Gabrielle Marie Louisa Chatagnier VS 1st A Southeast INCS, L.L.C.

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1314 GABRIELLE MARIE LOUISA CHATAGNIER VERSUS 1 A SOUTHEAST INCS L C 7udgment Rendered APR 2 6 2Dt3 On Appeal from the Office of Workers Compensation District 9 In and for the Parish of Terrebonne State of Louisiana 03353 11 No Honorable Elizabeth C Lanier Judge Presiding Brent Rhodes Counsel for PlaintifF Appellee Houma Louisiana Wade A Gretna Langlois Louisiana BEFORE Gabrielle Chatagnier III Counsel for Defendant Appellant l A Southeast Incs L C WHIPPLE C McCLENDON AND HIGGINBOTHAM J McCLENDON J In this workers compensation case an employer appeals the judgment of the Office of Workers Compensation OWC in favor of the employee For the reasons that follow we affirm FACTUAL AND PROCEDURAL HISTORY On September 9 2010 Gabrielle Marie Louisa Chatagnier was employed as a Senior Team Leader for l A Southeast Incs L 1 A Receptionist C Southeast a company providing challenged Ms Chatagnier worked in the Houma o under the supervision ce of the main office in Gretna services for the elderly and mentally Ms Chatagnier testified that she worked as a receptionist at i A Southeast in the mornings from 8 a to noon and then as m a senior team leader from noon to 4 p She stated that she did not clock out m for lunch Ms Chatagnier also testified that having transportation was a prerequisite of her job and that she did a lot of driving with her job for which she received 80 per month for gas 00 On the morning of September 9 2010 Ms Chatagnier received a call on the office telephone from Sonya Geason an employee based in the Gretna office Ms Geason asked Ms Chatagnier if she could pick up a canister from s Burke Outlet Store for her Ms Geason mentioned that she and Stephanie Jackson the owner of l A Southeast had forgotten to pick it up when they were in Houma the day before Ms Geason did not tell Ms Chatagnier what the canister was for Ms Chatagnier went out to lunch that day with a co for her employee birthday After lunch instead of making the turn to return to the office Ms Chatagnier passed the office and proceeded on Tunnel Boulevard towards s Burke Outlet to pick up the canister While she was stopped at a traffic light at the intersection of Tunnel Boulevard and Polk Street the vehicle Ms Chatagnier was driving was rear ended 1 As a senior team leader Ms Chatagnier testified that she worked with clients in their homes This might also include picking up miscellaneous items to assist clients with the activities of their daily living such as diapers gloves or whatever the case might be 2 On May 5 2011 Ms Chatagnier filed a disputed claim for compensation seeking the payment of wage benefits and medical bills as well as authorization for future medical treatment Ms Chatagnier alleged that she suffered injuries to her neck head and back and that at the time of the accident she was on a mission from her employer to Burke Outlet to obtain a metal canister for s corporate 1 A Southeast answered denying that Ms Chatagnier was in the course and scope of her employment at the time of the injury and also denying that her injuries were related to or caused by the accident Following a trial on April 3 2012 the OWC found that Ms Chatagnier was acting in the course and scope of her employment at the time of the automobile accident and that she suffered injury as a result of the accident The OWC determined that 1 A Southeast was liable for Ms Chatagnier medical s expenses The OWC also ordered 1 A Southeast to pay continuing indemnity benefits from the date Ms Chatagnier left her employment on October 14 2010 until there was a material change in circumstances Additionally the OWC authorized the recommended surgery on Ms Chatagnier lumbar spine s and ordered that 1 A Southeast pay for the surgery as well as all reasonable and necessary treatment incidental to the surgery Judgment was signed on April 13 2012 and i A Southeast appealed urging two assignments of error 1 The OWC made an error of law in determining that the claimant proved course and scope of employment based upon her perception or belief that she was on a business mission at the time of her motor vehicle accident when the correct legal standard of proof is not based upon the claimanYs perception but on the actual facts of the case 2 Alternatively Claimant failed to prove a causal connection between the motor vehicle accident and her injury because she was not disability forthcoming about her prior injuries and treatment Z The OWC specifically found that Ms Chatagnier existing