Margaret Fontenot v. Wal-Mart Stores, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1570

MARGARET FONTENOT

VERSUS

WAL-MART STORES, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 02-00303
CHARLOTTE L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Kevin L. Camel
Cox, Cox, Filo & Camel
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLEE:
Margaret Fontenot

Frank A. Flynn
Allen & Gooch
Post Office Box 3768
Lafayette, LA 70502-3768
(337) 291-1250
COUNSEL FOR DEFENDANT/APPELLANT:
Wal-mart Stores, Inc.

AMY, Judge.

In this workers’ compensation matter, the employee-claimant suffered an

apparent seizure while at work, during which she fell to the floor and hit her head,

cracking her skull. She underwent emergency surgery, which, in turn, resulted in an

infection that required two additional surgeries. The claimant subsequently filed a

disputed-compensation form, asserting that her employer had not paid wage benefits

or medical benefits. The employer answered, arguing that the claimant’s injuries did

not arise in the scope of her employment. Following the disputed-claim hearing, the

workers’ compensation judge ruled that the claimant suffered an injury in the course

and scope of her employment and ordered the employer to pay workers’ compensation

and medical benefits. In addition, the workers’ compensation judge ruled that the

employer failed to reasonably controvert the claimant’s cause of action and assessed

penalties and attorney’s fees accordingly. The employer appeals. For the following

reasons, we affirm.

Factual and Procedural Background

The record reflects that Margaret Fontenot, the claimant herein, began working

for Wal-Mart in late September 1993. Ms. Fontenot testified at the disputed-claim

hearing in the matter that on November 26, 2001, the date of the accident at issue, she

arrived at the Wal-Mart Supercenter on Highway 14 in Lake Charles, Louisiana, at

five o’clock in the morning for her shift in the bakery department. She explained that

one of her duties each morning was to take bread from the bakery to the deli

department for display. Ms. Fontenot testified that the last thing that she remembers

from the day of the accident was that shortly before eight o’clock that morning, she

said hello to a co-worker while taking a load of bread to the deli. The record indicates

that while Ms. Fontenot was in the process of delivering the bread, she fell to the floor

and hit her head. One of Ms. Fontenot’s co-workers testified that she saw Ms.

Fontenot fall to the floor as if she had fainted. Several others testified that when they

arrived on the scene after Ms. Fontenot fell, it appeared that she was having a seizure.

The record reflects that she was bleeding profusely from the head and was moaning

in pain.

Ms. Fontenot was promptly taken to the hospital, where emergency surgery

was performed. Ms. Fontenot testified that it was her understanding that she had

cracked her skull in three places and that the presence of four blood clots in the area

required that surgery be performed immediately. She stated that when she awoke five

days after the accident, her treating physician informed her that although her surgery

was successful, he believed that an infection had developed that would require a

second surgery. Ms. Fontenot indicated that during this second procedure, an infected

bone was removed from her skull. She noted at the disputed-claim hearing that,

although she was still weak, her condition improved afterwards.

On May 26, 2002, Ms. Fontenot began to experience sharp pain in her right leg.

She went to the hospital, where she was informed that the second surgery was not

completely successful in removing the infection, which had spread to her leg,

penetrating the bone below the knee. A third surgery was then performed on June 6,

2002. Since then, Ms. Fontenot testified, she has suffered headaches and dizziness,

which have kept her from activities such as housework, and she had fallen four times

in the months preceding the disputed-claim hearing. She likewise testified that she

has not been able to drive since the accident. She stated that as of the time of the

disputed-claim hearing, she was still receiving medical treatment as a result of her

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injury and the ensuing infections. Ms. Fontenot indicated that although she desires

to return to work, her doctors have not yet released her for this purpose.1

On January 14, 2002, Ms. Fontenot filed a disputed-claim form in which she

alleged that Wal-Mart had neither paid workers’ compensation benefits nor authorized

medical treatment stemming from the November 26, 2001 accident. Wal-Mart

answered, asserting that Ms. Fontenot was not injured during the course and scope of

her employment and that her injuries were not related to the alleged work-related

accident. Moreover, Wal-Mart claimed that Ms. Fontenot was able to perform light-

duty work, which would preclude her from receiving workers’ compensation benefits.

