Landry v. Physicians Practice Management

• Decision Date: 04 April 2001
• Docket Number: No. 00-1298.,00-1298.
• Citation: 783 So.2d 619
• Parties: Donna LANDRY v. PHYSICIANS PRACTICE MANAGEMENT, COLUMBIA/HCA.
• Court: Court of Appeal of Louisiana — District of US

783 So.2d 619

Donna LANDRY v.PHYSICIANS PRACTICE MANAGEMENT, COLUMBIA/HCA.

No. 00-1298.

Court of Appeal of Louisiana, Third Circuit.

April 4, 2001.

COPYRIGHT MATERIAL OMITTED

Michael B. Miller, Crowley, LA, Counsel for Plaintiff/Appellant: Donna Landry.

Patrice W. Oppenheim, Reich, Meeks & Treadaway, Metairie, LA, Counsel for Defendant/Appellee: Physicians Practice Management, Columbia/HCA.

Court composed of DOUCET, C.J., and THIBODEAUX and WOODARD, Judges.

THIBODEAUX, Judge.

The defendant, Physicians Practice Management, Columbia/HCA (hereinafter "PPM"), appeals the judgment of the Office of Workers' Compensation in favor of plaintiff, Mrs. Donna Landry.Mrs. Landry was employed by PPM as a supervising nurse.Mrs. Landry contends she suffered an accident, as defined by La.R.S. 23:1021, which resulted in her contracting Epstein Barr virus (hereinafter "EBV") and being hospitalized.Mrs. Landry further contends the EBV has prevented her from any type of gainful employment.The workers' compensation judge found that Mrs. Landry proved her contraction of EBV was related to a work place accident and awarded supplemental earnings benefits in the amount of $350.00 per week, based upon a zero earning capacity.She further determined that Mrs. Landry was entitled to penalties on all past due indemnity benefits and penalties on all unpaid medical expenses, and attorney fees in the amount of $10,750.00.

We affirm for the following reasons.

I.ISSUES

The issues presented for review are: (1) whether Mrs. Landry proved her contraction of EBV was related to a work place accident; (2) whether the workers' compensation judge was manifestly erroneous in finding Mrs. Landry was entitled to supplemental earnings benefits in the amount of $350.00 per week, based upon a zero earning capacity, beginning June 22, 1998; and, (3) whether the workers' compensation judge was manifestly erroneous in finding Mrs. Landry was entitled to penalties on all past due indemnity benefits and on all unpaid medical expenses, and attorney fees.

II.FACTS

Mrs. Donna Landry was a supervising nurse employed by PPM from August 1995 until August 1, 1998.PPM was owned by Columbia/HCA.Mrs. Landry filed a claim for workers' compensation benefits alleging she contracted EBV while working for PPM.

Mrs. Landry also alleges that since contracting EBV she has been prevented from holding any type of gainful employment.Thus, she brought a claim for workers' compensation benefits, claiming she was entitled to temporary total disability benefits, payment of her medical expenses, and penalties and attorney fees because of PPM's failure to pay temporary total disability benefits or medical expenses.

III.LAW AND DISCUSSION Standard of Review

The appellate court's standard of review in a workers' compensation case is governed by the manifest error or clearly wrong standard.Bruno v. Harbert Int'l Inc.,593 So.2d 357(La.1992).This standard precludes setting aside a trial court's finding of fact in absence of a manifest error or unless it is clearly wrong.Rosell v. ESCO,549 So.2d 840(La.1989);Stobart v. State, Through DOTD,617 So.2d 880(La.1993).In applying the manifest errorclearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one.Mart v. Hill,505 So.2d 1120, 1127(La.1987);Rosell,549 So.2d 840;Stobart,617 So.2d 880.The reviewing court is compelled to review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.Id.The Supreme Court has emphasized that it is crucial that the reviewing court keep in mind that "if the trial court or jury'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).

Epstein Barr Virus—Work Place Accident

It is well established that the workers' compensation act is remedial in nature.In order to effectuate the humane policies it reflects, the law is to be liberally construed in favor of the injured employee.Breaux v. Travelers Ins. Co.,526 So.2d 284(La.App. 3 Cir.1988).Provisions of the workers' compensation law should be liberally construed in favor of the claimant.Lester v. Southern Cas. Ins. Co.,466 So.2d 25(La.1985).

