Monica F. Covington v. Kentucky Fried Chicken

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-428

MONICA F. COVINGTON

VERSUS

KENTUCKY FRIED CHICKEN

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 05-06067
HONORABLE SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

Mark A. Ackal
Post Office Box 52045
Lafayette, LA 70505
(337) 237-5500
COUNSEL FOR DEFENDANT/APPELLANT:
Kentucky Fried Chicken

Lawrence C. Billeaud
706 W. University Avenue
Lafayette, LA 70506
(337) 266-2055
COUNSEL FOR PLAINTIFF/APPELLEE:
Monica F. Covington

AMY, Judge.

The claimant sought indemnity and medical benefits following an alleged

work-related injury. The employer disputed the occurrence of an accident. The

workers’ compensation judge found in favor of the claimant, finding her account of

the alleged accident credible and substantiated by her medical records. It denied

penalties and attorney fees. The employer appeals. For the following reasons, we

affirm.

Factual and Procedural Background

The claimant, Monica Covington, alleges that she sustained a back injury while

moving a case of chicken in the course and scope of her employment with Kenner

Kentucky Fried Chicken, Inc. on May 6, 2005. She asserts that she did not

immediately report the incident as she believed her injury was not serious. Neither

did she seek immediate medical care. The employer disputes whether the claimant

sustained a work-related injury.

According to the claimant, the accident occurred in the presence of another

employee, Kevin Mergist, who then assisted her with moving the box. Mr. Mergist

did not testify at trial. Although the claimant testified that she attempted to contact

her supervisor, Gavin LaFont, by telephone, her call was unanswered. Mr. LaFont

denied that he was informed of the alleged accident.

The claimant contends that she reported to work the following evening and

asked Mr. LaFont to complete an accident report. According to the claimant, he

refused. Again, Mr. LaFont denied the encounter and testified that he was not at

work on that evening. While the claimant explained that other employees were

present at the time she made the request, she did not present these employees as

witnesses.

The claimant contends that her back pain lessened in the days following the

alleged accident. However, she testified that her back “gave out” later in the month

and that she reported to Southwest Medical Center. The hospital’s records of May

18, 2005, presented by the employer at the hearing, verify that the claimant reported

to the emergency room complaining of back pain. However, the record lists April 18,

2005, as the onset of the claimant’s symptoms. As pointed out by the employer, the

record does not indicate that the claimant attributed her complaints to a work-related

injury at that time. The claimant explained that, after this visit, she attempted to

provide a physician’s excuse letter to Assistant Manager Pamela Thigpen, but that no

accident form was completed.

Afterwards, the claimant’s condition improved until she again visited the

Southwest Medical Center emergency room on July 2, 2005. The hospital’s records

confirm that the claimant complained of low back pain extending to the legs. The

claimant contends that, after this date, she was unable to return to work. Instead, she

began undergoing physical therapy several times a week.

The claimant testified that she again requested that Ms. Thigpen complete an

accident report after the July 2005 hospital visit due to her inability to work any

longer and due to the payment of her expenses up to that point by use of her personal

health insurance. She contends that Ms. Thigpen refused, citing the necessity of her

having to complete a drug test.

At trial, Ms. Thigpen explained that the claimant informed her in July that she

had injured her back in May. Ms. Thigpen stated that she did not fill out an accident

report because the claimant had authority to report the accident herself. The claimant

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explained that she did not feel that she could have done so and that she thought she

worked in an inferior position to Ms. Thigpen.

The claimant did not return to work after July, but was treated with a number

of steroid injections in the lumbar area after an August 2005 MRI revealed a

protrusion at the L4-5 level. According to the claimant, she felt that she could return

to work by December 2005, but that the employer would not allow her to do so.

The claimant instituted this matter in August 2005, seeking indemnity and

medical benefits. She also sought penalties and attorney fees for the denial of these

benefits. The employer denied having knowledge of any accident prior to the receipt

of the claim form instituting the suit. At trial, it disputed both the claimant’s account

of the accident and the causation of injuries related to any such accident, relying on

medical records indicating that the claimant reported back pain in the years prior to

the alleged work-related accident.

The workers’ compensation judge ruled in favor of the claimant, finding the

claimant’s account of the accident credible and substantiated by other evidence in the

record. Temporary total disability benefits were awarded for the period of July 10,

2005 through January 1, 2006. Related medical care was also awarded. The workers’

compensation judge denied the claim for penalties and attorney fees.

The employer appeals, assigning the following as error in its brief:

1. The finding by the WCJ that Claimant sustained personal injury
as a result of an accident arising out of and in the course of her
employment with KFC is not supported by the record, is
manifestly erroneous, is clearly wrong and must be reversed.

