Cleuonia Winborne VS Sanderson Farms
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2272 CLEUONIA WINBORNE VERSUS SANDERSON FARMS Judgment Rendered September On Appeal from the Office of Workers District 14 2007 Compensation Administration 6 Docket No 05 00980 Honorable Elizabeth A Warren Judge Presiding J David Smith Counsel for Claimant Baton Cleuonia WinbOlne Rouge LA John T Roethele Denham Springs Appellant Counsel for Defendant LA Appellee Sanderson Farms BEFORE WHIPPLE GUIDRY AND HUGHES JJ fl ol oJ a d HUGHES J This is appeal from an benefits which denied were action an For the seeking workers compensation reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On Claim February for 9 2005 claimant Cleuonia Winborne filed Compensation with the Office On that form Ms Winborne stated that her OWC 04 and that her Date of Winborne asserted that while Injury Illness working defendant Sanderson Farms in late to of Workers experience debilitating pain that she could Ms no longer Winborne hands and surgery was was arms Farms with this infonnation on with she that when she August employer were and due were 1 2004 Trabona s as a required though not to was at produce department prior to s perfonn in an Sanderson Farms agreement with the her job extent as to Trabona s claimant prior at to was the point was s restricted in both pending fired condition first that the workers the claimant failed to arose previous compensation overcome the Trabona s between 2001 and July for Sanderson Farms The claimant named Ms Winborne stated that the repetitive tasks she caused numbness and pain in her arms and hands working Trabona s keep of any IGA Food Store defendant in the owe action such to R S 23 l031 l D The claimant had worked for Trabona in the for the back to Sanderson previous employer that presumption contained in LSA deboner reported 12 2004 she responsible for payment was benefits that for her working was Ms carpal tunnel syndrome Sanderson Farms asserted that Ms Winborne when 7 working diagnosed alleged was 8 10 04 was foreanns and hands recommended her activities Ms Winborne surgery Compensation Date of Hire chicken a Disputed July through August of 2004 she began in her continue as a her from dismissed to trial 2 working or to the degree j om the owe action later caused pursuant by her job to a settlement Following a hearing on July 6 2006 the OWC judge ruled in favor of defendant and dismissed Ms Winborne the ruling to this court Ms Winborne has claim s appealed asserting the following assigmnents of error 1 The OWC erred by failing to detennine if Appellant s employment at Sanderson Farms aggravated a pre existing occupational disease resulting in manifestation of a disabling condition 2 The OWC erred by failing to consider whether Sanderson Farms was responsible for workers compensation benefits if Appellant s employment therewith aggravated a pre existing occupational disease 3 The OWC erred in failing to award workers compensation benefits retroactive to the date of carpal tunnel diagnosis 4 The OWC erred in failing to award Appellant penalties and attorney fees for the employer carrier failing to institute workers compensation benefits after it had knowledge that the claim was compensable LA W AND ANALYSIS The Workers for personal injury by employment the workers and must An So 2d 1199 a a writ denied workers that he sustained injury employee of his course required by adopted by the legislature employment related that the caused the disability 2 La App 1 Cir 2002 0824 La 5 24 02 Clausen 15 2 02 807 816 So 2d 851 compensation claimant has the burden of establishing by of the evidence that an injury work related accident he Proof by as a a an Once the must next between the accident and the evidence taken as was Construction 2001 0077 p 1201 in the an the chain of causation must prove and that the injury coverage to out of and arising compensation statutory scheme preponderance evidence provides Act establish that the accident D A G G Initially accident employee accident caused the v Compensation accident occurred employee establish proves the proof of resulting injury by preponderance a a on the job occurrence and of a causal connection preponderance of the of the evidence is sufficient when the whole shows that the fact 3 sought to be proved is more than probable It is conclusion Causation is not in other determinations of proof this Lafleur court a is bound an by the manifest G v 4 79 writ denied OWC State 882 judge s own Department La an s finding does Id Lafleur v be disturbed include hinged on the s occurrence 898 So 2d La App 1 894 court may only and are though an not is exist clearly or erroneous Development appellate 617 views of the pennissible cannot that be manifestly court may feel its reasonable than those of the more credibility and reasonable inferences of review where conflict exists in the testimony at p 4 898 So 2d at 478 extension of workers occupational diseases the claimant While legislative where two Even Alec Electric 2004 0003 Prior to the to on finding choice between them factfinder reasonable evaluations of not 4 898 La 2 25 05 appellate Transportation Thus 1993 clearly wrong of evaluations and inferences fact should factual factual detenninations if it finds from the record evidence exist the factfinder erroneous or s 1 Cir 12 30 04 2004 2901 Under that standard of review So 2d 880 judge standard of review error App La examination of the entire record reveals that the v OWC G Construction 2003 2447 p reasonable factual basis for the Stobart medical Id the reviewing a by the workers 2005 0276 2005 0277 