Clara Evans v. Hampton Inn

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1195

CLARA EVANS

VERSUS

HAMPTON INN

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION,
PARISH OF RAPIDES DISTRICT 02, NO. 06-03795
HONORABLE JAMES L. BRADDOCK, WORKERS’ COMPENSATION
JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Mark Ackal
P.O. Box 52045
Lafayette, LA 70505-2045
Counsel for Defendant-Appellant:
Hampton Inn

George A. Flournoy
P.O. Box 1270
Alexandria, LA 71309
Counsel for Plaintiff-Appellee:
Clara Evans

PAINTER, Judge.

Defendant, Hampton Inn, appeals the workers’ compensation judge’s ruling in

favor of Clara Evans. The WCJ found that Evans established that her carpal tunnel

syndrome was related to her work activities, that she was entitled to medical benefits

including a carpal tunnel release surgery, and that she was entitled to temporary total

disability benefits. The WCJ further awarded penalties for failure to authorize

medical treatment and failure to pay indemnity benefits as well as attorney’s fees. For

the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Evans had been employed by Hampton Inn since September of 2004. In 2006,

she held the position of executive housekeeper. One of her duties included “deep

cleaning” bathrooms. This involved Evans getting down on her hands and knees and

scrubbing the tile floors in the bathrooms with a small brush. Evans usually “deep

cleaned” two rooms per day. Evans testified that she was right-handed. On May 8,

2006, Evans was seen at Huey P. Long Medical Center by Dr. Ernest Kelly for

complaints of right-hand pain which she reported had been bothering her for about

two months. According to Evans, her right hand would swell, go numb, and tingle.

She was diagnosed with cervical arthritis and given a volar splint for her right hand.

She was also given a work excuse from Dr. Kelly which indicated that she should be

placed on light duty for two weeks. She returned to work on May 9, and this was her

last day at work. Evans was sent home after a verbal argument with a co-worker and

told that there was no light duty work for her to do.

Evans testified that she reported an injury to her right hand from deep cleaning

the bathrooms to the assistant manager, Elaine Sparks, and that she told the manager,

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Tarak Patel, that she was having problems with her right hand which she associated

with her housekeeping duties at the hotel. Sparks and Patel denied that they had been

told these things. Evans saw several physicians over the next few months. On

October 11, 2006, an EMG showed severe right carpal tunnel syndrome with mild C6

root irritation on the right side. On November 2, 2006, Evans’ physician, Dr. Clark

Gunderson, recommended a right carpal tunnel release. Dr. Gunderson opined that

Evans’ carpal tunnel syndrome was causally connected to or brought about by her

work activities.

Evans filed the instant disputed claim for compensation against Hampton Inn

seeking weekly indemnity benefits, medical treatment, and penalties and attorney's

fees. Hampton Inn denied all of Evans’ claims and further alleged that she forfeited

her right to receive any benefits due to her fraudulent statements. Following a trial

on the merits, the WCJ held that Evans had proven that her carpal tunnel syndrom

was work-related and was, therefore, entitled to temporary total disability benefits

retroactive to May 10, 2006 (subject to credit for vacation paid by Hampton Inn)1,

medical travel expenses, prescription expenses, and medical expenses without

discount per the fee schedule, and for all future work-related medical expenses

incurred after judgment pursuant to the fee schedule. The WCJ denied Evans’ claims

for sanctions but awarded $2,000.00 in penalties for failure to authorize medical

treatment and $2,000.00 in penalties for failure to pay indemnity benefits. Attorney's

fees in the amount of $5,000.00 were also awarded. Evans filed a motion for partial

new trial and a motion to recuse the WCJ. Both motions were denied. This appeal

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We note that the judgment indicates May 11, 2007 as the date. However, this is inconsistent
with the WCJ’s oral reasons for judgment.

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was then perfected by Hampton Inn. We note that Evans has neither answered the

appeal nor filed her own appeal.

DISCUSSION

This court has recently noted:

The standard of review applied to factual findings in workers’
compensation matters is the manifest error standard. This standard,
which is based upon the reasonableness of the factual findings in light
of the record reviewed in its entirety, is well established in our
jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d
840 (La.1989), and Stobart v. State, through Department of
Transportation and Development, 617 So.2d 880 (La.1993).

