Lewis v. CHATEAU D'ARBONNE NURSE CARE CTR.

• Decision Date: 07 April 2004
• Docket Number: No. 38,394-WCA.,38,394-WCA.
• Citation: 870 So.2d 515
• Parties: Tonya LEWIS, Plaintiff-Appellee, v. CHATEAU D'ARBONNE NURSE CARE CENTER, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

870 So.2d 515

Tonya LEWIS, Plaintiff-Appellee, v. CHATEAU D'ARBONNE NURSE CARE CENTER, Defendant-Appellant.

No. 38,394-WCA.

Court of Appeal of Louisiana, Second Circuit.

April 7, 2004.

Hudson, Potts & Bernstein, L.L.P. by Brian P. Bowes, Monroe, for Appellant.

Law Offices of Street & Street by C. Daniel Street, for Appellee.

Before BROWN, GASKINS and DREW, JJ.

DREW, J.

Chateau D'Arbonne Nurse Care Center appeals from an Office of Workers' Compensation (OWC) judgment awarding compensation benefits, penalties, and attorney fees to claimant, Tonya Lewis. The employer contends that (1) claimant was not a credible witness and failed to prove her claim, and (2) the Worker's Compensation Judge (WCJ) erred in awarding penalties and attorney fees. We affirm.

FACTS

Chateau is an inpatient health care facility in Farmerville. Lewis, a certified nursing assistant, worked for Chateau over several different periods during the past decade. Prior to this alleged accident, her most recent period of employment had commenced in November 2002. Her responsibilities included feeding and moving patients.

On December 29, 2002, claimant and another employee, Alice Kelly, were lifting a 200-pound male patient from a bed into a wheelchair. As they lifted the patient, Lewis felt something "pop" in her back. She described the sensation as feeling "like someone had stabbed her." Kelly confirmed that during the process of lifting the patient, Lewis started screaming and complaining of back pain as she bent over the bed in apparent pain. The two women called for the nursing supervisor, who spoke with both ladies and sent Lewis to the emergency room at Union General Hospital in Farmerville. The nursing supervisor also prepared an incident report for Chateau's records.

Claimant had a back x-ray at the hospital and was told that she had perhaps pulled a muscle; the only abnormality noted on Lewis' x-ray report was "minimal narrowing L5-S1 disc space." The doctor prescribed Toradol (an analgesic), Flexeril (a muscle relaxant), and Bextra (an anti-inflammatory), and instructed Lewis not to work for three to four days and to return only to light-duty work. Claimant purchased the Toradol and Flexeril but could not afford to buy the Bextra. She went home to rest for the prescribed period. In addition to the Toradol and Flexeril, Lewis said that she also took Lortab (hydrocodone) and Darvocet (propoxyphene) to relieve the pain, explaining that she had previously been prescribed these medications for pain stemming from ulcerative colitis, a condition from which she has suffered since age 13. The next day, she returned to the hospital for a drug screen test.

Lewis said that she attempted to return to work, but experienced great pain on her first day back while sitting in a chair, and had to go home. Learning that Chateau would pay for her medication, she then filled the Bextra prescription.

On February 6, 2003, after another brief respite at home, she again attempted to return to work, but had to leave due to pain suffered as she tried to remove a patient's shoes. She testified that the day after this incident, she attempted to go to her class at college but was unable to sit for very long and had to go to the emergency room for further treatment.

The emergency room doctor gave claimant a shot of Demerol and set her up with a February 10 appointment to see her general practice doctor, Dr. Steven Unkel. Lewis gave Dr. Unkel a history of injuring her back when lifting a patient. Dr. Unkel believed that she had sprained her back, restricting her from working. Dr. Unkel prescribed steroids, muscle relaxants, and pain killers; and recommended physical therapy. At his deposition, Dr. Unkel recalled prescribing hydrocodone, hydromorphone (Dilaudid), and Darvocet for Lewis' pain from ulcerative colitis in the past. In another deposition, Dr. John Smiarowski said that he might have prescribed Darvocet to her. Lewis attempted to undergo physical therapy but said that her pain became worse upon performing the therapy, and she elected not to continue.

Claimant saw Dr. Unkel again on February 20, complaining of worse back pain and shooting pain in her left leg. The doctor again prescribed steroids, anti-inflammatory medicine, and pain killers, and added a prescription for Elavil, an anti-depressant that the doctor said sometimes helps with nerve-related pain. Lewis next saw Dr. Unkel on March 5, 2003, and reported that her pain, while still present, was improved. Dr. Unkel recommended exercise.