La 4 8 05 897 So 2d 75 So 2d 1148 that in cases writs denied Moran Cir 10 29 04 be found to all credible evidence Alec Electric 2004 0003 p v 1288 reverse on exclusively including whether the employee has discharged his burden So 2d 474 478 1287 based and necessarily usually the ultimate fact compensation judge As not a worker of an accident s entitlement which proof of an identifiable precipitous enlarging workers compensation 4 compensation can compensation only be established by event coverage to to coverage that caused cases of injury occupational LSA R S disease 23 1031 1 retains the establish that the disease arises from his work conditions characteristic of and or process Thus the nature to the employment in which the employee the claimant course peculiar of his of the work must employment Lakeview 8 6 03 are caused the disease just Regional as In the failed to failed to case likely Medical 859 So 2d 131 sub establish her is was to or a by to such causes 2002 2313 p 5 claimant not La s illness probability a possibility related to Dunaway App the v 1 Cir 134 5 judice the OWC judge found that right rebut the statutory in LSA R S 23 I 031 1 D to workers compensation presumption applicable to Ms Winborne had benefits because she her claim as contained which provides in pertinent part 1031 1 Occupational disease A Every employee who is disabled because of the contraction of an occupational disease as herein defined or the dependent of an employee whose death is caused by an occupational disease as herein defined shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment B An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade occupation process or employment in which the employee is exposed to such disease Occupational disease shall include injuries due to work related carpal tunnel syndrome Degenerative disc disease spinal stenosis arthritis of any type mental illness and heart related or perivascular disease are specifically excluded from the classification of during the result of the have caused the disease Center disease at issue of only showing and occupation reasonable a that other a causes trade exposed and that the disease the claimant fails in his burden of proof upon employment particular employee an from e The causal link between performed employment i show that he contracted the disease and his work related duties must be established that the that requirement an occupational Section 5 disease for the purpose of this D Anv occupational disease contracted bv an emplovee while performing work for a particular emplover in which he has been engaged for less than twelve months shall be not to have been contracted in presumed arising such the of such emplovment provided out occupational disease months limitation as contracted so set out of and however that any course within the twelve herein shall become compensable proved to have when the occupational disease shall have been been contracted during the course of the prior twelve months employment by a preponderance of evidence Emphasis added Carpal tunnel syndrome is considered however where the claimant has been a rebuttable statutory employment did can be overcome proves by during her La not employment 10 5 Inc 445 So 2d 1231 the receive can See Killett 02 year there is that the This compensation presumption if the claimant was contracted Sanderson Farms 2001 0277 p 6 v 818 So 2d 853 541 859 App La citing Thornell 1 Cir 1983 v writ denied in this case the OWC judge gave the for judgment get contracting employment a around Subsection disease within the In other words recall where Im dealing with D s course specific reference to and arising out of such I have many situations I can employer like Sanderson and in fact Sanderson specifically where I have an employee who worked less than the 12 month presumptive period in the an statute The main thing I struggle with in those cases is I don t have any previous reports documentation testimony of the same type problem So I m left to decide what are the doctors saying about the probabilities of this happening within whatever timeframe we re talking about reviewing the evidence it looks like the first repOli of problem with the hands it actually came on July 14 2004 In any Payne La 1984 luling against the claimant can t a 23 1 031 1 D carpal tunnel syndrome 442 So 2d 536 following reasons I cause for less than LSA R S disease occupational preponderance of evidence that the disease a and Keller In presumption under and the claimant 1 Cir App employed an And this is in Exhibit P16 There 6 s a this is the little computerized printout It visits 14 7 was of the I guess nurse on duty nurse 2004 at 19 55 which would have been 7 55 and that corresponds with her testimony as far as she reported it to the night nurse But it s reporting problems of a swollen left thumb It confirmed that she was given Aleve So I mean that s the short timeframe that Im having to struggle with The evidence suggests she stmied there either late June early July There s a handwritten note that says her employment actually started June 30 2004 So I mean Im dealing with a period of two p m e weeks And I guess the know you bigger problem is the medical evidence that I have in front of me which is P7 B I m referring because states history is a repOli little curious his history and his narrative report he Chief complaint is pain in her arms and to according the The to Dr Acosta s following hands She noticed it about one or two years ago when she would wake up in the middle of the night with her arms hurting She noted she had also notices that as pins and needles in