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Bailey v. Rent A Center and Hartford Insurance

Court of Appeals of Louisiana, Fifth Circuit

May 29, 2019

SHANDA BAILEY
v.
RENT A CENTER AND THE HARTFORD INSURANCE

          ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 6, STATE OF LOUISIANA NO. 17-5514, HONORABLE ROBERT W. VARNADO, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, SHANDA BAILEY Christopher R. Schwartz

          COUNSEL FOR DEFENDANT/APPELLANT, RENT A CENTER AND THE HARTFORD INSURANCE Wade A. Langlois, III Brittany A. Cooper

          Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.

          SUSAN M. CHEHARDY, CHIEF JUDGE

         Defendants, Rent-A-Center and its insurer, Hartford Insurance (collectively "RAC"), appeal a judgment of the Office of Workers' Compensation ("OWC") finding that the plaintiff, Shanda Bailey, was in the course and scope of her employment with RAC when she injured her neck and back, and that the injuries she sustained were such that she was entitled to temporary total disability benefits, supplemental earnings benefits, past and future medical expenses, and penalties and attorney fees. Ms. Bailey answered the appeal seeking additional attorney fees incurred by her counsel for having to oppose the appeal. For the reasons that follow, we affirm the judgment.

         FACTS AND PROCEDURAL HISTORY

         In August of 2017, Ms. Bailey was employed by RAC as a Customer Account Representative. Her job duties included interacting with customers, making customer phone calls, loading and unloading delivery trucks, delivering and picking up rental merchandise, installing merchandise, and keeping company vehicles clean and properly maintained.

         On August 14, 2017, while assisting a co-worker in moving a washing machine, Ms. Bailey experienced a "slight sprain" in her back. Ms. Bailey did not consider the back sprain to be anything serious or even an "injury" as she was able to resume working that day and complete the delivery. Consequently, Ms. Bailey did not report the incident or seek medical attention at that time.

         Two days later on August 16, 2017, Ms. Bailey was tasked with loading a full-size mattress and box spring into the back of the company van on her own. While she was able to successfully load the box spring into the van, she experienced difficulty in loading the mattress on her own. According to Ms. Bailey, she made two requests for assistance from her supervisor, Tammy Johnson, to no avail. After several failed attempts to successfully maneuver the mattress into the van, Ms. Bailey tried to lift the mattress over her head to guide it into the van and, in the process of doing so, she immediately felt pain in her neck and the top of her back. The accident was unwitnessed.

         Ms. Bailey, a type I diabetic who requires an insulin pump, became lightheaded and dizzy. She felt the immediate onset of a headache. Concerned that she might pass out or suffer an insulin reaction, Ms. Bailey went into the store to check her blood sugar. She advised her supervisor, Ms. Johnson, that she was "in pain," that her blood sugar was low, and that she was leaving the store in order to seek medical assistance. Ms. Bailey then left RAC with the intent of proceeding to the closest Urgent Care, but due to her dizziness, pain, and inability to transport herself beyond the Walmart parking lot located around the corner, she called her daughter to drive her to Ochsner Kenner Medical Center.

         Ms. Bailey presented to the emergency room at Ochsner complaining of "thoracic back discomfort." The emergency room records reflect that Ms. Bailey mentioned the discomfort she had experienced in her back while moving the washing machine at work two days prior, and reported that she had experienced a second work-related injury to her upper back earlier in the day on August 16, 2017, while lifting mattresses. Ms. Bailey denied any prior history of neck or back problems or any physical restrictions at the time of the accident. X-rays of her thoracic spine were taken, and Ms. Bailey was given Toradol and Norflex injections. She was diagnosed with muscle "strain, sprain, [and] spasm," instructed to follow-up with her primary care physician, and was provided a work excuse.

         After her initial emergency room visit to Ochsner Kenner, Ms. Bailey reported the incident to her store manager at RAC, Jorge Idiaquez. Though Mr. Idiaquez denied at trial that Ms. Bailey had ever reported the incident to him or that her injury was work related, the Workers' Compensation - First Report of Injury indicates otherwise. According to the report, Mr. Idiaquez notified Rent-A-Center's carrier of the incident on August 18, 2017. Specifically, Mr. Idiaquez reported that Ms. Bailey had reported that she was involved in an accident occurring at work on August 16, 2017, while she was "dragging a mattress." Mr. Idiaquez further reported that Ms. Bailey "stated that she was going to the doctor for her blood glucose. [Ms. Bailey] did not mention about a work related injury until later on that day. [Ms. Bailey] stated that she was trying to grab a full size mattress." Moreover, Tammy Johnson testified by deposition that Mr. Idiaquez mentioned to her several days after the accident (but within the same week) that Ms. Bailey had left the store on August 16, 2017 because she had hurt herself.

         After having undergone emergency medical treatment, and after having reported the incident to Mr. Idiaquez, Ms. Bailey testified that she provided RAC with the work excuse she received from Ochsner, which was dated August 16, 2017 and restricted her from work. This document-which was provided by RAC to plaintiff's counsel in response to a request for production of documents seeking all work slips RAC had in its possession-in addition to the First Report of Injury corroborate Ms. ...


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