Anderson v. Kroger

• Decision Date: 11 December 2013
• Docket Number: No. 13–259.,13–259.
• Citation: 127 So.3d 1026
• Parties: Linda ANDERSON v. KROGER, # 747 et al.
• Court: Court of Appeal of Louisiana — District of US

127 So.3d 1026

Linda ANDERSON

v.KROGER, # 747 et al.

No. 13–259.

Court of Appeal of Louisiana, Third Circuit.

Dec. 11, 2013.

Marcus Miller Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Linda Anderson.

Joseph Richard Pousson, Jr., Plauche', Smith & Nieset, Lake Charles, LA, for Defendants/Appellants, Kroger # 747, Sedgwick CMS.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.

GREMILLION, Judge.

The Kroger Company and its workers' compensation administrator, Sedgwick CMS, appeal the judgment in favor of the claimant, Linda Anderson. For the reasons that follow, we affirm in part as amended and remand for further proceedings.

FACTS

On May 31, 2010, Anderson was employed in the meat department at Kroger's store number 747 in Sulphur, Louisiana, when she claims she tore her rotator cuff while stocking the meat coolers. Her job required that she lift forty-pound boxes of meat from a pallet onto a cart and then place the meat in the coolers. Anderson began to experience pain in her shoulder that day and testified that she notified her immediate supervisor, Mr. Tannis Fruge, that she was unable to perform a work task because of her pain.

Anderson continued to work for about two weeks by adjusting how she performed her tasks. On June 14, 2010, though, Anderson sought medical attention from Mary Beth Neeley, a nurse practitioner in the office of Anderson's family physician, Dr. Akbar Khan. Neeley ordered an MRI of Anderson's shoulder that revealed a high-grade partial tear of the subscapularis tendon, which is part of the rotator cuff. Dr. Khan referred Anderson to Dr. Brett Cascio, a Lake Charles orthopedic surgeon. Dr. Cascio saw Anderson once, on June 17, 2010. The interactions with Neeley and Dr. Cascio represent the only treatment for the torn rotator cuff Anderson has received since May 31, 2010.

Before May 31, 2010, Anderson had been treated for shoulder complaints. On January 21, 2004, Anderson complained to her gynecologist, Dr. Cynthia Scott, of sharp, stabbing pain in her left shoulder that she related to the heavy lifting she did at work. In December 2005, Anderson presented to the emergency room at Women and Children's Hospital with complaints of chest pain radiating into her neck, left shoulder, and left arm. Anderson told the ER personnel that she felt her pain was related to stress from caring for her sister, who was dying of cancer. Anderson underwent an EKG at Women and Children's Hospital and was treated by Dr. Carl Fastabend, a Lake Charles cardiologist.

Again Anderson was treated for left shoulder complaints after she fell in April 2007. X-rays taken at West Calcasieu Cameron Hospital in Sulphur showed calcific tendinitis in the supraspinatus tendon in Anderson's left shoulder. She was treated for this condition twice by her then-family physician, Dr. Jose Gonzales. Anderson missed no work as a result of this incident.

After being treated by Neeley and Dr. Cascio after the subject accident, Anderson reported to her store manager, Liza Riley, that she was calling in sick and requesting a leave of absence. Kroger maintained that only after Riley was phoned by Anderson, asking why her leave was not listed as workers'-compensation-related, did it learn that Anderson was claiming that her shoulder was injured at the store two weeks earlier. Riley did testify, though, that she had previously been told that Anderson was complaining of pain.

Kroger maintained that Anderson's shoulder injury was not compensable because she was not injured in an “accident,” as that term is defined in La.R.S. 23:1021(1):

“Accident” means 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.

