Andrea Seyfarth v. New Day Outpatient Rehab

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 03-500

ANDREA SEYFARTH

VERSUS

NEW DAY OUTPATIENT REHAB

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 00-07010
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billie Colombaro Woodard, Michael G. Sullivan, and Billy
Howard Ezell, Judges.

AFFIRMED.

Christopher Alan Edwards
Ewards Law Firm
P. O. Box 2970
Lafayette, LA 70502-2970
(337) 237-6881
Counsel for: Plaintiff/Appellant
Andrea Seyfarth

Debra Talbot Parker

Johnson, Stiltner & Rahman
P. O. Box 98001
Baton Rouge, LA 70898-8001
(225) 930-0437
Counsel for: Defendant/Appellee
New Day Outpatient Rehab

EZELL, JUDGE.

Andrea Seyfarth appeals a workers’ compensation judgment holding that a July

19, 1999 work accident was a very temporary aggravation of a pre-existing neck

condition and that there was insufficient evidence to establish a work-related accident

on September 3, 1999.

FACTS

Seyfarth was employed by New Day Outpatient Rehabilitation as an

occupational therapist. For approximately ten years she suffered with neck problems,

taking a turn for the worse in 1997. On February 23, 1999, Dr. Luiz DeAraujo

performed a hemilaminectomy of C6 on the right side and foraminotomies at C5-6 and

C6-7 on the right side. Her pain improved remarkedly after surgery, but she testified

that she still suffered with some significant pain. She was referred to Dr. Norman

Anseman for physical rehabilitation following surgery.

Dr. Anseman first examined Seyfarth on April 7, 1999. He diagnosed her with

cervical spondylosis with some residual problems from the surgery. He observed a

considerable amount of spasm on the right side. On June 12, 1999, Seyfarth had a

flare-up resulting in a worsened range-of-motion and or spasm. She had just gotten

married and believed that tension and stress were causing her problems. On June 24,

Dr. Anseman injected her left shoulder which had also become aggravated.

Dr. Anseman next saw Seyfarth on July 21, 1999, a few days after her first

claimed work accident. Seyfarth related to Dr. Anseman how she had been preparing

to give a workshop on July 19 and had to move an exercise mat causing another flare-

up. His examination indicated that there was no spasm on the right but her left side

had increased spasm. Her neurological exam was normal. He thought she would be

better by the next visit.

Seyfarth next called Dr. Anseman on September 9 to complain that she was on

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the downhill with her neck. She was seen by Dr. Anseman on September 15, at which

time she reported the second claimed work accident at issue in this case. Seyforth

explained to Dr. Anseman that, while performing a functional capacity evaluation, she

lifted a seventy-pound weight off a patient, again causing a flare-up. At trial, Seyfarth

explained that she actually removed ten pounds at a time for a total of forty pounds

and then lowered a box with the remaining thirty pounds. He noted a new area of

spasm along the thoracic spine.

On November 5, 1999, Seyfarth left her employment with New Day. She gave

one-month notice before she left. On August 31, 2000, Seyfarth filed a disputed claim

for compensation. Following trial of the matter, the workers’ compensation judge

(WCJ) issued judgment dismissing Seyfarth’s claims. Seyfarth appeals to this court

arguing that the facts and testimony overwhelmingly support her description of the

accidents and their effect on her.

SEPTEMBER 3, 1999

Seyfarth first claims that the WCJ was manifestly erroneous in finding the

evidence insufficient to establish a work-related accident on September 3, 1999.

Restating the definition of the “manifest error” standard, the supreme court in

Edwards v. Sawyer Indus. Plastics, Inc., 99-2676, p. 9 (La. 6/30/00), 765 So.2d 328,

333, quoted from Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), as follows:

When there is evidence before the trier of fact which, upon its
reasonable evaluation of credibility, furnishes a reasonable factual basis
for the trial court’s finding, on review the appellate should not disturb
this factual finding in the absence of manifest error. Stated another way,
the reviewing court must give great weight to factual conclusions of the
trier of fact; where there is conflict in the testimony, reasonable
evaluations of credibility and reasonable inferences of fact should not be
disturbed upon review, even though the appellate court may feel that its
own evaluations and inferences are as reasonable. The reason for this
well-settled principle of review is based not only upon the trial court’s
better capacity to evaluate live witnesses (as compared with the appellate
court’s access only to a cold record), but also upon the proper allocation
of trial and appellate functions between the respective courts.