The matter proceeded to hearing on July 2, 2003. In a judgment rendered on

September 10, 2003, the workers’ compensation judge ruled that Ms. Fontenot had

proven that her injury was sustained while in the course and scope of her employment

and that she was entitled to wage and medical benefits. In addition, the workers’

compensation judge awarded penalties and attorney’s fees, finding that Wal-Mart

failed to reasonably controvert Ms. Fontenot’s claim.

Wal-Mart appeals the workers’ compensation judge’s ruling, asserting the

following assignments of error:

1. The workers’ compensation judge committed manifest error in
determining that Ms. Fontenot was entitled to workers’ compensation
benefits when she did not prove by a preponderance of the evidence that
a work-related accident and injury occurred during the course and scope
of her employment; and

2. The workers’ compensation judge committed manifest error in
awarding attorney’s fees and penalties to Ms. Fontenot in accordance

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The record indicates that Ms. Fontenot had one prior accident during her employment at
Wal-Mart. She testified that while putting french bread in a freezer in August 2000, she slipped and
fell, hitting her head. She maintained that she fully recovered from this accident, adding that she
did not file a workers’ compensation claim. She further averred that she had not received medical
treatment between the August 2000 accident and the November 2001 accident.

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with the finding that Wal-Mart did not reasonably controvert her claim
in that there were substantial legitimate disputes involved in the matter.

Discussion

Entitlement to Benefits

Louisiana Revised Statutes 23:1031 provides that a claimant may receive

workers’ compensation benefits from an “accident arising out of and in the course of

his employment.” The claimant may recover after proving, by a preponderance of the

evidence, that the accident occurred “on the job site and that an injury was sustained.”

Sterling v. Asplundh Tree Expert Co., 03-266, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d

125, 128 (quoting Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir.

12/16/98), 724 So.2d 853, 855). A workers’ compensation judge’s findings of fact are

reviewed on appeal pursuant to the manifest-error standard. Nabors Drilling USA v.

Davis, 03-136 (La. 10/21/03), 857 So.2d 407. This standard is likewise employed

when an appellant raises questions as to the sufficiency of the evidence in the

proceedings below. Id.

Wal-Mart contends on appeal that the workers’ compensation judge erred in

finding that Ms. Fontenot proved by a preponderance of the evidence that she

sustained an accident in the course and scope of her employment. It insists that

although Ms. Fontenot suffered an accident while working at Wal-Mart, she did not

suffer an accident in the “scope” of her employment. In support of its position on

appeal, Wal-Mart underscores Ms. Fontenot’s testimony that approximately twenty

years before the accident at issue, she suffered two grand mal seizures while at home.

Accordingly, it argues that Ms. Fontenot’s accident was caused by her epilepsy, not

by any risk associated with her employment.

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Wal-Mart argues that the decision of the Louisiana Supreme Court in the matter

of Kern v. Southport-Mill, 174 La. 432, 141 So. 19 (1932), is applicable in the present

appeal. It contends that in Kern, the supreme court held that an accident arises out of

employment when it results from a risk to which an employee was subjected in the

course of his employment. It further cites Kern for the proposition that the mere

occurrence of an accident on the job is insufficient to establish the crucial nexus

between an employment risk and the subject accident. Wal-Mart maintains that Ms.

Fontenot has only proven that her own physical infirmities caused the accident at

issue, not any risk of employment.

Our review of the relevant jurisprudence indicates that, in matters similar to the

instant appeal, Louisiana courts have been reluctant to deny workers’ compensation

benefits to claimants whose pre-existing medical conditions may have contributed to

their work-related accidents. For example, in Guidry v. Serigny, 378 So.2d 938

(La.1979), a trial court declined to award compensation benefits to a cook who had

fallen en route from the storage area of a restaurant to its kitchen, basing its decision

upon evidence that the claimant had fallen due to a heart attack or a fainting spell

instead of as a result of a waxed floor. The court of appeal affirmed.

On review, the Louisiana Supreme Court reversed. It observed that the trial

court denied benefits because the cook could not demonstrate a causal connexity

between her employment and the heart attack or fainting spell that caused her to fall.

