of an accident must be by preponderance of the evidence, and a
claimant’s testimony alone may be sufficient to discharge this burden,
provided two elements are satisfied. First, no other evidence must
discredit or cast serious doubt upon the claimant’s version of the
incident, and second, his testimony must be corroborated by
circumstances following the alleged incident.[4]

Mrs. Dronet’s employer and insurer did not refute her testimony that she
suffered a second “accident” and reinjury or her recollection that she reported this
incident to her assistant manager and supervisor when it happened. Instead, they
decided not to call Jeanne Holifield, her supervisor, as a witness at trial, even though
they initially indicated that they intended to do so.
Another important piece of evidence supporting Ms. Dronet’s contention of
reinjury is that soon after the accident and before her regularly scheduled
appointments, Ms. Dronet “called for an appointment” with Dr. Bernauer, but he
“couldn’t see [her] before [her] scheduled appointment.” She further recalled: “I told
[his office] that I had injured my hand again because of the work that I do.”
(Emphasis added.)
Fireman’s Fund Insurance, E-Z Mart, and the majority highlight that Dr.
Bernauer’s medical records from this examination, on August 27, 2001, do not
mention any new work-related event that aggravated her injury. They believe this is
a significant circumstance that casts suspicion on her testimony. However, there
could be many reasons for this lack of a reference to Ms. Dronet’s alleged accident.
For example, it could have simply been an oversight or the doctor might not have

2
Howell v. Serv. Merch. Co., 95-79, p. 5 (La.App. 3 Cir. 8/9/95) 663 So.2d 96,
98 (citing Hopes v. Domtar Indus., 627 So.2d 676 (La.App. 3 Cir. 1993)).
3
Tate, 824 So.2d at 463 (citing Bruno v. Harbert Intern. Inc. , 593 So.2d 357
(La.1992); Honeycutt v. Elbert Walker Constr., 01-1291 (La.App. 3 Cir. 2/6/02), 815
So.2d 1011).
4
Id. at 463.
3

thought about it as being important since his concern was a medical, rather than a
legal one. Thus, the inference the majority garnered, by the absence from the medical
records of a notation of reinjury, that no aggravation of her injury took place, is
clearly unfounded.
Importantly, the record viewed as a whole corroborates Ms. Dronet’s testimony,
and what one should conclude from her August 27th visit, the first visit following her
reinjury, is that Dr. Bernauer’s diminishment of her work status must have been
because of a substantial change in her functionality. Specifically, he ordered a “work
excuse,” diminishing the number of hours she could work from forty-eight to twenty
per week.
Moreover, further indicia of reinjury is that all of her physicians took escalated
actions after this visit, in response to her changed condition.
On November 8, 2001, approximately two months after the subject accident, Dr.
Rand Metoyer examined Ms. Dronet. He concluded that she was suffering from
“bilateral hand pain” and “major depression.” His report gives some insight into her
credibility and the extent of her disability after reinjury:

[Ms. Dronet] appears to be a stoic individual, however, when questioned
about suicidal thoughts she began to break down and look very tearful.
She has a very hard time dealing with the pain. She states that she
cannot commit suicide due to her family.

A few days later, on November 19, 2001, Dr. Bernauer examined her at her
regularly scheduled appointment, upon which, he determined that she was in need of
“pain management.”
On December 6, 2001, Dr. Metoyer performed a right stellate ganglion block
to relieve her “chronic right wrist and hand pain.”
Nevertheless, on January 21, 2002, she told Dr. Bernauer that “the pain
remained.” Responding, he noted: “She is having some problems at work. She does
do paper work and work with a computer. . . . At this time, I am giving the patient a
work excuse.” Therefore, he recommended that she no longer work as a manager for
E-Z Mart.
Dr. Bernauer further corroborated her testimony when he acknowledged: “It
is my opinion that [Ms. Dronet’s] employment as a cashier did aggravate her
condition.” (Emphasis added.)

4

Therefore, a significant number of references in the record and in the medical
notations clearly supports that this second accident aggravated, accelerated, or
combined with Ms. Dronet’s preexisting infirmities and created a reasonable
possibility of a causal connection between the accident and [her] present condition.5
Accordingly, the majority’s affirmation of the WCJ’s determination that Ms.
Dronet failed to prove, by a preponderance of the evidence, the occurrence of a
sudden identifiable work-related event in August of 2001 is manifestly erroneous.