Lollis v. Shaw Global Energy Services, 07-395 p. 3 (La.App. 3 Cir. 10/03/07), 966

So.2d 1118, 1120. If the conclusions of the fact finder are reasonable in light of the

record reviewed in its entirety, we cannot reverse, even if we would have weighed the

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

Furthermore:

Generally, an injured employee is entitled to receive benefits for
an injury that arises out of, and in the course of, his employment.
La.R.S. 23:1031. Specifically, La.R.S. 23:1031.1 governs workers’
compensation claims for occupational disease. “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.” La.R.S. 23:1031.1(B). A claimant asserting an
occupational disease must prove by a preponderance of evidence that
there is a disability which is related to an employment-related disease,
that the disease was contracted during the course of employment, and
that the disease is a result of the work performed. Hymes v. Monroe
Mack Sales, 28,768 (La.App. 2 Cir.10/30/96), 682 So.2d 871. The
causal link between an employee’s occupational disease and
work-related duties must be established by a reasonable probability. Id.

Rose v. Maison Deville Care Center, 05-1307, pp. 2-3 (La.App.3 Cir. 4/5/06), 927

So.2d 625, 627, writ denied, 06-1054 (La. 9/1/06), 936 So.2d 205.

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This court has also recognized:

As stated in Bruno v. Harbert International Inc., 593 So.2d 357,
361 (La.1992):

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. West v. Bayou Vista Manor, Inc., 371
So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana
Civil Law Treatise, Workers’ Compensation, § 253 (2d
Ed.1980). Corroboration of the worker’s testimony may be
provided by the testimony of fellow workers, spouses, or
friends. Malone & Johnson, supra; Nelson [v. Roadway
Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration
may also be provided by medical evidence. West,supra.

Lollis, 966 So.2d at 1120-21.

Louisiana Revised Statutes 23:1031.1 governs workers’ compensation claims

for occupational disease and provides, in pertinent part, as follows:

B. 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. Occupational disease shall include
injuries due to work-related carpal tunnel syndrome. Degenerative disc
disease, spinal stenosis, arthritis of any type, mental illness, and
heart-related or perivascular disease are specifically excluded from the
classification of an occupational disease for the purpose of this Section.

....

D. Any occupational disease contracted by an employee while
performing work for a particular employer in which he has been engaged
for less than twelve months shall be presumed not to have been
contracted in the course of and arising out of such employment,
provided, however, that any such occupational disease so contracted
within the twelve months’ limitation as set out herein shall become
compensable when the occupational disease shall have been proved to
have been contracted during the course of the prior twelve months'
employment by a preponderance of evidence.

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In this case, Hampton Inn argues that “the finding by the WCJ that Evans

sustained a work related accident that resulted in her injuries, specifically that her

carpal tunnel syndrome is work-related, is not supported by the record, is manifestly

erroneous, is clearly wrong and must be reversed.” We do not agree.

We first consider Hampton Inn’s argument that it is presumed that Evans’

carpal tunnel syndrome was not caused by her job duties because it manifested itself

less than twelve months after Evan became responsible for deep cleaning bathroom

floors. This presumption, however, is rebuttable and can be overcome if a claimant

can prove “by a preponderance of the evidence that the disease was contracted during

her employment, specifically proving that there is a disability which is related to an

employment-related disease, the disease was contracted during the course of

employment, and the disease is a result of the work performed.” Johnson v. Johnson

Controls, Inc., 38,495, p. 12 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 931-32 (citing

Ball v. Wendy’s Intern. Inc., 36,922 (La.App.2d Cir.03/05/03), 839 So.2d 1208, writ

denied, 03-0978 (La.05/30/03), 845 So.2d 1056). The WCJ can consider medical

reports admitted into evidence or expert testimony to determine whether a claimant

has overcome the presumption. Id. (citing Fite v. Louisiana Title Co., 02-2607 (La.

06/27/03), 852 So.2d 983). We further note that, in brief, Hampton Inn quotes

La.R.S. 23:1031.1 as reading “an overwhelming preponderance of the evidence” and

goes on to discuss the meaning of this phrase and the legislative intent involved.

