ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7, STATE OF LOUISIANA. NO. 13-8765, HONORABLE SYLVIA T. DUNN, JUDGE PRESIDING.
WILLIAM H. BEAUMONT, ROBERTO L. COSTALES, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.
JACQUELINE G. GRIFFITH, CHARLES O. TAYLOR, JEFFREY D. MARTINY, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg.
ROBERT M. MURPHY
[14-805 La.App. 5 Cir. 2] This is a workers' compensation case. From the OWC's judgment awarding workers' compensation benefits, medical expenses, medication expenses, travel expenses, attorney's fees, penalties, interest, and costs on the basis of a work-related injury, both the claimant, Virginia Mulder, and the employer, East Jefferson Hospital District No. 2, d/b/a East Jefferson General Hospital (" East Jefferson" ), seek relief. For the reasons that follow, we reverse the judgment. Additionally, we do not find claimant is entitled to relief under the occupational disease provision of the Louisiana Workers' Compensation Act.
FACTUAL AND PROCEDURAL BACKGROUND
From 2004, Ms. Virginia Mulder, a registered nurse, was employed by East Jefferson in its rehabilitation unit as a charge nurse on the night shift. She testified that her duties included the frequent lifting of patients to toilet them, getting them dressed, assisting them in washing and grooming, and preparing them for photographing every Saturday for bedsores.
[14-805 La.App. 5 Cir. 3] On December 9, 2013, Ms. Mulder commenced this case by filing a disputed claim for compensation (Form 1008) against East Jefferson. In her petition, she alleged that an accident occurred on April 30, 2013; and that she " developed chronic bilateral bicipital tendonitis/distal biceps tendinopathy as a result of repetitive lifting." She sought workers' compensation benefits, including medical expenses, indemnity, penalties, attorney's fees, interest, and costs.
Claimant contends that East Jefferson admitted her allegation of an occupational disease. East Jefferson answered the claim admitting in its January 16, 2014 and April 29, 2014 filings that Claimant " sustained an injury or occupational disease on the date set forth." ( Emphasis added ). However, East Jefferson amended its answer on June 5, 2014, shortly before trial " den[ying] that the Claimant sustained an injury or occupational disease on or about the date set forth on the claim for compensation."
At the June 9, 2014 trial of this matter, the parties stipulated that claimant was an employee at the time her alleged employment-related condition occurred. The deposition of claimant's treating physician, Dr. John F. Nitsche, was admitted in lieu of live testimony over East Jefferson's ...