The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-0945
JANICE FLUITT
VERSUS
CHRISTUS HEALTH CENTRAL LOUISIANA D/B/A ST. FRANCES
CABRINI HOSPITAL
************
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 03-04778,
HONORABLE JAMES L. BRADDOCK,
WORKERS’ COMPENSATION JUDGE
************
JIMMIE C. PETERS
JUDGE
************
Court composed of Jimmie C. Peters, J. David Painter and James T. Genovese,
Judges.
AFFIRMED.
Genovese, J., dissents and assigns reasons.
Edward E. Roberts, III
Neblett, Beard & Arsenault
Post Office Box 1190
Alexandria, LA 71309
(318) 487-9874
COUNSEL FOR PLAINTIFF/APPELLEE:
Janice Fluitt
Kathryn Flower Van Hoof
Van Hoof Law Firm
Post Office Box 339
369 Lamourie Road
Lecompte, LA 71346
(318) 776-4836
COUNSEL FOR DEFENDANT/APPELLANT:
Christus Health Central Louisiana d/b/a St. Frances Cabrini Hospital
PETERS, J.
Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital
(Cabrini) has appealed a judgment which awarded its former employee, Janice Fluitt,
workers’ compensation disability and medical benefits for injuries she sustained
while working in the course and scope of her employment with Cabrini. For the
following reasons, we affirm the judgment in all respects.1
DISCUSSION OF THE RECORD
Ms. Fluitt began working for Cabrini soon after she obtained her nursing
license in April of 1997, and in August of 2002 she was still employed by Cabrini as
an oncology nurse. This litigation arose because Ms. Fluitt claims to have injured her
left knee on August 17 and 18, 2002, while in the course and scope of her
employment with Cabrini. When her employer refused to compensate her for that
injury, Ms. Fluitt filed a claim for compensation asserting that she suffered a
compensable injury to her left knee on August 17, 2002.2 She filed her claim on July
3, 2003, and the matter went to trial before the workers’ compensation judge (WCJ)
on January 20, 2005.
At trial, the WCJ heard the testimony of Ms. Fluitt and three other witnesses.
However, no physicians or other healthcare providers testified, and all of the evidence
with regard to the medical issues was provided by extensive medical exhibits filed by
both litigants. After completion of the evidentiary portion of the trial, the WCJ took
1
We observe that in her appellate brief Ms. Fluitt requests that we reverse the workers’
compensation judge’s denial of penalties and attorney fees. She also requests that we award
additional attorney fees for work done on appeal. However, we have neither an appeal nor an answer
to Cabrini’s appeal on behalf of Ms. Fluitt. Therefore, Ms. Fluitt’s requests are not properly before
us, and we may not consider them.
2
In her original filing, Ms. Fluitt asserted that she had also sustained a work accident on June
28, 2002, when she was exposed to a strong chemical air freshener used in her work and that the
exposure caused her to suffer asthma attacks. However, that issue is not directly before us in this
appeal.
the matter under advisement. In its March 11, 2005 oral reasons for judgment, the
WCJ found that Ms. Fluitt sustained a compensable injury while in Cabrini’s
employment and awarded her indemnity benefits and medical expenses, but denied
her claim for penalties and attorney fees. The WCJ executed a written judgment on
May 23, 2005, awarding Ms. Fluitt temporary total disability benefits (TTDs) in the
amount of $398.00 per week for the period beginning on August 18, 2002, and
terminating on December 17, 2002; supplemental earnings benefits (SEBs) in that
same weekly amount from December 17, 2002, until further orders of the court; and
medical expenses totaling $26,032.61.
Cabrini timely appealed this judgment, asserting the following assignments of
error:
1. The Office of Workers’ Compensation erred in factually
determining that the last day of work on August 18, 2005 [sic]
was due to knee problems and that a knee injury occurred at work
on August 17, 2002 and on August 18, 2002, when that finding
is unsupported by the record.