However, Acts 2001, No. 1189, § 1, effective June 29, 2001, at the end of subsection

D, substituted “a preponderance” for “an overwhelming preponderance.” Therefore,

we find no merit in Hampton Inn’s argument that a higher burden of proof than

“preponderance” applies to this case where the injury occurred in 2006.

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In any event, the WCJ made no mention of the presumption stated in La. R.S.

23:1031.1(D) in this case. However, the record shows that Evans’ symptoms

manifested themselves well within the initial twelve month period of her employment

as executive housekeeper. With this presumption in place, Evans had to prove by a

preponderance of the evidence that her carpal tunnel was contracted during her

employment. Evans did testify that she was required to deep clean bathrooms prior

to her promotion to executive housekeeper. Based on the record as a whole and the

deposition testimony of Dr. Gunderson, the WCJ concluded that Evans had carpal

tunnel syndrome caused by her housekeeping duties. Even though the WCJ may not

have considered the presumption in favor of Hampton Inn, we cannot say that the

final determination on this particular issue was in error, because we find no manifest

error in the WCJ’s conclusion that Evans suffered from carpal tunnel syndrome and

that she carried her burden of proving that her employment caused that condition.

Hampton Inn acknowledges that Dr. Gunderson opined that scrubbing floors

was the cause of Evans’ carpal tunnel syndrome. It asserts that this opinion was

based upon false and unreliable information provided to him by Evans. The WCJ

found Evans to be a credible witness and was in the best position to make this

determination. “A worker is not required to relate her history to a doctor with

mathematical precision and the imprecise histories given are insufficient to show

manifest error when the overall tenor of [plaintiff’s] complaints of pain as portrayed

in her medical records related the onset of symptoms to her work.” Johnson, 873

So.2d at 933. The medical records in this case show that Evans complained of right

hand pain and numbness dating back to April or May of 2006, and that she mainly

related it her job duties. Therefore, we find no manifest error in the trial court’s

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conclusion that Evans’ carpal tunnel syndrome was related to her duties with

Hampton Inn.

Dr. Gunderson also opined that Evans was disabled and unable to work.

Hampton Inn submitted no evidence to the contrary. Therefore, we find no manifest

error in the WCJ’s conclusion that Evans is entitled to temporary total disability

benefits.

Hampton Inn also contends that Evans failed to prove the necessity of the

treatment and the causal connection between the treatment and the employment

related accident by a preponderance of the evidence such that the WCJ erred in

awarding medical benefits. Again, we do not agree. We have already found that

Evans proved that her carpal tunnel syndrome was related to her employment duties

at Hampton Inn. The totality of the records supports the WCJ’s finding that Evans

proved that she is entitled to recover her medical expenses and medical care.

Therefore, we find no manifest error in this ruling. Furthermore, we agree that since

Hampton Inn denied the claim from outset, it “is not entitled to rely on the fee

schedule benefits after making a total denial of the claim and forcing the claimant to

seek medical treatment unilaterally.” Smith v. Roy O. Martin Lumber Co., 03-1441,

p.8 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, 668, writ denied, 04-1311 (La. 9/24/04),

882 So.2d 1144.

Finally, Hampton Inn contends that the WCJ erred in awarding penalties and

attorney’s fees. The determination of whether an employer should be cast with

penalties and attorney’s fees is a question of fact, and the trial court's finding cannot

be disturbed absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930

(La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.10/13/00), 771

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So.2d 650. “The employer has a continuing duty to investigate, assemble, and assess

factual information before it denies benefits.” Mitchell v. Alliance Compressors,

05-1186, p. 8 (La.App. 3 Cir. 4/5/06), 926 So.2d 127, 133. Here the WCJ found that

Hampton Inn failed to do a proper investigation and failed to send Evans to any

healthcare provider to obtain any medical information as to connexity and causality

of her carpal tunnel syndrome. We agree and find no manifest error in the award of

penalties or attorney’s fees.

DECREE

For the foregoing reasons, we affirm the judgment of the WCJ. Costs of this

appeal are assessed against Defendant-Appellant, Hampton Inn.

AFFIRMED.

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