Paula Hooper VS Louisiana Department of Agriculture and Forestry
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STATE OF LOUISIANA COURT Of APPEAL FIRST CIRCUIT 2005 CA 2481 PAULA HOOPER Jfb0 VERSUS I LOUISIANA DEPARTMENT Of AGRICULTURE AND FORESTRY r On Office of Workers Appeal from the Compensation Administration District 5 State of Louisiana Docket No 03 00089 Honorable Jason G Ourso Presiding Maria A Attorney for Baton Plaintiff Finley Rouge LA Paula Shaheen Philip J Baton Rouge Appellant Hooper Attorney for Defendant LA Appellee Louisiana Department of Agriculture and Forestry BEfORE PARRO GUIDRY AND McCLENDON JJ Judgment rendered March 23 2007 PARRO J An employee appeals from Administration l OWC which a granted her employer and dismissed her claim for workers we judgment of the Office of Workers Compensation s On For the compensation benefits following reasons Background and Procedural History January 6 2003 Paula Hooper filed Hooper compensation benefits alleging that she had suffered November 4 Louisiana denied 2002 during the work related and scope course indemnity and medical benefits carrying a of her connection with an to severe problems caused by employment with the for which she rather concerned to the left to an was was to her entitled to workers The Department simply disclosed that Hooper 2002 to her back disabling emotional distress endured and stress from testified that her November 6 2002 injury alleged twisting injury ongoing criminal investigation at her agency report of injury dated November 6 from health In addition to the tray of seeds Hooper averred that she compensation benefits due first s suffering position of seed analyst Hooper not concern the stress of her job but her complaint did in was injury to her back that resulted while lifting seed trays and turning put the trays on a cart In connection with the trial of this matter a a disputed claim for workers a Department of Agriculture and Forestry the Department back while and involuntary dismissal2 affirm Factual on motion for subpoena duces tecum be issued Hooper requested that to the following people who a subpoena were then employed with the Department Commissioner Bob Odom Melanie Barnett Terri Boykin Summers subpoenas were Skip Rhorer the official custodian of records for the Department The Sherry Wethy delivered to Eric Gates and Lola Turner Department and these individuals through the Department Department s in house counsel sought Hooper s noncompliance with LSA 1 Honorable Jason G 2 This motion was Ourso of District 5 incorrectly referred to 5 R presided as a to have these 13 3667 3 LSA s counsel of record and the subpoenas quashed based 5 R in this matter motion for directed verdict 2 These 23 1310 7 C and on LSA 1351 cc P arts through 1354 subpoenas duces tecum was asserted that the After a hearing the motions Hooper s testimony that Finding prove the of a motion for quash to cases were absolutely a finding that Hooper satisfied her burden of 4 which 1 5909 satisfied were quash Hooper to the issuance of governs on Mr by service Rhorer granted compensation judge WCJ found not credible significant congenital given the conflicting evidence condition that had become alleged accident the WO found that Hooper had failed work related accident A judgment was was in proving that a s claims granting the Department s motion not a credible witness and in to signed granting the involuntary dismissal3 and dismissing Hooper appealed contending that the WO erred in opposing the motion the merits the workers was to the occurrence Department s on had Hooper symptomatic prior In overly broad compensation Following the trial that Department also urged that Hooper s request for requirements of LAC 40 in workers subpoenas The Hooper to quash finding that Hooper had work related accident had occurred on not November 2002 Motion to Quash Concerning the of Workers issuance and service of Compensation Administration s subpoenas LAC 40 hearing rules 1 5909 of the Office provides Subpoenas issued in connection with any workers compensation matter shall be served by the party requesting issuance of the subpoena and may be served by certified mail return receipt 4 or any other manner provided in 5511 Proof of service shall requested Once issued be the responsibility of the party requesting the subpoena and served a subpoena may be canceled by the requesting party only after written notice to the opposing side It shall be the responsibility of the requesting party to provide written notification of cancellation to all Footnote opposing parties as well as the person under subpoena A added 3 Provided that the claimant has granted Tommie 4 in s a workers Gaming completed the presentation of his See LAC 40 16211 compensation case 04 2254 La 5 24 05 902 So 2d 380 case an by certified mail at mediation by the mediator 40 15911 provides for exceptions for subpoenas Administration an independent medical examiner and of Workers Compensation Administration 3 art dismissal may be 1672 8 Taylor v 383 Louisiana Administrative Code 40 15511 states that service of process in shall be involuntary LSA C C P a workers compensation claim LAC any other manner provided by law directed to an official of the Social Security or the director or any other employees of the Office In order to be enforceable subpoenas for hearing shall be served seven days prior to the scheduled