2. The Office of Workers’ Compensation erred in factually
determining that chiropractic treatment for the left knee was for
the claimant’s husband, and thus failing to consider all
chiropractic evidence, when that finding is not supported by the
record.
3. The Office of Workers’ Compensation erred as a matter of law in
determining that the burden of proof is on the employer to show
there is no disability.
4. The Office of Workers’ Compensation erred in awarding
temporary total disability benefits for disability and medical
benefits during the period [sic] August 18, 2002 through
December 17, 2002.
5. The Office of Workers’ Compensation erred in factually
determining that light duty work was not available as of
December 17, 2002 and in awarding SEBs from that date and
continuing thereafter and medical benefits, a finding which is not
supported by the record.
2
OPINION
The evidentiary record establishes without dispute that Ms. Fluitt worked a
complete shift at Cabrini on the weekend of August 17 and 18, 2002. She testified
that while working on August 17, 2002, her left knee buckled under her as she walked
up a ramp in the hospital to retrieve medicines sent from the hospital pharmacy to the
floor where she was working. When her knee buckled, she “caught” herself on the
adjacent handrail and continued up the ramp. She did not recall whether she reported
that particular incident to the charge nurse or supervisor,3 and she completed her shift
without further incident.
The next day, according to Ms. Fluitt, her knee buckled three additional times.
The first time that day occurred at approximately 9:30 a.m. as she maneuvered
through several obstacles in a patient’s room to turn on a light at the patient’s request.
The second time occurred at approximately 2:00 p.m. while she was in the restroom.
The third time occurred at approximately 5:30 p.m. as she walked from the nurse’s
station to a table used to make entries in patient charts. On each of these three
occasions, a clearly audible popping sound emanated from the knee as it buckled.
Ms. Fluitt testified that she immediately reported the first August 18 incident
to Lynn Durr, the charge nurse on duty. She did so because immediately after the
knee buckled, it began burning. However, according to Ms. Fluitt, Ms. Durr did not
prepare a written incident report because the staff was extremely busy at the time.
Ms. Fluitt completed her shift, but the next morning her knee was extremely swollen
3
Ms. Fluitt testified that hospital policy required that she report any accidents to the charge
nurse on duty at that time. The charge nurse was then required to prepare a written report for
submission to the appropriate supervisor.
3
and the accompanying pain prevented her from walking or even placing any weight
on her left leg. Ms. Fluitt never returned to work with Cabrini.
Ms. Durr’s trial testimony supported Ms. Fluitt’s testimony with regard to the
first and last buckling incident of August 18. With regard to the first incident, she
testified that she observed Ms. Fluitt leaving a patient’s room, rubbing her knee and
complaining that her knee was weak. She also testified that she observed Ms. Fluitt’s
left knee buckle as Ms. Fluitt walked toward the table used for charting work and
that, when it buckled, she heard a popping sound. According to Ms. Durr, Ms. Fluitt
“looked surprised and scared at the same time.” She further acknowledged that, as
the charge nurse for that shift, she was the person to whom Ms. Fluitt would have
reported any accident. Although she did not recall completing an incident report on
that day, she did confirm Ms. Fluitt’s testimony that the oncolgy unit was often
extremely busy with patients and that other things simply had to wait.4
The medical exhibits submitted at trial establish that Ms. Fluitt sought
treatment for her left knee condition from three physicians and a chiropractor: Dr.
Chris Rich, an Alexandria, Louisiana, orthopedic surgeon; Dr. Barry Henry, a
Lafayette, Louisiana, orthopedic surgeon; Dr. Mohammad I. Shbeeb, an Alexandria,
Louisiana, rheumatologist; and Dr. Kemp J. Nelson, an Alexandria, Louisiana
chiropractor. Dr. Rich treated her with physical therapy and pain medication; Dr.
Shbeeb saw her on only one occasion for evaluation at the request of Dr. Rich; Dr.
