Broussard v. Stine Lumber Co.

• Decision Date: 25 January 2012
• Docket Number: No. 11–168.,11–168.
• Parties: Roberta BROUSSARD v. STINE LUMBER COMPANY.
• Court: Court of Appeal of Louisiana — District of US

82 So.3d 1274

Roberta BROUSSARD

v.STINE LUMBER COMPANY.

No. 11–168.

Court of Appeal of Louisiana, Third Circuit.

Jan. 25, 2012.

Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellant, Roberta Broussard.

Christopher P. Ieyoub, Plauche, Smith & Nieset, LLC, Lake Charles, LA, for Defendant/Appellant, Stine Lumber Company.

Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.

KEATY, Judge.

[3 Cir. 1] In this workers' compensation case, the plaintiff-employee allegedly injured herself while lifting paint cans at work, which resulted in back, neck, and shoulder pain, and facial numbness. After considering the law and the evidence, the workers' compensation judge (WCJ) ultimately found that there was an accident and the employee had been injured; that the employee was unable to prove that she was incapable of returning to work; and that her benefits would be terminated. Additionally, the WCJ assessed penalties and attorney fees against the employer in the amounts of $8,000.00 and $12,000.00 respectively. Both the employer and the employee appeal that judgment. Finding that the WCJ was manifestly erroneous in determining that there was an accident as defined by La.R.S. 23:1021(1), we reverse.

FACTS

Roberta Broussard was a fifty-seven-year-old employee who had been employed in the hardware department at Stine Lumber Company for a number of years before allegedly suffering an accident on February 21, 2004. On that day, Broussard was working in the paint department and was asked by a customer to mix several gallons of paint. Although she knew that lifting the cans of paint would hurt her back and that assistance was available so that she did not have to lift anything, Broussard helped the customer with the request. The customer wanted approximately four gallons of paint mixed. She lifted each one-gallon paint can separately.

Later that day, her back began to hurt. She reported the alleged incident and correlating pain to her manager and then continued working her shift. Several days later, she complained to the same manager of numbness in her face, in addition to the initial back pain. She was sent to the company doctor, Dr. Kerry Kilgore. Ultimately, [3 Cir. 2] Dr. Kilgore referred her to Dr. Stan Foster, an orthopedic physician, for a second opinion.

Dr. Foster treated Broussard conservatively for her shoulder pain. Eventually, Dr. Foster referred Broussard to Dr. Ricardo Leoni, a neurosurgeon, for treatment of her neck pain, while he continued to treat her shoulder pain.

Dr. Leoni performed two surgeries on Broussard's neck. In June of 2006, after determining that there was nothing more he could do for Broussard, Dr. Leoni referred her to Dr. John Schutte, an orthopedist. She presented to Dr. Schutte complaining of shoulder pain and facial numbness.

Dr. Schutte determined that her shoulder symptoms were mild and that she did not have enough pain to warrant surgery or to quit work. He testified that Broussard wanted to do something more, even though he did not think pain management or rehabilitation would improve her condition. He then ordered a Functional Capacity Evaluation (FCE), which was not conducted until nearly nine months later.

Broussard only completed three of the eight hours of FCE testing. The therapist ended the evaluation because Broussard complained of pain and her blood pressure increased when she made the complaints. After reviewing the FCE, Dr. Schutte determined that the FCE did not reflect her physical capabilities, released her to return to light-duty work, and determined that she no longer needed chiropractic care with Dr. Donald Marx.

Broussard then saw Dr. John Cobb for her shoulder pain and to determine whether her low back pain was caused by the alleged accident on February 21, 2004. Intermittently, between the date of the accident and the date of trial, Broussard attended physical therapy sessions that were ordered by Drs. Foster and Leoni, and [3 Cir. 3] saw her chiropractor, Dr. Marx, for palliative relief of her pain. Broussard continued to work in her capacity as manager of the hardware department on a full-time basis for nearly nine months after the alleged accident occurred.

Prior to the alleged injury on February 21, 2004, Broussard was injured in a 1991 car accident with an eighteen-wheeler, a 1992 tree-cutting accident, a 2000 work-related accident, which resulted in low back and right arm pain, and a 2001 work-related accident in which a peg board and merchandise fell on top of her, injuring her neck. She failed to provide a complete medical history to any of her treating physicians after the 2004 accident. Additionally, if she told her doctors about past pain stemming from the other accidents, she claimed the pain had dissipated, though her testimony in court was that the pain was intermittent since those previous accidents.

