Frazier v. Conagra, Inc.

• Decision Date: 01 November 1989
• Docket Number: No. 20886-CA,20886-CA
• Citation: 552 So.2d 536
• Parties: Georgia FRAZIER, Appellant, v. CONAGRA, INC., et al, Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 536

552 So.2d 536

Georgia FRAZIER, Appellant, v.CONAGRA, INC., et al, Appellees.

No. 20886-CA.

Court of Appeal of Louisiana Second Circuit.

Nov. 1, 1989.

Rehearing Denied Dec. 1, 1989.

Writ Denied Feb. 16, 1990.

William H. Baker, Jonesboro, for plaintiff-appellant.

Cook, Yancey, King & Galloway by Sidney E. Cook, Jr., Shreveport, for defendants-appellees.

Before HALL, FRED W. JONES, Jr., and HIGHTOWER, JJ.

FRED W. JONES, Jr., Judge.

In this action for worker's compensation benefits, plaintiff appealed the judgment of the trial court denying her worker's compensation benefits for total and permanent disability or temporary total disability and failing to order rehabilitation as the result of her work-related injury.For the reasons stated herein, we find that the trial court erred in failing to find that the plaintiff was temporarily totally disabled and in failing to consider rehabilitation services.

Issues Presented

On appeal, the plaintiff asserts the following assignments of error:

1) The trial court erred in failing to find that the plaintiff had sustained a total and permanent disability and/or a temporary total disability;

2) The trial court erred in failing to order rehabilitation for the plaintiff;

3) The trial court erred in finding that the plaintiff could return to a light work office job that was offered at wages equal to her former employment and in terminating benefits because of that job offer;

4) The trial court erred in failing to award plaintiff compensation having found that the plaintiff was not the type of person who would be an office worker and could only return to light work;

5) The trial court erred in failing to award future medical and expenses to the plaintiff;

6) The trial court erred in failing to award attorney's fees in an amount in excess of $4000, and 7) The trial court erred in refusing to grant penalties on the entire award.

Factual Context

The record shows that on October 22, 1986, plaintiff was employed by Conagra, Inc., at the Country Skillet Poultry Company in Arcadia.She had been employed by Conagra for approximately five years and was working 40 hours per week at the rate of pay of $5.20 per hour.Part of the plaintiff's duties included taking chickens off the breast processor machine in an assembly line.On that date, plaintiff was operating the breast processor machine when a piece of steel hung into her left arm and hand causing a severe laceration.

Plaintiff was transported to Doctors' Hospital in Shreveport for treatment of the injury.She sustained extensive muscle damage and an injury to a branch of the radial nerve in her left arm.It appears that the laceration on her left arm began just below the elbow and extended approximately half-way down the forearm.Plaintiff had the use of her arm and hand but had loss of extension of her thumb and all of her fingers.The wound was cleaned and several nerves in the plaintiff's arm were repaired.On December 4, 1986, she underwent a surgical procedure for tendon transfers to restore finger extension, thumb abduction and thumb extension.

Plaintiff's treating physician was Dr. Craig Springmeyer, an orthopedic surgeon.On October 31, 1986, Dr. Springmeyer was of the opinion that although surgery was anticipated, plaintiff could return to "light duty" with no use of the left forearm in November.On this basis, plaintiff's compensation benefits, which had commenced on October 23, 1986, were terminated for a two week period beginning on November 23, 1986, and plaintiff was offered "light duty" by Conagra.The benefits were reinstated when plaintiff underwent the tendon transfer on December 4, 1986, and later terminated on March 30, 1987.The termination of benefits at that time was based upon a report from Dr. Springmeyer dated March 30, 1987, wherein he stated that over the next few months plaintiff should be able to return to her regular activities if she were having no problems.Dr. Springmeyer indicated that plaintiff could return to any activity that did not require any real use of her left upper extremity, except lifting a pound or two, or repetitive motions of her hands.

On April 3, 1987, plaintiff was contacted by Mattie Huckaby, safety coordinator for Conagra, and informed of a "light duty" position in the personnel office that met the restrictions imposed upon plaintiff by Dr. Springmeyer.The job primarily involved marking export bags with a marking pen, answering the phone and a few simple clerical duties.Conagra asserted that the position of marking bags was not specifically created for the plaintiff but was a job that had to be done under an export contract.This position offered wages equal to the wages the plaintiff was earning at the time of the accident.Alleging that she was physically unable to work, plaintiff refused the "light duty" job.