Henry performed surgery on Ms. Fluitt’s left knee and repaired a torn meniscus; and
Dr. Nelson saw her on at least one occasion, August 26, 2002.5 All of this medical
4
Ms. Durr’s testimony was not emphatic concerning the completion of any report. She
credited her lack of memory on this point to the time that had lapsed since the accident.
5
Whether Dr. Nelson saw and treated Ms. Fluitt more than one time is an issue on appeal.
4
evaluation and treatment occurred between Ms. Fluitt’s first visit with Dr. Rich on
August 20, 2002, and Dr. Henry’s surgery on November 14, 2002. During this
period, on August 26, 2002, Cabrini fired Ms. Fluitt for absenteeism.
Assignments of Error Numbers One and Two
In asserting that the WCJ erred in concluding that Ms. Fluitt sustained a
compensable injury on August 18, 2002, Cabrini directs us to inconsistencies
established by the evidence which “cast[] serious doubt on [Ms. Fluitt’s] version of
the incident.” In considering these assignments of error, we first note that “[t]he trial
court’s determinations as to whether the worker’s testimony is credible and whether
the worker has discharged his or her burden of proof are factual determinations not
to be disturbed on review unless clearly wrong or absent a showing of manifest
error.” Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).
Cabrini’s primary argument in both of these assignments relates partially to Ms.
Fluitt’s actions [or inactions] in reporting the events of August 17 and 18, 2002, both
to her employer and the healthcare providers. While there may have been
inconsistencies created by the evidence presented, we find that they do not rise to the
level of requiring a reversal of the WCJ’s factual findings.
With regard to the reporting inconsistencies, Cabrini relies primarily on the
testimony of its employee, Christa Book, who holds the position of employee health
nurse. She is the person within Cabrini to whom accidents are supposed to be
ultimately reported. According to Ms. Book, she had numerous conversations with
Ms. Fluitt and Bruce Tassin, the hospital’s risk management director, concerning a
June 2002 incident wherein Ms. Fluitt was sprayed in the face with a chemical air
5
freshener.6 She testified that she did not recall any reference to a knee injury during
these conversations and that her first indication of an injury to Ms. Fluitt’s knee came
three months after the hospital had terminated Ms. Fluitt’s employment. However,
despite the fact that she is responsible for receiving claims and monitoring the
progress of those claims, she acknowledged that she does not keep a log of her
activities.
Ms. Fluitt’s testimony concerning her discussions with Cabrini with regard to
her knee injury was in stark contrast to that of Ms. Book. She testified that, when she
awoke on August 19 with a swollen knee, she immediately attempted to obtain an
appointment with Dr. Rich but that the first available appointment was not until
August 20, 2002.7 After leaving Dr. Rich’s office,8 she telephoned the hospital
“house supervisor”9 and informed her that Dr. Rich had recommended that she not
return to work for three weeks and that the hospital needed to make arrangements to
replace her. The house supervisor suggested that she telephone Ms. Book.
According to Ms. Fluitt, she finally reached Ms. Book two days later and informed
her by telephone of her injury and of the fact that she had little or no leave left
because of the continued complications arising from the unresolved June 2002 claim.
Ms. Fluitt testified that she requested that Ms. Book expedite both her June claim and
6
Ms. Book testified that, with regard to the spray incident, the hospital did not deny the claim
but “questioned” it.
7
Ms. Fluitt initially testified that her initial appointment did not occur until August 21, 2002.
However, Dr. Rich’s records reflect that his initial examination occurred on Tuesday, August 20,
2002. Later in her testimony, Ms. Fluitt referred to the appointment as having occurred on Tuesday
of that week. Thus, given the record as a whole, we conclude that the initial appointment occurred
on Tuesday, August 20, 2002.
8
The record reflects that Dr. Rich’s office is located immediately across the street from
Cabrini.
9
The record does not specifically identify this person.
6
the current claim because she needed the workers’ compensation benefits to support
her family.
The next day after her initial appointment with Dr. Rich, Ms. Fluitt received
a telephone call from Joan Wilson, her immediate supervisor in her work unit. Ms.