Broussard's medical records show that she had complaints of low back pain, left and right shoulder pain, and numbness in her face dating back to at least 2000. In 2000, she suffered a work-related accident and injured her back. Although she stated that her back pain from the 2000 injury resolved, evidenced by the fact that she kept working, she also testified that every time she worked in the paint department it would flare up.

She confirmed that Stine provided help for people who needed help lifting or moving items, testifying that “I was just told that I needed to call for—you know, I could call for help, and they would come help me.” Despite knowing that working in the paint department caused her back pain to flare up and that she could call for help and someone would assist her, Broussard mixed and lifted paint cans for a customer on February 21, 2004.

[3 Cir. 4] In January 2007, Broussard was released by Dr. Schutte for light-duty work, and Stine offered her a position answering the telephone. She was provided a chair located within reach of the telephone. She was allowed to get up and move around whenever she needed. Broussard testified that the pain was so severe that she was unable to sit down and answer the phone; that she had to leave work because of the pain; and that, as a result of the pain, she had to seek chiropractic treatment from Dr. Marx.

In a second attempt to provide Broussard with employment that she was physically able to do, Stine offered Broussard a choice of three light-duty positions in 2008. Broussard's attorney informed her of the available positions, and Broussard responded that she would check into it. She never did.

From February 2004 until April 29, 2009, the date of trial, Broussard saw at least seven doctors ¹ and a physical therapist. Numerous diagnostic tests were performed, including a CT scan of the cervical area, MRIs of the cervical, brain, and lumbar areas, cervical and lumbar x-rays, a bone scan, and a cervical myelogram. Broussard testified that she did not pay for any of the physician visits or diagnostic testing and that the only unpaid bills are some for Dr. Marx. When asked, her physicians testified that at least some of the physiological injuries they found were because of degenerative diseases like arthritis or because of her age.

[3 Cir. 5] PROCEDURAL HISTORY

Broussard filed a disputed claim for compensation on January 8, 2007. In that claim, she alleged that she was injured during the afternoon of February 21, 2004 while lifting paint cans. She disputes the workers' compensation rate, claiming it should be “more,” sought choice of physician, complained that Stine had stopped treatment by Dr. Marx, and sought penalties and attorney fees. Broussard also filed a motion and order to compel medical treatment on January 19, 2007.

On May 4, 2007, the parties convened for a hearing on Broussard's choice of physician, particularly her desire to see an orthopedist other than Dr. Schutte. Although she had signed choice of physician forms for Drs. Foster, Leoni, and Schutte, Broussard claimed she was never allowed to choose her physicians. However, at the hearing, Broussard testified that Dr. Foster had given her the names of several doctors, and her companion who was with her at the time, had heard of Dr. Schutte, and that was why she chose this particular doctor. She never made a request to change orthopedic doctors with either Stine or its insurance company before filing the motion and order to compel medical treatment.

The WCJ found that Broussard had chosen her physicians but ordered that she could choose a different orthopedic physician of her choice to treat her shoulder and to examine her lower back to determine whether that pain was caused by the February 24, 2004 incident. The WCJ also ordered that Broussard identify a pain management doctor, and that, once she did so, authorization would be approved.

On April 29, 2009, the remaining issues were tried. The WCJ found that Broussard's testimony “went beyond acceptable ‘self-serving’ to the point where her testimony at trial completely contradicted other statements she had made, either in her [3 Cir. 6] deposition or her histories to the doctors.” Despite that finding, the WCJ found that an accident occurred on February 21, 2004. The WCJ further found that Broussard presented a prima facie showing of an inability to earn ninety percent or more of her pre-injury wage before February 5, 2007, that the employer gave Broussard a sedentary job that allowed her to move about and paid ninety percent of her pre-injury wage, and that Broussard could perform the job but for her complaints of pain. The WCJ found that she did not prove by clear and convincing evidence that she was unable to perform the job due to substantial pain.

The WCJ terminated Broussard's indemnity benefits as of February 5, 2007, and found that she was entitled to indemnity benefits in the sum of $238.46 per week from November 15, 2004 until February 5, 2007. The WCJ found that no further...