Plaintiff then filed this action for worker's compensation benefits, naming as defendants, her employer, Conagra, Inc., and its insurer, Hartford.In her petition, plaintiff alleged that as a result of the work-related accident and the injury sustained by her, she had become totally and permanently disabled.Plaintiff alleged that she was entitled to the maximum benefits available and that while some worker's compensation payments had been made, plaintiff's benefits had been discontinued as of March 30, 1987.Plaintiff also alleged that despite notice of her injury and disability, demands for payment and recommendations of the Office of Worker's Compensation, defendants had refused to pay worker's compensation benefits as well as the medical bills and expenses incurred as a result of the injury.Plaintiff alleged that the defendants' failure to pay benefits and medical expenses had been arbitrary, capricious and without probable cause, therefore entitling plaintiff to an award of statutory penalties together with reasonable attorney's fees.Plaintiff prayed for a judgment awarding her benefits at the maximum rate for each weekly period from October 22, 1986, during the period of her disability and medical expenses incurred or to be incurred for the treatment of her injuries as well as travel expenses.

The evidence at the trial on the merits established that the breast processor machine splits the chicken breasts with a cutter and sends them down to another bin.It is necessary for the person operating the machine to use both arms and hands to continuously place the chicken upon the cutter.The work is highly repetitive.The machine will handle up to 37 chickens a minute and the machine operates at this rate approximately 75 to 80% of the time.The operators of the machine receive two 10 minute breaks and a 30 minute lunch break during their eight hour shift.

Plaintiff testified she had a tenth grade education, can read and write a little and has only worked at Conagra on the assembly line.Plaintiff testified that in November, 1986, when she was requested to return to work for "light duty", she was physically unable.Plaintiff stated that she could hardly stand up and was incapable of performing any "light duty".Plaintiff stated that she was unable to work at the present time and did not know of any job that she could do with the difficulty that she had with her arm even though she is right-handed.Plaintiff stated that she received a certified letter in April, 1986 from Conagra stating that a "light duty" position had been set up in the personnel office filing papers, etc.Plaintiff testified that the pain that she was experiencing along with the swelling precluded her from performing any "light duties" and she was incapable of clerical duties.Plaintiff stated she was still experiencing pain in her left arm and she could not pick up anything heavy.Plaintiff stated that the condition of her arm had become worse since March, 1987.The arm had less strength and she did not do any activity with it.Plaintiff testified she cannot use her arm as she used to and could not grip or grasp.

Plaintiff's treating physician, Dr. Craig Springmeyer, testified by deposition.Plaintiff was first seen by Dr. Springmeyer on the date of the accident.Dr. Springmeyer repaired the radial nerve and cleaned the wound.He stated most of the nerve had been destroyed.On March 30, 1987, Dr. Springmeyer felt plaintiff could return to any activity that did not require any real use of her left upper extremity, except lifting a pound or two, or repetitive motions of her hands.Dr. Springmeyer said over the next few months plaintiff could return to her regular activities if she were having no problems.On May 1, 1987, Dr. Springmeyer stated it would be beneficial if plaintiff did some type of "light work" at that time to increase her dexterity.If this worked out, Dr. Springmeyer thought she could gradually get back into her previous type work.

On June 29, 1987, Dr. Springmeyer believed plaintiff had reached maximum medical benefit and released her from medical treatment.He assigned plaintiff a 10% impairment affecting the upper extremity.Plaintiff had an extensor lag in her two middle fingers and the diameter of her upper arm was not normal due to muscle loss.Plaintiff lost a third of her extensor mass in the upper area and lost complete use of this muscle which affects finger and thumb extension due to her nerve injury.After the tendon transfer, plaintiff's elbow motion was normal, her wrist motion was normal and her grip strength was sufficient.She could flex or bend her fingers and thumb normally and her thumb extension appeared to return to normal.Dr. Springmeyer stated plaintiff could use her hand, not for eight hours a day initially, but he thought in time she could.Dr. Springmeyer was of the opinion that plaintiff could gradually re-educate her muscles.Dr. Springmeyer concluded that she should perform a fine type of work to improve her dexterity.

Dr. Springmeyer did feel that plaintiff had lost some of her use in the labor market.Dr....