Shirley Cain v. Jc Penney Company, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1706

SHIRLEY CAIN

VERSUS

JCPENNEY COMPANY, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02,
PARISH OF RAPIDES, NO. 01-05510,
HONORABLE JAMES L. BRADDOCK,
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Billy H. Ezell, Judges.

AFFIRMED.

George Flournoy
Diane M. Sweezer
Flournoy & Doggett
Post Office Box 1270
Alexandria, LA 71309
(318) 487-9858
COUNSEL FOR PLAINTIFF/APPELLANT:
Shirley Cain

J. Martin Lattier
Lunn, Irion, Salley, Carlisle & Gardner
Post Office Box 1534
Shreveport, LA 71165
(318) 222-0665
COUNSEL FOR DEFENDANT/APPELLEE:
JCPenney Company, Inc.

SUMMARY DISPOSITION1

PETERS, J.

Shirley Cain appeals a judgment denying her workers’ compensation claim

against her employer, JCPenney Company, Inc. (JCPenney). Specifically, Ms. Cain

claimed that she suffered from plantar fasciitis of both of her feet due to standing for

prolonged periods of time on a hard surface in the course of her employment with

JCPenney as a beautician. The workers’ compensation judge (WCJ) concluded that

Ms. Cain failed to prove by a preponderance of the evidence that her plantar fasciitis

and any concomitant problems flowing therefrom were caused by her employment

with JCPenney. Rather, the WCJ concluded that Ms. Cain proved only that such a

causal connection was possible. Ms. Cain has appealed. The WCJ provided lengthy

reasons for judgment which adequately explain his decision, and we find no legal or

manifest error therein.

Louisiana Revised Statutes 23:1031.1(A) provides in part: “Every employee

who is disabled because of the contraction of an occupational disease as herein

defined . . . shall be entitled to the compensation provided in this Chapter the same as

if said employee received personal injury by accident arising out of and in the course

of his employment.” Additionally, La.R.S. 23:1031.1(B) provides in part: “An

occupational disease means only that disease or illness which is due to causes and

conditions characteristic of and peculiar to the particular trade, occupation, process,

or employment in which the employee is exposed to such disease.”

While Ms. Cain’s treating orthopedist and treating podiatrist opined that her

plantar fasciitis was work related, a treating physician’s testimony is not irrebuttable,

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Although this opinion does not meet the criteria for publication, we are nevertheless
required to publish it pursuant to La.R.S. 23:1310.5(F).

and the inquiry is whether, based on the totality of the record, the fact finder was

clearly wrong in accepting the expert testimony presented by defendants over that

presented by plaintiff. Miller v. Clout, 03-91 (La. 10/21/03), 857 So.2d 458. Further,

where there are two permissible views of the evidence, the fact finder’s choice

between the two views cannot be manifestly erroneous. Stobart v. State, Through

Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

It is undisputed that Ms. Cain has high arches or cavus feet, a congenital defect

which can cause plantar fasciitis. Additionally, JCPenney presented the opinion of an

examining orthopedic surgeon who stated: “I really would question the etiology of

her pain. I see chronic plantar fasciitis in a great number of people. I don’t remember

anyone specifically with whom I could state that it was work related. Most of us walk

on our feet all day long on concrete but I don’t see that as a cause specifically of

plantar fasciitis.” Further, Ms. Cain gave a somewhat inconsistent presentation in her

IME evaluation and was noted to have “significant symptom magnification behavior

present” from a clinical standpoint when referred for diagnostic studies. She also gave

inconsistent histories regarding her symptoms and described activities of daily living

not necessarily peculiar to her employment that cause her pain to worsen. Moreover,

Ms. Cain’s testimony was somewhat inconsistent with her manager’s testimony

regarding her working conditions that she claimed caused or contributed to her plantar

fasciitis. Importantly, Ms. Cain’s treating orthopedist explained that his opinion

regarding causation was based in part on the history Ms. Cain had given him.

While we probably would have weighed the evidence differently and made

different credibility calls, we do not find manifest error in the WCJ’s findings of fact.

Simply put, we find that there are two permissible views of the evidence, and

therefore we cannot reverse the judgment below.

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DISPOSITION

For the foregoing reasons, we affirm the judgment below in accordance with

Uniform Rules—Courts of Appeal, Rule 2-16.2(A)(5), (6), and (8). We assess costs

of this appeal to Shirley Cain.

AFFIRMED.

This opinion is released as a Summary Disposition in compliance with Rule 2-
16.2(A)(5), (6), and (8), Uniform Rules, Courts of Appeal.

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