Gernine Mailhes v. District Attorney, Parish of Calcasieu

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-265

GERNINE MAILHES

VERSUS

DISTRICT ATTORNEY, PARISH OF CALCASIEU

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION DISTRICT # 3
PARISH OF CALCASIEU, NO. 03-07715
CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

Christopher M. Trahan
Raggio, Cappel, Chozen & Berniard
P. O. Box 820
Lake Charles, LA 70601
Counsel for Defendant/Appellant:
District Attorney, Parish of Calcasieu

Mark M. Zimmerman
Attorney at Law
4216 Lake Street
Lake Charles, LA 70605
Counsel for Claimant/Appellee:
Gerine Mailhes

PICKETT, Judge.

The defendant-employer, the District Attorney, Parish of Calcasieu (the DA),

appeals a decision by an Office of Workers’ Compensation Judge (WCJ) finding that

the claimant, Gernine M. Mailhes, suffered a work-related accident on October 22,

2002, which aggravated her pre-existing condition and resulted in her becoming

disabled from working after July 2, 2003. The claimant answered the appeal seeking

an increase in attorney’s fees for work necessitated by this appeal. We affirm the

decision of the WCJ and award the claimant an additional $2,500.00 in attorney’s

fees.

FACTS

The claimant, Gernine M. Mailhes, was an assistant district attorney in the

Calcasieu Parish District Attorney’s (DA) Office. Upon returning from court on

October 22, 2002, she went into the women’s bathroom and allegedly slipped and fell

on the wet floor (it appears that she did not completely hit the floor). At the time, Ms.

Mailhes had been employed by the DA for sixteen years.

Her prior medical history showed extensive back and neck problems. She had

been involved in two automobile accidents, one in the 1980’s and one in the 1990’s

and, as a consequence of these accidents, she had undergone a number of surgical

procedures including laminectomies, discectomies, and fusions. As of October 2002,

the claimant had undergone laminectomies at L-3/4 and L-4/5 with an unspecified

repair at S-1, and, after the failure of lesser treatment, had undergone fusions at C-4/5,

C-5/6, and C-6/7. At the time of her work-related accident, she was still under

medical care, was limited in her physical activities, and was experiencing pain which

adversely effected her daily life. The WCJ found that the claimant was able to work

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at the time of her accident, but that following the accident her condition worsened,

and, by July 2003, she was no longer able to work.

On appeal, the DA’s Office assigns only one error, asserting that the WCJ erred

in that “her decision is clearly wrong, in finding the evidence adduced at trial

preponderates to prove an aggravation which may have occurred following the

October 22, 2002 incident made Ms. Mailhes’ pre-existing condition disabling after

July 3, 2003.”

LAW AND DISCUSSION

The law applicable to this case was discussed by this court in Sharbono v. Fire

Safety Sales and Serv., 04-265, pp. 6-7 (La.App. 3 Cir. 9/29/04), 883 So.2d 1066,

1070 (emphasis ours), writ denied, 04-2661 (La. 1/28/05), 893 So.2d 73:

An appellate court may not set aside the WCJ’s factual findings
unless they are manifestly erroneous or clearly wrong. Alexander v.
Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706;
Rosell v. ESCO, 549 So.2d 840 (La.1989). Even though an appellate
court may believe that its own evaluations and inferences are more
reasonable than the fact finder’s, reasonable evaluations of credibility
should not be disturbed on review where there is conflict in the
testimony. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630
So.2d 733.

In Baker v. Conagra Broiler Co., 93-1230, pp. 8-9 (La.App. 3 Cir.
5/4/94), 640 So.2d 494, 498, writ denied, 94-1435 (La. 9/23/94), 642
So.2d 1289 (citations omitted), we summarized the jurisprudence
pertaining to a worker with a pre-existing condition as follows:

In compensation cases, the claimant has the burden
of showing that more probably than not an employment
accident occurred and that it had a causal relation to the
disability suffered. A worker’s preexisting condition does
not bar his or her recovery under the workers’
compensation laws because an employer takes the worker
as he finds him or her. An abnormally susceptible worker
is entitled to no less protection under the workers’
compensation statute than a healthy worker. It is
immaterial that the diseased or weakened condition of the
worker might eventually produce the disability suffered

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outside of the employment situation. Said another way, the
worker’s claim for disability benefits will not be
disqualified if the work-related injury aggravates,
accelerates, or combines with a disease or infirmity to
produce death or disability for which compensation is
claimed.

See also, Cotton v. First Fleet, 07-41 (La.App. 3 Cir. 5/2/07), 957 So.2d 239.

Furthermore, the “developing injury” rule makes it clear that if an employee sustains

an on the job accident in which an injury is immediately apparent, but still continues

to work until he/she is finally disabled from doing so, the employee will not be

penalized.

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.

White v. Phoenix Pharmacy, 03-1624, p. 5 (La.App. 3 Cir. 4/7/04), 870 So.2d 592,

596, writ denied, 04-1150 (La. 7/2/04), 877 So.2d 147, quoting Sevin v. Schwegmann

Giant Supermarkets, Inc., 94-1859, p. 5 (La. 4/10/95), 652 So.2d 1323, 1326.

The defendant’s argument relies almost exclusively on the claimant’s prior

injuries and her medical records which document her treatment and condition prior

to her October 2002 accident. There is no doubt that prior to October 2002 the

claimant was working in pain and under restrictions as to lifting, bending, prolonged

sitting, etc. However, even with her restrictions and her pain, she was able to

continue her employment.

Dr. Frank W. Lopez had become the claimant’s treating physician in 2000. He

was well aware of all of her medical problems and, as early as 2001, had

recommended that she either find other employment or consider retiring. He stated

that her problems basically remained the same, but that “they became exacerbated

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over time.” In his deposition, Dr. Lopez testified as follows:

In the time I knew Gernine before this [the October 2002 accident]
happened, as I said, I had made recommendations that she change jobs,
that she ease off the situations that were causing her to have pain. And
even though she accept[ed] what I said, she didn’t–I didn’t think she
made a great effort to change what she was doing because I think she
was enjoying her job. Stress or whatever it was, she wanted to stay
there. So, my impression would have been that had she been able to
continue, she would have either continued in the same job or something
else that she could have managed to do.
....
And my interpretation of the whole thing is that a person which has the
conditions that Gernine presented in that initial year I knew her, I would
have expected that she was going to deteriorate and have some kind of
problems. I think this accident [of October 2002] accelerates everything
to the point of her having to change all of her working activities and end
up not–not working.
....
I think that in my understanding of her condition, I think that [the
accident] both accelerated and aggravated the pain problems with
certainty in the neck and with great probability in the back, too.

Dr. Lopez stated that after the October 2002 accident he had to change the

claimant’s medication from a weaker, codeine preparation to a stronger, morphine

preparation.

In sum, we find that the testimony of Dr. Lopez supports the finding by the

WCJ that the claimant’s accident of October 22, 2002, aggravated, accelerated, or

combined with her pre-existing infirmity to produce her disability.

Accordingly, for the reasons stated, the judgment of the WCJ is affirmed. The

claimant is awarded an additional $2,500.00 in attorney’s fees for work necessitated

by this appeal.

AFFIRMED.

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