Cynthia M. Smith v. M. Randall Comeaux, D.D.S.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA03-250

CYNTHIA M. SMITH
VERSUS
M. RANDALL COMEAUX, D.D.S., ET. AL.

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OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 02-02511
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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BILLIE COLOMBARO WOODARD
JUDGE

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Court composed of Ned E. Doucet, Jr., Chief Judge, Billie Colombaro Woodard, and
Jimmie C. Peters, Judges.

AFFIRMED.

Paul D. Gibson
James Edward Diaz, Jr.
Gibson-Gruenert, L.L.P.
Post Office Box 3663
Lafayette, Louisiana 70502-3663
(337) 233-9600
Counsel for Plaintiff/Appellee:
Cynthia M. Smith

Sammie M. Henry
Johnson, Stiltner & Rahman
Post Office Box 98001
Baton Rouge, Louisiana 70898-8001
(225) 231-0916
Counsel For Defendants/Appellants:
M. Randall Comeaux, D.D.S.
Louisiana Workers’ Compensation Corporation

WOODARD, Judge.

M. Randall Comeaux, D.D.S. (Comeaux) and Louisiana Workers’
Compensation Corporation appeal a summary judgment, awarding Ms. Cynthia Smith
supplemental earnings benefits, as well as reasonable and necessary medical expenses
associated with her work-related carpal tunnel syndrome. We affirm.

*****

Ms. Smith sought disability benefits, claiming that she could no longer perform
her duties as a dental hygienist because she suffered from work-related carpal tunnel
syndrome (CTS), an occupational disease. On April 5, 2002, she filed a disputed
claim for compensation seeking disability benefits. Specifically, she stated, “The
stress of fine manipulation of instruments in my work led to the condition of carpal
tunnel syndrome.”
There is no dispute that she is disabled. However, Comeaux contends that her
disability is not because of an occupational disease. Specifically, it asserts that her
disability is due to rheumatoid arthritis, rather than CTS. This determination is critical
to Ms. Smith’s claim because work-related CTS is expressly included in the definition
of “occupational disease,” while any type of arthritis is expressly excluded from the
definition.1 Furthermore, Comeaux contends that the CTS resulted from Ms. Smith’s
rheumatoid arthritis and is not related to her work.
The WCJ found that “the evidence persuasively establishes that Ms. Smith is
disabled from working as a dental hygienist as a result of carpal tunnel syndrome
caused by her work.” Accordingly, the WCJ granted summary judgment in her favor.
Thus, we must determine whether any genuine issues of material fact remain to be
decided, regarding the causal connection between Ms. Smith’s CTS and her disability
or the causal connection between the CTS and her work.

1
La.R.S. 23:1031.1(B).

1

*****

STANDARD OF REVIEW FOR SUMMARY JUDGMENT

We review summary judgments, de novo, under the same criteria which govern
the trial court’s consideration of whether summary judgment is appropriate.2
Louisiana courts favor the summary judgment procedure which is designed to secure
the just, speedy, as inexpensive determination of actions.3 Therefore, we shall render
summary judgment “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, show that there is no genuine issue
regarding a material fact and that the mover is entitled to judgment as a matter of
law.”4

BURDEN OF PRODUCTION IN SUMMARY JUDGMENT PROCEEDING

Louisiana Code of Civil Procedure Article 966(C)(2) describes the applicable
burden of production in a summary judgment proceeding:

[I]f the movant will not bear the burden of proof at trial on the matter
that is before the court on the motion for summary judgment, the
movant’s burden on the motion does not require him to negate all
essential elements of the adverse party’s claim, action, or defense, but
rather to point out to the court that there is an absence of factual support
for one or more elements essential to the adverse party’s claim, action,
or defense. Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of material
fact.

(Emphasis added.) Thus, we proceed with an analysis of the evidence in the instant
case under this burden-shifting framework.

2
Goins v. Wal-Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783.
3
Id.; La.Code Civ.P. art. 966(A)(2).
4
La.Code Civ.P. art. 966(B).

