Colwell v. Summit Ret. Ctr., 12–1186.
| Decision Date | 06 March 2013 |
| Docket Number | No. 12–1186.,12–1186. |
| Citation | 128 So.3d 1029 |
| Parties | Cindy COLWELL v. The SUMMIT RETIREMENT CENTER. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
George A. Flournoy, Flournoy & Doggett (APLC), Alexandria, LA, for Plaintiff–Appellee, Cindy Colwell.
Lawrence B. Frieman, Janna C. Bergeron, Juge, Napolitano, Guilbeau, Ruli & Frieman, Covington, LA, for Defendant–Appellant, The Summit Retirement Center.
Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
The Summit Retirement Center (Summit) appeals the ruling of the Workers' Compensation Judge (WCJ) finding in favor of Cindy Colwell (Colwell) and awarding temporary total disability (TTD) benefits, medical expenses, travel expenses, $8,000.00 in penalties, and $10,000.00 in attorney fees. We affirm and award Colwell an additional $3,500.00 in attorney fees for work done in connection with this appeal.
Colwell, a registered nurse, was employed by Summit. At approximately 4:00 p.m. on Friday, February 11, 2011, Colwell was assisting another nurse in transferring a patient from a wheelchair to a bed. Colwell alleged that the transfer was difficult because the patient was heavyset and that this was the only strenuous activity that she had to perform at work that day. Colwell left work at 5:00 p.m., drove home, and then later met her daughter and granddaughter for dinner. At dinner, Colwell began to feel burning and tingling in her neck. Over the weekend, the pain significantly worsened, and, on Sunday, she reported the transfer incident to her supervisor and told her supervisor that she was going to the emergency room. Colwell'smother took her to the emergency room. She attempted to return to work on February 21 and 22, 2011, but was unable to do so. Her primary care physician, Dr. Bruce Barton, took Colwell off work and referred her to a neurosurgeon, Dr. Gregory Dowd (Dr. Dowd). An MRI showed a C5–6 disc protrusion. Dr. Dowd related this to the transfer incident of February 11, 2011. Colwell began conservative treatment and returned to work on light duty on April 4, 2011. Summit terminated Colwell's employment on June 20, 2011, but did pay (and is continuing to pay) indemnity benefits.
Colwell began treating with Dr. Clark Gunderson (Dr. Gunderson), an orthopedist, on July 5, 2011. She underwent an anterior cervical fusion performed by Dr. Gunderson on November 21, 2011. Summit paid for the surgery. At present, she is still treating with Dr. Gunderson and has not been released to return to work because, in addition to her neck problems, she is suffering from carpal tunnel syndrome and depression.
Colwell filed a disputed claim for compensation seeking payment of medical expenses, travel expenses, and penalties and attorney fees. Following trial, the WCJ found that Colwell had met her burden of proving that she suffered a work-related accident on February 11, 2011, and was entitled to TTD benefits; that Colwell had met her burden of proving that her carpal tunnel syndrome was work-related and that Summit was responsible for medical treatment associated therewith; that Summit was responsible for payment of the costs of treatment for depression and associated medications; and that Summit was responsible for travel expenses. The WCJ further awarded Colwell $8,000.00 in penalties for Summit's failure to pay for anti-depressant medication, failure to pay hotel and meal expenses, failure to pay mileage expenses, failure to pay medication costs, and failure to pay for a rib x-ray. Colwell was also awarded $10,000.00 in attorney fees. Summit filed this appeal, and Colwell answered the appeal seeking an increased award of attorney fees for work necessitated by this appeal. For the following reasons, we affirm the ruling of the WCJ in its entirety and award an additional $3,500.00 in attorney fees for work done in connection with this appeal.
In Stogner v. Smith & Smith, LLC, 11–413, p. 4 (La.App. 1 Cir. 11/9/11), 80 So.3d 47, 50 (citations omitted), the first circuit succinctly stated that: “The employee in a workers' compensation action must prove by a preponderance of the evidence that a work-related event occurred and that an injury was sustained.”
Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004–0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86. Factual findings in a workers' compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 2000–1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96–2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Thus, “[i]f the [fact finder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though 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). Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 2001–0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.
The finding of disability within the framework of the workers' compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately, the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Severio v. J.E. Merit Constructors, Inc., 2002–0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 465, 469.
Batiste v. Tenet Healthcare Corp., 09–1192, pp. 3–5 (La.App. 1 Cir. 2/12/10), 35 So.3d 352, 354–55,writ denied,10–559 (La.5/7/10), 34 So.3d 864.
Summit first argues that the WCJ...
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