Emilien v. CONSTRUCTION

• Decision Date: 30 October 2002
• Docket Number: No. 2002-CA-0278.,2002-CA-0278.
• Citation: 832 So.2d 345
• Parties: Sheila EMILIEN v. U.R. CONSTRUCTION.
• Court: Court of Appeal of Louisiana — District of US

832 So.2d 345

Sheila EMILIEN v. U.R. CONSTRUCTION.

No. 2002-CA-0278.

Court of Appeal of Louisiana, Fourth Circuit.

October 30, 2002.

Sheila M. Emilien, New Orleans, LA, in Proper Person for Plaintiff/Appellant.

John J. Rabalais, Michael K. Springmann, Rabalais, Unland & Lorio, Covington, LA, for Defendant/Appellee.

(Court composed of Judge MIRIAM G. WALTZER, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.).

DENNIS R. BAGNERIS, SR., Judge.

Sheila Emilien brought a negligence action against U.R. Construction, and a claim for benefits with the Office of Workers' Compensation, alleging that she injured her back and foot in a work accident that occurred on June 1, 1999. Ms. Emilien's chief complaint was that she incurred disabling injuries as a result of this accident. After undertaking discovery that centered on the medical records and deposition testimony of the treating physician, the defendant moved for summary judgment, and the trial court granted this motion, dismissing the plaintiff's claim with prejudice.

The plaintiff now appeals from this judgment, asserting one assignment of error that the trial court erred in granting summary judgment without all the facts. For the following reasons, we affirm the trial court's judgment.

FACTS

Ms. Emilien was hired by U.R. Construction as a laborer in April 1999. This case arises out of an alleged June 1, 1999 lifting accident that occurred on the roof of Harrah's Casino. While working as a laborer, the Plaintiff allegedly fell over materials on the roof, where she injured her left foot and her back. After being carried down to the first floor, she was treated on site by safety workers and then taken to Concentra Medical Center on Baronne Street, where Dr. Espenan treated her. After her initial treatment at the Concentra Medical Center, Dr. Bernard Manale, an Orthopedist, also treated her. The majority of evidence gathered during discovery consists of medical records and treating physician testimony of Dr. Bernard Manale.

Specifically, Dr. Manale was deposed on March 28, 2001. This deposition and his medical records demonstrate that he diagnosed the Plaintiff with the following injuries: cervical sprain, possible radiculitis and cervical spondylosis (arthritis of the spine). On September 21, 1999 Dr. Manale recommended a cervical MRI. Regarding these conditions, Dr. Manale concluded to a reasonable medical probability that the observations from the September MRI were not related to the accident of June 1, 1999.

Dr. Manale also diagnosed the following mid-back/thoracic problems in the plaintiff: compression deformity-thoracic vertebra T6 Rule Out Fracture; and compression fracture T5 and/or T6. Dr. Manale testified in his deposition that he could not say if these thoracic problems are related to the June 1, 1999 accident, or not. Per his interpretation of the thoracic MRI of November 1, 1999, he stated that the results of the said MRI were inconclusive.

With regard to the Plaintiff's lower back, Dr. Manale made the following diagnoses: lumbago, lumbar sprain, lumbosacral radiculitis, and lumbosacral neuritis. Dr. Manale also testified that the Plaintiff's December 7, 1999 visit was the first time that the Plaintiff complained of low back pain. Dr. Manale found that he couldn't relate the low back complaints to the June 1, 1999 accident date without symptoms in that area of the Plaintiff's body. Dr. Manale also found that he could not relate his findings of bilateral SI radiculopathy, to the accident per the results of April 11, 2000 EMG/nerve conduction studies.

PROCEDURAL HISTORY

On September 21, 2000, the Plaintiff filed Form 1008 with the Louisiana Department of Labor, setting forth in summary fashion her version of the above-mentioned facts related to the alleged accident. After considerable discovery centering on the Plaintiff's medical condition, Defendant moved for Summary Judgment.

On October 1, 2001, the trial court granted the Defendant's Motion for Summary Judgment. In its reasons for granting summary judgment, the trial court noted the following: inter alia:

The general principle of law is that claimant is entitled to a "healthy employee" presumption that the accident was a cause of the disability, if the claimant was in good health before the accident, the symptoms of the disabling condition appeared after the accident and the symptoms were continuous thereafter and if there is a reasonable probability of a causal connection between the accident and disabling condition. [sic]

However, there is no affidavit by claimant nor any other evidence as to the status of her health before the accident. Therefore, claimant is not afforded the "healthy employee" presumption.

The medical records of Concentra Medical Center, defendant's choice are sketchy at best. But, there is a diagnosis of "thoracic sprain" on June 3, 1999.

Defendant did not offer any evidence of any intervening accident except in Dr. Manale's deposition that claimant said she had an automobile accident December 28, 1999.

However, by Dr. Manale's records, claimant complained of low back pain on December 7, 1999, which was prior to the automobile accident. (See typed office notes of December 7, 1999.) Dr. Manale can not [sic] relate a "thoracic injury" to the accident on June 1, 1999. He opined it "too close to call." (Depo. Dr. Manale p. 33)

Defendant attorney asked numerous questions to Dr. Manale about claimant's Charity records on drug abuse and mental illness. Dr. Manale did not see the Charity records. Furthermore, nothing was introduced to support those questions on drug abuse and mental illness except claimant's statement to Dr. Manale that was claimant [sic] a recovering addict. (Dr. Manale depo. P. 44)

Claimant's first Complaint of left foot pain to Dr. Manale was on October 26, 2991[sic]. Dr. Manale opined it was possibly due to radicular symptom from her lumbar spine or thoracic. (Depo. Dr. Manale p. 38)

The MRI done on November 1, 2999[sic] of thoracic spine, which showed "wedging of T-4." (Depo. Dr. Manale p. 40). However Dr. Manale did not have enough information to relate it to the June 1, 1999 accident. (Depo. Dr. Manale p. 41). Claimant did not complain etc.........

Claimant has failed to carry her burden of proof that any of her complaints were caused by or aggravated by the June 1.1999 accident.

This is a final appealable judgment as this case has been dismissed with prejudice because claimant can not carry her burden of proof the accident was a factor is [sic] the causation of these injuries.

DISCUSSION

Plaintiff/Appellant alleged in one assignment of error that is reversible error that counsel was not present at the time of the deposition of Dr. Manale, and that the trial court erred in granting summary judgment without all the facts. The latter issue comprises the thrust of the Plaintiff's argument, which would have this court believe that there is "new evidence" that the trier of fact did not have at the time of the hearing. To wit, the Plaintiff attached excerpts of Dr. Manale's records and excerpts of his March 28, 2001 deposition. These records included the records, which the Plaintiff attached to her brief, namely the July 13, 1999 hand-written notes, the Patient Questionnaire and the typed July 13, 1999 office visit notes and the August 10, 1999...