2

ENTITLEMENT TO DISABILITY BENEFITS

In determining the employee’s entitlement to disability benefits, the Louisiana
Workers’ Compensation Act does not distinguish an employee who contracts a
disabling occupational disease from an employee whose injury results from an
accident that arose out of and in the course of her employment.5 The definition of
“occupational disease” includes “work-related carpal tunnel syndrome.”6 Thus, in
order to receive benefits, Ms. Smith must prove, by a preponderance of the evidence,
that her carpal tunnel syndrome was contracted during the course of her prior twelve
months’ employment and that it was causally connected to her disability.7

Cause of Disability

The record reflects that Ms. Smith suffers from three different
conditions—degenerative disc disease, CTS in her right hand, and arthritis in both
hands. She avers that she can distinguish between the hand-related conditions because
the arthritis affects both of her arms, whereas the CTS affects only the right arm.
Accordingly, she says that she could have continued working notwithstanding the
arthritis and disc degeneration; therefore, it is the CTS that led to her disability.
Dr. James M. Lipstate, a rheumatologist, was her primary treating physician.
He referred her to, both, Dr. James N. Domingue and Dr. Thomas V. Bertuccini,
neurologists. Reports and/or depositions of all three doctors are in evidence.
A review of Dr. Lipstate’s reports, from October 25, 1999 through the time of
trial, reveals that his initial suspicions that she suffered from CTS arose from her
complaints of tingling and numbness in her right hand. Responding to these particular
complaints, he recommended electrophysiological testing, which confirmed his
suspicions of CTS. Dr. Domingue’s report further supports that the CTS is what
caused these particular symptoms. It states, “She [Ms. Smith] tells me that the final
straw in her quitting work was because she could not feel the instruments any longer

5
La.R.S. 23:1031.1(A).
6
La.R.S. 23:1031.1(B).
7
La.R.S. 23:1031.1(D).

3

with her right hand. I think, therefore, that it was the carpal tunnel syndrome that led
to her loss of employability.”
Further, Dr. Bertuccini’s report states, “She [Ms. Smith] is concerned that her
grip strength on the right may be less than normal as she has had difficulty controlling
dental instruments. She has a history of numbness involving the right hand occurring
intermittently over the past 18 to 24 months. . . . EMG and nerve conduction studies
of the right arm and neck and nerve conduction studies of the left arm done May 22,
2001 by Dr. Jim Domingue showed an abnormality that implied evidence of a lesion
involving the right median nerve at the wrists. An EMG of Oct. 26, 1999, done by Dr.
Anseman also showed evidence consistent with right carpal tunnel syndrome.”
Further, in a letter to Ms. Smith, Dr. Lipstate stated, “I agree that the carpal
tunnel syndrome was the defining factor in your decision to go on disability, but
certainly the arthritis and neck symptoms were also contributing factors in that
regard.” (Emphasis added.)
Accordingly, we find that Ms. Smith’s disability was causally connected to the
CTS.

Cause of Carpal Tunnel Syndrome

Drs. Lipstate and Domingue pointed out that Ms. Smith’s rheumatoid arthritis
gives her a predisposition to develop CTS. However, the reports of all three doctors
prove, by a preponderance of the evidence, that her CTS was work-related. In a letter
to her, Dr. Lipstate wrote, “When you have rheumatoid arthritis it can be a
predisposing factor to carpal tunnel syndrome, as can hand intensive occupations such
as working as a dental hygienist. I cannot with any degree of medical certainty tell
you what percentage of your carpal tunnel syndrome could be attributable to these
conditions.” And Dr. Domingue reported, “Further, I think, despite the fact that she
has rheumatoid arthritis which gives her a predisposition to develop carpal tunnel
syndrome, it was clearly the occupation that worsened it and made it symptomatic
enough to cause her to lose her ability to work. This is evidenced by the fact that she
has improved now that she is not working. . . . It would be my opinion, therefore, that
her occupation as a dental hygienist led her to develop carpal tunnel syndrome
adequate to lead to her loss of employability.” (Emphasis added.)

4

COMEAUX’S DEFENSE

Comeaux’s defense consisted of two allegations: 1) Ms. Smith’s disability
resulted from the rheumatoid arthritis, rather than the CTS; and 2) Ms. Smith’s CTS
was not work related. Thus, Ms. Smith had the burden of showing an absence of
factual support for these allegations.
We find that she did so. All the physicians believed the CTS was a cause of her
disability and that her work, at least, aggravated the CTS. Further, they noted that the
CTS improved upon her leaving the job, which indicated to them a work-related,
causal connection.8 All of this evidence is sufficient to satisfy her burden of proof.9
Thus, the burden shifted to Comeaux to provide factual support for its defense.