The supreme court disagreed with the trial court’s reasoning, pointing out that “the

plaintiff’s accident was not the fainting spell, heart attack or slip which may have

caused her to fall. Plaintiff’s accident was the fall itself and this is so regardless of the

precipitating reason therefor.” Guidry, 378 So.2d at 940. The court then turned to a

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determination of whether the accident “arose out of” the claimant’s employment,

applying the standard as stated in Kern:

The inquiry is two-fold. First, it must be determined whether the
employee was then engaged in his employer’s business and secondly, did
the necessities of the employer’s business reasonably require that the
employee be at the place of the accident at the time of the accident. Kern
v. Southport-Mill, 174 La. 432, 141 So. 19 (1932). Applying this
standard to the present accident, it is apparent that the fall arose out of
Mrs. Guidry’s employment. When the plaintiff fell, she was carrying a
mayonnaise jar from the storage area to the kitchen in order to prepare
for the noon meal. This activity was certainly in pursuit of her
employer’s business. It is equally apparent that her employment
required that she be in the area where the accident occurred. We
therefore hold that Mrs. Guidry’s fall was an accident arising out of and
in the course of employment within the meaning of R.S. 23:1031.

Id.

The third circuit has reached similar conclusions in cases in which an employee

with a pre-existing medical condition seeks workers’ compensation benefits stemming

from an at-work accident. In Morris v. City of Opelousas, 572 So.2d 639 (La.App.

3 Cir. 1990), a panel of this court was asked to review a ruling that granted benefits

to an employee who had suffered an on-the-job injury following an epileptic seizure.

The City of Opelousas, the claimant’s employer, argued on appeal that the accident

had not arisen “out of” the claimant’s employment because the accident was caused

by the claimant’s seizures. The deciding panel of this court provided an overview of

the applicable law, stating that:

An otherwise compensable accident does not cease to arise out of
the employment simply because it can be attributed to a physical
infirmity of the employee. Guidry v. Serigny, 378 So.2d 938 (La.1979).
It is clear that a worker’s pre-existing condition does not bar his recovery
under our worker’s [sic] compensation statute. Id. Moreover, the
jurisprudence is replete with statements that an employer takes the
employee as he finds him. An abnormally susceptible worker is entitled
to the same protection as a healthy worker. Allor v. Belden Corp., 393
So.2d 1233 (La.1981).

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Morris, 572 So.2d at 642. Paraphrasing Guidry v. Serigny, the panel held that “[the

claimant’s] accident was not the epileptic attack which may have caused him to fall.

[The claimant’s] accident was the fall itself and this is so regardless of the

precipitating reason therefor.” Id. at 642.2

The record of the proceedings below indicates that Ms. Fontenot sought medical

treatment after experiencing two seizures more than twenty years before the accident

at issue. She was prescribed Dilantin, which she discontinued after two years of

therapy. Nonetheless, the record indicates that Ms. Fontenot held several jobs

following the seizures’ occurrence. In addition, according to her testimony at trial,

Ms. Fontenot suffers from asthma and from low blood pressure, which has, in certain

instances, resulted in her losing consciousness at work. Ms. Fontenot further noted

at trial that on occasion, the dizziness that accompanies her low blood pressure has

been so bad as to require her to stay home from work.

Despite the fact that Ms. Fontenot suffered from a pre-existing

illness—epilepsy—that apparently contributed to her accident, we note that, according

to Guidry and Morris, this does not foreclose her recovery of workers’ compensation

and medical benefits in this matter. Applying the standard set forth by the supreme

court in Kern to the instant matter on appeal, we find that Ms. Fontenot’s accident

occurred in the scope of her employment. At the time of her fall, Ms. Fontenot was

carrying bread from the bakery to the deli in accordance with her employment

responsibilities. In addition, the record indicates that her employment required her to

work in the bakery department on the morning of the accident. We find no manifest

2
Parenthetically, the Morris court observed that the claimant was prescribed Dilantin for his
seizures but did not regularly take his medicine. Id. at 641-642. The claimant’s failure to take his
medication as prescribed did not preclude his recovery.

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error in the workers’ compensation judge’s ruling that Ms. Fontenot sustained an

accident in the course and scope of her employment. This assignment lacks merit.