Fluitt testified that she related the history of her knee injury to Ms. Wilson and
informed her that Dr. Rich had recommended that she not return to work for three
weeks. Thus, in Ms. Fluitt’s view, Cabrini obviously understood her situation.
However, she testified that thereafter she began to have difficulties communicating
with Ms. Book. According to Ms. Fluitt, Ms. Book simply refused to discuss her
knee injury and refused to accept it as a workers’ compensation claim. She testified
that she asked Ms. Book on several occasions to telephone Dr. Henry but that Ms.
Book refused. Dissatisfied with Ms. Book’s attitude, Ms. Fluitt then contacted Mr.
Tassin in an effort to obtain some consideration of her claims. That attempt,
according to Ms. Fluitt, was also in vain.
Cabrini also asserts that the medical exhibits in evidence reflect inconsistencies
which undermine Ms. Fluitt’s credibility to the extent that the WCJ erred in finding
that a compensable accident occurred. With regard to Dr. Rich, Cabrini points to the
fact that on the doctor’s patient medical history form she wrote “unknown” in the
blank concerning how the injury arose and that Dr. Rich’s notes reflect a history of
pain for the week before the appointment with no known injury.
Dr. Nelson’s records reflect that Ms. Fluitt had been seeing him professionally
for a number years for various ailments and that he saw her twice, August 26 and 28,
2002, for her current knee injury. The doctor’s typed notes with regard to those visits
make no reference to any history obtained other than the complaint that she suffered
7
with moderate stiffness, soreness, and pain in the left knee. However, Cabrini directs
us to two other places in Dr. Nelson’s records that seem to refer to treatment for a
previous knee injury. Those include recorded visits to Dr. Nelson on July 21, 2000,
and January 19, 2001.10 The July 21 record contains a form which lists Ms. Fluitt as
the patient and includes an image of an erect human body facing forward and
backward. The obvious purpose of the form is to have the patient, or someone on his
or her behalf, mark on the body the places he or she suffers pain. Cabrini points to
an “X” which appears on the back portion of the left knee as evidence of a prior
history of knee difficulties.11 Additionally, Cabrini directs us to the January 19, 2001
form which lists as the location of pain “Lt Knee & Rt hip, 2 fingers on left hand.”
However, while it is made a part of Ms. Fluitt’s records, it contains no notation in the
space reserved for the patient’s name.
Ms. Fluitt explained that, when Dr. Rich asked her whether the claim was one
covered by workers’ compensation, she told him that, because she was already in a
dispute with the hospital over another claim which the hospital would not recognize
as a workers’ compensation claim, she was doubtful that Cabrini would accept this
one. Therefore, she suggested to Dr. Rich that the claim should be carried under her
husband’s private insurance. According to Ms. Fluitt, Dr. Rich informed her in the
initial examination that he believed she suffered from a torn meniscus. He suggested
that she undergo an MRI at Cabrini and indicated that he would schedule it
10
Part of the problem in evaluating Dr. Nelson’s records is that he has changed the format
over the years. The July 21, 2000 entry is on a preprinted form entitled “PATENT’S DAILY
PROGRESS REPORT/TREATMENT NOTES/DOCUMENTATION/SOPE NOTES.” Before
January 19, 2001, the doctor used a half-page preprinted form that provided for basic information
regarding complaints (subjective and objective), assessment, and treatment. By August of 2002, Dr.
Nelson had begun to prepare individual after-the-fact notations of his findings and treatment.
11
The body contains an “X” at the rear left buttock, the left front foot, and the left side of the
waistline as well.
8
immediately. Additionally, according to Ms. Fluitt, Dr. Rich informed her that he
would schedule her for surgery on Thursday of that week. She telephoned Cabrini
on Wednesday and discovered that no surgery had been scheduled for Thursday. She
then contacted Dr. Rich’s office and was informed that he wanted to await the results
of the MRI. That test was performed on Wednesday afternoon. The results of the
MRI proved to be inconclusive for a torn meniscus, and Dr. Rich chose to treat Ms.