2. The finding by the WCJ that Claimant is entitled to temporary
total disability benefits is not supported by the record, is
manifestly erroneous, is clearly wrong and must be reversed.

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Discussion

Work-Related Injury

The employer argues that the circumstances of this case required a

determination that the claimant failed to satisfy her burden of proving a work-related

injury. The employer contends that the record indicates that the requirements of

proving an unwitnessed accident were not met and points to the criteria of Bruno v.

Harbert International, Inc., 593 So.2d 357, 361 (La.1992), which provides that:

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).

Bruno further provides that corroboration of the worker’s testimony may be provided

by the testimony of fellow workers, spouses, friends, or medical evidence. Id.

In support of its argument, the employer references inconsistencies in the

claimant’s account of the events and certain contradictions between her testimony and

that of Mr. LaFont and Ms. Thigpen. The employer also points out that, despite the

claimant’s denials of prior back pain, medical records indicate repeated complaints

of previous back pain. Further, the records from the May and July 2005 emergency

room visits to Southwest Medical Center do not indicate that the claimant attributed

the pain to a work-related accident.

Also, the employer cites a May 18, 2005 triage record from Lafayette General

Medical Center, indicating that the claimant reported to that facility shortly before

visiting the Southwest Medical Center emergency room. Although the report lists

low back pain as the complaint, the triage nurse’s comments indicate a history of

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“‘slipped disc” and that the claimant “stat[ed] low back pain x 1 month.” The triage

record reports that: “Patient paged in lobby-no answer.” When presented with the

Lafayette General record at trial, the claimant stated that she did not recall visiting

Lafayette General that day.

As for the claimant’s contention that the May 18, 2005 emergency room visit

at Southwest Medical Center was the first related to the alleged work-related

accident, the assessment portion of the record lists “atraumatic” low back pain and

the history portion bears a notation of “no trauma[.]” Again, there is no reference to

it being work-related. Similarly, the July 2, 2005 Southwest Medical Center record

does not attribute the pain to a work accident. The employer contends that this

undermines the claimant’s testimony that she related the pain to work. Finally, and

although some of the claimant’s physical therapy records state that the claimant was

injured at work, some of the records relate the injury to a slip and fall at work, rather

than a lifting injury.

As complained of by the employer, the claimant’s testimony contains certain

inconsistencies when compared with other evidence in the record. These

inconsistencies are such that the workers’ compensation judge could have found

either that other evidence cast serious doubt on the claimant’s version of events or

that her testimony was not corroborated by subsequent circumstances. See Bruno,

593 So.2d 357. However, the workers’ compensation judge’s findings under the

Bruno standard are subject to the manifest error standard of review. Id.

In reasons for ruling, the workers’ compensation judge addressed the

inconsistencies cited by the employer, and ultimately placed greater weight on the

claimant’s testimony than that of the employer’s witnesses. The employer’s focus on

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the claimant’s prior reports of back pain was discounted, with the workers’

compensation judge explaining:

I am going to find in Ms. Covington’s favor because I believe her.
The record that I’m looking at, which is the entire certified records of
Southwest Lafayette Medical Center do indicate that Ms. Covington had
a, I’d say, significant history of urinary tract infections, whether you
want to call it bladder infections or kidney infections. I haven’t had
enough time to clearly nail down everything obviously, but October 22,
‘01, urine test may be indicative of UTI. Actually, that was - - let’s see.
One on October 22nd of ‘01. I have one here August 30th of ‘01. I
have another one from another time, several urinary tract infections with
secondary complaints of back pain. With respect to the date of the
accident and the log-in sheets, I note that on the July 2, ‘05 ER visit, it
does refer to other accident [sic], the date of which is given as May 3rd
of ‘05, and certainly it’s within a couple of days. And the records that
I have reviewed don’t show the sciatica or the radiating pain until after
the alleged accident date.

I believed Ms. Covington. I found her to be credible in the way
of corroboration. Ultimately later during the course of the treatment
with the doctors, they do refer to a lifting accident at work. I like to
generally look at the history closest in time to the date of the accident,
and I believe the initial indication is lifting. It doesn’t say necessarily
lifting at work, but Ms. Covington has testified that she wasn’t putting
it on comp.

I also would like to state for the record that Mr. LaFont appears
to be very young, both in his physical appearance and in his demeanor,
and given that this was three years ago, I’m not saying that he would
have been a poor manager in any sense, but I can see that - - I can see
where it may have been reported to him and nothing followed up
particularly since Ms. Covington went to the doctor on her own and
chose to put it on health insurance and continued to work after that. I
will also comment with respect to Ms. Thigpen’s testimony and her
demeanor. I distinctly got the impression that when she was told two
months later about the incident, I just got the impression that it was
nothing she wanted to have anything to do with. It wasn’t a comment
on the veracity of the complaint or whether or not she actually thought
it happened. It was just at that point in time, she was told that Mr.
LaFont had been made aware of it and chose to do nothing. Apparently
it was policy to get a drug test at the time. I just believe that Ms.
Thigpen was reluctant to file any accident report because to the extent
it may have been a voucher by her that the accident did occur or that
procedures or that she may get in trouble because procedures weren’t
properly followed.

