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Summers v. The Ritz-Carlton New Orleans and Marriott

Court of Appeals of Louisiana, Fifth Circuit

May 28, 2015

PHYLLIS SUMMERS
v.
THE RITZ-CARLTON NEW ORLEANS AND MARRIOTT

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ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 STATE OF LOUISIANA. NO. 13-4163. HONORABLE SYLVIA T. DUNN, JUDGE PRESIDING.

D. PATRICK KEATING, JULIE-ANN A. DUHE KEATING, EVE S. REARDON, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

LANCE S. OSTENDORF, ALEJANDRO J. RODRIGUEZ, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANTS/APPELLANTS.

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson and Stephen J. Windhorst.

OPINION

[14-800 La.App. 5 Cir. 2] STEPHEN J. WINDHORST, J.

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Appellants/defendants, The Ritz-Carlton Hotel Company, LLC (" The Ritz-Carlton" ) and Marriott Claims Service (" MCS" ), appeal the workers' compensation judgment granting claimant/appellee, Phyllis Summers, wage benefits, medical benefits, and penalties and attorney's fees. For the following reasons, the workers' compensation judgment is affirmed in part; reversed in part; and remanded.

Claimant was employed by The Ritz-Carlton as a hairdresser, nail technician, and make-up artist. On March 3, 2013, claimant arrived early to work to perform a pedicure service for a guest and slipped and fell on water that leaked from the pedicure tub. Claimant filed a Disputed Claim for Compensation on June 7, 2013. On September 11, 2013, claimant filed a supplemental and amending claim for compensation. After a trial on the merits, the workers' compensation judge (" WCJ" ) rendered judgment in favor of claimant on July 16, 2014.[1] Appellants filed this appeal.

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[14-800 La.App. 5 Cir. 3] Standard of Review

In a workers' compensation case, the employee bears the burden of proving an accident occurred, it occurred in the course and scope of her employment, the accident caused her injury, and the injury caused her disability. Guevara v. Brand Energy & Infrastructure Servs., 13-331 (La.App. 5 Cir. 10/30/13), 129 So.3d 625, 631, writ denied, 13-2782 (La. 2/14/14), 132 So.3d 964. Gray v. H.B. Zachary Const. Co., 01-276 (La.App. 5 Cir. 9/25/01), 798 So.2d 271, 274, writ denied, 01-2847 (La. 1/4 /02), 805 So.2d 207.

The appropriate standard of review to be applied to the workers' compensation judge's findings of fact is manifest error or clearly wrong. Dean v. Southmark Constr., 03-1051 (La. 7/6/04), 879 So.2d 112, 117. The findings of the workers' compensation judge will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Id. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the [14-800 La.App. 5 Cir. 4] evidence differently. Id. The determinations by the workers' compensation judge as to whether the claimant's testimony is credible and whether the claimant has discharged her burden are factual determinations that will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Forbes v. Metro. Developmental Center, 09-901 (La.App. 5 Cir. 3/9/10), 35 So.3d 377, 378, citing, Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La. 1992).

However, where documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error, even in a finding based upon a credibility determination. Guevara, 129 So.3d at 631.

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Discussion

In their sole assignment of error, appellants contend the trial court erroneously found claimant was entitled to workers' compensation benefits in the form of wage benefits, medical benefits, and penalties and attorney's fees. Appellants claim this is a retaliatory claim for benefits under the Louisiana Workers' Compensation Act brought by claimant against The Ritz-Carlton only after she was terminated for cause and not because she is entitled to workers' compensation benefits.

Specifically, appellants contend that claimant did not suffer a work-related accident. In the event claimant did suffer a work-related accident, appellants contend claimant was not injured as a result of the accident, and her subsequent medical treatment was related to pre-existing and degenerative conditions, which were not aggravated or caused by the claimed work-related accident. Thus, appellants contend claimant is not entitled to medical treatment benefits, TTD [14-800 La.App. 5 Cir. 5]  benefits or SEBs, and the award of penalties and attorney's fees for claimant's medical treatment and expenses was in error.