On March 7, 2003, Chateau's director of nursing, Tammy Matthews Dankleson, called Lewis. Dankleson had received that day a copy of the drug screen performed on claimant the day after the accident. The drug screen was positive for drugs (hydrocodone and hydromorphone) not listed by Lewis on the forms she completed upon her most recent employment with Chateau. Dankleson was concerned that Lewis had been working under the influence of those drugs, and that day Dankleson fired claimant. Lewis later provided prescriptions for these drugs to Dankleson, but Chateau refused to rehire Lewis.

On March 11, 2003, claimant saw Dr. Unkel again, and the doctor released her to return to light-duty work. However, Lewis' pain, including numbness in her left leg, persisted. On March 14, 2003, Lewis filed a disputed claim for compensation against Chateau; Chateau did not pay Lewis indemnity benefits or provide her with additional medical treatment.

Claimant saw an orthopedic surgeon, Dr. Douglas Brown, on March 17, 2003. Lewis denied having any prior back troubles. Dr. Brown reviewed a new x-ray of Lewis' back and found that her L5-S1 disc was ruptured/herniated. A later MRI confirmed this diagnosis and also confirmed Dr. Brown's observation of some degenerative changes at the L3-4 disc. The doctor explained in his deposition that the symptoms claimant described—a "pop" feeling in the back and pain radiating into the legs—are the classic presentations of an acute disc injury. He also said that the events in December 2002 and in February 2003 "certainly ... made the disc worse." Dr. Brown recommended surgery, a laminectomy, to remove the disc. The doctor restricted Lewis from working and said that Lewis would be unable to work with the disc in its ruptured condition.

In mid-May of 2003, at the request of Chateau, Lewis saw another orthopedic surgeon, Dr. Carl Goodman, for an evaluation. Claimant again denied having any prior back troubles. Dr. Goodman confirmed the disc herniation observed by Dr. Brown and also recommended surgery. Dr. Goodman believed the injury to be an acute injury rather than the result of a degenerative problem because the images of Lewis' back showed disc material outside the disc space. The doctor said that the pain and numbness that Lewis said she suffered in her left leg immediately after the December 2002 incident were consistent with this type of acute disc injury.

Claimant denied having any problems with her back prior to the December 2002 incident. At her deposition, Lewis said she did not recall having any previous complaints of, or treatment for, back pain. Dr. Goodman reviewed Lewis' medical records and noted that she had made complaints of back pain and leg numbness prior to the 2002 incident, but said that the symptoms with which she presented to him related back to the 2002/2003 events at work.

Indeed, Lewis' history does include complaints of back pain prior to the accident at Chateau. The record shows that Lewis went to the emergency room at Union General Hospital in October 1992, December 2000, and June 2002, with complaints of back pain. Also, on December 31, 2001, she visited the emergency room with a complaint of right hip pain radiating down to her right foot. Dr. Unkel explained that the 1992 problem was a pelvic infection, not a low back injury. The doctor also said that he had treated Lewis in August 2000 for complaints of abdominal and back pain secondary to her ulcerative colitis.

The Union General records reflect that Lewis had many other visits to the emergency room with complaints of abdominal pain generally that were suspected to be secondary to her ulcerative colitis. She explained that, "When I go to the emergency room, it's for my colitis."

Claimant had also been in a car accident in 1999; she testified that the only injury she suffered in that accident was some scarring on her face. She admitted that she had complaints of back and leg pain at that time but said that the doctor diagnosed her with tendinitis in her hip, not a back problem, and at trial she indicated that the pain from the accident was in a different area. Records of the treating physician, Dr. Richard Ballard, confirm the tendinitis diagnosis.

Lewis called in sick on September 8, 2002, to miss work at Chateau due to a backache. Rebecca Norton, the Chateau employee who took the call, had no independent memory of the cause of this complaint. Claimant explained that on that date, she was having back pain secondary to her menstrual cycle. After hearing the testimony of the witnesses and considering the medical records, the WCJ found in favor of Lewis, observing that:

• The symptoms claimant described at the time of the December 2002 incident were consistent with those described by the doctors as symptoms of an acute disc injury.

• Kelly witnessed the incident and the nursing supervisor arrived at the scene shortly after it occurred.

• Lewis had carried her burden of proof that she suffered the acute back injury on December 29, 2002, in the course of her employment.

The WCJ ruled that claimant was entitled to temporary total disability benefits from February 7, 2003, and to medical benefits, including the recommended surgery.

The WCJ also found that Chateau had been arbitrary and capricious in denying indemnity and medical benefits to Lewis. The WCJ observed that:

• If Chateau had investigated the incident, the employer would either have come...