Starkey v. Livingston Parish Council

• Citation: 122 So.3d 570
• Decision Date: 06 August 2013
• Docket Number: No. 2012 CA 1787.,2012 CA 1787.
• Parties: Betty Jean STARKEY v. LIVINGSTON PARISH COUNCIL.
• Court: Court of Appeal of Louisiana (US)

122 So.3d 570

Betty Jean STARKEY

v.LIVINGSTON PARISH COUNCIL.

No. 2012 CA 1787.

Court of Appeal of Louisiana, First Circuit.

Aug. 6, 2013.

Russell C. Monroe, Greensburg, LA, for Plaintiff–Appellant Betty Jean Starkey.

Amanda H. Carmon, Baton Rouge, LA, for Defendant–Appellee Livingston Parish Council and Louisiana Workers' Compensation Corporation.

Before KUHN, PETTIGREW, and McDONALD, JJ.

PETTIGREW, J.

[1 Cir. 2]Claimant, Betty Jean Starkey, appeals from a judgment of the Office of Workers' Compensation (“OWC”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At all times pertinent hereto, Ms, Starkey was employed by Livingston Parish Council, and had been so employed for four years. Ms. Starkey was initially hired as a custodian in a maintenance shop, but was later moved into the office to handle inventory paperwork for parts and tractors. On August 10, 2010, Ms. Starkey suffered a work-related injury. According to Ms. Starkey, she was seated at her desk and attempted to open the bottom drawer, when the “desk drawer [got] hung up” and “yanked” and “twisted” her around, causing her to injure her back. Following this accident, Ms. Starkey was treated by Dr. Thad Broussard, an orthopedic surgeon, for her back injury. She never returned to work for Livingston Parish Council after this accident and was subsequently terminated from her position effective September 30, 2011.

At the time of this incident, Livingston Parish Council was covered through a policy of workers' compensation insurance issued by Louisiana Workers' Compensation Corporation (“LWCC”). LWCC began paying Ms. Starkey weekly benefits in the amount of $214.67, but terminated same effective September 16, 2010, after learning that Ms. Starkey was involved in an automobile accident on that date that increased her back and neck complaints. LWCC further learned that Ms. Starkey had undergone unauthorized treatment with an orthopedic surgeon, Dr. Jason Smith, following the automobile accident and eventually underwent back surgery on February 28, 2011. Concluding that Dr. Smith was not authorized and not Ms. Starkey's choice of physician in the specialty of orthopedic surgery, LWCC decided that Dr. Smith would not be paid for his treatment of Ms. Starkey.

On October 12, 2011, Ms. Starkey filed a disputed claim for compensation against Livingston Parish Council and LWCC (sometimes collectively referred to as “defendants”), alleging that the termination of her benefits was arbitrary and capricious and based on an [1 Cir. 3]erroneous allegation that her back Injury was aggravated by a later accident. In addition, Ms. Starkey asserted that she had been denied her choice of an orthopedic surgeon, arguing that her previous consultation with Dr. Thad Broussard, an orthopedic surgeon who does not perform spine surgery, should not have been a basis to deny her the right to see Dr. Jason Smith, the orthopedic surgeon who operated on her back.

On January 24, 2012, Ms. Starkey filed a motion for summary judgment, asserting that there were no genuine issues of material fact “as to Dr. Jason Smith being Ms. Starkey's first choice of physician for orthopedic spine surgeon” or as to whether “Ms. Starkey suffered a back injury on the job during the course and scope of her employment with Livingston Parish Council, and that her back injury was in no way caused or aggravated by her subsequent September 16, 2010 car accident.” Ms. Starkey argued that she was entitled to summary judgment as a matter of law. The motion for summary judgment proceeded to hearing on March 2, 2012, at which time the OWC heard argument from respective counsel and considered the documentary evidence submitted by the parties. Subsequently, on March 6, 2012, the OWC rendered judgment and written reasons for judgment denying Ms. Starkey's motion.

Thereafter, the matter proceeded to trial before the OWC on March 19, 2012, and was taken under advisement. On April 26, 2012, the OWC issued judgment finding as follows: 1) that Ms. Starkey had carried her burden of proving that she suffered a work-related accident on August 10, 2010, that caused injury and disability to her back that continued until at least September 16, 2010, when the automobile accident occurred; 2) that Ms. Starkey failed to prove that any disability due to her back injury that existed after September 16, 2010, was a result of the August 10, 2010 work accident; and 3) that no additional workers' compensation benefits not already paid were to be awarded. The OWC dismissed Ms. Starkey's claim against defendants with prejudice.

[1 Cir. 4]It is from this judgment that Ms. Starkey has appealed, assigning the following specifications of error for our review:

1) The [OWC] erred in denying [Ms. Stanley's] well pled and supported motion for summary judgment.[ ¹]

2) The [OWC] erred in ruling [Ms. Starkey] is not entitled to [workers'] compensation benefits after September 16, 2010.

3) The [OWC] erred in failing to declare after trial [Ms. Starkey's] treatment with Dr. Jason E. Smith and Our Lady of the Lake Hospital was reasonable and necessary, necessitated by the work injury, and that defendants were obligated to pay for those services.

4) The [OWC] erred in failing after trial to rule defendants were arbitrary and capricious in terminating [Ms. Starkey's] benefits on August 11, 2011 and for failing to pay for reasonable and necessary treatment by Dr. Jason E. Smith and Our Lady of the Lake Hospital.

APPLICABLE LAW

Standard of Review

The manifest error standard of review applies in workers' compensation cases, and great deference is accorded to the OWC's factual findings and reasonable evaluations of credibility. Veal v. American Maintenance and Repair, Inc., 2004–1785, p. 5 (La.App. 1 Cir. 9/23/05), 923 So.2d 668, 672. The two-part test for the appellate review of facts is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's [1 Cir. 5]finding was clearly wrong. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of the trier of fact, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, “[i]f the [fact finder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 2001–0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

Burden of Proof/Causation

The Louisiana Workers' Compensation Act provides coverage to an employee for personal injury caused by an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An employee must prove the chain of causation required by the workers' compensation statutory scheme, as adopted by the legislature, and must establish that the accident was employment related, that the accident caused the injury, and that the injury caused the disability. Hirstius v. Tropicare Service, LLC, 2011–1080, p. 2 (La.App. 1 Cir. 12/21/11), 80 So.3d 1215, 1216.

Initially, a workers' compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Id. A worker's testimony is sufficient to discharge the burden of proving an accident, provided that two elements are first 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 surrounding the alleged incident. Carter v. Lakeview Regional Medical Center, 2004–1794, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 686, 688.

[1 Cir. 6]“Accident” is defined in La. R.S. 23:1021(1) 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.” Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact and subject to the manifest error standard of review. Allman v. Washington Parish Police Jury, 2004–0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88.

An employee in a workers' compensation action has the burden of establishing a causal link between the accident and the subsequent disabling condition. Walton v. Normandy Village Homes Ass'n, Inc., 475 So.2d 320, 324 (La.1985). Where, as here, the employee suffered from a preexisting medical condition, he may still prevail if he proves that the accident “aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed.” Id. In Walton, the Louisiana Supreme Court recognized the existence of a presumption to aid plaintiffs ...