the hands She went on she began dropping things time And she noticed that when it hurting more in used to work since her I cold outside her forearms and in her as a anns were mean was she would start She said that she anns produce helper and she could not do really hmiing really bad so she stopped in that sense the history almost sounds like she arms so much so problem that she had to quit the job as the produce helper Then Dr Stokes specifically notes the history dating back to November 2003 So again typically when Im dealing was aware with a of this that 1 031 1 D in her hands and case in other words the 12 month Im really just trying to figure out from date presumption of employment forward could this repetitive type employment cause whatever you re suffering from now this case I don t find that she s met the burden by a In preponderance under Subsection D because there s a fairly well documented prior history you know since at least November case of 2003 up until when she was hired on at Sanderson Fanns And I think obviously the biggest hurdle that I have to overcome I is Ms Winborne mean I guess the s own testimony in my situation is she s But the problem is she s telling irony an me extremely credible person that yes I was having these problems I don t know medically you lmow Id have to rely on the doctors for that kind of thing But I don t know that it s convincing me enough that you re describing one type of pain as a toothache type pain and one type of pain as a numbness In other words she s telling me she the s overriding factor telling at least one I guess is doctor these hand for me 2 Evidence introduced into the record shows that Ms Winborne worked the following hours for Sanderson Farms over the entire course ofher employment July 3 2004 through July 9 2004 15 hours July 10 2004 through July 16 2004 23 8 hours July 17 2004 through July 23 2004 28 2 hours 2004 July through July 30 2004 319 hours July 31 August 7 2004 through August 13 2004 34 7 24 2004 4 23 hours and hours 7 2004 hours through August for a 6 total of 157 let problems employment say started at least seven months before her with Sanderson So I guess for those reasons I s just conclude that she can t contracted s as it says in Subsection D the carpal tunnel syndrome from working at Sanderson And again you know Ms Winborne is extremely credible But even just listening to the chronology of events as she s explaining it it didn t do anything to tip the scale past the It s like counsel for preponderance under Subsection D Sanderson Farms the Legislature says contracted in says I don t the course of and arising out of such employment find that she her burden under that standard met the trial of this matter Ms Winborne testified During job s with Sanderson Farms and circumstances stated that it was conveyor belt her the to cut job leading wings of chickens to disability they as typically she Ms Winborne stated that her her regarding came cut up She down a between 80 and 100 chickens per hour and between 800 to 1 100 chickens per her six to seven hour work environment chickens pointed causing her cold and ache like a Ms Sanderson Farms in and her hands and job s of and hands to cutting grabbing more difficult knives and chickens toothache WinbOlne admitted that when she July of 2004 she while anTIS already ever had problems Trabona with her hands s Ms Winborne pain she experienced different just the deadness and the numbness At Sanderson Farms they ache d like a toothache The coldness of it I would go home at night and I had to the only way I could get them to stop was to sit on actually them and warm them up They would hurt so bad I would cry Trabona s it was like 8 at began having problems with However Ms Winborne stated the was began working experienced that problem with working for and at Sanderson Farms At Ms She stated that her hands would get hurt Ms WinbOlne indicated she Yes her hands in 2003 Trabona the When asked whether she anTIs responded at making working very cold and that sometimes the was to her work activities of anTIS However Winborne also testified that her Ms Sanderson Farms frozen were Winborne as at day Ms WinbOlne testified that when her hands and Trabona s she could Winborne working at the never at shake it off sought medical Trabona s time of trial as little and it a treatment anns would bothered her Ms go away for her condition while she Ms Winborne described her hand and arm at was condition follows They tingles sic a lot My hands never did stop tingling They tingle 24 hours a day like they do now But Im so used to it that But they you know Im just used to it swelled a lot I have to my ring I had to take it off because they just swell and get too tight And by me trying to twist and get it off it They swelled a lot caused a sore on my hand like I have now Every now and then they ll ache if they get cold Like if I go in my refrigerator and get cold meat out or something they will ache But I take Aleve or Advil or something like that to stop it you know That s what I go through now Ms WinbOlne fmiher testified that after she left her Trabona s in June of 2004 she weeks before going to was symptoms unemployed for approximately work for Sanderson Farms Winborne stated that her condition improved Sanderson Farms via the her syndrome back on and gave her the line Fanns that she had day that time Ms because I didn t have the pain nurse reported pain The nurse in her hands to following day Ms Winborne Dr Kumar who told her she had carpal tunnel When she retmned to work the medication gave her some more pills and sent her Ms WinbOlne also testified