97-577 La.App. 3 Cir. 10/8/97, McLaughlin v. Hill City Oil Company/Jubilee Exxon

• Decision Date: 08 October 1997
• Citation: 702 So.2d 786
• Parties: 97-577 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 786

702 So.2d 786

97-577 La.App. 3 Cir. 10/8/97

Annette K. McLAUGHLIN, Plaintiff-Appellee, v.HILL CITY OIL COMPANY/JUBILEE EXXON, Defendant-Appellant.

No. 97-577.

Court of Appeal of Louisiana Third Circuit.

Oct. 8, 1997.

George Arthur Flournoy, Alexandria, for Annette McLaughlin.

Howard Battle Gist, III, Alexandria, for Hill City Oil Company/Jubilee Exxon.

Before YELVERTON, PETERS and PICKETT, JJ.

[97-577 La.App. 3 Cir. 1] PETERS, Judge.

Annette K. McLaughlin filed this claim for workers' compensation benefits against her employer, Hill City Oil Company, Inc. d/b/a Jubilee Exxon.After trial, the workers' compensation judge rendered judgment awarding Ms. McLaughlin benefits, medical expenses, penalties, and attorney fees.The employer has appealed this judgment.

DISCUSSION OF THE RECORD

Hill City Oil Company, Inc.(Hill City) is the owner of a convenience store and gas station in Winn Parish, Louisiana, and operates the facility as Jubilee Exxon.On July 22, 1995, Ms. McLaughlin was employed by Hill City as a cashier at Jubilee Exxon.On that day, she suffered a work-related back and shoulder injury.At trial, the parties stipulated to the employment relationship; the facts of the accident; a [97-577 La.App. 3 Cir. 2] compensation rate of $119.63 per week; and Hill City's payment of temporary total disability benefits to Ms. McLaughlin at that rate through September 18, 1995.After her benefits were terminated, Ms. McLaughlin brought this action.The issues at trial involved disability, penalties, and attorney fees.

The workers' compensation judge rendered judgment in favor of Ms. McLaughlin, ordering Hill City to pay, among other things, temporary total disability benefits from September 18, 1995 to October 15, 1996, and supplemental earnings benefits thereafter with a zero-base earning capacity; medical bills arising from the treatment of Dr. Baer I. Rambach; a $2,000.00 penalty for the failure to pay medical expenses and a $2,000.00 penalty for cessation of and failure to pay compensation benefits; attorney fees of $7,500.00; and legal interest on the compensation benefits from the due date of each installment and on the unpaid medical bills, penalties, and attorney fees from the date of judicial demand.Hill City appeals.

Immediately after the accident, Ms. McLaughlin was taken by ambulance to a local hospital, where she was x-rayed and released.Two days later, she saw Dr. Ratnam B. Nagalla, her family physician, who practices in Winnfield, Louisiana.According to the medical records filed into evidence Ms. McLaughlin saw Dr. Nagalla seven more times for her injuries, with the last office visit being on September 7, 1995.On that date, at Dr. Nagalla's instruction, Ms. McLaughlin underwent a CT scan of the lumbar spine at the Winn Parish Hospital.The radiologist report of this test indicated a very minimal posterior bulging of the L4-5 disc, with no significant encroachment resulting therefrom.On August 4, 1995, Dr. Nagalla made an appointment for Ms. McLaughlin with Dr. John P. Sandifer, a Natchitoches, Louisiana orthopedic surgeon, who first saw Ms. McLaughlin on August 8, 1995.

Dr. Sandifer's initial opinion was that Ms. McLaughlin had suffered a lumbar [97-577 La.App. 3 Cir. 3] strain and a strain and contusion of the right shoulder.He felt that she was not able to return to employment at that time, but he anticipated a full recovery.He prescribed medication and referred her to physical therapy.Ms. McLaughlin continued to see Dr. Sandifer, and he released her to return to light duty on September 13, 1995.The doctor signed another work release on September 19, 1995.The releases restricted Ms. McLaughlin from performing any work that required repetitive bending, repetitive lifting over twenty pounds, or prolonged standing.On September 19, 1995, Ms. McLaughlin returned to work for two days.At trial, she testified that she did not return on September 21 because she was not able to do her job without substantial pain.

On September 25, 1995, Ms. McLaughlin returned to Dr. Sandifer.In his office notes of that date, Dr. Sandifer stated that Ms. McLaughlin's MRI ¹ was essentially normal and that he did "not see any reason from an orthopaedic standpoint that she could not go back to work in a light duty capacity with no repetitive bending and lifting and no prolonged standing."He also stated that he was at a loss to explain Ms. McLaughlin's continued symptoms and suggested to Ms. McLaughlin that she may want to get another opinion.When Ms. McLaughlin returned on October 11, 1995, Dr. Sandifer informed her that he had done everything he could from an orthopedic standpoint and that he was still of the opinion that she could return to light duty with restrictions.Dr. Sandifer did not see Ms. McLaughlin again until June 10, 1996.

