Mary Dantley v. Lake Charles Memorial Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1227

MARY DANTLEY

VERSUS

LAKE CHARLES MEMORIAL HOSPITAL

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 05-04907
CHARLOTTE A. L. BUSHNELL,
WORKERS’ COMPENSATION JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

A. R. Johnson, IV
Plauche, Smith & Nieset
Post Office Drawer 1705
Lake Charles, Louisiana 70602
(337) 436-0522
Counsel for Defendant/Appellee:
Lake Charles Memorial Hospital

Scott J. Pias
Attorney at Law
522 Alamo Street
Lake Charles, Louisiana 70607
(337) 436-1288
Counsel for Plaintiff/Appellant:
Mary Dantley

SULLIVAN, Judge.

Plaintiff, Mary Dantley, appeals a June 26, 2007 judgment rendered by the

Office of Workers’ Compensation dismissing her claims against Lake Charles

Memorial Hospital (LCMH) with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Dantley began working as a housekeeper at LCMH in 1995. In November

of 2004, she applied for Social Security Disability benefits. She resigned from

LCMH in December of 2004. She underwent surgery on her right shoulder in

January 2005 and again in June of 2005. On June 22, 2005, Ms. Dantley filed a 1008

Claim for Compensation. In her initial claim, she was unable to point to any specific

event as having caused her shoulder complaints. She listed the date of injury as

“12/24/04 last day worked.” At a mediation that took place on July 26, 2005,

Ms. Dantley amended her claim with a notation that she “felt increased pain in [her]

right shoulder” in October of 2004 when “lifting beds to change sheets, etc.”1

Trial was held on January 25, 2007. The only witness to testify live was

Ms. Dantley. Both parties offered the deposition of Dr. John Noble, the physician

who treated Ms. Dantley for her shoulder condition and who performed both of her

surgeries. The matter was taken under advisement and on June 14, 2007, the

Workers’ Compensation Judge (WCJ) rendered oral reasons for judgment in favor of

LCMH dismissing Ms. Dantley’s claim against it with prejudice. Written judgment

was signed on June 26, 2007.

Ms. Dantley now appeals, assigning the following as error:

1
This document was entered into evidence by LCMH as Exhibit D-3.

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1. The trial court erred in finding that no corroborative
evidence exists. This resulted in the court finding that the
plaintiff failed to carry her burden of proof.

2. The trial court’s findings are clearly wrong and not
supported by the evidence in the record.

3. The trial court failed to find that Mary Dantley aggravated
her shoulder injury during the period that she continued to
work after the onset of the initial symptoms of a shoulder
injury.

LAW

A worker bringing a compensation action against her employer bears the

burden of proving, as a threshold requirement, that she suffered “personal injury by

accident arising out of and in the course of employment.” La.R.S. 23:1031; Bruno

v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in

La.R.S. 23:1031 is defined as “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.” La.R.S. 23:1021(1).

Jurisprudence has held that an accident may include a routine movement or task that

the employee regularly performs, provided that the claimant is able to identify, with

some particularity, the time, place, and manner in which the accidental injury

objectively manifested itself. McCall v. Wal-Mart Stores, Inc., 02-1343 (La.App. 3

Cir. 3/5/03), 846 So.2d 832, writs denied, 03-1329, 03-1343 (La. 9/19/03), 853 So.2d

639, 641.

The plaintiff bears the burden of establishing that a work-related accident

occurred by a preponderance of the evidence. Bruno, 593 So.2d 357. This burden

of proof is applicable even when the worker is the sole witness of the accident. Id.

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A worker’s testimony alone may be sufficient to discharge her burden of

establishing a work-related accident provided that no evidence discredits or casts

serious doubt upon her version of the incident and the worker’s testimony is

corroborated by the circumstances following the alleged incident, including medical

evidence or the testimony of co-workers, friends, or the worker’s spouse. Id.

The trial court’s determinations as to whether a plaintiff in a workers’

compensation case is credible and whether she has discharged her burden of proof are

factual determinations that should not be disturbed upon appellate review unless

clearly wrong or manifestly erroneous. Id.

This court has noted, in the context of a workers’ compensation suit, the

well-accepted principle that credibility calls are the function of the trial court.

McCall, 846 So.2d 832.

