Marjorie Lane Miller v. Christus St. Patrick Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1631

MARJORIE LANE MILLER

VERSUS

CHRISTUS ST. PATRICK HOSPITAL

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 00-09905
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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

AFFIRMED.

Marcus Miller Zimmerman
910 Ford St.
Lake Charles, LA 70601
Telephone: (337) 433-1414
COUNSEL FOR:
Plaintiff/Appellee - Marjorie Lane Miller

David L. Morgan
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
P. O. Box 2900
Lake Charles, LA 70602
Telephone: (337) 436-9491
COUNSEL FOR:
Defendant/Appellant - Christus St. Patrick Hospital

THIBODEAUX, Chief Judge.

In this workers’ compensation case, the defendant, Christus St. Patrick

Hospital (St. Patrick), appeals the judgment of the Workers’ Compensation Judge

(WCJ), finding that the plaintiff, Marjorie Lane Miller (Mrs. Miller), proved that she

was temporarily and totally disabled as a result of her work-related accident and that

St. Patrick did not reasonably controvert her claim for workers’ compensation. The

WCJ awarded Mrs. Miller temporary total disability benefits in the amount of $384.00

per week, $2,000.00 in penalties and $6,000.00 in attorney fees. We affirm. We also

award an additional $3,000.00 in attorney fees for work done on appeal.

I.

ISSUES

1) Was the WCJ manifestly erroneous in deciding that Mrs. Miller was

entitled to temporary total disability benefits?

2) Was the WCJ manifestly erroneous in deciding that Mrs. Miller was

entitled to penalties and attorney fees.

II.

FACTS

Mrs. Miller began her employment as a registered nurse with St. Patrick

on May 17, 1988. On December 21, 1993, while working as an emergency room

nurse, Mrs. Miller was preparing to place a patient in a decontamination tub when the

lid from the decontamination tub fell off the wall, striking her in the neck and right

shoulder. Prior to this accident, she did not have any problems with her neck and right

shoulder.

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Following the accident, Mrs. Miller was treated by Dr. Lynn Foret, an

orthopedist, and Dr. John Raggio, a neurologist. In May of 1995, Dr. Foret referred

Mrs. Miller to Dr. Ronald Kober, a thoracic and vascular surgeon. Dr. Kober

diagnosed Mrs. Miller with thoracic outlet syndrome (TOS), a nerve compression

syndrome where the nerves are compressed as they pass over the first rib going to the

arm. Pain in the shoulders, arm swelling and hand numbness are typically associated

with TOS.

After her accident in 1993, Mrs. Miller could no longer work in her

emergency room position. She was moved to varying positions in the hospital from

1993 to 2000 to accommodate her TOS. St. Patrick paid Mrs. Miller’s medical

expenses, including physical therapy, medications and treatment with Dr. Foret, Dr.

Raggio and Dr. Kober. Mr. Clint Dobson, St. Patrick’s claims adjuster, testified that

no weekly indemnity benefits were paid to Mrs. Miller because she continued to work

after the accident.

Mrs. Miller testified that, starting in January 2000, St. Patrick increased

her work load and hours and her right arm and shoulder began hurting more as a

result. On March 15, 2000, she drove to Baton Rouge for a job assignment. She

testified that, while in Baton Rouge, her right arm and shoulder began to hurt as she

was using a laptop computer with a small key board. She reported to Maxine Guillory

(Ms. Guillory), St. Patrick’s associate health nurse, that she could no longer work

because of the aggravation of her TOS. Mrs. Miller did not file an official accident

report. St. Patrick did not investigate her complaint. Mrs. Miller stopped working as

of March 15, 2000. St. Patrick did not pay any indemnity benefits to Mrs. Miller after

she stopped working on March 15, 2000.

On December 13, 2000, Mrs. Miller filed a disputed claim for

compensation. St. Patrick filed an exception of prescription on the basis that all of

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Mrs. Miller’s injuries resulted from the December 21, 1993 accident. Mrs. Miller

claimed that the March 15, 2000 incident was a new accident; therefore, her claim had

not prescribed. St. Patrick’s exception of prescription was denied.

The WCJ found that Mrs. Miller suffered a compensable accident and,

as a result, she was temporarily and totally disabled. The WCJ awarded Mrs. Miller

weekly indemnity benefits of $384.00. The WCJ also found that St. Patrick failed to

reasonably controvert the claim and awarded a penalty of $2,000.00 and attorney fees

of $6,000.00. Thereafter, this appeal was filed.

III.

LAW AND DISCUSSION

Standard of Review

“Factual findings in workers’ compensation cases are subject to the

manifest error or clearly wrong standard of appellate review.” Banks v. Indus.

Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556.