On October 23, 1995, Ms. McLaughlin went to the emergency room at Rapides Regional Medical Center in Alexandria, Louisiana, with complaints of lower back and right shoulder pain.Medication and a sling were prescribed, even though the physical [97-577 La.App. 3 Cir. 4] examination and X-rays yielded negative results.

On November 2, 1995, Ms. McLaughlin saw Dr. Baer I. Rambach, a Shreveport, Louisiana orthopedic surgeon.Dr. Rambach initially diagnosed her as having sustained myoligamentous and myofascial sprains and strains to the cervical and lumbosacral regions of her spine and a contusion to her right shoulder and rotator cuff mechanism.After examining Ms. McLaughlin, Dr. Rambach concluded that her injuries did not preclude her from returning to light duty.At her next visits on December 4, 1995, and February 15, 1996, Dr. Rambach's opinion did not change regarding Ms. McLaughlin's condition.In February, he was of the opinion that she would benefit from an extensive one-month program of physical therapy.

Ms. McLaughlin remained under the care of Dr. Rambach.At her March 28, 1996 visit, he recommended an MRI to explore the possibility of rotator cuff damage.That MRI was performed at the Rapides Regional Medical Center on July 18, 1996.The test results indicated the possibility of a partial tear of the right rotator cuff, and the radiologist recommended that an arthrogram be performed to confirm or rule out such an injury.The arthrogram was performed at Schumpert Medical Center in Shreveport, Louisiana, on August 22, 1996, and yielded normal results, thereby ruling out the presence of a rotator cuff tear.

On June 10, 1996, Ms. McLaughlin returned to Dr. Sandifer for another opinion at the request of Hill City.After completing his examination, Dr. Sandifer was still of the opinion that Ms. McLaughlin could perform any employment that did not require repetitive overhead lifting, repetitive bending, or lifting of over fifteen pounds.He injected her shoulder with cortisone and again released her for light duty only.

As of October 15, 1996, Dr. Rambach felt that Ms. McLaughlin had probably obtained a state of maximum medical benefit.However, he did not believe that Ms.[97-577 La.App. 3 Cir. 5] McLaughlin could return to the type of work she had been doing for Exxon, and he thought she was going to have to seek work of a lighter nature.Ms. McLaughlin remained symptomatic during her treatment with Drs. Nagalla, Sandifer, and Rambach.At the hearing, Ms. McLaughlin testified that she still hurts in her lower back and shoulders.

OPINION

Compensation Benefits

The workers' compensation judge awarded Ms. McLaughlin temporary total disability benefits from September 18, 1995, to October 15, 1996, and supplemental earnings benefits thereafter with a zero-base earning capacity.Hill City contends that the workers' compensation judge erred in awarding Ms. McLaughlin any benefits after September 18, 1995.

La.R.S. 23:1221(1)(c) provides that temporary total disability benefits "shall be awarded only if the employee proves by clear and convincing evidence ... that the employee is physically unable to engage in any employment or self-employment...."(Emphasis added).A workers' compensation judge's findings of fact are subject to the manifest error standard of review.Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840(La.7/1/97);696 So.2d 551.

Dr. Sandifer was of the opinion that Ms. McLaughlin could return to some type of employment at least by September 19, 1995.When he first examined Ms. McLaughlin, Dr. Rambach was also of the opinion that she could do light duty.Given this uncontradicted testimony, we find that Ms. McLaughlin failed to meet her burden of proving by clear and convincing evidence that she was unable to engage in any employment or self-employment after September 18, 1995.Thus, the workers' compensation judge was clearly wrong in finding that Ms. McLaughlin was [97-577 La.App. 3 Cir. 6] temporarily totally disabled after September 18, 1995.

We must now consider whether and to what extent Ms. McLaughlin was entitled to supplemental earnings benefits after September 18, 1995.An employee is entitled to supplemental earnings benefits if he sustains an injury that results in his inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury.La.R.S. 23:1221(3)(a);Banks, 696 So.2d 551.Initially, the employee bears the burden of proof in this regard by a preponderance of the evidence.Banks, 696 So.2d 551.Once the employee meets this burden of proof, the burden of proof shifts to the employer, who, in order to defeat the employee's claim for supplemental earnings benefits or establish the employee's earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region.Id.

As of the time of the hearing on the matter, Ms. McLaughlin had not returned to any type...