Mazique v. Cajon Operating Co.

• Decision Date: 28 May 2014
• Docket Number: No. 14–CA–11.,14–CA–11.
• Citation: 142 So.3d 336
• Parties: Patricia MAZIQUE v. CAJON OPERATING CO. d/b/a Church's Chicken, The Hartford Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

142 So.3d 336

Patricia MAZIQUE
v.
CAJON OPERATING CO. d/b/a Church's Chicken, The Hartford Insurance Company.

No. 14–CA–11.

Court of Appeal of Louisiana,
Fifth Circuit.

May 28, 2014.

[142 So.3d 338]

Philip J. Borne, Joshua O. Hess, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.

Daren Sarphie, Attorney at Law, Metairie, Louisiana, for Intervenor/Appellee.

Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.

ROBERT A. CHAISSON, Judge.

In this worker's compensation case, Cajun Operating Company d/b/a/ Church's Chicken, and The Hartford Insurance Company (“Cajun”), appeal a judgment in favor of the claimant, Patricia Mazique, awarding her benefits, penalties, and attorney fees. For the following reasons, we reverse the decision by the worker's compensation judge in favor of Ms. Mazique, and enter judgment in favor Cajun, dismissing the claim.

FACTS AND PROCEDURAL HISTORY

Ms. Mazique was employed by Church's Chicken on October 30, 2011, when she slipped and fell at work. She claimed to have injured her right knee, lower back and right hand. She testified that on that day the employer brought her to The Ochsner Medical Center for treatment, but there are no reports of this visit in the record.¹ Two weeks later, on November 14, 2011, she was seen on her own initiative by Dr. Daniel Gallagher of the Bone and Joint Clinic for subjective complaints of lower back and right knee pain. There is no mention in the record of that date of any injury to the right hand. After taking x-rays, Dr. Gallagher's initial diagnosis was an aggravation of knee and spinal arthritis. He estimated that she would reach maximum medical improvement in two to four weeks. He released her for light duty and recommended a return visit in two weeks. Although the employer offered claimant light duty, she did not return to regular employment. She was also paid two weeks of compensation.

Dr. Gallagher's office notes show that claimant missed five return appointments, either by rescheduling or simply not showing up. She was finally again seen on January 16, 2012. In his report on that visit, he stated that examination of the right hand was essentially normal, as was the x-ray image. The right knee and back were also x-rayed again and these showed severe osteoarthritis in the knee, and degenerative disc disease throughout the lumbar spine with osteoarthritis in the facet joints. His opinion was that he did not see any indication that there was any new injury in the fall that had occurred on the job, and he “explained to the patient that her continued pain is a result of her arthritis and degenerative disc.” He discharged her, noting that there was nothing more he could do to help her. In none of his notes is there any mention that Ms. Mazique had reported to him previous problems with her back and knee, but neither is there any indication that he had asked her about such problems.

Cajun agreed to have Ms. Mazique examined by yet another physician of her choice, Dr. Alexis Waguespack, of the Spine Care Medical Group. The notes for the first visit of May 24, 2012, recite that Ms. Mazique gave a history of her complaints as being caused by her falling while

[142 So.3d 339]

carrying a tray of chicken in the workplace. Dr. Waguespack's impressions were lumbar sprain, degenerative disc disease, and slight degenerative scoliosis. At a subsequent visit on October 15, 2012, various tests were ordered, including x-rays and an MRI. The results of these various tests were reported in the notes to a follow-up visit of January 2, 2013. The diagnosis for the back was lumbar degenerative disc disease, scoliosis, myelopathy, stenosis, and radiculitis. The knee problems were tricompartmental arthropathy, chronic tear of the ACL, spurring, bursal cyst and other inflammation. The report of another visit on March 11, 2013, contains the same information. In none of Dr. Waguespack's reports is there any opinion as to the causation of Ms. Mazique's conditions, except to note the history given by Ms. Mazique. None of Dr. Waguespack's notes indicate that Ms. Mazique ever mentioned prior problems, but again there was no direct question from Dr. Waguespack on this point.

The next medical report was an Independent Orthopaedic Report requested by Cajun from Dr. Robert Steiner, an orthopaedic surgeon. Dr. Steiner reviewed the original Ochsner report of October 30, 2011, Dr. Gallagher's and Dr. Waguespack's reports, and the results of all of the tests conducted at their requests. He also had x-rays taken in his office of claimant's back, right hand and right knee. Dr. Steiner notes particularly that “she denies prior problems with her low back or right knee.” His full opinion is as follows:

This patient's diagnosis is osteoarthritis of the right knee, a pre-existing condition. Her prognosis is poor as she has severe osteoarthritis.

This patient's diagnosis is multilevel degenerative lumbar disc disease. When I examined her she had inconsistent and nonphysiologic findings. There were no findings of lumbar radiculopathy. Her prognosis is poor.

She also has some mild arthritic changes involving the 2nd metacarpo-phalangeal joint of the right hand. Prognosis is good. She requires no treatment for this condition.

As it related to her on the job injury, I do not see specific evidence of injury, only severe pre-existing degenerative changes. In light of the inconsistent and nonphysiologic findings noted on her exam it is...