Quinn v. Apparel

• Citation: 54 So.3d 123
• Decision Date: 08 December 2010
• Docket Number: No. WCA 10–712.,WCA 10–712.
• Parties: Juanita QUINNv.VIDALIA APPAREL.
• Court: Court of Appeal of Louisiana — District of US

54 So.3d 123

Juanita QUINN

v.VIDALIA APPAREL.

No. WCA 10–712.

Court of Appeal of Louisiana, Third Circuit.

Dec. 8, 2010.

Paul Howard Benoist, Benoist Law Offices, Natchez, MS, for Plaintiff/Appellee, Juanita Quinn.Brad O. Price, Baton Rouge, LA, for Defendant/Appellant, Vidalia Apparel.Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.EZELL, Judge.

[3 Cir. 1] Several issues are raised in this appeal of a workers' compensation case. Vidalia Apparel filed this appeal claiming that the workers' compensation judge (WCJ) erred in finding that Juanita Quinn suffered a work-related accident and is now temporarily totally disabled. It also complains about the award of penalties and attorney fees and that the WCJ erred in her determination of the compensation rate. Ms. Quinn answered the appeal. Ms. Quinn argues that the WCJ should have determined that employer fraud was present pursuant to La.R.S. 23:1208. She also complains about the amount awarded for attorney fees at the trial level and asks for additional fees for work performed at the appellate level.

FACTS

Ms. Quinn began working for Vidalia Apparel in 1999. Vidalia Apparel distributes Fruit of the Loom clothing. She was employed as picker whose job is to get the boxes needed to fill orders as they come in to the warehouse. On November 16, 2006, Ms. Quinn filed a disputed claim for compensation alleging that she had injured her back while working for Vidalia Apparel in February 2006. Ms. Quinn could not remember the exact date. She testified that the accident occurred around 1:30 to 2:00 p.m. Ms. Quinn stated that she injured her back while picking up a “4x” box weighing fifty to seventy pounds. She felt something pop and dropped the box. Ms. Quinn testified that she reported the incident to her immediate supervisor, Bobby Whitley. Mr. Whitley told her to go see the nurse, Rhonda Hunt. Ms. Quinn stated that Ms. Hunt told her it was a muscle spasm. Ms. Hunt gave Ms. Quinn an ice pack. Ms. Quinn sat in the nurse's office for about twenty minutes. She was then told to go wait in the break room until her shift ended. Ms. Quinn returned to work the next day.

[3 Cir. 2] Dr. Ibrahim Seki, Ms. Quinn's treating physician for high blood pressure since November 2005, initially saw Ms. Quinn on March 22, 2006, following her accident. It appears that this is the first visit that Ms. Quinn reported leg and back pain, as it was circled in Dr. Seki's notes. Dr. Seki ordered an MRI of the lumbar spine which was performed on March 28, 2006. Mild disk desiccation was noted at L2–3. Broad-based disk bulging was observed at L5–S1 with bilateral foraminal encroachment.

On April 6, 2006, Ms. Quinn went to Passman–Haimson Orthopedic, Sports, and Rehab in Natchez, Mississippi, for treatment of her back problems. She had seen Dr. J.C. Passman at this facility in March 2005 for swelling in her left ankle. At the April 2006 visit she complained of low back pain that she had for months that radiated down her left leg to the ankle. She also complained that her back was giving her problems at work. Dr. Robert Haimson took her off work and continued her on an outpatient physical therapy program. He also prescribed a lumbar corset.

In May 2006, Dr. Haimson noted that Ms. Quinn had not had significant relief with her physical therapy nor the lumbar corset. He wanted to refer her to a spine surgeon with the approval of the workers' compensation insurer. Dr. Haimson continued Ms. Quinn on a no-work status. Dr. Haimson also ordered Ms. Quinn to proceed with her physical therapy.

Ms. Quinn saw Dr. Bruce Senter at the Mississippi Spine Clinic on June 30, 2006. Ms. Quinn's history indicated that she had low back pain for years but that it had increased over the left leg for the last six months. Dr. Senter agreed that Ms. Quinn had a Grade 1 L5–S1 spondylitic spondylolisthesis with left L5 radiculopathy, secondary to some significant foraminal stenosis. At that time, Dr. Senter recommended a lumbar epidural but suggested she would need a fusion and decompression if the epidural did not work.

[3 Cir. 3] Ms. Quinn was anxious about surgery so she went to see Dr. Arnold Feldman at the Pain Treatment Center in Baton Rouge to inquire about the new laser surgery he was performing. Dr. Feldman evaluated Ms. Quinn on August 10, 2006. She related to him that she had lower back pain for about six months. Dr. Feldman also recommended an epidural steroid injection before proceeding with any surgery. Ms. Quinn told Dr. Feldman she just wanted to be “fixed.”