Penalties and Attorney’s Fees

Wal-Mart also argues on appeal that the workers’ compensation judge

committed manifest error in assessing penalties and attorney’s fees against it in the

amounts of $2,000 and $5,500, respectively, for its having failed to reasonably

controvert Ms. Fontenot’s claim. It argues that the record of the proceedings below

does not support the workers’ compensation judge’s determination that it acted

arbitrarily and capriciously in handling this claim. Wal-Mart insists that this was a

matter in bona fide dispute and requests that these awards be vacated.

In Johnson v. T.K. Stanley, Inc., 00-1000, p.10 (La.App. 3 Cir. 2/28/01), 781

So.2d 760, 767 (footnotes omitted), a panel of this court provided the following

discussion of the circumstances in which penalties and attorney’s fees are properly

awarded to a claimant:

An employee is entitled to penalties and attorney’s fees when the
employer arbitrarily, capriciously, or without probable cause fails to
timely pay workers’ compensation benefits. In effect, this law describes
an employer which fails to reasonably controvert the employees’ [sic]
claim. An employer is deemed to have reasonably controverted a claim
when it possessed sufficient factual and medical information to rebut the
employee’s factual and medical assertions.

The first circuit, in Authement v. Wal-Mart, 02-2434, p. 11 (La.App. 1 Cir. 9/26/03),

857 So.2d 564, 574 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9

(La.12/1/98), 721 So.2d 885, 890), states that “[f]or purposes of La. R.S.

23:1201.2,“[a]rbitrary and capricious behavior consists of willful and unreasoning

action, without consideration and regard for facts and circumstance presented, or of

seemingly unfounded motivation.” We review the workers’ compensation judge’s

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award of penalties and attorney’s fees pursuant to the manifest-error standard. See

Sterling, 856 So.2d at 131.

Our review of the relevant jurisprudence reflects that, throughout Louisiana, it

is clear that an accident is considered to arise “in the scope of employment” if the

employment required the employee-claimant to be at the site of the accident when it

happened. See, e.g., Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir.

4/24/02), 817 So.2d 313; Haywood v. Dugal, 00-334 (La.App. 5 Cir. 10/31/00), 772

So.2d 240, writ denied, 00-3215, 00-3258 (La. 2/2/01), 784 So.2d 4; Pappas v.

Marine Spill Response Corp.(MSRC), 94-879 (La.App. 3 Cir. 2/15/95), 650 So.2d

441, writ denied,95-706 (La. 5/5/95), 654 So.2d 326; Guillory v. Gulf States Utilities,

94-38 (La.App. 3 Cir. 10/5/94), 643 So.2d 488. In addition, within the third circuit

alone, the prevailing interpretation of La.R.S. 23:1031 in situations such as the instant

appeal is that a claimant’s recovery will not be barred on the basis of a pre-existing

injury if the claimant can otherwise prove that an at-work accident occurred. See, e.g.,

Sterling, 856 So.2d 125; Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824

So.2d 456; Curtis v. Wet Solutions, Inc., 98-789 (La.App. 3 Cir. 12/9/98), 722 So.2d

421; Stelly v. Guy Scroggins, Inc., 96-401 (La.App. 3 Cir. 10/9/96), 682 So.2d 782.

In light of this overwhelming case law, we find that the workers’ compensation

judge’s determination that Wal-Mart did not reasonably controvert Ms. Fontenot’s

claim was not manifestly erroneous.

Moreover, Wal-Mart produced neither factual nor medical evidence that tended

to challenge Ms. Fontenot’s claim. It did not dispute that Ms. Fontenot was acting

within the course of her employment when the accident occurred. Instead, the record

reflects that Wal-Mart’s chief trial strategy was to establish that Ms. Fontenot suffered

from epilepsy or another pre-existing illness that caused her to fall near the deli

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department on November 26, 2001. As stated above, it is clear that an employee’s

pre-existing illness will not preclude her recovery if she can prove that the injury

occurred during the course and scope of her employment as defined in Kern.

Accordingly, we find that Wal-Mart failed to reasonably controvert Ms. Fontenot’s

cause of action. The workers’ compensation judge was not manifestly erroneous in

awarding Ms. Fontenot penalties and attorney’s fees in this matter. This assignment

is without merit.

DECREE

For the foregoing reasons, the workers’ compensation judge’s ruling is

affirmed. All costs of this proceeding are assigned to the defendant-appellant, Wal-

Mart Stores, Inc.

AFFIRMED.

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