that when she told Sanderson carpal tunnel syndrome Ms Winborne was her that she had bilateral not night family physician Sanderson Farms During two sic no more Ms WinbOlne estimated that she first went to employment with also treated by on Dr August Joseph 12th she was fired Acosta who verified to carpal tunnel syndrome and recommended that she do any kind of activity until she had surgery 9 The medical report and records of Dr Acosta introduced into evidence and contained were diagnosis of carpal tunnel syndrome and recommendation Dr Acosta indicated in his medical at Sanderson Farms may have that her occupational disease See LSA R S 23 1031 1 A contracted result of this as a Dr Acosta did not independent medical examiner the was and his examination of Ms Winborne Dr that Ms unlikely obtained Winborne s from her work at Sanderson Fanns tunnel syndrome was more he stated that it is fOliies which is development employment to other s Trabona s or her factors repetitive syndrome Dr s carpal a newspaper In this by a tunnel the owe in their early syndrome with either her Sanderson Fanns but rather Stokes Dr work activities could have driving women Dr Stokes did not associate the employment at explained that a admitted aggravated person with that her Ms carpal carpal tunnel many different conditions including a car judge ruled that Ms Winborne failed to prove preponderance of the evidence caused 3 case or carpal idiopathic3 in nature because developed by However Stokes as syndrome developed Stokes testified that the have been syndrome will get symptoms under reading Dr condition Winborne Ms Winborne Stokes testified that he tunnel carpal generally hormone related personal WinbOlne tunnel a common of Ms at likely to employment his examination of the medical records found it opine introduced into the record before the Based history not at trial testify owe on While employment s her condition he did deposition of Dr Harold Stokes who examined The an report that Ms Winborne aggravated was of surgery a that her by her employment with Sanderson Idiopathic means a disease whose cause is Dictionary Third College Edition p 670 1988 Farms unknown 10 carpal tunnel syndrome or After unce11ain a was thorough review Webster s New World of the testimony and the owe able to judge manifestly show contributed overcome Dunaway So 2d evidence only erred in this possibility in this ruling case we are the that her Sanderson Farms presumption present Lakeview at 134 5 Regional Therefore we in LSA R S Medical Center must unable to say Because Ms Winborne her condition she failed in the burden of to v a presented affinn the was employment proof required 23 1031 1 D See 2002 2313 at p judgment of the to 5 859 OWC in favor of Sanderson Fanns CONCLUSION For the assess reasons all costs to assigned appellant we affirm the Cleuonia Winborne AFFIRMED 11 judgment of the OWC and NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 2272 CLEUONIA WINBORNE VERSUS SANDERSON FARMS GIDDRY J dissents and GUIDRY J dissenting The issue in this assigns reasons case syndrome is compensable is whether the claimant as an existing and symptomatic prior occupational to disease s disease when the disease the claimant employer the claimant s that her however R S 23 1031 1 D The second such out the months that Ms working for La R S 23 1031 1 D injury pre existed her employment with portion of La so R S relies on 23 2031 1 D as the precluding only the first the defendant of La portion compensable a provides however that any contracted within the twelve months limitation during preponderance that the record shows Winborne contracted by carpal more the course of evidence than tunnel as set occupational disease shall have when the to have been contracted employment by undisputed was in reaching its conclusion occupational disease proved pre compensation benefits because the evidence majority improperly herein shall become been majority interprets recovery of workers clearly establishes employer The was employment with the defendant s employer but only became disabling while the claimant defendant tunnel carpal a of the Emphasis preponderance prior added twelve It is of the evidence syndrome during her prior twelve month the s employment with Trabona of the plain language statute s IGA Food Store Ms Winborne Thus in accordance with claim for her s carpal tunnel syndrome became compensable This conclusion that Ms Winborne compensable is further supported by this Keller Inc La 442 So 2d 536 1984 in which the disease current This the during case his most recent the claimant s decision in Thornell was a the claimant employment as well deemed as the to v Payne and development compensable and the claimant s It most recent payment of workers compensation benefits was that the of the disease disabling during the most recent of the claimant have contracted the disease prior employment opined development s evidence that was causative factor in the was syndrome is writ denied 445 So 2d 1231 but nevertheless further prior employment to tunnel doctors stated that the claimant contracted s employment and there condition the claimant was court carpal therefore held that since the claimant s disease became employment claim claim for her App 1st Cir 1983 employment also contributed court recent La s during the s most therefore held that the employer was liable for the See Thornell 442 So 2d at 542 543 and 545 546 Accordingly based opinion I on the language of the statute and this respectfully dissent from the decision rendered herein 2 court s ThOlnell
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