Calithia S. Thomas v. Westaff, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1663

CALITHIA S. THOMAS

VERSUS

WESTAFF, INC.

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 2
PARISH OF RAPIDES, NO. 02-02474
JAMES L. BRADDOCK, 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.

George Arthur Flournoy
Flournoy & Doggett
P. O. Box 1270
Alexandria, LA 71309-1270
Telephone: (318) 487-9858
COUNSEL FOR:
Plaintiff/Appellant - Calithia S. Thomas

Robert A. Dunkelman
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell
P. O. Box 1786
Shreveport, LA 71166-1786
Telephone: (318) 221-1800
COUNSEL FOR:
Defendant/Appellee - Westaff, Inc.

THIBODEAUX, Chief Judge.

In this workers’ compensation case, the plaintiff, Calithia S. Thomas,

appeals the judgment of the Workers’ Compensation Judge (WCJ) denying her

supplemental earnings benefits. The WCJ found that an accident occurred, but that

no disabling injury resulted from the accident. We agree with the WCJ and affirm the

judgment.

I.

ISSUES

1) Was the WCJ manifestly erroneous in deciding that Ms. Thomas had

a work-related accident?

2) Was the WCJ manifestly erroneous in deciding that Ms. Thomas’

accident did not result in a disabling injury?

3) Was the WCJ manifestly erroneous in dismissing Ms. Thomas’ claim

for failure to authorize an EMG?

II.

FACTS

Westaff, Inc. hired Ms. Thomas on or about January 7, 2002. Westaff

is a temporary employment agency which places its employees at the job sites of other

employers to fill their manpower needs. Westaff placed Ms. Thomas at Alliance

Compressor in Natchitoches, Louisiana. Prior to working for Alliance, Ms. Thomas

worked for McDonald’s Restaurant. Ms. Thomas kept her job at McDonald’s, but

reduced the number of hours she worked for McDonald’s while working for Alliance.

Ms. Thomas’ duties at Alliance included using a t-bar tool to insert plugs

into a compressor. On March 11, 2002, she reported that her right hand was hurting.

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Ms. Lynne Andrews, Ms. Thomas’ supervisor at Westaff, sent her to Dr. Jack Corley,

a general practitioner in Many, Louisiana on March 13, 2002. Dr. Corley diagnosed

Ms. Thomas with fasciitis of the right hand, but opined that she could return to regular

duty.

Ms. Thomas is petite in size: four feet, eleven inches tall, weighing 102

pounds. After the incident, Alliance requested that Westaff not send Ms. Thomas

back to work because of concerns that her small size was contributing to the problem

with her hand.

Ms. Thomas filed a disputed claim for compensation on April 5, 2002.

Upon the recommendation of her attorney, Dr. Baer Rambach, an orthopedist in

Shreveport, examined Ms. Thomas on April 18, 2002. His diagnosis was probable

contusion of the right hand with possible median nerve involvement. He

recommended that she get an EMG/NCV study (EMG), which was later performed

on July 18, 2002. Dr. Rambach recommended that she not return to work at Alliance

but stated that she could return to work at McDonald’s.

Ms. Thomas was involved in a motor vehicle accident on July 8, 2002.

On August 30, 2002, Dr. David Delapp, an orthopedist and Westaff’s choice of

physician, examined Ms. Thomas. Her examination was normal and Dr. Delapp

opined that Ms. Thomas could return to work. Ms. Thomas returned to Dr. Rambach

on September 23, 2002. In a letter dated December 12, 2002, Dr. Rambach opined

that Ms. Thomas was still unable to return to her job at Alliance as a result of her

work-related injury.

Trial on this matter was held on July 30, 2003. The WCJ found that an

accident occurred, but that no disability resulted from the accident. The WCJ

dismissed Ms. Thomas’ complaint. Thereafter, she filed this appeal.

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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 factfinder’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).

Work-Related Accident

Louisiana Revised Statutes 23:1031 requires a workers’ compensation

claimant to initially establish personal injury by accident arising out of and in the

course of his employment. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992).

Louisiana Revised Statutes 23:1021 defines an accident, for purposes of workers’

compensation:

(1) “Accident” means an unexpected or unforseen
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.

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In Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98), 724 So.2d

853, 855, this court discussed the claimant’s burden of proving that an accident

occurred:

To recover workers’ compensation benefits, a
claimant must establish by a preponderance of the evidence
that an accident occurred on the job site and that an injury
was sustained. Garner v. Sheats & Frazier, 95-39 (La.App.
3 Cir. 7/5/95); 663 So.2d 57. A worker’s testimony alone
may be sufficient to discharge this burden of proof,
provided two elements are satisfied: (1) no other evidence
discredits or casts serious doubt upon the worker’s version
of the incident; and (2) the worker’s testimony is
corroborated by the circumstances following the alleged
incident. [Id.] at 60. The evidence is viewed in a light
most favorable to the claimant. When there is proof of an
accident and attendant disability, without an intervening
cause, it is presumed that the accident caused the disability.