Under the manifest error-clearly wrong standard, the appellate court must determine

not whether the trier of fact was right or wrong, but whether the fact finder’s

conclusion was a reasonable one. Stobart v. State, through DOTD, 617 So.2d 880

(La.1993). Where there are two permissible views of the evidence, a factfinder’s

choice between them can never be manifestly erroneous or clearly wrong. Id.

Accordingly, if the trier of fact’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even if convinced that

had it been sitting as the trier of fact, it would have weighed the evidence differently.

Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Accident

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In order to recover benefits, a workers’ compensation claimant must

establish a personal injury by accident, arising out of and in the course of his

employment, under La.R.S. 23:1031 or contraction of an occupational disease under

La.R.S. 23:1031.1. Louisiana Revised Statutes 23:1021(1) provides:

“Accident” means an unexpected or unforeseen actual,
identifiable, precipitous event happening suddenly or
violently, with or without human fault, and directly
producing at the time objective findings of an injury which
is more than simply a gradual deterioration or progressive
degeneration.

St. Patrick claims that all of Mrs. Miller’s injuries were related to her

December 21,1993 accident. St. Patrick contends that the WCJ erred in finding that

an “accident” occurred on March 15, 2000, where the evidence established only that

there was a progressive degeneration of Mrs. Miller’s TOS. It argues that there was

no new accident on March 15, 2000. Therefore, Mrs. Miller’s claim for compensation

had prescribed when she filed it on December 13, 2000. On the other hand, Mrs.

Miller claims that she was injured on March 15, 2000, while typing on a laptop. She

claims that this accident caused her TOS to be permanently aggravated and she could

no longer work. She argues that because of the new accident on March 15, 2000, her

claim had not prescribed when she filed it on December 13, 2000. Mrs. Miller argues

that an accident may include a subtle and routine movement, like working on a laptop.

Mrs. Miller testified that, at the time of the second accident, she was in

Baton Rouge doing laptop training. She was working on a small laptop when she

started feeling intense pain. She testified that she had to take medication while on the

job and had to take additional medication on the way home. She also testified that her

condition has not improved since March 15, 2000.

Dr. Kober testified that he saw Mrs. Miller on March 23, 2000, a few

days after her alleged laptop incident. He testified that she was having increased

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difficulty with pain in the right upper extremity and weakness and dysfunction of the

right upper extremity. He also testified that Mrs. Miller felt that her job, which

requires use of a computer, and the stress were making her symptoms worse.

From this testimony, the WCJ concluded that there was an accident on

March 15, 2000 that caused Mrs. Miller’s symptoms to be permanently aggravated.

With regard to her credibility, the WCJ noted:

And it does, I will admit, sound a little questionable
that you could all of a sudden be working on a strange
computer and you basically lose functionality of your right
arm. I would question that. But, if I questioned it, I would
have to ask myself is that reasonable? It sure seems
reasonable to me. Based on what everybody has said, she
obviously has a problem. I think after that she just gave
out. She couldn’t work anymore. So, the question is, “Do
you believe that’s what she did or is she lying?” I don’t
believe she is, and there’s nobody to suggest to me so far
that she is not a truthful person.

The WCJ’s decision as to whether the testimony is credible or not is a

factual determination not to be disturbed on review unless clearly wrong or in absence

of showing manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824

(La.App. 2 Cir.), writ denied, 536 So.2d 1200 (La.1988). The WCJ relied on the

testimony of Mrs. Miller and her treating physician in finding that an accident

occurred on March 15, 2000. Based on the testimony, we cannot say that the WCJ’s

finding was manifestly erroneous.

Additionally, the “actual, identifiable, precipitous event” may include a

routine movement or task that the claimant regularly performs, if the claimant is able

to identify the time, place and manner of the injury. McCall v. Wal-Mart Stores, Inc.,

02-1343 (La.App. 3 Cir. 3/5/03), 846 So.2d 832, writs denied, 03-1329 (La. 9/19/03),

853 So.2d 639, 03-1343 (La. 9/19/03), 853 So.2d 641. In the instant case, although

the event was a routine movement such as typing on a laptop, Mrs. Miller was able to

identify the time, place and manner of the event. Further, jurisprudence holds that an

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“actual, identifiable, precipitous event” does not exclude those instances where a

work-related event, which may seem to be a customary or routine work activity,

results in an injury to the employee. Richard v. Workover & Completion, 00-794

(La.App. 3 Cir. 12/6/00), 774 So.2d 361.

We find no merit in the employer’s argument that an “accident” did not

occur within the meaning of La.R.S. 23:1021(1). Accordingly, we affirm the finding

that Mrs. Miller’s claim had not prescribed and that she is entitled to temporary total

disability benefits.