DISCUSSION

The WCJ issued oral reasons for judgment in conjunction with its decision to

dismiss Ms. Dantley’s case against LCMH. Those reasons provide, in pertinent part:

[Ms. Dantley] testified as to the occurrence of an accident; however, she
couldn’t really remember any real incident. She made complaints of
shoulder pain to Dr. Noble. Ultimately, she had surgery to the shoulder
in January of 2005. She testified she didn’t report a job injury to Dr.
Noble nor to Lake Charles Memorial Hospital because she said, “It
wasn’t like I broke a leg or something, so I just didn’t report it.” She
and her co-workers even discussed a possible workplace explanation for
her disability according to Ms. Dantley. However, no corroborative
evidence exists. In fact, the medical evidence casts doubt on Ms.
Dantley’s version of the incident, and Ms. Dantley even testified no real
incident occurred in the workplace. Dr. Noble performed two right
shoulder surgeries on Ms. Dantley, and both surgeries were filed and
paid for by Ms. Dantley’s health care insurer. Ms. Dantley, obviously,
is a long time employee of the hospital. The court is not convinced that
Ms. Dantley suffered from an occupational disease during the course
and scope of her employment with Lake Charles Memorial Hospital.
She is unable to carry her burden of proof.

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Ms. Dantley testified that she never reported an on-the-job accident regarding

her right shoulder to LCMH or to Dr. Noble. Nevertheless, she asserts that “[t]he

record is full of corroborative evidence” that she received an injury while on the job

and that the WCJ’s findings to the contrary are clearly wrong and not supported by

the evidence. She claims that she reported her shoulder problems to several nurses

with whom she worked and that those nurses thought that she should report her injury

to the hospital’s administration and that it would be covered under workers’

compensation. She further claims that, because she was a minimum wage worker

with no social life aside from attending church services once a week, she had no

opportunity to injure her shoulder outside of work. Ms. Dantley additionally submits

that Dr. Noble testified that the type of shoulder injury that she suffered from is one

that can be caused by doing the type of housekeeping work that she did at LCMH.

Ms. Dantley’s arguments are flawed. Even assuming that she did tell some of

her co-workers that she had injured her shoulder at work and that they thought she

had suffered a compensable injury, the burden was on Ms. Dantley to present any

such corroborating evidence to the WCJ. She did not do so. While Ms. Dantley’s

simple lifestyle may have made it unlikely that she would suffer a shoulder injury

while not at work, she had the affirmative burden of proving that she suffered an

injury while on the job at LCMH. Again, she failed to meet that burden as even her

own story as to whether and when she suffered an injury at work was inconsistent.

Her reliance on Dr. Noble’s deposition testimony is also misplaced. He did not state

that a shoulder injury such as the one suffered by Ms. Dantley could be caused by the

type of activities she performed as a housekeeper at LCMH. What Dr. Noble actually

stated was that those type of activities could exacerbate or worsen the condition of

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someone with rotator cuff degeneration. As pointed out by LCMH, Dr. Noble

testified that he thought Ms. Dantley’s shoulder problem was possibly cervical in

origin. In addition, in a statement that he filled out at the request of Ms. Dantley’s

income protection insurer, Dr. Noble indicated that Ms. Dantley’s disability was not

related to her employment.2 That opinion was echoed in Dr. Noble’s trial deposition.

We have reviewed the record in its entirety and are convinced that the WCJ

correctly found that no corroborative evidence was presented by Ms. Dantley to

substantiate her claim that she suffered a work-related accident. In the absence of any

such corroborative evidence, and in the face of her treating physician’s opinion that

her shoulder disability was not related to her employment, Ms. Dantley’s testimony

alone was insufficient to discharge her burden of proof. Thus, Ms. Dantley’s first and

second assignments of error are without merit.

Ms. Dantley claims that the WCJ erred in failing to find that she aggravated her

shoulder injury during the period that she continued to work at LCMH after the onset

of the initial symptoms of her shoulder injury. Just as she failed to present a scintilla

of evidence to corroborate an initial on-the-job shoulder injury, Ms. Dantley likewise

failed to offer any evidence to corroborate her claim that she exacerbated any prior

injury to her shoulder. Ms. Dantley’s third assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’

Compensation dismissing Mary Dantley’s claims against Lake Charles Memorial

Hospital is affirmed in its entirety. Ms. Dantley is cast with all costs of this appeal.

AFFIRMED.

2
This Attending Physician’s Statement is attached to Dr. Noble’s deposition as Exhibit No. 2.

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