COMEAUX’S FACTUAL SUPPORT

Comeaux contends that Dr. Lipstate’s deposition offered factual support for its
contentions. Namely, Dr. Lipstate declined to attribute Ms. Smith’s disability, solely,
to one of the three medical conditions because he found them to be interrelated. Since
she suffers from all three medical problems, Dr. Lipstate could not conclusively state
that the CTS, alone, was the primary cause of her disability. By the same token,
however, he could not conclusively state that the arthritis was the primary cause.
Comeaux points out the following testimony for support:

Q. Okay. Now in reference to her seeking a disability status, you
said you were supportive of this decision. Could you in any way put a
percentage on which one of these things were more of a disabling factor
to her than another?

A. No, and there’s a subsequent letter to that effect in my chart.
I don’t know how one can . . . here she has three different medical
problems. She has known degenerative disc disease in her neck, she has
carpal tunnel syndrome in her right hand, and she has rheumatoid
arthritis. I guess really four. She also has degenerative arthritis in her
hands. I think any of those things alone in certain circumstances could
be disabling, especially in a hand intensive occupation. Taking in all
things together, I think it would be . . . make it very difficult for her to
continue in her work as a dental hygienist. . . .

8
See Hebert v. Lake Charles Am. Press, 427 So.2d 916 (La.App. 3 Cir. 1983).
9
Id.

5

Q. You can’t say it’s the carpal tunnel syndrome that prevents her
from working as a dental hygienist?

A. I don’t think I can say with any degree of medical certainty
which of those four conditions played the greatest role. I think I have to
look at the patient in toto.

Nevertheless, Comeaux cannot simply attempt to discount the physicians’
testimonies “because of their tendency to refrain from unqualified statements or
opinions on such matters of causation.”10 “[I]t is not necessary for the experts to
determine the exact cause of the disability in order for the employee to recover.”11
“Furthermore, medical testimony must be weighed in light of other credible evidence
of a nonmedical character, such as a sequence of symptoms or events in order to
judicially determine probability.”12 Comeaux failed to present any factual support that
there was a separate and intervening cause.13 This failure creates a material issue of
fact concerning whether the CTS played a role in Ms. Smith’s disability.
Furthermore, while Dr. Bertuccini’s report corroborates Dr. Lipstate’s findings
of three separate medical conditions, as well as his recommendation to stop working,
Dr. Bertuccini’s report, likewise, does not indicate which of the three conditions
prevents her from returning to work. However, this inconclusive testimony does not
factually support Comeaux’s contentions and satisfy burden of proof.
Even though Dr. Lipstate’s and Dr. Bertuccini’s inconclusive reports offered
support that the arthritis may have been a cause of her disability, this fact, even if
proved at trial, would not defeat Ms. Smith’s recovery. She need only prove that the
CTS, also, was causally connected to her disability.14 To be a material issue,
Comeaux would have to offer factual support indicating that the arthritis was a cause
of her disability and that the CTS was not causally related to the disability.
Contrarily, it offered no evidence of any physician that supported the contention that
Ms. Smith’s disability resulted, solely, from her rheumatoid arthritis, and it failed to

10
Id. at 920.
11
Id. (citing Hammond v. Fid. & Cas. Co. of NY, 419 So.2d 829 (La.1982)).
12
Id. (citing Schouest v. J. Ray McDermott & Co., 411 So.2d 1042 (La.1982)).
13
Id.
14
See Id.

6

provide any factual support indicating that the CTS was not causally related to her
disability. Therefore, there is no material issue of fact left to be decided regarding the
cause of Ms. Smith’s disability.
Secondly, Comeaux contends that Ms. Smith’s CTS is not “work-related.” As
factual support, it offers Dr. Lipstate’s testimony:

Q. Would you consider that carpal tunnel syndrome that she
experienced and those symptoms would have been caused by her work
as a dental hygienist?