Notice

St. Patrick contends that Mrs. Miller did not give it timely notice of her

injury. La.R.S. 23:1301 requires an employee to give notice of an injury to her

employer within thirty days of the injury.

Mrs. Miller did report to Ms. Guillory in March of 2000 that she had

stopped working and that her TOS was worse. However, she testified that she was not

aware to report what happened to her on March 15, 2000 as an incident.

The WCJ noted that it would have been more helpful if Mrs. Miller had

formally reported the accident to St. Patrick. However, St. Patrick should have

investigated the matter after Mrs. Miller came to St. Patrick’s crying and complaining

that her TOS was worse.

Mrs. Miller’s complaint was sufficient to put St. Patrick on notice that

she might have had an accident or, at least, put it on notice to inquire into what caused

her TOS to worsen. Moreover, provisions regarding notice of injury should be

construed liberally in favor of the employee unless the rights of the employer are

prejudiced. Bolton v. Angelle Concrete, 93-667 (La.App. 3 Cir. 2/2/94), 631 So.2d

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110. St. Patrick has not presented any evidence that it was prejudiced by Mrs.

Miller’s informal report of her accident. Therefore, we find that Mrs. Miller did give

St. Patrick sufficient notice within thirty days as required by La.R.S. 23:1301.

Penalties and Attorney Fees

St. Patrick additionally contends that the WCJ erred in awarding penalties

and attorney fees. We disagree.

In Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721

So.2d 885, 890, the supreme court stated:

To determine whether the claimant’s right has been
reasonably controverted, thereby precluding the imposition
of penalties and attorney fees under La. R.S. 23:1201, a
court must ascertain whether the employer or his insurer
engaged in a nonfrivolous legal dispute or possessed factual
and/or medical information to reasonably counter the
factual and medical information presented by the claimant
throughout the time he refused to pay all or part of the
benefits allegedly owed.

Ms. Guillory testified that she saw Mrs. Miller in the human resource

building in March of 2000. She stated that she knew that Mrs. Miller stopped working

because her injury was flaring up or hurting. She testified that when she saw Mrs.

Miller, she was crying and Mrs. Miller told her that her TOS was worse.

Mr. Dobson recalled that when he took over Mrs. Miller’s case in January

2000, he did not pay any indemnity benefits to her because he believed that her claims

had prescribed for the December 21, 1993 accident. He testified that there were no

prescription claims on Mrs. Miller’s file for several months and her account was

closed until late January 2000. At that time, he started receiving prescription claims

again. He testified that his claim notes indicated that he spoke to Ms. Guillory on

March 27, 2000, and that Mrs. Miller called and said that Dr. Kober took her off work

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for three months or more. However, he stated that he did not investigate whether an

accident had occurred. He stated that the reason that he did not investigate the claim

was because his client, St. Patrick, did not inform him of any new accident. He also

stated that Dr. Kober’s medical records did not mention any new accident and only

mentioned that working on the computer and stress were making Mrs. Miller’s TOS

worse.

From this testimony, the WCJ concluded that St. Patrick should have

investigated Mrs. Miller’s complaint as to why she could no longer work. The WCJ

ruled that St. Patrick failed to adequately investigate the claim and, thus, its failure to

initiate indemnity benefits was unreasonable. As a result, the WCJ awarded Mrs.

Miller $2,000.00 in penalties and $6,000.000 in attorney fees.

“The determination of whether an employer or insurer should be cast

with penalties and attorney fees in a workers’ compensation action is essentially a

question of fact.” Authement v. Shappert Engineering, 02-1631, p. 12 (La. 2/25/03),

840 So.2d 1181, 1188. Factual findings are subject to the manifest error or clearly

wrong standard of review. Banks, 696 So.2d at 556. Based on our review of the

record, we cannot say that the trial court was manifestly erroneous in finding that St.

Patrick did not reasonably controvert the claim. Accordingly, we affirm the award of

penalties in the amount of $2,000.00 and attorney fees in the amount of $6,000.00.

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Request for Additional Attorney Fees

Mrs. Miller has asked for an additional award of attorney fees for work

performed on this appeal. As Mrs. Miller correctly noted, a workers’ compensation

claimant is entitled to an increase in attorney fees to reflect additional time incurred

in defending an employer/carrier’s unsuccessful appeal. Hickman v. Allstate Timber

Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133 (La.

6/23/95), 656 So.2d 1017; Aguillard v. Indus. Const. Co., 542 So.2d 774 (La.App. 3

Cir. 1989). Accordingly, based on the record before us, we award an additional

$3,000.00 in attorney fees for the successful handling of this appeal.

IV.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. We

award as additional attorney fees of $3,000.00 for work done on appeal. Costs of this

appeal are assessed to Christus St. Patrick Hospital.

AFFIRMED.

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