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I believe there is corroboration of Ms. Covington’s version of
events in the fact that Ms. Thigpen did testify that Ms. Covington went
to her in July, said that her back was hurting. It went back to May, and
she had told Mr. LaFont, and he had done nothing. Ms. Thigpen
testified that, and that absolutely corroborates a portion of Ms.
Covington’s testimony. With respect to the conflict in testimony
between Ms. Covington and Mr. LaFont as to whether or not the matter
was initially reported, I do accept Ms. Covington’s testimony. I don’t
hold that against her that she did not force the issue any earlier or that
she chose to go to the doctor and put it on her private health insurance.
There is no indication whatsoever that Ms. Covington has a history of
litigation or making claims, and since she felt better after a couple of
days, I think it actually fits quite well she had not made claims before,
probably was not entirely familiar with [the] process. Since it went
away, she did not make a big deal about it. Since it went away, Mr.
LaFont didn’t follow up on it, so in my mind, it does make sense. It
does conform to what I understand Ms. Covington’s testimony and
demeanor to convey.

The fact that she did have prior back complaints, again with
looking through the records, the prior back complaints were all
secondary to other diagnoses. She was not treated for back pain. The
problems were urinary tract infections. One was the bad cough for cold
with congestion. I believe there’s a reference to green or yellow - - the
word wasn’t sputum but something, and that the cough had persisted for
a long time, and I do believe that a back complaint would be secondary
to two months of coughing. So I don’t think those are problems. With
respect to her credibility, I certainly don’t find they can amount to fraud,
and with respect to the domestic altercations, again the ultimate
diagnosis was wrist and forehand.

In light of the above credibility assessments and the factual findings made with

regard to the medical records, we find no manifest error in the trial court’s

determination. In Stobart v. State, through DOTD, 617 So.2d 880 (La.1993), the

supreme court explained that a trier of fact’s reasonable evaluations of credibility and

reasonable inferences of fact are not to be disturbed on review, even though the

appellate court may feel its own evaluations and inferences are more reasonable. See

also Veazie v. Gilchrist Constr. Co., 04-118 (La.App. 3 Cir. 6/2/04), 878 So.2d 742,

writ denied, 04-1692 (La.10/8/04), 883 So.2d 1018. The record indicates that the

workers’ compensation judge’s determinations were reasonable.

This assignment lacks merit.

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Temporary Total Disability Benefits

In its final argument, the employer contends that the workers’ compensation

judge erred in awarding temporary total disability benefits as the plaintiff failed to

present clear and convincing evidence that she was unable to engage in any

employment pursuant to La.R.S. 23:1221(1)(c).1 However, the record indicates that

the employer’s counsel entered the following stipulation into the record at the

commencement of the hearing:

Ms. Covington’s average weekly wage is Two Hundred and Nine
Dollars a week, giving her a weekly indemnity rate of One Ninety-three
point Thirty-three. She earned Seven Dollars and Twenty-five Cents per
hour at the time of the alleged accident. We’ll also stipulate that in this
case that should there be any benefits awarded that the period of
temporary total disability would be from July 10, 2005 through January
1, 2006.

This stipulation, which includes the end date for the disability period, joins a

December 13, 2005 medical report indicating that the claimant was improving

following her third injection following an injury “while picking up something at

work.” Records from the medical group following prior visits do not include a work

status notation, whereas the December 2005 report indicates that the claimant “can

return to work light duty status. No lifting more than 20 lbs and was limited stooping,

squatting and bending over.”

In light of the stipulation and the medical evidence, we find no manifest error

in the trial court’s award of disability benefits. This assignment lacks merit.

1
Louisiana Revised Statutes 23:1221(1)(c) provides, in pertinent part, that:

[T]emporary total disability shall be awarded only if the employee proves by clear
and convincing evidence, unaided by any presumption of disability, that the
employee is physically unable to engage in any employment or self-employment,
regardless of the nature or character of the employment or self-employment,
including but not limited to any and all odd-lot employment, sheltered employment,
or employment while working in any pain, notwithstanding the location or
availability of any such employment or self-employment.

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DECREE

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

Compensation is affirmed. All costs of this proceeding are assigned to the appellant,

Kenner Kentucky Fried Chicken, Inc.

AFFIRMED.

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