PRESCRIPTION

Ms. Dronet filed the subject claim on February 15, 2002. On its face, it states
that the date of her injury was September 14, 1998. She received her last TTD
payment in July of 1999. Thus, any claim for compensation benefits, arising from her
injury of September 14, 1998, would have been filed well past a year from the receipt
of her last compensation payment for TTD.
“Generally, the party pleading prescription on a workers’ compensation claim
bears the burden of proof on the issue.”6 However, where the claimant’s petition has
clearly prescribed on its face, the burden shifts to the claimant to prove that the
prescriptive period was interrupted or suspended.7
Ms. Dronet has not asserted any circumstances that could have interrupted or
suspended prescription on a claim to recover compensation benefits for her September
14, 1998 injury. Nevertheless, the WCJ erred in ruling that her actual claim had
prescribed, since the unrefuted evidence shows that it arose from a separate sudden
identifiable work-related event that occurred in August of 2001.
Although September 14, 1998 is listed on Ms. Dronet’s claim form as the date
of her second injury, the facts establish that, while she still suffered pain from the
original injury, her condition had stabilized until she reinjured her right hand in
August of 2001. Immediately afterwards, she felt a different and more “extreme
pain,” evidencing that this reinjury was due to an identifiable incident—mopping with

5
See Id.

Duplechain v. DOTD, 02-356, p. 3 (La.App. 3 Cir. 10/2/02), 827 So.2d 567,
6

568, writ denied, 02-2674 (La. 1/31/03), 836 So.2d 68 (citing Richardson v. Tyson
Foods, 01-427 (La.App. 3 Cir. 10/3/01), 796 So.2d 827).
7
Richardson v. Tyson Foods, 01-427 (La.App. 3 Cir. 10/3/01), 796 So.2d 827.
5

an industrial mop. Moreover, her attorney acknowledged that he inadvertently put the
date of her first injury on the claim form.
This work-related accident established a new prescriptive period for receipt of
TTDs.

Prescriptive statutes are to be construed in favor of maintaining
rather than barring actions. Consistent with that precept, Louisiana Code
of Civil Procedure Article 1153 should be applied liberally and without
undue restriction by technical rules. This is especially true in workers’
compensation cases.[8]

“The fundamental purpose of prescription statutes is only to afford a defendant
economic and psychological security if no claim is made timely, and to protect [her]
from stale claims and from the loss of non-preservation of relevant proof.” 9
These statutes protect a party against lack of notification of a formal claim
within the prescriptive period.10 Therefore, if the original timely filed pleading gives
a party actual notice that the opponent is making a formal claim based on a particular
factual situation, no essential purpose of the prescriptive statutes is violated. 11
Ms. Dronet’s claim for TTDs satisfied this legal requirement, thus, it has not
prescribed.

TEMPORARY TOTAL DISABILITY BENEFITS

An employee, seeking TTDs has the burden of proving by clear and convincing
evidence, unaided by any presumption of disability, that she is physically incapable
of engaging in any type of employment.12 “To prove a matter by clear and convincing

8
Baker v. Conagra Broiler Co., 93-1230, pp. 7-8 (La.App. 3 Cir. 5/4/94), 640
So.2d 494, 497, writ denied, 94-1435 (La. 9/23/94), 642 So.2d 1289 (citations
omitted).
9
Id. at 497.
10
Id.
11
Id.

Rideaux v. Franklin Nursing Home, 95-240 (La.App. 3 Cir. 11/22/95), 664
12

So.2d 750, writ denied, 95-3093 (La. 2/16/96), 667 So.2d 1058; La.R.S.
23:1221(1)(c).
6

evidence means to demonstrate that the existence of a disputed fact is highly probable;
that is, much more probable than its nonexistence.”13
The objective medical evidence overwhelmingly supports Ms. Dronet’s
unrefuted testimony that she feels “extreme pain” in her hand. In addition, there is no
evidence suggesting she exaggerated the severity of her symptoms.
Clearly, after her January 21, 2002 examination, Dr. Bernauer believed her
disability to be so severe that it rendered her incapable of working as a manager for
E-Z Mart. There is no reason to doubt this assessment of her condition. Therefore,
Ms. Dronet proved by clear and convincing evidence that she is unable to engage in
substantial employment.

PENALTIES AND ATTORNEY’S FEES

Ms. Dronet prayed for statutory penalties and attorney’s fees for the Appellees’
failure to pay TTDs.14 However, when they initially denied benefits, it was reasonable
for them to believe that her complaints in August of 2001 were neither new nor an
aggravation of a preexisting injury. As such, they were reasonable in controverting
her claim for TTDs. Therefore, I would find that Ms. Dronet is not entitled to
penalties nor attorney’s fees.

13
Id. at 754.
14
La.R.S. 23:1201.
7