Alexander v. Autozone, Inc.

• Decision Date: 08 December 2004
• Docket Number: No. 04-871.,04-871.
• Citation: 889 So.2d 366
• Parties: Marlena ALEXANDER v. AUTOZONE, INC.
• Court: Louisiana Supreme Court

889 So.2d 366

Marlena ALEXANDER v.AUTOZONE, INC.

No. 04-871.

Court of Appeal of Louisiana, Third Circuit.

December 8, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Edward J. Fonti, Jones, Tete, Nolen, Fonti & Belfour, L.L.P., Lake Charles, LA, for Plaintiff/Appellee — Marlena Alexander.

Robert Blaine Purser, Purser Law Firm, Opelousas, LA, for Defendant/Appellant — Autozone, Inc.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.

THIBODEAUX, Chief Judge.

Marlena Alexander Gainey received a favorable award of temporary total disability benefits and penalties in this workers' compensation proceeding.Her employer, Autozone, contests the award, arguing that she did not demonstrate temporary total disability.Autozone also questions the existence of a causal link between her initial injury and her later diagnosis of carpal tunnel syndrome, which now requires surgery to correct.We affirm the trial court's award of benefits and penalties.

I.ISSUES

Autozone raises three issues on appeal.First, Autozone argues that Ms. Alexander is not entitled to receive compensation for temporary total disability because she did not show she was unable to engage in any type of occupation.Second, Autozone denies responsibility for Ms. Alexander's carpal tunnel surgery, claiming she offered insufficient proof that this condition stemmed from the original employment accident.Finally, Autozone challenges the trial court's imposition of penalties for its failure to pay Ms. Alexander's medical bills.

II.FACTS

Marlena Alexander Gainey worked for Autozone as a commercial driver, delivering auto supplies to customers.On October 11, 1999, while making a delivery, the starter she was lifting from her truck fell through the bottom of its box and injured her wrist.She returned to Autozone, but went to the emergency room later that night.Although the emergency room did not make a diagnosis, her family physician referred her to an orthopedist, Dr. J. David DeLapp, who determined that her left wrist was fractured.She was put in a cast, which was later removed and replaced to accommodate swelling in her wrist.Dr. DeLapp placed her on light duty and restricted her to lifting no more than ten pounds.

On January 4, 2000, the fracture appeared to have healed, and Dr. DeLapp released Ms. Alexander to full duty.On June 27, 2000, however, Ms. Alexander returned to Dr. DeLapp with wrist pain.She also had difficulty picking up objects.Dr. DeLapp diagnosed de Quervain's Syndrome in her wrist.According to Dr. DeLapp's deposition testimony, de Quervain's Syndrome is a common and well-documented complication in wrist fractures.Her condition did not improve, and Ms. Alexander had surgery to treat her de Quervain's Syndrome on July 31.Dr. DeLapp placed her on limited duty after the surgery.On August 24, he set a six week regimen of physical therapy to further improve her wrist.By the end of November, Ms. Alexander exhibited early symptoms of carpal tunnel syndrome, including numbness and tingling.Her symptoms were very mild, however, and her Tinel's and Phalen's tests — examinations used to diagnose carpal tunnel syndrome — were both negative.

On January 17, 2001, Ms. Alexander had surgery to remove a neuroma that had developed from her injury.She also had diminished sensation and increased numbness and tingling.Although her Tinel's test remained negative, her Phalen's test was now positive.She recovered from the neuroma surgery, however, and on January 31, Dr. DeLapp released her to normal activities as tolerated.On February 16, Ms. Alexander again returned to Dr. DeLapp with a painful mass in her wrist.Dr. DeLapp diagnosed this as a ganglion cyst, also a common and well-documented complication in wrist fractures, and scheduled her for surgery, as the cyst was painful and impaired Ms. Alexander's mobility.

Ms. Alexander was now experiencing pain and difficulty with everyday tasks, including work-related activities, despite extensive physical therapy and continued use of a brace.Dr. DeLapp testified that her deteriorating condition hampered her ability to perform her job.Where she once attracted management's attention for her outstanding job performance, she now experienced harassment for her frequent visits to physician's appointments and physical therapy.At different intervals during the course of her treatment, her doctor advised her to limit the amount of weight she lifted, as well as to curb repetitive motion, as that would exacerbate her carpal tunnel symptoms.Although Autozone provided some assistance with loading heavy equipment into her truck while at Autozone, she had no help available when sheunloaded the same equipment upon delivery to the customer.The various equipment and parts weighed between twenty-five to sixty pounds.Her job also required daily repetitive motion, including using the computer.Because of the unrelenting pain, Ms. Alexander concluded that she was no longer able to work and resigned from her position on February 19, 2001.Although she made efforts to seek employment elsewhere, her continued pain and impairment led her to believe that she would not be able to perform any kind of work, and she discontinued her search.