conditions relating to her knees spre and migraine headaches were exempted from the injuries deemed to be caused by the accident 3 Ms Chatagnier did not return to her employment with is A Southeast after October 14 2010 when she was placed on medical leave by Beau I Porche D of Houma Spine C Thibodaux Rehabilitation 3 DISCUSSION Standard of Review In workers compensation cases the appropriate standard of review to be applied by the appellate court to the OWC findings of fact is the manifest s clearly error wrong standard Dean v Southmark Const 03 La 1051 04 6 7 879 So 112 117 For an appellate court to reverse a factual finding 2d of the OWC it must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong See Stobart v State through Dept of Transp and Development 617 So 880 882 La 1993 Mart v Hill 505 So 1120 1127 La 1987 2d 2d Thus the reviewing court must do more than simply review the record for some evidence that supports or controverts the OWC finding The reviewing court s must review the record in its entirety to determine whether the OWC finding s was clearly wrong or manifestly erroneous Dawson v Terrebonne General Medical Center 10 La 1 Cir 5 69 So 622 626 2130 App 11 19 3d The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong but whether the fact finder conclusion was a s reasonable one Stobart 617 So at 882 Even though an appellate court 2d may feel its own evaluations and inferences are more reasonable than the fact s finder reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony Where two permissible views of the evidence exist the fact finder choice s between them cannot be manifestly erroneous or clearly wrong Dawson 69 3d So at 626 27 Course and Scope 1 A Southeast initially argues that the OWC erred in concluding that Ms Chatagnier was in the course and scope of her employment at the time of her motor vehicle accident Specifically l A Southeast contends that the OWC erred in finding that because Ms Chatagnier reasonably perceived that she was on a business mission she was in the course and scope of her employment 4 entitling her to benefits under the Workers Compensation Act iA Southeast maintains that Ms Chatagnier was required to prove that she was actually actively engaged in the performance of her duties However Ms Chatagnier argues that she was on a specific mission for 1 A Southeast and that she was doing work for her employer under circumstances where 1 A Southeast s consent could be fairly implied Thus according to Ms Chatagnier she was within the course and scope of her employment at the time of the accident Under the Workers Compensation Act employers are responsible for compensation benefits to employees only when the injury results from an accident arising out of and in the course of his employment S R LSA 1031 23 McLin v Industrial Specialty Contractors Inc 02 La 1539 03 2 7 851 So 1135 1139 2d The requirement that an employee injury s occur in the course of employment focuses on the time and place relationship between the injury and the employment McLin 851 So at 1139 2d 40 An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours either on the employer premises or at other places where employment activities s take the employee McLin 851 So at 1140 Mundy v Department of 2d Health and Human Resources 593 So 346 349 La 1992 The 2d requirement that an employee sinjury arise out of the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment McLin 851 So at 1140 2d The terms arising out of and in the course of found in LSA S R 1031 23 are dual requirements that cannot be considered in isolation from each other Guillory v Interstate Gas Station 94 La 3 653 So 1767 95 30 2d 1152 1154 Martin v Pride Offshore Co Inc 05 La 1 Cir 2373 App 06 3 11 950 So 805 808 In a close case a strong showing made with 2d reference to one requirement may compensate for a weak showing with reference to the other requirement However when there is a weak showing 5 with respect to both requirements the employee is not entitled to compensation benefits Guillory 653 So at 1154 Martin 950 So at 808 2d 2d Generally injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of employment and thUS are not compensable under the Workers Compensation Act This rule often called the going rule is premised on the coming and theory that ordinarily the employment relationship is suspended from the time the employee leaves work to return home until he resumes his work 851 So at 1140 Martin 950 SoZd at 808 2d McLin However this rule has been subject to a number of jurisprudentially established exceptions For example these