Specifically, Kroger contended that there was no actual, identifiable, precipitous event that produced objective findings of an injury. The Workers' Compensation Judge (WCJ) found that the medical evidence supported Anderson's claim. The WCJ found that there was an accident, but never addressed Kroger's contention at any length. Kroger also maintained that Anderson violated La.R.S. 23:1208, which prohibits willfully making false statements or representations for purposes of obtaining or defeating workers' compensation payment, in that Anderson denied any shoulder problems before the May 31, 2010, events. The WCJ found that Kroger presented sufficient evidence to controvert Anderson's claim and that no penalties were owed, but that no violation of La.R.S. 23:1208 was proven. However, Anderson was awarded $14,000.00 in attorney fees. Both parties filed motions for new trial that the WCJ denied. The WCJ found that Kroger was initially justified in refusing to pay benefits, but acted unreasonably after discovery. Therefore, the WCJ maintained the award of attorney fees and denied again the award of penalties.

ASSIGNMENTS OF ERROR

Kroger assigns the following errors:

I. The trial court manifestly erred in finding that Anderson was injured in an “accident.”

II. The trial court erred in failing to apply the factual standard set forth in Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992), which is necessary when an alleged accident is unwitnessed.

III. The trial court committed manifest error in finding that plaintiff did not violate La.R.S. 23:1208.

IV. The trial court committed legal error in awarding attorney fees when it found that the imposition of penalties was not warranted, or alternatively committed manifest error in subsequently tacitly finding that the claim was not reasonably controverted, finding attorney fees were warranted

Anderson answered the appeal, asking that the judgment be affirmed except in the denial of penalties and requesting additional attorney fees for work on appeal. She asserts two assignments of error: (1) the WCJ erred in not awarding penalties for failure to pay indemnity benefits and failure to pay medical benefits; and (2) the WCJ erred in failing to award temporary total disability (TTD) benefits.

ANALYSIS

The entitlement to workers' compensation benefits is established in La.R.S. 23:1031(A), which provides:

If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

The Louisiana Supreme Court rendered a per curiam opinion on the issue of whether an accident has occurred:

The employee in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357, 360 (La.1992); Ardoin v. Firestone Polymers, L.L.C., 10–0245, p. 5 (La.1/19/11), 56 So.3d 215, 218. An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment, if the employee can satisfy two elements: (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. Bruno, 593 So.2d at 361;Ardoin, 56 So.3d at 218–219. In deciding whether the plaintiff has discharged his or her burden of proof, the fact-finder should accept as true a witness's uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” Bruno, 593 So.2d at 361. The fact-finder's determinations as to whether the worker's testimony is credible, and whether the worker has discharged his or her burden of proof, are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno, 593 So.2d at 361;Ardoin, 56 So.3d at 219.

Marange v. Custom Metal Fabricators, Inc., 11–2678, p. 6 (La.7/2/12), 93 So.3d 1253, 1257–58.

In Marange, the employee testified that he injured his back while using a seven-inch metal grinder. The worker testified that he did not report the incident to anyone that day because simple muscle strains are not uncommon; however, he testified that he told the company bookkeeper the following day. A critical factual issue was whether the employee had, as he testified, used the grinder at shoulder level, because such use was the only manner of use that would be consistent with his injury.

The WCJ found for the employer because the other evidence in the case, specifically the testimony of the claimant's fellow employees, cast serious doubt on his account of the accident. The employee appealed to this court, and we reversed. Marange v. Custom Metal Fabricators, Inc., 11–743 (La.App. 3 Cir. 11/2/11), 75 So.3d 990. We found that the testimony of the co-workers did not contradict the employee's account of the accident.

The supreme court found that this court had substituted its factual conclusions for the WCJ's. In Canter v. Koehring Co., 283 So.2d 716 (La.1973), the supreme court established the principle of deference we are required to give to the factual findings of the trier of fact—principles that the supreme court “has consistently and scrupulously adhered to” during the four decades since that case was decided. Marange, 93 So.3d at 1258.

So we are tasked with determining whether the record reflects a reasonable basis for the WCJ's findings. We conclude that it does.

The medical evidence supports Anderson's contention that her rotator cuff tear was acute and did not result from a degenerative process. Kroger argues forcefully, for instance, that calcific tendinitis is associated with rotator cuff tears, and that Anderson had been diagnosed with calcific tendinitis much earlier. This...