hearing date subpoenas to compel attendance of medical experts shall be served 10 days prior to hearing Subpoenas for hearing may be issued after expiration of these time limits only by leave of court for good cause shown or upon written consent of all parties B Because she 5 Department the sent by certified requirements of LAC 40 with the clerk of court6 by law LSA C C P counsel from cc P Thus were a In her brief court a sum that the of subpoenas in party must deposit funds 23 5 R 7 1310 C entitled all subpoenaed inapplicable See LSA C C P witnesses art 1353 were did not of employees the part of the Department thereby precluding Hooper s since the Accordingly Hooper argued that LSA subpoenas were issued to the fact that the Rules of Professional Conduct an imposes of money sufficient to pay all fees and by law was employee of the Department does party to the lawsuit by Hooper issuance state that a freely speaking with any of them However the subpoena should have been issued until Hooper had no considered freely conversing with employee 5 that argued art 1353 was litigation from regarding the C which is referred to in LSA expenses to which the witness Department and Hooper contended Department of employees to to pay for all fees and expenses to which the witness is entitled deposited with the clerk of the OWC Hooper directed satisfied 23 1310 7 art 1353 requirement a were the were compensation proceedings does not workers such to mail 1 5909 R S Although LSA which subpoenas reason directly challenge that his the WO s or ruling her on LSA prohibit a to the lawyer not make such employer based parties was 5 R 13 named an as a 3 3667 which governs the issuance of a subpoena seeking to compel the attendance of a statewide elected official as a witness in a suit that arises out of or in connection with the person s exercise of his duties as an official of the state quash 6 as Therefore it relates to the pretermit discussion of the propriety of the WO s granting subpoena demanding Commissioner Odom s appearance we recognize that the term clerk of court found in LSA C C P art 1353 is not normally used in compensation proceedings but obviously the Office of Workers Compensation Administration comparable personnel to perform the function of a clerk of court Accordingly for the remainder of opinion we will refer to such personnel as the clerk of the OWC court We workers has this of the motion to 4 party the initial subpoena was a non is a an jurisdiction getting device that may be rendered subpoena is to secure action so needed one of the subpoena like jurisdiction because were Thus we are these subpoenas sum entitled testimony The incentive of the parties La to Hooper had requirements of LSA C C P requirements satisfied or that any so request the not usually documents the as other or in subpoenas account of Hooper s of or failure to obey the subpoena subpoenas for the she In the absence question should a things 822 So 2d 38 40 witnesses at the trial 1353 art to the party a witness to subpoenaed issuance judgment The mission of the 1st Cir 6 21 02 App unable to find that the WO erred on who is witness over a Department employees attendance of the meet the jurisdiction a summons defendant in over a action will bind the defendant in the City of Hammond 01 0770 v Thus of was required proof that such not have been issued abused his discretion in quashing deposit with the clerk of the OWC by law contemplated by LSA Rule 4 2 prohibits representation with a 5 R was not 23 1310 7 in lawyer by certified mail made return C and LAC 40 1 5909 representing a client from receipt requested Service communicating law about the subject court order or a b a person the lawyer knows is member shareholder or other constituent of a 1 concerning who supervises directs or presently a director officer represented organization and regularly consults with the employee organization s lawyer the matter 2 who has the authority to obligate the organization with respect to the matter or 3 organization whose act or omission in connection with the matter may be for purposes of civil or criminal liability 5 as by certified mail a a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by to of money sufficient to pay all fees and expenses to which the witnesses Furthermore service 7 summons secures A punishment for contempt the sanction that backs to avoid subpoena is court a Because each of these witnesses jurisdictional was obtain from the witness as to by Seaward The 7 subjecting the defendant to the jurisdiction of the court action were Rule 4 2 See Rules of Professional Conduct party imputed to the of the receipt requested return constitute service on the individuals who employed by the Department was Melanie Barnett Eric Gates Rhorer did not have named individuals on service was were court s to him at the his accept signature Therefore individuals who the WC were Department s mailing the return on subpoena so as to did not receipt in to subpoena finding that not tantamount to was addressed was subject those persons err tecum addressed subpoenas for any of the service of the insufficient to show that service of the to be witnesses management and Sherry Wethy and Lola Turner Boykin Summers to not Mr Rhorer subpoenas assistant commissioner of the individuals to whom each service who Terri authority Thus named in the subpoenas and subpoenas duces which contained the