Dowell v. Ochsner Clinic of Baton Rouge, No. 2003 CA 0460 (La. App. 3/10/2004)

• Citation: 874 So.2d 852
• Decision Date: 10 March 2004
• Docket Number: No. 2003 CA 0460.,2003 CA 0460.
• Court: Court of Appeal of Louisiana (US)
• Parties: DEANNA O. DOWELL v. OCHSNER CLINIC OF BATON ROUGE AND THE NEUROMEDICAL CENTER.

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DEANNA O. DOWELL v. OCHSNER CLINIC OF BATON ROUGE AND THE NEUROMEDICAL CENTER.

No. 2003 CA 0460.

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: March 10, 2004.

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION DISTRICT 5 STATE OF LOUISIANA No. 00-02970, PAMELA MOSES-LARAMORE, JUDGE PRESIDING.

DANIEL J. DAZET New Orleans, LA Attorney for Plaintiff-Appellee, Deanna O. Dowell.

AMANDA H. CARMON Baton Rouge, LA, Attorney for Defendants-Appellants, The Neuromedical Center and Louisiana Workers' Compensation Corporation

Before: CARTER, C.J., PARRO, AND GUIDRY, JJ.

CARTER, C. J.

This is a workers' compensation case in which the Office of Workers' Compensation Judge (WCJ) rendered judgment in favor of claimant, Deanna O. Dowell, and against her former employer, The Neuromedical Center (Neuromedical), for benefits, penalties, and attorney's fees in connection with claimant's carpal tunnel syndrome. Neuromedical and its insurer, Louisiana Workers' Compensation Corporation, appeal. For the following reasons, we reverse.

BACKGROUND

Claimant was employed as a medical transcriptionist at Ochsner Clinic of Baton Rouge (Ochsner) from October 1997 through June 7, 1999. Her job involved typing medical notes/reports from doctors' dictation. After leaving the Ochsner job, she began the same kind of transcriptionist position at Neuromedical on June 9, 1999. Less than six weeks later, on July 17, 1999, claimant stopped working for Neuromedical because of hand pain and numbness that interfered with her ability to type. Thereafter, claimant performed periodic contract work from her home, worked during January and February 2000 as a secretary/receptionist in a hospital, and worked during May and June 2000 as a secretary/receptionist in a small law firm. Due to continuous problems with pain and numbness in her left hand, claimant underwent surgery for carpal tunnel syndrome in August 2000. She was able to return to full-time employment in October 2000 as a medical transcriptionist for a different employer.

Ochsner paid claimant medical and indemnity benefits from July through December 1999. When her benefits were terminated, claimant filed a disputed claim for compensation against Ochsner and Neuromedical. She settled her claim against Ochsner and proceeded to trial on the merits against Neuromedical. After a trial, the WCJ rendered judgment against Neuromedical, awarding claimant medical and indemnity benefits, with a credit given for payments made by Ochsner, plus attorney fees, penalties, and interest.¹ Neuromedical appeals, arguing that the WCJ erred in requiring it to pay workers' compensation benefits based upon an occupational disease allegedly contracted during claimant's brief six-week employment, and the WCJ erred in finding that Neuromedical had not reasonably controverted claimant's claim.

Claimant admitted at trial, and her medical records confirm, that she first sought treatment for her hand pain on March 10, 1999, while employed at Ochsner. She saw her family physician, Dr. Harold Ishler, and reported that she had suffered for several days with increasing neck and left shoulder pain, as well as swelling in her left hand. Dr. Ishler diagnosed tendonitis/bursitis in claimant's left shoulder and "probable carpal tunnel syndrome" in her left wrist. This was the first mention of carpal tunnel syndrome in claimant's medical records that were admitted into evidence. Claimant followed up with Dr. Ishler on March 15, 1999, for continued pain and decreased range of motion in her left shoulder and upper arm. She was treated with a cortisone injection in her left shoulder.

