Brenda White v. Phoenix Pharmacy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1624

BRENDA WHITE

VERSUS

PHOENIX PHARMACY

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - DISTRICT 2
PARISH OF RAPIDES, NO. 02-01954
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
Oswald A. Decuir, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED.

Linda S. Blackman
Attorney at Law
1611 Jimmie Davis Highway, Suite C
Bossier City, LA 71112
(318) 742-4713
Counsel for Defendant/Appellant:
Phoenix Pharmacy

R. Scott Iles
Attorney at Law
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
Counsel for Plaintiff/Appellee:
Brenda White

DECUIR, Judge.

Phoenix Pharmacy appeals a workers’ compensation judgment awarding

indemnity benefits to Brenda White, a former employee who was injured on the job.

Raising issues of prescription, time of accident, disability, penalties, and attorney fees,

Phoenix contends the trial court erred in its decision. White answered the appeal,

requesting an increase in attorney fees for work done on appeal and contending the

trial court erred in the assessment of penalties and costs. For the following reasons,

we affirm in part, reverse in part, and amend.

The record reveals that Brenda White was employed as a clerk and cashier at

Phoenix Pharmacy. Phoenix has a UPS shipping service available to the public which

White handled on a daily basis. In early September of 2000, a customer requested

shipping of an automobile transmission. White weighed the transmission and

determined it was too heavy to ship via UPS because it was over 100 pounds. She

then helped the customer return the transmission to his truck. Immediately upon re-

entering the pharmacy, White told her co-worker what she had done and indicated that

she had hurt her lower back.

Within a few days, White was in pain and sought medical care on the military

base where her husband worked. White was diagnosed with an acute lumbosacral

strain, was given pain medication, and was told to rest for several days. Upon her

return to work after two weeks, Phoenix made accommodations and allowed White

to use a stool, take time off for physical therapy, continue her pain medication, and

refrain from heavy lifting when necessary. Phoenix also paid White her regular salary

for the two weeks she was unable to work. The testimony in the record clearly shows

that White’s co-employees and supervisors knew of the incident involving the

transmission and knew she had been hurt as a result thereof.

Throughout the next several months, White continued working, but she also

continued to seek medical care from time to time. In March of 2001, she had an MRI

which showed a small disc herniation. She continued to take narcotic pain medication

and briefly saw a physical therapist. White testified that she started looking for a

better paying job, one that would allow her to work fewer hours for the same amount

of income. Thinking she had secured such a position, White resigned from Phoenix

Pharmacy in September of 2001. The new job, however, never materialized, and

White spent a short time bar tending two days a week.

White’s medical condition continued to worsen. She was given steroid

injections in the spinal canal and, at one point, had intravenous pain medication in the

army hospital emergency room. In June 2002, White had another MRI which showed

a “huge disc rupture.” On August 8, 2002, White underwent a lumbar laminectomy

at the L5-S1 level of her spine. She spent several months recuperating and was

released to return to work on March 21, 2003. At the time of trial, White was self-

employed as an Avon representative. The trial court awarded supplementary earnings

benefits for the period White worked as a bartender and then after she was released

to light duty work following surgery; otherwise, temporary total disability benefits

were awarded from the date White left her job at the pharmacy.

The above-stated facts were essentially unrefuted at trial. In this appeal,

Phoenix makes much of the fact that the date of the transmission incident was not

proved with certainty. White’s testimony concerning the fact of the accident some

time in early September 2000, however, was corroborated in the medical records and

in the testimony of Phoenix personnel. White’s supervisor knew she had been injured

at work. For whatever reason, she chose not to complete an accident report

contemporaneous with the accident, instead filling out the form a year later after

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White left her employment. Under these circumstances, we find ascertainment of the

actual date of the accident unnecessary.

Regarding the question of whether White’s claim for indemnity benefits has

prescribed, the pertinent dates are revealed in the record. In early September of 2000,

White sustained an accident at work. Between the accident and September of 2001,

White periodically sought medical treatment while continuing to work; in March

2001, an MRI showed a small herniation. On September 30, 2001, White resigned

from Phoenix Pharmacy. Between October 2001 and March 2002, White attempted

working and continued to seek medical treatment. Her claim for benefits was filed on

March 18, 2002.

The prescriptive period for filing a workers’ compensation claim is contained

in La.R.S. 23:1209(A), which provides:

In case of personal injury, including death resulting therefrom, 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 [FN1] 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). Also, when the injury does
not result at the time of, or develop immediately after the accident, the
limitation shall not take effect until expiration of one year from the time
the injury develops, but in all such cases the claim for payment shall be
forever barred unless the proceedings have been begun within two years
from the date of the accident.

In Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1959 (La. 4/10/95), 652

So2d 1323, the supreme court described the developing disability doctrine as follows:

Workers’ compensation laws are to be liberally interpreted in
favor of protecting workers from the economic burden of work-related
injuries. Lester v. Southern Casualty Ins. Co., 466 So.2d 25 (La.1985);
Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976). In
furthering that policy, this court has construed La.Rev.Stat. 23:1209 A’s
term “the time the injury develops” liberally in cases in which the worker

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attempts to continue working until no longer able to perform his or her
employment duties. Wex A. Malone & H. Alston Johnson III, 14
Louisiana Civil Law Treatise--Workers’ Compensation § 384 (3d ed.
1994). This court has consistently held that an employee who suffers a
work-related injury that immediately manifests itself, but only later
develops into a disability, has a viable cause of action until one year
from the development of the disabling injury, rather than from the first
appearance of symptoms or from the first date of treatment. Swearingen
v. Air Prod. & Chem., Inc., 481 So.2d 122, 124 (La.1986); Bolden v.
Georgia Casualty & Sur. Co., 363 So.2d 419, 422 (La.1978); Wallace
v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 526 (1956);
Johnson v. Cabot Carbon Co., 227 La. 941, 81 So.2d 2, 5 (1955); Mottet
v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218, 219
(1952). The “time the injury develops,” as interpreted to mean the date
the disability develops, is usually determined as the time when it
becomes clear that the worker can no longer [94-1859 La. 5] perform his
or her employment duties in a satisfactory manner. Swearingen v. Air
Prod. & Chem., Inc., 481 So.2d at 124; Wallace v. Remington Rand, Inc.,
86 So.2d at 525. Thus, the “developing injury” rule has been applied not
only when the injury does not manifest itself immediately, but also when
the employee, after an accident in which injury is immediately apparent,
continues to attempt employment duties until he or she is finally disabled
from doing so.

The underlying rationale for this interpretation is that an injured
employee who continues to work, despite a work-related medical
condition which is painful but not then disabling, should not be
penalized for attempting to remain in the work force in order to support
his or her family or in the hope that the condition will improve. Wex A.
Malone & H. Alston Johnson III, 14 Louisiana Civil Law
Treatise--Workers’ Compensation § 384 (3d ed. 1994). Requiring any
injured employee, who is not yet disabled, to assert his or her claim
within one year of the accident (or one year of the last payment of
benefits) in order to preserve the cause of action would encourage
needless litigation.

Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859, pp. 4-5 (La. 4/10/95), 652

So.2d 1323, 1325-26.

Following this jurisprudence, we find no error in the trial court’s decision to

overrule Phoenix Pharmacy’s exception of prescription.

On the issue of White’s disability and inability to continue working at Phoenix

Pharmacy, the record contains only White’s testimony. She chose to leave the

pharmacy for a job that would require her to work fewer hours at a higher hourly

wage. White testified that she made this choice based on her continuing pain which

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necessitated her taking large amounts of pain medication; she believed if she could

rest more, she could take less medication. The new job, however, never came

through, and White testified that her pain nevertheless continued to increase. White

then worked a few hours a week as a bartender until the end of 2001.

The medical records submitted into evidence supported White’s testimony. She

had consistent complaints of pain for which she sought treatment and pain relief. We

find no manifest error in the conclusion that White met her burden of proving that

these symptoms interfered with her job duties, ultimately causing her to become

disabled.

The trial court specifically found White’s claim for indemnity benefits was

unreasonably controverted; therefore, the court assessed Phoenix Pharmacy with a

$2,000.00 penalty and attorney fees in the amount of $5,500.00. The court addressed

the question of whether the facts, medical and otherwise, known to the employer, gave

a reasonable basis to believe that compensation benefits were not due. The court

found the occurrence of an accident was not seriously disputed by the employer, the

medical records supported both the history of the accident and White’s complaints,

and there was no showing of an intervening incident which could have caused White’s

injury. Our review of the record reveals no manifest error in these findings.

Accordingly, we conclude the award of penalties and attorney fees was appropriate.

We disagree, however, with White’s contention that she is entitled to two

separate penalties of $2,000.00 each, one for the employer’s failure to pay temporary

total disability benefits and another for the failure to pay supplementary earnings

benefits. The employer was assessed a penalty for the failure to pay indemnity

benefits. We cannot, in this case, say that a change in the classification of those

benefits, based on White’s activities, gives rise to further penalties. Therefore, we

affirm the penalty awarded by the trial court.

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White also contends the trial court erred in failing to tax as court costs the

preparation of the trial transcript for her counsel’s use in preparing his post-trial

memorandum. Because there was no judgment in White’s favor at the time she

requested a transcript, and it was requested for a party’s private use rather than for the

benefit of the court, Phoenix contends there was no error in the trial court’s refusal

to assign the court reporter’s fee as a court cost assessed to the losing party.

Under the circumstances presented in this case, we find the trial court abused

its discretion in denying White’s motion to tax the transcript fee as a court cost. The

court ordered post-trial memoranda immediately at the close of the evidence; the

parties did not ask for the opportunity to file briefs. White was required to pay the

court reporter’s fee of $468.25. Upon filing a motion for appeal, Phoenix Pharmacy

then paid the court reporter $459.00. The claimant ultimately prevailed in this matter

and has successfully defended this appeal. Accordingly, we reverse the denial of her

post-trial motion to tax the transcript fee as a court cost and order Phoenix Pharmacy

to reimburse her for this item of costs.

We also grant White’s request for an increase in attorney fees for work

performed on appeal; we hereby amend the judgment to increase the award of attorney

fees by $1,500.00.

For the foregoing reasons, the judgment rendered by the workers’ compensation

judge is amended so as to assess the transcript cost to Phoenix Pharmacy and increase

the award of attorney fees by $1,500.00. The denial of White’s motion to tax the cost

of the transcript is reversed. In all other respects, the judgment is affirmed. Costs of

this appeal are assessed to Phoenix Pharmacy.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED.

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