A. Well, again, we can see carpal tunnel syndrome as an overuse
syndrome in some hand intensive occupations. Whether that is the sole
likely cause, I’m not certain in this particular case. She did not relate to
me in any of our visits any other activities --that may have aggravated it.
But, again, you know, I mean, exercise, other -- You know, activities at
home may – you know, I could see as playing a role. She -- the
symptoms seemed to pre-date the onset of the rheumatoid arthritis. I had
mentioned earlier, sometimes rheumatoid arthritis, especially if there’s
a lot of swelling in the wrists, can aggravate carpal tunnel symptoms.
She did in some --I think in one of the latter visits demonstrate some
swelling in the wrists, and so that can aggravate the carpal tunnel. But I
don’t think that that was necessarily playing a role early on in her early
visits. At least that I could determine.

(Emphasis added.)
Again, this inconclusive testimony does not offer adequate factual support that
Ms. Smith’s CTS is not related to her work. Comeaux offered no factual evidence that
some other activity may have caused the CTS. Moreover, it is irrelevant that
additional causes may have contributed to the disability, as long as on-the-job trauma
is, in fact, a disabling factor. Her burden consists of showing, only, that the CTS
“contributed to the disability, however slight; and, as a consequence, [she] is no longer
able to perform work activities associated with the pre-[CTS] job.”15 (Emphasis
added.) Dr. Domingue found that it was Ms. Smith’s occupation that, at least,
aggravated the CTS and made it symptomatic enough to lead to her unemployability.
Both, Dr. Lipstate and Dr. Domingue found that her CTS symptoms had greatly

15
Lavergne v. Lake Charles Mem’l Hosp., 625 So.2d 1098, 1102-03 (La.App.
3 Cir. 1993), writ denied, 93-2756 (La. 1/7/94), 631 So.2d 45 (citing MALONE &
JOHNSON, 13 LOUISIANA CIVIL LAW TREATISE, WORKER’S COMPENSATION (2d ed.)
§ 256).

7

improved once she stopped working, supporting their conclusion of a necessary causal
connection.
Further, although the testimony and physicians’ records, as a whole, are
ambiguous regarding which condition preceded the other, Dr. Lipstate’s testimony
does not support Comeaux’s contention that CTS resulted from the arthritis because
Dr. Lipstate noted that the symptoms of CTS “seemed to predate the onset of
rheumatoid arthritis.” Nonetheless, even if Ms. Smith were predisposed to CTS
because of the arthritis, this would not defeat her recovery of benefits. “Preexisting
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 death
or disability for which compensation is claimed.”16 Thus, even if proved, this fact is
not material in determining her entitlement to benefits.
We find that Ms. Smith met her initial burden to establish that she was disabled
due to work-related CTS and of pointing out an absence of factual support for
Comeaux’s defense. Contrarily, when the burden shifted basically, Comeaux only
offered that the arthritis contirbuted to Ms. Smith’s disability. However, this would
not defeat her recovery even if proved and, therefore, is not a material issue of fact.
Accordingly, Ms. Smith was entitled to summary judgment, which we affirm.

FRIVOLOUS APPEAL
Ms. Smith answered Dr. Comeaux’s appeal, contending that his appeal could
not have been made in good faith because the evidence is clear and undisputed.
However, “[d]amages for frivolous appeal are only allowed when it is obvious that the
appeal was taken solely for delay or that counsel is not sincere in the view of the law
he advocates even though the court is of the opinion that such view is not
meritorious.”17 We cannot say that the instant appeal rises to such a level. Therefore,
we deny Ms. Smith’s request for damages for this allegedly frivolous appeal.

16
Walton v. Normandy Vill. Homes Ass’n, Inc., 475 So.2d 320, 324 (La.1985)
(citing Lucas v. Ins. Co. of N.A., 342 So.2d 591 (La. 1977); Johnson v. Travelers Ins.
Co., 284 So.2d 888 (La.1973); LARSON, WORKMEN’S COMPENSATION LAW, § 12.21).
17
Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993) (quoting Parker v.
Interstate Life & Acc. Ins. Co., 248 La. 449 (1965)).

8

CONCLUSION
We affirm the WCJ’s grant of summary judgment in Ms. Smith’s favor,
awarding her supplemental earnings benefits and medical expenses associated with
her work-related CTS. However, we decline to award her damages for frivolous
appeal. We cast the costs of this appeal, equally, on the Appellants, Comeaux and
LWCC.

AFFIRMED.

9