Westaff claims that the WCJ erred in finding that an accident occurred.

It argues that the WCJ found that there was no “objective evidence of disabling

injury.” Therefore, the WCJ should not have found that an accident occurred because

the definition of accident requires “objective findings of injury.” This argument is

without merit. The WCJ found that there was no “objective findings of a disability.”

His mention of “objective findings” is directed toward a finding of disability, and not

toward his finding that an accident occurred. The WCJ found that an accident

occurred and, after careful review of the record, we agree.

Ms. Thomas testified that, at the time of her injury, she was testing

compressors. This procedure involved putting plugs into several holes. She plugged

the first hole without difficulty, but as she was plugging the bottom hole, she pushed

hard and felt a sharp pain travel up her right hand. Ms. Thomas testified that she felt

the pain in the center part of her hand on the inside and it went all the way up to her

elbow. She testified that she told her team leader, Jeff Morgan, about the accident the

same day. After Ms. Andrews was informed of the accident, she recommended that

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Ms. Thomas see Dr. Corley. Dr. Corley diagnosed Ms. Thomas with fasciitis, which

is an aggravation of the hand.

Ms. Thomas’ testimony that she had an accident was uncontradicted. “In

determining whether the worker has discharged his or her burden of proof, the trial

court should accept as true a witness’s uncontradicted testimony, although the witness

is a party, absent ‘circumstances casting suspicion on the reliability of this

testimony.’” Bruno, 593 So.2d at 361(quoting West v. Bayou Vista Manor, Inc., 371

So.2d 1146 (La.1979)). There is no evidence in the record to contradict that Ms.

Thomas had an accident.

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 (La.App.

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

Ms. Thomas and the circumstances following the incident in determining that an

accident occurred on March 11, 2002. Based on this evidence, we cannot say that the

WCJ’s finding was manifestly erroneous.

Supplemental Earnings Benefits

In Palmer v. Schooner Petroleum Services, 02-397, pp. 11-12 (La.App.

3 Cir. 12/27/02), 834 So.2d 642, 649-50, writ denied, 03-367 (La. 4/21/0/03), 841

So.2d 802, this court stated the following with respect to a claimant’s entitlement to

SEBs:

Integral to an employee’s claim for SEBs is his proof
by a preponderance of the evidence that he is disabled due
to a work-related injury that rendered him unable to earn
ninety percent of his pre-injury wages. “In determining if
an injured employee has made out a prima facie case of
entitlement to supplemental earnings benefits, the trial court
may and should take into account all those factors which
might bear on an employee’s ability to earn a wage.”
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Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007
(La.1989). La.R.S. 23:1221(3)(a).

Ms. Thomas argues that the WCJ required her to prove “objective

findings of disability” and that this was legal error. However, after careful review of

the record, we find that this argument is without merit. The WCJ did state that there

were no “objective findings of disabling injury.” However, the WCJ did not state that

“objective findings of disabling injury” were a requirement. Moreover, the WCJ

made the conclusion that there was no evidence of disabling injury after reviewing all

of the evidence, the medical and the lay testimony.

Dr. Corley examined Ms. Thomas a few days after the accident. He

determined that she had fasciitis of the right hand and released her to return to her

regular duties because his examination did not reveal any swelling or any type of

finding with regard to neurological problems.

Dr. Rambach saw Ms. Thomas on April 18, 2002, several weeks after the

accident and after she filed her workers’ compensation claim. Dr. Rambach noted

some fullness about the right palm and tenderness in the mid-palmar area but no

tenderness in the wrist itself. He also noted that the grip of her right hand was weaker

than the grip of her left hand. However, he did not note any other problems and all

of her test results were normal. His diagnosis was probable contusion of the right

hand with possible median nerve involvement. He suggested an EMG to rule out a

nerve problem. He stated that she could continue to work at McDonald’s, but could

not continue the type of work she was doing at Alliance. Her EMG was done on July

18, 2002 and showed no abnormalities.

On August 23, 2002, Ms. Thomas saw Dr. Delapp. He diagnosed her

with a right hand contusion. However, he opined that she had reached maximum

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medical improvement and that she was fully capable of returning to work without any

restrictions.