address as were did agent for the Department an envelopes addressed He received two finance Mr Skip Rhorer on was This made to the on means of the persons jurisdiction of the service was not proper on the subpoenaed Credibility Hooper urged that the WC erred The v credibility of Farber error La App listener 850 not a credible witness was court witnesses 944 So 2d 628 because 632 852 understanding and belief in what is said La alleged accident testimony on Hooper prior See Seaward In this case 1990 and the WO the WC Lirette was only the fact finder v so heavily State Farm Ins able to observe can be on the 563 So 2d Hooper s demeanor obviously did not believe Hooper s account of the Furthermore other evidence in the record casts doubt this issue manifest The to the trier of fact s of the variations in demeanor and tone of voice that bear s See Horstmann judge standard of review demands great deference wrong when she testified 8 by the trial 1st Cir 9 27 06 findings regarding the credibility of aware finding that she witnesses is best determined 05 2213 clearly in on Hooper s particularly the medical records of various doctors who treated to and after November 4 2002 822 So 2d at 40 6 We are unable to find that the WCTs evaluation of Hooper s credibility WCTs determination in this Hooper argued that the WCJ erred proving that The claimant in a related accident SO 2d 357 as 361 suddenly or unforeseen or violently with objective findings of an or are mere a a than or of events or 2002 an 593 accident happening event at the time gradual deterioration Hudson or injury App not Dyson v 610 However the preclude claimant a Savant Ins Co v An otherwise can Housing Auth of v 909 So 2d 607 Jackson 1183 96 1424 healthy employee with prove that his work contributed State Employees Group Benefits 1st Cir 1992 Hooper had begun was experience back problems leg pain escalated resulting post myelogram CT scan opined to in a Based on in a myelogram and the results of these tests version on in early April October 29 Hooper s treating report dated October 31 2002 that Hooper had symptomatic spondylolisthesis that would require surgery 2002 work given by Hooper The medical evidence provides reasonable support for the neurosurgeon surgery defines previously noted the record contains evidence that conflicts with the Her back and a La a deteriorating condition does accelerated his WCTs determination that 2002 simply a Harbert Int l Inc directly producing progressive deterioration 694 So 2d 1178 Program 610 So 2d 953 955 As v 2002 provision excludes from the definition of accident existing condition is entitled to benefits if he aggravated November 4 precipitous and App 4th Cir 10 27 04 gradual App 1st Cir 5 9 97 pre to a La by more recovering workers compensation benefits from La presence of Bruno identifiable without human fault This caused New Orleans 04 0744 actual injury which is progressive degeneration conditions that on Louisiana Revised Statute 23 1021 1 1992 unexpected an finding that she had not satisfied her preponderance of the evidence a La in compensation action has the burden of establishing workers by must defer to the Accident an work related accident had occurred a we respect Occurrence of burden of Accordingly unreasonable was A decision to be made after consultation with his colleagues concerning her need for on Monday November Following this conference the neurosurgeon recommended 7 a 4 discectomy with which is the surgery that fusion February 10 on surgeon physicians pertaining ultimately performed was Furthermore 2004 to visits that In most instances her condition Whether there findings Factual was an in workers was a and her compensation 704 So 2d 1161 12 2 97 standard wrong the appellate Based on Moreover finding that Hooper had to prior November do not 2002 physicians denied being on injury being related as cases are Seal to November 4 2002 something else subject to the manifest error or we find reasonable clearly wrong a Seal one error or right or 704 So 2d reasonable factual basis for the did not manifestly err in significant congenital condition that had become symptomatic a 4 case was a conclude that the WC we at 361 97 0688 Gaylord Container Corp v applying the manifest conclusion s the record in this WCJ s conclusions 4 court must determine not whether the trier of fact was but whether the fact finder at 1164 In 1164 treating finding of fact See Bruno 593 So 2d a clearly wrong standard of appellate review La work related indicated accident is records of her shortly after November occurred by Hooper that she had suffered Hooper by her orthopedic the medical mention the occurrence of an accident on that date informed on 2002 and preponderance of the evidence that a in finding that Hooper failed work related accident occurred to on show that date by a 9 Decree For the foregoing reasons Compensation Administration 1o we affirm the Costs of this judgment of the Office of Workers appeal are assessed to Paula Hooper AffIRMED 9 The gradual deterioration of her her work related duties 10 In light as of this conclusion filed with this court congenital condition to the point of November 4 2002 does not warrant find it unnecessary to rule Accordingly said motion is dismissed we 8 on the a where she could contrary no longer perform result Department s motion to strike that was
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