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The WCJ gave the following reasons for her decision:

The WCJ finds the evidence insufficient to establish a work-
related accident on September 3, 1999. While the defense witnesses
completely contradicted the claimant’s testimony as to the occurrence of
the second accident, Dr. Anseman noted a new area of spasm along the
thoracic spine at his examination of September 15. This new objective
finding tended to corroborate the claimant’s allegation of a new event
between his last exam of July 21 and the exam of September 15.
However, the physical therapy records introduced as Plaintiff’s exhibit
18 reflect that the thoracic complaints began on August 19, some two
weeks before the alleged accident of September 3. Those complaints
decreased on August 26 and August 31, but increased on September 2,
the day before the alleged incident with the FCE. There is no
corroboration of a September 3 accident and the WCJ finds that no work-
related accident occurred on that date.

We have reviewed the record and find no manifest error in the WCJ’s decision.

Seyfarth began attending physical therapy at the Orthopedic and Sports Physical

Therapy Clinic of Lafayette on August 10, 1999. On her visit on August 19, 1999, she

complained of upper thoracic pain and left scapula tightness which was also observed

by the therapist. It was even noted that she had increased upper thoracic pain the day

before the alleged September 3, 1999 accident.

Seyfarth also testified that she told several people at work about the incident,

which they all denied. Sarah Leblanc, who worked at New Day, but was no longer

employed when she testified, stated that she was taking pictures while Seyfarth was

performing the evaluation on September 3, 1999. Leblanc testified that Seyfarth did

not complain to her that she was hurt. She did not recall Seyfarth lifting any weights

that day.

Testimony also revealed that Seyfarth was involved in an automobile accident

in August 1999. She had also experienced a flare-up in July 1999 when she was

lifting and unloading chairs at a family reunion. In addition to these incidents, the

WCJ was aware of the fact that Seyfarth made numerous telephone calls requesting

that Dr. Anseman issue addendums to his medical notes about her medical problems.

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Seyfarth testified that she left work because she was still having pain and she

wanted to get healthy to have a baby. She was also trying to lose weight and get her

cholesterol levels down. She did continue to work for a month after she gave notice.

While Dr. Anseman’s medical records support that Seyfarth reported the

September 3 incident to him on her September 15 visit, and he noticed what he

considered to be a new finding, the record is replete with instances that discredit

Seyfarth’s testimony. In addition to the fact that no one at work supported her

testimony that she told them about the incident, medical records indicate that she had

existing problems in this same area, even the day before the incident. There were also

intervening, nonwork-related incidents that could have just as well caused Seyfarth’s

problems. We cannot say the WCJ was clearly wrong in finding that there was no

accident on September 3, 1999.

JULY 19, 1999

Seyfarth also claims that the WCJ was manifestly erroneous in finding that any

work incident of July 19, 1999, was a very temporary aggravation of the pre-existing

condition which subsided quickly and without residual problems. She claims that the

medical evidence proves that Seyfarth continued to have problems as a result of the

July 19 incident.

In explaining how she hurt herself, Seyfarth stated that she and Jackie

Cusimano were getting ready the morning of July 19 for a workshop. They needed

additional room, so they decided to move a mat out of the way. Seyfarth pushed the

mat, and about an hour later, experienced spasms and increased pain in her neck.

The WCJ found that, “Comparison of the June 17 and July 21, 1999

examinations reflect that Ms. Seyfarth was actually improved after the alleged July 19,

1999 incident. In fact, in his July 21 report, Dr. Anseman stated he believed she

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would be ready for discharge by the time of her next visit.”

We agree with WCJ that Dr. Anseman’s medical records indicate improvement

in Seyfarth’s condition from her initial visit with him following her July 19 incident.

Furthermore, Seyfarth saw Dr. DeAraujo on the day of the incident and his notes

reveal that Seyfarth is “doing well, is virtually free of pain and with a normal

neurologic examination. . . . I am discharging her today from my care . . . .”

Additionally, while Seyfarth testified that Cusimano knew she had hurt her neck,

Cusimano testified that she never saw or heard anything that indicated Seyfarth’s

neck was hurting.

We cannot say the WCJ was clearly wrong in finding that Seyfarth did not

suffer any residual problems as a result of the July 19, 1999 incident. The record

indicates that Seyfarth continues to suffer with the neck problems she was

experiencing before any of these incidents. There is also evidence that she had flare-

ups before the incident which resolved, and it could be assumed that she would

continue to have flare-ups which would also resolve.

For the above reasons, we find the record supports the judgment of the WCJ

and affirm the judgment of the Office of Workers’ Compensation. Costs of this

appeal are assessed to Andrea Seyfarth.

AFFIRMED.

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