Fluitt’s complaints with physical therapy and pain medication.
With regard to Dr. Nelson’s records, Ms. Fluitt denied having any prior knee
difficulties and explained the entries as a mistake. According to Ms. Fluitt, her
husband, Michael D. Fluitt, Sr., had been treated for a left knee injury by Dr. Nelson.
Mr. Fluitt testified that his wife suffered no prior knee difficulties, that both he and
his wife had been under the care of Dr. Nelson prior to her August 2002 accident, and
that it was he who had the left knee complaints. The WJC found Dr. Nelson’s records
to be inconclusive and made the specific factual finding that Ms. Fluitt “was doing
her job well until the -- until August -- mid-August of 2002.”
In attempting to evaluate Cabrini’s argument, we are not favored with the
testimony of either Dr. Rich or Dr. Nelson. Rather, with regard to Dr. Rich, we must
evaluate this issue by comparing Ms. Fluitt’s version of what transpired in the office
visit to the actual notations in the medical records. In doing so, we acknowledge the
correctness of Cabrini’s assertions concerning the inconsistencies between Ms.
Fluitt’s testimony and the notations in the medical records. However, we also note
that the MRI report of August 20, 2002, contains entries which suggest that traumatic
etiology of the injury was considered. The report states that the MRI was performed
because of a suspected meniscal tear. Under the section of the report entitled
9
“FINDINGS,” the report states that “THERE IS A SMALL FOCUS OF MARROW
EDEMA INVOLVING THE MEDIAL MARGIN OF THE MEDIAL FEMORAL
CONDYLE. QUESTION HISTORY OF RECENT TRAUMA.” (Emphasis added.)
Under that same section, the report further states that “NOTE IS MADE OF A
REGIONAL ZONE OF EDEMA AROUND THE MEDIAL COLLATERAL
LIGAMENT. THIS SUGGESTS SOME UNDERLYING LIGAMENTOUS STRAIN
ALTHOUGH A DEFINITE LIGAMENTOUS TEAR IS NOT IDENTIFIED.”
(Emphasis added.) With regard to Dr. Nelson, we are left with a record that contains
no reference to the patient’s history.
In the oral reasons for judgment, the WCJ evaluated the evidence and made
extensive findings of fact. The WCJ specifically recognized the conflicting testimony
of Ms. Fluitt and Ms. Book, but also noted that the hospital made no effort to
discredit the testimony of Ms. Durr. Citing the supreme court decision in Bruno, 593
So.2d 357, and noting that Cabrini’s attack on Ms. Fluitt related primarily to the
supposition that her claim was based solely on her testimony, the WCJ stated that the
evidence established otherwise. Pointing to Ms. Durr’s testimony, the various
notations concerning Ms. Fluitt’s knee injury in her personnel file, and the fact that
Ms. Fluitt did indeed suffer a meniscus tear as originally suspected by Dr. Rich, the
WCJ discounted the other contentions of Cabrini and concluded that Ms. Fluitt had
carried her burden of proof.
“[T]he plaintiff-worker in a compensation action has the burden of establishing
a work-related accident by a preponderance of the evidence.” Bruno, 593 So.2d at
361. Additionally,
A worker’s testimony alone may be sufficient to discharge this burden
of proof, provided two elements are satisfied: (1) no other evidence
10
discredits or casts serious doubt upon the worker’s version of the
incident; and (2) the worker’s testimony is corroborated by the
circumstances following the alleged incident. West v. Bayou Vista
Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13
Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d
Ed.1980). Corroboration of the worker’s testimony may be provided by
the testimony of fellow workers, spouses or friends. Malone & Johnson,
supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)].
Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her
burden of proof, the trial court should accept as true a witness’s
uncontradicted testimony, although the witness is a party, absent
“circumstances casting suspicion on the reliability of the testimony.”