exceptions have arisen 1 if the accident happened on the employer s premises 2 if the employee was deemed to be on a specific mission for the employer such as making a trip in the interest of his employer business or s pursuant to his employer order 3 if the employer had interested himself in s the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses 4 if the employee was doing work for his employer under the circumstances where the employer consent could be fairly implied 5 if s the employee was hurt while traveling to and from one worksite to another 6 if the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee and 7 if the operation of a motor vehicle was the performance of one of the duties of the employment of the employee McLin 851 So at 1140 n 2d l At trial Ms Chatagnier testified that while Ms Jackson was her employer and boss she also considered Ms Geason a boss She stated that Ms Geason had given her orders before and she thought Ms Geason was second in command Ms Chatagnier also said that whenever Ms Jackson came to Houma Ms Geason was with her Ms Chatagnier testified that when Ms Geason called her on the morning of September 9 2010 to pick up tf canister Ms Geason did not tell her what e 6 the canister was for but that Ms Geason had never before asked her to run a personal errand Ms Chatagnier stated that she felt as though she could not refuse the request and stated I thought it was coming as a direct command Ms Chatagnier further testified that she did not get the feeling from Ms Geason that the canister was for personal use and said she would not have gotten it if she had known it was a personal errand for Ms Geason Ms Geason admitted that she had never asked Ms Chatagnier to run a personal errand for her before September 9 2010 She also acknowledged that she had called the Houma office in the past at Ms Jackson request with s instructions She admitted that she did not tell Ms Chatagnier what the canister was for However in her mind Ms Geason gave Ms Chatagnier no reason to believe that the request was a corporate request when made In her testimony Ms Jackson acknowledged that Ms Geason had on past occasions communicated Ms Jackson instructions to the Houma office s In its reasons the OWC stated is So we have a history of acknowledgment that Ms Geason basically the mouthpiece for the owner at times And Ms Geason who is saying it was a personal errand did not explain to Ms Chatagnier the details And so here you have a mouthpiece for the boss calling an employee not explaining what it was for telling the employee to go get this The OWC evaluated the testimony as well as the documentary evidence presented at trial and concluded that Ms Chatagnier was in the course and scope of her employment at the time of the accident Based on the totality of the circumstances including credibility determinations the OWC believed Ms sversion of events that this was a specific mission for her employer Chatagnier pursuant to her employer order After our own thorough review of the record s and relevant jurisprudence we cannot find that the OWC finding that Ms s Chatagnier was acting in the course and scope of her employment with l A Ms Chatagnier also argued that because 1 A SoutheasYs purpose was to assist clients with activities of daily living such a request was not so out of the ordinary or unique so that she would question its purpose 7 Southeast at the time of her automobile accident on September 9 2010 was manifestly erroneous or clearly wrong Causation Alternatively lst A Southeast challenges the finding of the OWC that Ms sinjuries were causally related to her accident In particular lA Chatagnier Southeast asserts that Ms Chatagnier had prior back and neck problems that she failed to disclose during discovery Further 1 A Southeast contends that by failing to reveal a previous knee injury to Dr McAllister Dr McAllister did not have a complete medical history and therefore could not determine which of Ms Chatagnier sconditions were pre existing A workers compensation claimant bears the burden of establishing a causal connection between the work accident and the resulting disability by a preponderance of the evidence Clark v Godfrey Knight Farms inc 08 1723 La 1 Cir 2 6 So 284 292 writ denied 09 La App 09 13 3d 0562 09 29 5 9 So 163 3d An employee work accident is presumed to s related have caused his disability when the claimant proves that before the accident he had not manifested his disabling symptoms that commencing with the accident disabling symptoms appeared and that there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition Delatte v Pala Group LLC 09 0913 App La 1 Cir 2 35 So 291 295 writ denied 10 La 5 10 10 3d 0562 10 7 34 So 865 Dubuisson v Amclyde Engineered Products Co Inc 12 3d 0010 App La 1 Cir 31 12 3d So ation is not necessarily and exclusively a medical conclusion It is usually the ultimate fact to be found by the fact finder based on all credible evidence Magee v 2554 Abek Inc 04 App La 1 Cir 4 934 So 800 806 writ denied 06 La 06 28 2d 1876 06 27 10 939 So 1287 2d A worker testimony alone may be sufFicient to discharge this burden of s proof provided two elements are satisfied 1 no other evidence discredits or casts serious doubt upon the worker version of the incident and 2 the s 8 I s worker testimony is corroborated by the circumstances following the alleged incident Bruno v Harbert Intern Inc 593 So 357 361 La 1992 2d Roberts v Thibodaux Healthcare Center 05 La 1 Cir 3 0774 App 06 24 934 So 84 92 Corroboration of the worker testimony may be provided by 2d s the testimony of co spouses friends or by medical evidence workers Bruno 593 SoZd at 361 Barring circumstances that cast suspicion on the reliability of the worker uncontradicted testimony the OWC should accept the testimony as s true when determining whether the worker has discharged his or her burden Roberts 934 2d So at 92 The OWC determinations as to whether the s s worker testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations which are not to be disturbed on review unless clearly wrong or manifestly erroneous Delatte 35 So at 295 3d Thus we will examine the evidence presented by Ms Chatagnier to determine whether she met her burden of proving that more probably than not her current neck and back problems were causally related to the accident that occurred while she was in the course and scope of her employment If there is medical and other evidence indicating a reasonable possibility of that causal connection then the OWC factual finding concerning this issue cannot be s clearly wrong and cannot be overturned by this court At trial Ms Chatagnier testified that when she was rear her body ended moved around like a pinball She stated that her neck was burning but at that point in time she was not feeling anything in her back Later that day Ms Chatagnier went to the emergency room at Terrebonne General Medical Center TGMC complaining of pain in her neck and shoulders Ms Chatagnier also stated that after the accident she began having migraine headaches which she acknowledged she previousfy experienced Having been under his care before Ms Chatagnier sought treatment with her chiropractor Dr Beau I Porche about a week after the accident for her aches and pains from the accident Ms Chatagnier testified that she kreated with Dr Porche for approximately eight months before being referred to Dr Phillip V McAllister a neurosurgeon Ms 9 Chatagnier also testified that after about three to four months she began seeing her family doctor when the pain became unbearable Ms Chatagnier stated that the pain at first was in her neck but as months went by it also moved to her lower back and into her legs She said that after Dr McAllister conducted his testing he informed her that she needed fusion surgery on her lower back Ms Chatagnier also testified that she tried to return to work in May 2011 at a company similar to 1 A Southeast She left the job after one week 5t because she could not perform her duties due to the pain Ms Chatagnier stated she again tried employment on a part basis at another similar company but time after about a month her leg gave way one evening in a clienYs home and she felt she had to quit She has not tried to return to employment since then Ms Chatagnier also discussed two previous motor vehicle accidents in which she was involved The first was in 2000 where she had complaints of pain in her chest and neck and of some bruising and swelling Ms Chatagnier testified that after a visit to the emergency room she received no further treatment for that accident and that she had no residual symptoms Ms Chatagnier was also involved in another accident in 2003 wherein she was rear ended and sought medical treatment at the emergency room at Lady of the Sea General Hospital for neck pain She testified that after the emergency room visit she did not seek medical treatment of any kind until she had a slip fall and accident at a Dixie Winn in September 2008 and injured her knee Ms Chatagnier stated that she tore her anterior cruciate ligament ACL and was treated by Dr Porche who referred her to Dr Kenneth N Adatto an orthopedist She stated she saw Dr Adatto