Whether claimant sustained a work-related accident

A workers' compensation claimant has the burden of establishing that a work-related accident occurred by a preponderance of the evidence. Jimmerson v. Johnson Storage & Moving Co., 13-962 (La.App. 5 Cir. 5/14/14), 142 So.3d 111, 115, citing, Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La. 1992). A claimant's testimony alone may be sufficient to discharge her burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the claimant's version of the accident, and (2) the claimant's testimony is corroborated by the circumstances following the alleged accident. Jimmerson, 142 So.3d at 116. In determining whether the claimant has discharged 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 this testimony. Id. A claimant may corroborate her testimony concerning the accident with objective medical evidence or testimony from fellow workers or her spouse. Id.

Appellants contend claimant was suspended on May 3, 2013, and subsequently terminated for cause, i.e., violating hotel policies, on May 16, 2013. Appellants argue claimant was not injured as a result of a work-related accident; rather, claimant filed her claim for benefits as retaliation for her termination.

Claimant's accident was not witnessed by anyone. On March 3, 2013, claimant arrived early to work to perform a pedicure on a guest. Claimant " put the jets on" the pedicure tub, and went around the corner to the dispensary to get her nail polish remover and implements. When she came out of the dispensary, she did not look down, but said, " there was water all over the floor and I hit the floor and went flying." [14-800 La.App. 5 Cir. 6] Claimant testified she hit her head and the entire left side of her body. Claimant also testified that after the accident, she reported her fall to Daisye Suduran, the manger on duty. Ms. Suduran called engineering to come out and check the pedicure tub, and told claimant to go fill out an accident report with Loss Prevention. Claimant filed a report and continued to work the entire day. Claimant's spa manager, Christine Rantz, was subsequently notified of the accident and Loss Prevention notified the workers' compensation claims administration, MCS. Claimant went to Concentra Medical Centers the next day, March 4, 2013, saw the

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company doctor, and informed him of the slip and fall.

No evidence was submitted by appellants to refute that claimant sustained a work-related accident. The WCJ did not err in finding claimant sustained a work-related accident. Accordingly, we affirm this portion of the judgment.

Whether claimant was injured or aggravated a pre-existing injury as a result of the work-related accident

An employee must establish a causal link between the work-related accident and her injury to recover. Harrell v. St. Margaret's Daughter's Nursing Home, 09-0526 (La.App. 4 Cir. 11/4/09), 24 So.3d 941, 943. A claimant is not necessarily required to establish the exact cause of his disability or injury; however, the claimant must demonstrate by a preponderance of the evidence that the accident had a causal connection with it. Id., citing Buxton v. Sunland Constr., 34,995 (La.App. 2 Cir. 08/22/01), 793 So.2d 526, 531. " If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to carry the burden of proof." Id., citing Lubom v. L.J. Earnest, Inc., 579 So.2d 1174, 1179 (La.App. 2 Cir. 1991); Kelley v. Stone Container Corp., 31,790 (La.App. 2 Cir. 5/5/99), 734 So.2d 848, 851.

[14-800 La.App. 5 Cir. 7] An employee's disability is presumed to have resulted from an employment accident if before the accident the employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided the evidence shows there is a reasonable possibility of causal connection between the accident and the disabling condition. Hammond v. Fid. & Cas. Co. of New York, 419 So.2d 829, 831 (La. 1982). This presumption is rebuttable. Id.

A preexisting condition does not prevent recovery through workers' compensation because an employer takes his employee as he finds her. Bailey v. Jefferson Parish Gov't, 13-905 (La. 5/14/14), 142 So.3d 95, 101, citing Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461, writ denied, 02-2150 (La. 11/22/02), 829 So.2d 1044. Aggravation of a preexisting injury may constitute a disabling injury when the claimant begins to suffer new symptoms after the accident. Hotard v. Murphy, Rogers, Sloss & Gambel, 11-1143 (La.App. 5 Cir. 5/31/12), 97 So.3d 407, 412. In Tate, the Third Circuit Court of Appeal explained:

[a] pre-existing disease or infirmity does not disqualify the claimant from receiving benefits if the workplace accident aggravated, accelerated, or combined with the disease to produce the disability for which compensation is claimed. Thus, the element of causation is satisfied if the employee's work-related accident was a factor in bringing about the employee's disabled status. Whether a causal relationship exists between the disability and the employment is a question of fact.
The employee's workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a casual [sic] relationship, the ...

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