Sheila Vicknair VS Wal-Mart Stores, Inc.

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TE ST OF LQUISIANA CQl1RT t APPEAL F FIR5T IRCUIT NO 2Q1r 7011 SFiEYLA VYCiC6VAIR VEFZSUS n MART WAL STORES INC DEC 2 1 2012 udgment rendered On Appeal from the Office of Workers Compensation Administration District 6 State of Louisiana Docket No 08 23003 Honorable Gwendolyn F Thompson Judge Presiding LAURIE W MASCHEK ATTORNEY FOR LA SLIDELL APPELLANT PLAINTIFF SHEILA VICKNAIR SCOTT F DAVIS ATTORNEYS FOR DAX C FOSTER APPELLEE DEFENDANT MEfAIRIE MART WAL STORES INC LA INTERVENOR PRO SE C RAY MURRY SLIDELL LA BEFORE KUHN PETTIGREW AND McDONALD JJ PEITIGREW This is an appeal from a wcr correper dispute wherein the workers Cers sation compensation judge WCJ fo that claimant failed to carry hAr burden of proof that nd her work accident aggravated a preexisting lumbar condition caused injury to her related knee or aggravated her mental condition From a dismissal of her claim with prejudice claimant has appealed We a rm Claimant Sheila Vicknair was employed as a cashier at Wa Stores Inc Mart Mart Wal when she tripped and fe in the parking lot on August 23 2007 The l accident was witnessed by a co and is not in dispute worker Following this accident Ms Vicknair then a 50 old obese female with a year history of lower back complaints sought treatment from her general practice physician Dr Adrian Talbot Dr Talbot later referred her to an orthopedist Dr Paul M Doty On her initial visit to Dr Doty on September 21 2007 Ms Vicknair expressed complaints referable to her back her right wrist and her right knee Ms Vicknair also expressed complaints following the accident about her inability to always extend the long finger of her left hand Dr Doty impression based upon his physical examination was that Ms s Vicknair suffered from a triggering of her left long finger back pain subsequent to falling and a sprain of her right wrist from catching herself as she fell Dr Doty treated her conservatively wlth a steroid onjection and medications According to Dr Doty Ms Vicknair wrist knee and back complaints improved but on s November 21 2007 Dr Doty performed an autpatient procedure known as a trigger finger release at Lakeview Regionai Medical enter In a foflow visit on February 1 up 2008 Ms Vicknair expressed complaints of back pain as well as a new complaint of pain in her left knee Ms Vicknair fell again at her home on May 10 2008 and sustained a lateral fracture of her right tibia Ms Vicknair claims that this subsequent fall was caused by the 1 In his deposition testimony Ms Vicknair streating physician Dr Adrian Talbot noted that Ms Vicknair was 5 1 tall and weighed between 239 and 248 pounds 2 injuries she sustained at Wal on August 23 2007 ithat her right knee could no Mart e longer sustain her weight Ms Vicknair und emergency surgery performed by Dr rwent John L Fambrough an orthopedist to re her roken right tibia 1s Vicknair later aor underwent totai knee replacement surgery a performed by Dr Fambrough the sq following year Ms Vicknair admitted that she did n advise any affiliated with t ne Mart Wal about her knee replacemer s t gery r Ms Vicknair filed the instant claim for compensation with the Office of Workers Compensation on November 13 2008 alleging injury to her knee wrists breast and lower back In connection with her claim for compensation Ms Vicknair alleged that as a result of her fall on August 23 2007 Wal failed to provide medical treatment or pay Mart her medical bills for which she sought penalties interest and attorney fees Wal Mart responded by filing an answer claiming that it reasonably and properly handled Ms s Vicknair workers compensation case and further that Ms Vicknair present complaints s of injury were not sufficiently related to h earlyer aVleged accident at work r On April 30 2009 Ms Vicknair filed ar Amended and Supplemented Disputed Claim 1008 wherein she alleged that Wai unreasonably denied her medical Mart treatment with a neurosurgeon Dr Dietze a neurfllogist Dr Shamsnia a psychologist Dr Boutte and pain management treatment from her general practice physician Dr Talbot Ms Vicknair further asserted that Wal refused to approve steroid injections Mart prescribed by her orthopedist Dr Doty and SQUght penalties interest and attorney fees for Wal arbitrary and capricious termination of all medical treatment from all of her s Mart treating physicians as of October 30 2008 Ms Vicknair filed a Second Amended and Suppiemented Disputed Claim 1008 on anuary 20 2010 wherein she fu alleged that Wal failed to authorize medical ther Mart weight loss therapy recommended by the court independent medical examiner appolnted Dr Eric Oberlander Ms Vieknair also sought penalties interest and attorney fees Por s Mart Wal failure to authorize medical treatment In answering Ms Vicknair second s amended claim Wal stated that it would not authorize treatment for weight loss as Mart same was not causally related to Ms Vicknair accident at work s 3 On August 24 2010 P V orPner attorney C Ray Murry filed a Petition s ck s air of Intervention in this matt rseekang te y attorney fees for legaf services rendered cover in the event this makter was settlea Ms