Approximately four months later on July 19, 1999, claimant returned to Dr. Ishler. She reported that she was experiencing left-hand numbness and pain after a long day of typing at her Neuromedical job. She also complained of having had similar symptoms in her right hand in the past. Dr. Ishler referred claimant to Dr. William J. Hubbard for a surgery consult for bilateral carpal tunnel syndrome. On July 23, 1999, claimant reported to Dr. Hubbard that she had a one-year history of bilateral hand numbness, with her left hand having worse symptoms than her right. Claimant specifically related her hand problems to her transcription work at both her jobs at Ochsner and Neuromedical. At trial, claimant testified that although she had experienced mild soreness in her hands before the July incident at Neuromedical, she had never experienced pain, numbness, and "freezing up" in her hands until July 1999. Claimant stated that due to her hand problems, she could not perform her typing job after July 1999. Dr. Hubbard diagnosed left carpal tunnel syndrome, recommended a nerve conduction study, administered cortisone injections, and restricted excessive use of claimant's left hand for six weeks.

Ochsner requested that claimant see Dr. Gray W. Barrow while paying her workers' compensation benefits. Claimant saw Dr. Barrow several times in August and October 1999 for her hand problems. She explained to Dr. Barrow that her symptoms had been present for approximately one year, but had become progressively worse over time. She complained of left-hand numbness when she typed. Dr. Barrow conducted an EMG nerve conduction study, ruled out carpal tunnel syndrome, and diagnosed claimant with overuse myalgia (muscle pain). Claimant's medical treatment from the various doctors included a splint, cortisone injections, physical therapy, and restrictions on repetitive wrist/hand motions. After a cortisone injection and physical therapy, claimant went without medical treatment for approximately six months. In April 2000, approximately ten months after claimant's employment at Neuromedical ended, she resumed medical treatment for increased pain and numbness in both hands. Dr. Hubbard eventually performed successful left carpal tunnel release surgery for claimant on August 25, 2000. After healing from the surgery, claimant returned to full-time employment as a transcriptionist in October 2000.

LAW AND ANALYSIS

In workers' compensation cases, the appellate court's review is governed by the manifest error or clearly wrong standard. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556. Appellate courts should not disturb reasonable evaluations of credibility and reasonable inferences of fact upon review where conflict exists in the testimony. Id. The WCJ's determinations as to whether claimant was credible and has discharged her burden of proof are factual determinations. However, where one or more legal errors on the part of the WCJ interdicts the fact-finding process, and the record is otherwise complete, the reviewing court should make an independent de novo review of the evidence, giving no deference to the WCJ's factual findings, and render judgment. Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502, 510; Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742, 747; Davies v. Johnson Controls, Inc., 36,498 (La. App. 2 Cir. 10/23/02), 830 So.2d 462, 465, writ denied, 02-2855 (La. 1/31/03), 836 So.2d 70.

Louisiana Revised Statute 23:1031.1A entitles every employee who is disabled because of the contraction of an occupational disease to receive compensation benefits, provided that the employee's illness arises out of and in the course of his employment. An injury due to work-related carpal tunnel syndrome is specifically included as an occupational disease under LSA-R.S. 23:1031.1B. However, LSA-R.S. 23:1031.1D creates a rebuttable presumption in favor of the employer against coverage where the employee has not been performing work for that employer for twelve months or more prior to contracting the occupational disease. The statute further provides that any occupational disease contracted within the twelve months' limitation shall become compensable when the claimant proves that the occupational disease was contracted during the course of the prior twelve months' employment. LSA-R.S. 23:1031.1D was amended by 2001 La. Acts No. 1189, § 1, effective June 29, 2001, to change the burden of proof necessary to overcome the mandatory statutory presumption against coverage from an "overwhelming preponderance" to a mere "preponderance" of the evidence. The amended version of LSA-R.S. 23:1031.1D provides, in pertinent part:

Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months' limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months' employment by a preponderance of evidence. (Emphasis added.)²

Neuromedical does not dispute that claimant suffered from carpal tunnel syndrome. Rather, Neuromedical contends that because claimant was employed at Neuromedical for less than six weeks, the statutory presumption against coverage applies, and claimant failed to carry her burden to overcome the presumption. Neuromedical contends that the heightened burden of proof (overwhelming preponderance) required in the former version of LSA-R.S. 23:1031.1D applies in this case, because the former version of the statute was in effect in 1999 at the time of claimant's carpal tunnel syndrome, at the time of her employment at Neuromedical, and when she sought treatment for her carpal tunnel condition. In support of this argument, Neuromedical cites this court's recent decision, Hurst v. Sanderson Farms, Inc., 02-1334 (La. App. 1 Cir. 5/9/03), 846 So.2d 954, 957-958, wherein another panel of this court specifically held that the governing version of this particular statute is the one that was in effect at the time of...