West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381,
1383 (La.1987). The trial court’s determinations as to whether the
worker’s testimony is credible and whether the worker has discharged
his or her burden of proof are factual determinations not to be disturbed
on review unless clearly wrong or absent a showing of manifest error.
Gonzales v. Babco Farms, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.),
writ denied, 536 So.2d 1200 (La.1988) (collecting cases). Indeed, the
manifest error/clearly wrong standard of appellate review applies in
compensation actions even when the trial court’s decision is based
solely upon written reports, records or depositions. Virgil v. American
Guarantee and Liability Insurance Co., 507 So.2d 825 (La.1987).
Id.
Applying the rationale in Bruno, we find no manifest error in the WCJ’s factual
determinations. Therefore, we find no merit in Cabrini’s first two assignments of
error.
Assignments of Error Numbers Three, Four, and Five
In these assignments of error, Cabrini addresses the issue of Ms. Fluitt’s
disability, if any, arising from the accidents of August 17 and 18, 2002, and the
payment of benefits for that disability. Because they are interrelated, we will consider
them together.
Concerning the issue of disability, the WCJ stated the following in its reasons
for judgment:
11
The employer offered some evidence that Ms. Fluitt is not
disabled because she has gone on mission trips to South Africa, she does
household chores, she participates in Church activities, and she goes
deer hunting. But the burden is on the employer to show that Ms. Fluitt
can earn 90 percent of her pre-injury wages. She testified she had
looked for work when she was unemployed. According to Banks versus
Industrial Roofing and Sheet Metal Works, Incorporated, a Supreme
Court case, 696 So.2d, Page 551, the employer must show three
minimum things, the existence of a suitable job within the claimant’s
physical capabilities and within the claimant’s or the employer’s
community or reasonable geographic region, the amount of wages that
an employee with the claimant’s experience and training can be
expected to earn in that job and an actual position available for that
particular job at the time that the claimant received notification of the
job’s existence. I recall some testimony that – from the hospital that Ms.
Fluitt should have been aware that the hospital always accommodates
it’s [sic] employees when they have job-related restrictions. However,
there was no evidence introduced by the hospital that they ever offered
any such position to the employee, Ms. Fluitt. Furthermore, in the case
of Banks, the Court stated that, “An employer cannot point to a
claimant’s lack of effort in lieu of the employer’s presenting sufficient
evidence of job availability within the claimant’s physical capabilities.”
And the last restriction we have from Dr. Henry is a light-work
restriction. We’ve already read the job description for an oncology
nurse which, to this Court’s view, indicates activities beyond a light-
duty restriction.12 So Ms. Fluitt is entitled to SEB benefits from
December 17, 2002 with a zero earning capacity through today’s date
and continuing until such time as it changes in accordance of the law.
In its third assignment of error, Cabrini correctly points out that the burden of
proof is on Ms. Fluitt to establish entitlement to TTDs [La.R.S. 23:1221(1)] as well
as SEBs [La.R.S. 23:1221(3)]. In making its argument that the WCJ shifted the
burden of proof to it, Cabrini refers to the oral reasons for judgment wherein the WCJ
stated that “[Cabrini has] offered no contrary evidence to convince this Court that Ms.
Fluitt did not sustain an accident” in the course and scope of her employment with the
hospital. We do not find this comment supportive of Cabrini’s position. Specifically,
12
The WCJ earlier in the reasons for judgment described the job duties as follows: “May
require lifting a [sic] 50 to 100 pounds. Work requires sitting, bending, stretching and walking. May
require prolonged standing and walking, lifting and moving patients, equipment and supplies.
Subject to danger of infection from disease-bearing specimens, exposed to odorous chemicals and
specimens. Exposed to all patient elements: infectious diseases, chemicals radiation, sharp
tools/instruments, antineoplastic agents, combative patients/visitors and electric shock.”
