Carradine v. Regis Corp.

• Decision Date: 03 November 2010
• Docket Number: No. 10-529.,10-529.
• Citation: Carradine v. Regis Corp., 52 So.3d 181 (La. App. 2010)
• Parties: Barbara CARRADINE v. REGIS CORPORATION.
• Court: Court of Appeal of Louisiana

52 So.3d 181

Barbara CARRADINE

v.REGIS CORPORATION.

No. 10-529.

Court of Appeal of Louisiana, Third Circuit.

Nov. 3, 2010.

Marcus P. Lacombe, Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellee, Barbara Carradine.

Kevin A. Marks, Jennifer L. Cooper, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellant, Regis Corporation.

Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, Judges.

CHATELAIN,^* Judge.

**1 The defendant, Regis Corporation(Regis), appeals the judgment of the workers' compensation judge (WCJ) in favor of the claimant, Barbara Carradine, finding that she suffered a compensable injury and awarding her indemnity benefits, medical expenses, penalties, and attorney's fees.We amend in part and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On March 13, 2008, Regis employed Carradine as a hairdresser at Smart Style, which is located in a Lake Charles, Louisiana Wal-Mart.Carradine was permitted to take a break, which she used to smoke a cigarette while sitting on one of the benches outside of the building.While standing up from the bench, Carradine's pant leg became caught on a chain-link fence, causing her to trip and fall, face first, to the ground.The fall resulted in immediately perceivable cuts and bruises to her chin, hands, and knees.

After the accident, Carradine reported her injuries to both Wal-Mart and her direct supervisor, Beth Farque.Carradine was given the rest of the day off to seek medical attention, and she did so by visiting her general physician, Dr. David Hardey.Dr. Hardey diagnosed a myofacial strain of the neck, as well as contusions of the chin, wrists, and knees.Carradine was able to return to work the next day, and she continued to work in the same capacity at Smart Style until February of 2009.

Carradine's neck pain increased progressively from the time of her accident, and she began suffering from headaches and numbness in a left-hand finger.Whilecontinuing to work, she began visiting an orthopedic specialist, Dr. Clark Gunderson, on September 24, 2008.Dr. Gunderson initially diagnosed her with a "cervical **2 straining type injury superimposed on cervical disc disease," following a physical examination and an X-ray.An MRI performed at the time of her first visit with Dr. Gunderson revealed that her specific neck injuries constituted cervical spondylosis and facet arthropathy of the C4-5, C5-6, and C6-7 vertebrae.Dr. Gunderson's initial course of treatment included sending Carradine to physical therapy and prescribing a muscle relaxant and an anti-inflammatory agent.

In September of 2008, Carradine also visited Dr. Don Bravin, an eye doctor, because she had been having headaches and seeing "flashes" and "floaters" since her fall.After performing routine diagnostic examinations, Dr. Bravin did not reach a definite conclusion regarding the relationship between Carradine's headaches and vision problems.He also did not provide or recommend any treatment.

At first, Carradine's pain lessened with the physical therapy, but her pain began to increase again at the beginning of 2009.Dr. Gunderson then prescribed a course of two steroid injections to the cervical spine, which provided only temporary relief.By February 13, 2009, Carradine's pain had reached the point that she felt unable to continue working, and she obtained a work release from Dr. Gunderson.She stopped working on March 6, 2009.By the time of trial, Dr. Gunderson had concluded that surgery was necessary and recommended that she undergo an anterior cervical fusion.

Carradine did not make any claim or demand for workers' compensation benefits from Regis until March 9, 2009, when she filed a disputed claim for compensation with the Office of Workers' Compensation.Regis filed an answer on March 27, 2009, denying that Carradine had suffered a compensable injury.At Regis' request, Carradine submitted to an independent medical examination (IME) from Dr. Michael Holland, an orthopedic surgeon Regis selected.Dr. Holland diagnosed**3 Carradine with pre-existing disc disease that was exacerbated by her fall.He opined that on June 24, 2009, the date of his examination, Carradine was capable of returning to work, but he deferred to Dr. Gunderson regarding Carradine's work status prior to his examination.Last, he opined that Carradine had reached Maximum Medical Improvement (MMI), but he also stated that she could become a candidate for surgery if her pain progressed.