Despite her hiatus from work, her wrist continued to worsen.Although Dr. DeLapp removed the first ganglion cyst, another mass developed and he diagnosed her as having a recurrent ganglion cyst.He also diagnosed her with carpal tunnel syndrome on April 27, 2001.A nerve conduction study performed in May, however, did not demonstrate carpal tunnel syndrome.Nevertheless, Ms. Alexander continued to exhibit symptoms and returned to Dr. DeLapp in August complaining of numbness and tingling.At deposition, Dr. DeLapp stated that, although the nerve conduction test is fairly accurate, there is a recognized possibility of a false negative.In that event, the study would indicate the patient did not have carpal tunnel, although the patient suffered all the positive symptoms of the syndrome.Dr. DeLapp determined that was the case here.Ms. Alexander had worn a brace for several months, but continued to suffer numbness and tingling, particularly during any kind of repetitive activity.He concluded that the nerve conduction study had yielded a false negative and that Ms. Alexander did in fact have carpal tunnel syndrome.He recommended surgery.

Autozone, however, did not approve the surgery.By December of 2001, Ms. Alexander's condition had significantly deteriorated.Her carpal tunnel syndrome had not responded to extensive nonsurgical intervention and her wrist was painful and swollen.A year went by before Dr. DeLapp saw Ms. Alexander again.In December of 2002, he again examined her wrist and discovered that, as a result of her untreated carpal tunnel syndrome, her wrist muscles had started to atrophy.Atrophy is permanent and irreversible and will inevitably lead to progressive loss of the use of her hand.Dr. DeLapp recommended immediate surgery to treat the carpal tunnel syndrome.The sooner Ms. Alexander undergoes surgery, the sooner the atrophy can be arrested; she may yet avoid accrual of a functional deficit in the use of her thumb.

The trial court found that Ms. Alexander had suffered temporary total disability, and ordered Autozone to pay indemnity benefits.The trial court also ordered Autozone to authorize the carpal tunnel surgery.In addition, the judgment included attorney fees and penalties for Autozone's failure to pay indemnity benefits, failure to pay certain medical bills, and refusal to authorize the surgery.

III.

LAW AND DISCUSSION

Temporary Total Disability

The trial court found that Ms. Alexander had proved she was temporarily totally disabled, and ordered Autozone to pay indemnity benefits.Autozone, in turn, argues that Ms. Alexander offered insufficient medical evidence to show she was disabled to such an extent that she was unable to work at any kind of job.Additionally, Autozone reasons that, since she left her position at Autozone voluntarily, she was actually capable of working but simply chose not to.To the contrary, the trial court determined that Ms. Alexander presented sufficient evidence to show her condition rendered her unable to work.

Louisiana Revised Statutes 23:1221(1)(c) establishes the criteria for awarding temporary total disability benefits.The employee must show "by clear and convincing evidence ... that the employee is physically unable to engage in any employment or self-employment...."The trial court's determination that an employee has or has not fulfilled her burden of proof under the statute requires a finding of fact "governed by the manifest error or clearly wrong standard and will not be disturbed absent such a finding."Ratliff v. Brice Bldg. Co., 03-624, p. 6(La.App. 5 Cir.11/12/2003), 861 So.2d 613, 617.The appellate court must determine "not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one."Newson v. Richard Spurgeon Masonry, 03-1367, p. 2(La.App. 3 Cir.3/3/04), 867 So.2d 78, 81, writ denied, 04-839 (La.5/14/04), 872 So.2d 523.

In order to receive benefits for a temporary total disability, the employee-claimant must show, by clear and convincing evidence, that she is physically unable to engage in any kind of employment.Veazie v. Gilchrist Const. Co., 04-118(La.App. 3 Cir.6/2/04), 878 So.2d 742.Clear and convincing proof has been defined as an "`intermediate' standard falling somewhere between the ordinary preponderance of the evidence civil standard, and beyond the reasonable doubt criminal standard."Sarrio v. Stalling Const.Co., 04-34, p. 7-8(La.App. 5 Cir.5/26/04), 876 So.2d 157, 162, writ denied, 04-1593 (La.10/15/04), 883 So.2d 1059.To prove a matter by clear and convincing evidence requires the employee "demonstrate that the existence of a disputed fact is...