12
the comment occurred in the context of causation of the accident, and not in the
context of establishing the existence of an accident or the nature and extent of
disability. In fact, at that point, the WCJ had not yet discussed the evidence with
regard to the nature and extent of disability. Additionally, the WCJ had
acknowledged that Ms. Fluitt, not Cabrini, had the burden of proving the existence
of a work accident, stating: “Ms. Fluitt bears the burden of proving by [a]
preponderance of evidence that she suffered an accident in the course and scope of
her employment and that the incident qualifies as an accident.”
Rather, in making the comment at issue, the WCJ was responding to Cabrini’s
assertion that chiropractic records indicated that Ms. Fluitt had knee problems prior
to the alleged work accident. In responding to the assertion, the WCJ found the
chiropractic records inconclusive and rejected that evidence as a basis to deny Ms.
Fluitt’s claim. It appears that, in the context of causation, the WCJ’s comment was
simply an observation that, in light of the uncontradicted objective evidence of a
physical injury and the fact that Ms. Fluitt was able to perform her job prior to the
alleged accident, Cabrini had not presented evidence to show that some other event
was responsible for the injury.
Clearly, our jurisprudence provides that a claimant’s disability is presumed to
have been caused by an accident, if before the accident the claimant was in good
health but commencing with the accident the symptoms of the disabling condition
appear and continuously manifest themselves, provided that the medical evidence
establishes a reasonable possibility of a causal connection between the accident and
the disabling condition. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979).
In fact, “[o]nce the disabled employee establishes the presumption of a causal
13
relationship, the party denying the existence of the presumed fact assumes both the
burden of producing evidence and the burden of persuasion on the issue.” Walton v.
Normandy Vill. Homes Ass’n, Inc., 475 So.2d 320, 325 (La.1985). Accordingly, we
find no error on the part of the WCJ, and we reject Cabrini’s assignment of error in
that regard.
In its fourth assignment of error, Cabrini argues that the WCJ erred in awarding
indemnity benefits and medical expenses. Essentially, this argument is a reassertion
of Cabrini’s contention that the evidence does not support a finding of a work-related
accident. Because we have already addressed and rejected Cabrini’s argument in that
regard, we will offer no further discussion here.
Finally, Cabrini complains of the WCJ’s award of SEBs based on a zero
earning capacity. Cabrini asserts that, “[e]xcept for the fact that she was terminated
for excessive, unexplained absences, claimant admitted that her job could have been
modified.” Cabrini also asserts that Ms. Book “testified also that the hospital
accommodates modified duty.”
Regarding Ms. Fluitt’s initial burden of proof, the record reflects that she was
released for only light-duty work, and there is no dispute that she cannot return to her
prior job duties. Thus, it was incumbent upon Cabrini to prove, “by a preponderance
of the evidence, that [Ms. Fluitt was] physically able to perform a certain job and that
the job was offered to [her] or that the job was available to [her] in [her] or
[Cabrini’s] community or reasonable geographic region.” Banks v. Indus. Roofing
& Sheet Metal Works, Inc., 96-2840, p. 9 (La. 7/1/97), 696 So.2d 551, 556. The fact
that Cabrini has the capability of modifying a job for a former employee is not
14
tantamount to a job offer or job availability. Thus, as Cabrini did not meet its burden
of proof, the WCJ did not err in awarding SEBs based on a zero earning capacity.
DISPOSITION
For the foregoing reasons, we affirm the judgment below in all respects at
Cabrini’s cost.
AFFIRMED.
15
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-0945
JANICE FLUITT
VERSUS
CHRISTUS HEALTH CENTRAL LOUISIANA D/B/A ST. FRANCES
CABRINI HOSPITAL
GENOVESE, J., dissents.
The majority views this case as a manifest error case. The record, however,
indicates an unwitnessed workers’ compensation accident with an abundance of
conflicting testimony and without corroborating medical evidence. This is not a case
of two permissive views of the evidence, but rather a failure to prove the occurrence
of a work-related accident. Therefore, I respectfully dissent and would reverse the
judgment below.