After a trial on the merits, the WCJ found that Carradine's fall and subsequent injuries both occurred during the course of her employment with Regis and arose out of that employment.The WCJ stated in oral reasons that she gave great weight to the opinions of Dr. Gunderson and that the evidence presented did not discredit or otherwise contradict Carradine's version of the events.The WCJ held that Carradine was entitled to indemnity benefits for the entire time that she has not been working and that she was entitled to medical expense benefits in accordance with the reimbursement fee schedule for all of the medical diagnoses and treatments listed in her post-trial brief.Finally, the WCJ awarded penalties for Regis' failure to timely pay both the indemnity and medical expense benefits, as well as attorney's fees.

On appeal, Regis assigns error to the WCJ's judgment on five separate issues.Regis contends that the WCJ erred by: (1) finding that Carradine's accident both arose out of and occurred during the course of her employment with Regis; (2) awarding indemnity benefits to Carradine; (3) awarding medical expense benefits ascausally related to Carradine's fall; (4) failing to cap any awarded medical expenses at $750 per healthcare provider; and (5) awarding penalties and attorney's fees.Carradine has answered, asserting that the award of medical expenses and penalties **4 should have been higher and requesting a further increase in attorney's fees for the cost of representation in this appeal.

DISCUSSION

Standard of Review

In workers' compensation cases, the factual findings of the trial court are subject to the manifest error standard of review.Smith v. Louisiana Dep't of Corrections, 93-1305, p. 4(La.2/28/94), 633 So.2d 129, 132;Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5(La.1/14/94), 630 So.2d 733, 737-38.In applying the standard, the appellate court must not determine whether the trier of fact's conclusion was right or wrong, but that it was reasonable.Freeman,630 So.2d at 737-38;Stobart v. State,617 So.2d 880, 882(La.1993);Mart v. Hill,505 So.2d 1120, 1127(La.1987).Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous.Stobart,617 So.2d at 882.Therefore, "if the [fact finder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if 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).

Landry v. Furniture Ctr., 05-643, pp. 5-6 (La.App. 3 Cir.1/11/06), 920 So.2d 304, 309%, writ denied, 06-358 (La.4/28/06), 927 So.2d 290.

Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.Robinson v. North American Salt Co., 02-1869(La.App. 1 Cir.2003), 865 So.2d 98, 105[, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139].

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Arising Out of Employment and Course of Employment

Regis contends that Carradine is not entitled to workers' compensation benefits.It argues that her injury neither arose out of her employment with Regis nor occurred in the course of that employment.

**5 Louisiana Revised Statutes 23:1031 provides that an employee is not eligible for workers' compensation unless she has "receive[d] personal injury by accident arising out of and in the course of [her] employment."The two requirements of arising out of employment and course of employment are separate but mutually interdependent concepts used to determine whether the injury is sufficiently related to the employment to warrant coverage under the system of workers' compensation.SeeMundy v. Dep't of Health & Human Res.,593 So.2d 346(La.1992).As such, a strong showing of one of these factors may counterbalance a relatively weak showing of the other.Id.

Generally, the arising out of employment requirement "focuses on the character or source of the risk" that caused the claimant's injury.Mundy,593 So.2d at 349.Its purpose is to distinguish between employment risks and personal risks, as the statutory scheme does not ordinarily hold the employer responsiblefor purely personal risks.Id.For this purpose, courts often consider whether the risk that led to the injury was greater for an employee than for someone who does not work for the employer.Id.

However, the Louisiana Supreme Court has also identified a third category of risks, the nature of which is neither particularly personal nor particularly employment-related.Id.Furthermore, it has recognized that these neutral risks make the arising out of employment determination problematic.In these cases, the interrelated nature of the two requirements allows us to defer to the course of employment requirement and simply consider whether "the conditions or obligations of the employment caused the employee in the course of employment to be at the place of the accident at the time the accident occurred."Id. at 349.

**6 The course of employment requirement focuses on the employee, primarily her "time, place, and employment activity."Id.An employee does not always have to be actively engaged in the performance of employment duties to...