Ms. Thomas returned to Dr. Rambach on September 23, 2002. Most of

his evaluation pertained to the July 8, 2002 car accident. Although he had not seen

her for several months, in a letter dated December 12, 2002, he stated that she was still

unable to return to her job at Alliance as a result of her work-related injury.

The lay testimony included that of Ms. Thomas, who testified at trial that she

was continuing to experience problems with her hand. She testified that she sleeps

with her right arm up on a pillow and that her arm goes numb and starts hurting. Mr.

David Williams, Ms. Thomas’ boyfriend, corroborated this testimony. However, the

WCJ questioned whether the numbness was due to the car accident in July 2002

because Ms. Thomas testified about a problem with her whole arm and not just her

hand. Mr. Charles Moran, Ms. Thomas’ manager at McDonald’s, testified that she

was a good employee and that he was aware that she had hand problems since

working at Alliance. He testified that he accommodated her when she complained

about the pain in her hand by letting her leave early or avoid jobs that aggravated her

hand. Ms. Thomas continues to work at McDonald’s and also has a second job at

Wal-Mart.

In Brown v. Churchill & Thibaut, Inc., 93-1216, p. 7 (La.App. 1 Cir.

5/20/94), 637 So.2d 764, 768, the court stated:

The finding of disability within the framework of the
worker’s compensation law is a legal rather than a purely
medical determination. Pollock v. Louisiana Insurance
Guaranty Association, 587 So.2d 823, 825 (La.App. 3rd
Cir. 1991); Manson v. City of Shreveport, 577 So.2d 1167,
1169 (La.App. 2nd Cir.), writ denied, 580 So.2d 928
(La.1991). Therefore, the question of disability must be
determined by reference to the totality of the evidence,
including both lay and medical testimony. Moore v. Mason
& Dixon Tank Lines, 540 So.2d 525, 529 (La.App. 1st

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Cir.), writ denied, 541 So.2d 1390 (La.1989). Ultimately
the question of disability is a question of fact, which cannot
be reversed in the absence of manifest error. See Landry
v. Central Industries, Inc., 592 So.2d 478, 480 (La.App. 3rd
Cir.1991), writ denied, 593 So.2d 381 (La.1992); Pollock
v. Louisiana Insurance Guaranty Association, 587 So.2d at
825.

From the medical and lay testimony the WCJ concluded that Ms. Thomas did not

prove by a preponderance of the evidence that she was disabled due to a work-related

injury that rendered her unable to earn ninety percent of her pre-injury wages. After

careful review of the evidence, we cannot say that the WCJ was manifestly erroneous

in his determination and, thus, affirm his judgment.

Failure to Authorize

In Authement v. Shappert Eng’g, 02-1631(La. 2/25/03), 840 So.2d 1181,

the supreme court recognized that failure to authorize comes under La.R.S.

23:1203(A). Under La.R.S. 23:1203(A), the employer is obligated to “furnish all

necessary drugs, supplies, hospital care and services, medical and surgical treatment,

and any nonmedical treatment recognized by the laws of this state as legal.” La.R.S.

23:1203(A). Thus, a failure to authorize treatment can result in the imposition of

penalties and attorney fees except when the claim is reasonably controverted. La. R.S.

23:1201(F)(2); Authement, 840 So.2d at 1187.

Ms. Thomas claims that the WCJ erred in dismissing her claim for failure

to authorize the EMG and not awarding penalties and attorney fees. However, the

record before us does not provide sufficient information to determine that Westaff

failed to authorize the EMG.

The record indicates than an EMG was recommended by Dr. Rambach

in his reported dated April 18, 2002. Dr. Rambach’s report was forwarded to Westaff

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on May 6, 2002. The EMG was performed on July 18, 2002, a little over two months

after the request. The bill from Dr. J. Eric Bicknell, who performed the EMG, was

sent to Westaff on August 20, 2002 and it was paid on August 31, 2002. Although

Westaff may not have authorized the EMG, the record does not contain any evidence

to prove this. The only information in the record is the argument of Ms. Thomas’

attorney that he pre-paid the bill himself. There is no evidence that he paid the bill,

no letter regarding the authorization, and no testimony on the issue. The record is

void of any evidence of what occurred between the request for authorization and the

date when the EMG was performed.

The record available to the WCJ did not contain sufficient factual

information from which to conclude that Westaff failed to authorize the EMG. “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, 840 So.2d at 1188. Factual findings are subject to the manifest error or

clearly wrong standard of review. Banks, 696 So.2d at 556. Therefore, we cannot say

that the WCJ was manifestly erroneous in dismissing Ms. Thomas’ claim and not

awarding penalties and attorney fees.

IV.

CONCLUSION

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

of this appeal are assessed to Ms. Calithia S. Thomas.

AFFIRMED.

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