Vitknais obt a favorable judgment iined The matter proceeded to triaC on 7une 27 20I1 on the following issues 1 Whether Wal was reaso in i faifure to appr lumbar Mart rable ve surgery as recommended by Dr Die e 2 Whether Wal was reasonable in its failure to pay outstanding Mart medical expenses incurred as a result of leg and knee surgeries performed by Dr Fambrough 3 Whether Wal was reasonable in its failure to timely authorize Mart treatment with Ms Vicknair choice of neurosurgeon Dr Donald Dietre s 4 Whether Wal was reasonable in its failure to timely authorize Mart mental health treatment 5 Whether Wal was reasonable in its failure to timely authorize an Mart MRI and ESIs as recommended by Dr Doty 6 Whether Wal was reasonable in its failure to timely authorize pain Mart management 7 Whether Wal was reasonable in its failure to timely authorize Mart weight loss managernent treatment weight 8 Whether Wal was reasonable when it temporarily suspended Ms Mart sworkers compensation benefits in October of 2008 and Vicknair 9 Whether Ms Vicknair i entitled to penalties and attorney fees on all listed above issues At the conclusion of the evidence the matter was submitted to the workers compensation judge WCJ with post briefs from the respective parties due fifteen trial working days from the date of trial An extension for briefs was granted and the matter was taken under advisement on August 1 2011 A judgment was due within 45 days Factual findings in workers compensation cases are subject to the manifest error or clearly wrong standard of ate appel review Banks v Industrial Roofing Sheet Metal Works Inc 96 p 7 7 696 So 551 556 Even though an 2840 La 1 2d 97 appellate court may feef its own evaluations and inferences are more reasonable than the fact finder reasonable evaluations of credibility and reasonable inferences of fact should s not be disturbed upon review where conflict exists in the testimony Where there are two permissible views of the evidenc tne fack finder choice between them cannot be s manifestly erroneous or clearly wrong See Stobart v State Department of Transportation and Development 617 So 880 882 La 1993 2d 83 In order for a claimant to be entitled to recover workers compensation benefits he must prove by a preponderance of the evidence that a work accident occurred related 4 and that an injury was sustained In certain events a woricer testimony is sufficient to s discharge the burden of proving an accident provided that two elements are first satisfied 1 no other evidence discreddts or casts serdous doubt upon the worker s version of the incid and 2 the woa testirraony is corroboratEd by the nt s ker circumstances surrounding the aiiEged ineide Carter v Lakeview Regional Medical c Center 04 p 4 App 1 Cir 9923 So 686 688 See also Bruno v 1794 La Q5 23 cd Harbert International Inc 593 So 357 36i La 1992 2d Ms Vicknair testimony at trial was not credible and the overwhelming evidence s presented by Wal including numerous medical records directly contradicted her triaf Mart testimony Ms Vicknair medical history documented lower back complaints prior to the s accident dating back at least to January 27 2005 In this rare instance the WCJ had the benefit of reviewing lumbar MRI scans obtained on June 20 2006 prior to the accident with those taken on August 31 2007 shartly after the accident It was the consensus of opinion from all three neurosurgical experts that these scans did not reveal any significant changes in the lumbar discs at issue In addition Ms Vicknair testified that she had a subsequent fali in May 2008 in which her right leg gave out At trial Ms Vicknair denied any arlier fa in which her ls right leg gave out prior to the August 23 2007 accodent at 1Nal Mart On cross examination Ms Vicknair was canfronted with a January 27 2005 record from Lallie Kemp Medical Center that gave a history of a fall n wnich her Right leg gave out today The medical record most damaging to Ms Vicknair credibility was perhaps the s Medical Psychology Consulting Pain Questionnaire contained in the records of Dr John Boutte Ms Vicknair streating psychiatrist This document com in connection with pleted a pre visit on April 18 2006 noted that Ms Vicknair had complaints of pain in accident her lower back and right leg that began about four years earlier At the time Ms Vicknair attributed her complaints of pain to having fallen many times while earning a living stripping and buffing floors 5 In additior to V c of ch loever ack pai Ms Vicknair also er zmplaints rcni complained to her ger practi ar Ta fdepression and the need for weight erai er ot i loss prior to the ac behveen ptember 5 2C ard July 31 20G5 ident Q5 Accordingly the WCJ anclu fn her a fihat c Sheila Vicknair ed nt dgr laimanw did not carry her burden qf pr4Qf k she su a work accident that at red f related aggravated a pre lumbar cond ca i her knee or aggravated her existing ition s jury to d mental condition After a thorough review of the record we find no error in the findings of the WCJ Accordingly we affirm the decision of the WU and assess all costs associated with this appeal against the claimant Sheila Vicknair AFFIRMED 6

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