one time who told her that she needed surgery on her knee Ms Chatagnier admitted on cross that examination she chose not to have the surgery preferring physical therapy instead She also admitted discussing with Dr Adatto that she had lower back and neck pain as well as numbing and tingling in her arms but was told that because of her knee injury she was overcompensating to her left side Ms Chatagnier stated that she continued to treat with Dr Porche for her knee through September 2009 She 10 i also admitted that around 20Q5 she suffered a pulled a muscle in the middle of her back but that it resolved Ms Chatagnier further testified that she had never been diagnosed with a permanent cervical or lumbar disc condition before September 9 2010 and had never had an MRI or other testing of her neck or back before the accident in questian On review of the record we note that neither Dr Porche nor Dr McAllister testified at trial or by deposition However their respective medical records pertaining to Ms Chatagnier were introduced The medical records show that Dr Porche of Houma Thibodaux Spine Rehabilitation first saw Ms Chatagnier after the September 9 2010 accident on September 13 2010 when she complained of neck and lower back pain due to a motor vehicle accident Ms Chatgnier followed treatment with Dr Porche two to three times a week for several months During that time Dr Porche requested that MRIs of Ms s Chatagnier cervical spine and lumbar spine be performed The cervical spine MRI was conducted on December 8 2010 and showed mild disc bulging at C4 5 and C5 and mild bilateral facet arthropathy at C5 The MRI of Ms 6 6 slumbar spine was perFormed on March 18 2011 and showed disc Chatagnier bulging at L5 narrowing the lateral recesses bilaterally and the neural Sl foramen bilaterally and disc bulging at L4 with an annular tear at the 6 5 clock o position Dr McAllister first examined Ms Chatagnier on June 13 2011 His initial impression was cervical spondylosis without myelopathy or radiculopathy lumbar HNP with radiculopathy and sciatica He recommended a myelogram lumbar spine CT and x for further diagnostic evaluation of her lumber spine Dr rays McAllister next saw Ms Chatagnier on August 23 2011 after the tests were performed and recommended an anterior approach for an L5 Anterior Si Lumbar Interbody Fusion On October 18 2011 Ms Chatagnier returned to see Dr McAllister who commented at this visit that u re of the pon evaluation 5 Other medical records were introduced as well including those of her family doctor Dr Camille Pitre of Lady of the Sea Clinic Terrebonne General Medical Center Dr Edgar L Feinberg II Our Lady of the Sea Hospital and Dr Kenneth N Adatto 11 j MRI imaging for today svisit there is evidence of L3 which shows question of 4 nerve root compression and question of stability It was his recommendation to proceed with the L5 Anterior Lumbar Interbody Fusion Sl He discussed the surgical and non options with Ms Chatagnier who wished to proceed surgical In its reasons the OWC found that Ms Chatagnier migraine headaches s were not related to the accident but found that her neck and back conditions were related The OWC then stated Knee is not related Now Dr McAllister will have to separate out If you have nerve damage from a disc and you have radiculopathy or you have back consequences in the leg related versus a torn ACL complications for not having surgery he got to s separate that out So the knee itself is not related And if there is going to be treatment for any type of radiculopathy there not usually treatment for the leg Usually s when you have the surgery on the back that fixes the leg So I m not necessarily treating the leg You treat the back to help the leg So I going to limit it to that type of claim m Upon our thorough review of the record we cannot say that the OWC lacked a reasonable factual basis for the finding that Ms Chatagnier work s related accident caused her neck and back conditions warranting an award of workers compensation and medical benefits including surgery Therefore we are constrained to find that the OWC was not clearly wrong CONCLUSION AfYer a thorough review of the record we find a reasonable basis to support the OWC factual determination that Ms Chatagnier was injured as a s result of an accident while she was in the course and scope of her employment with l A Southeast Therefore we find no error in and hereby affirm the April 13 2012 judgment of the OWC All costs of this appeal are assessed to l A Southeast Incs L C AFFIRMED 12

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