On August 23, 2006, Dr. Feldman performed an endoscopic discectomy. Ms. Quinn initially progressed. However, she started having extreme pain in her left ankle, and her back eventually began hurting again. In October 2006, an MRI was performed. It indicated a large left lateral disc herniation at L5–S1.

On December 4, 2006, Ms. Quinn received a lumbar epidural block. Ms. Quinn indicated that this helped her leg pain but that she still had back pain. On January 8, 2007, Ms. Quinn had a second epidural block. She improved initially, but the improvement did not last. On February 5, 2007, Ms. Quinn had an additional epidural block. She only received one week of relief.

An MRI on March 13, 2007, indicated Grade I anterior spondylolisthesis at L5–S1. A posterior disc protrusion was also observed on the left with left lateral disc herniation with significant bilateral neural foraminal stenosis, the left greater than the right. The records indicate that Dr. Feldman last saw Ms. Quinn on June 30, 2007. Her pain was severe. At that time, the plan was to schedule another epidural block. The possibility was also discussed that she may need another endoscopic procedure. Ms. Quinn filed her disputed claim for compensation in November 2006 seeking wage benefits and medical treatment. In response, Vidalia Apparel alleged that no specific and identifiable accident had occurred. Trial on this matter was held on October 23 and November 13, 2009.

[3 Cir. 4] The WCJ found that Ms. Quinn was very credible and that her testimony concerning the occurrence of an accident was very persuasive. The WCJ found that Ms. Quinn was disabled from the date of the work accident, which she found to be February 1, 2006, until her release to return to work or her medical condition changes. Vidalia Apparel was ordered to pay weekly indemnity benefits in the amount of $454.00 a week in addition to all reasonable and necessary medical treatment. Finding that Vidalia Apparel did not reasonably controvert Ms. Quinn's claims and was arbitrary and capricious in its failure to pay her benefits and provide medical treatment, Ms. Quinn was awarded a $2,000.00 penalty for Vidalia Apparel's failure to pay indemnity benefits and an additional $2,000.00 penalty for Vidalia Apparel's failure to pay her medical expenses. Attorney fees in the amount of $10,000.00 were also awarded.

Vidalia Apparel appealed the judgment asserting several assignments of error. Ms. Quinn answered the appeal asking for additional attorney fees and alleging employer fraud.

WORK ACCIDENT

Vidalia Apparel argues that the WCJ erred in finding the occurrence of a work-related accident on February 1, 2006. Vidalia Apparel claims that the trial court ignored the evidence in this case and rested its opinion solely on the testimony of Ms. Quinn. Vidalia Apparel argues that Ms. Quinn's testimony and the testimony of fellow workers, in addition to her requests for leave and her medical records, indicate that Ms. Quinn was not credible as found by the WCJ.

In discussing an employee's burden in establishing a work-related accident, this court noted the applicable law as follows:

[3 Cir. 5] A worker bringing a compensation action against her employer bears the burden of proving, as a threshold requirement, that she suffered “personal injury by accident arising out of and in the course of employment.” La.R.S. 23:1031; Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “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.” La.R.S. 23:1021(1). Jurisprudence has held that an accident may include a routine movement or task that the employee regularly performs, provided that the claimant is able to identify, with some particularity, the time, place, and manner in which the accidental injury objectively manifested itself. McCall v. Wal–Mart Stores, Inc., 02–1343 (La.App. 3 Cir. 3/5/03), 846 So.2d 832, writs denied, 03–1329, 03–1343 (La.9/19/03), 853 So.2d 639, 641.

The plaintiff bears the burden of establishing that a work-related accident occurred by a preponderance of the evidence. Bruno, 593 So.2d 357. This burden of proof is applicable even when the worker is the sole witness of the accident. Id.

A worker's testimony alone may be sufficient to discharge her burden of establishing a work-related accident provided that no evidence discredits or casts serious doubt upon her version of the incident and the worker's testimony is corroborated by the circumstances following the alleged incident, including medical evidence or the testimony of co-workers, friends, or the worker's spouse. Id.

The trial court's determinations as to whether a plaintiff in a workers' compensation case is credible and whether she has discharged her burden of proof are factual determinations that should not be disturbed upon appellate review unless clearly wrong or manifestly erroneous. Id.

This court has noted, in the context of a workers' compensation suit, the well-accepted principle that credibility calls are the function of the trial court. McCall, 846 So.2d 832.

Dantley v. Lake Charles Mem'l Hosp., 07–1227, pp. 2–3 (La.App....