In June of 1998, Mrs. Landry became extremely ill and was treated at Dauterive Hospital.After medical testing was performed, she was diagnosed with EBV.EBV is the virus that causes infectious mononucleosis.Mrs. Landry contends her contraction of EBV is a work-related accident.Louisiana Revised Statutes 23:1021(1) defines an accident as follows:

"Accident" means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

Mrs. Landry's job at PPM was to escort patients from the waiting room, weigh them, check vital signs, go into the examining room with the doctors and patient for the doctor's evaluation of the patient, draw blood, perform tests, grow cultures, assist in minor surgery, and perform special procedures such as spirometry, EKG analysis, urinalysis, holter monitors and bone density checks.Mrs. Landry did this on a daily basis as part of her job.While fulfilling her job responsibilities, Mrs. Landry was exposed to patients with varying types of diseases and illnesses.Mrs. Landry testified at trial that, on a routine basis, she was coughed on, vomited on, spat on and sneezed on.Dr. Brent Allain, Mrs. Landry's supervising physician, testified in deposition that EBV can be transferred by close contact with an infected patient.Dr. Allain testified "[i]f you had a patient with Epstein Barr virus, EBV we'll call it, and you were in close contact with that patient, coughing could be one of them.You know, mononucleosis could be called kissing sickness so anything close contact like that you can be exposed to it."

A workers' compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained injury.Holiday v. Borden Chemical,508 So.2d 1381(La.1987).A worker's testimony alone may be sufficient to discharge this burden of proof if no other evidence discredits or cast serious doubt on the worker's version of the accident, and if the worker's testimony is corroborated by the circumstances following the incident.Bruno v. Harbert Int'l, Inc.,593 So.2d 357(La.1992).

Mrs. Landry has established by a preponderance of the evidence that an accident occurred on the job and that she sustained an injury.Her testimony was corroborated by both Dr. Allain and Dr. Horton, her supervising physicians.Dr. Allain testified by deposition that he specifically treated two patients with acute mononucleosis in the four to six weeks prior to the onset of Mrs. Landry's symptoms.The testimony and evidence established that there is a four to six week gestation period before the symptoms of EBV appear in the patient.Because Mrs. Landry is not involved in the diagnosis of patients, she was unable to identify the two patients with mononucleosis.The billing records of PPM failed to identify the two patients with mononucleosis that Dr. Allain treated.However, Dr. Allain explained that the diagnosis probably occurred after blood test were returned and, thus, after the initial diagnosis which would have been recorded on PPM's files the day the patient was treated.

No other evidence was introduced at trial which would reasonably explain Mrs. Landry's contraction of EBV.Mrs. Landry testified at trial that she was unaware of any exposure to the virus outside of her work at PPM.Mrs. Landry's husband also testified that neither he nor their son has ever been infected nor has he known anyone to be infected with EBV.Dr. Allain and Dr. Randall Horton, also employed by PPM, testified by deposition, that Mrs. Landry's EBV was work-related.Also, Dr. Carl Ditch was of the opinion that Mrs. Landry's contraction of EBV was work-related.Dr. Ditch in a letter dated September 13, 1998, stated that Mrs. Landry's EBV most likely was contracted at her place of employment.Even Dr. Tuan Nguyen, who testified on behalf of PPM at trial, testified that there was nothing in Mrs. Landry's file that would indicate her contraction of EBV was not work-related.The only opinions which question Mrs. Landry's contraction of EBV were rejected by the workers' compensation judge in favor of the very persuasive testimony of Dr. Allain.The trial court accepted Dr. Allain's testimony "without reservation."

While Mrs. Landry could not identify a specific instance of a patient with mononucleosis coughing, spitting or vomiting on her, the evidence does establish she had frequent contact with patients and their bodily fluids.Furthermore, Mrs. Landry does not have to isolate the exact day and the exact patient she contracted EBV from that caused her injury.In Ricaud v. Holloway Sportswear, Inc., 98-1442 (La.App. 3 Cir. 5/26/99);741 So.2d 124, writ denied, 99-1882(La.10/1/99);748 So.2d 455, the plaintiff reported an injury to her right arm stemming from the repetitive motions involved in performing her job.The plaintiff could not isolate the exact repetitive motion that caused her injury.This Court held that the plaintiff did not have to isolate the exact repetitive motion that caused her injury."[H]er inability to do so is not unreasonable under the circumstances; in other words, absent any significant contradictory evidence, it does not cast suspicion as to the accident or incident causing injury."Id. at p. 14;741 So.2d at...