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Brown v. Entertainment Partners, LLC and AIG

Court of Appeals of Louisiana, Fifth Circuit

October 2, 2019

NIKKI I. BROWN
v.
ENTERTAINMENT PARTNERS, LLC AND AIG

          ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION DISTRICT 9 STATE OF LOUISIANA NO. 16-7822 HONORABLE ELIZABETH C. LANIER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, NIKKI I. BROWN

          Christine L. DeSue COUNSEL FOR DEFENDANT/APPELLEE, ENTERTAINMENT PARTNERS AND INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Jeffrey C. Napolitano

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE.

         Claimant/appellant, Nikki Brown, appeals the workers' compensation court's judgment which awarded her medical benefits for injuries to her left knee, left ankle, and left calf, but did not award any benefits for her back pain, right knee injury, or increased anxiety, depression, and blood pressure. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Nikki Brown suffered various injuries as a result of an accident that occurred on August 31, 2015, while she was working as a makeup artist on a movie for defendant, Entertainment Partners, L.L.C. ("EP"). Ms. Brown contends that while on a movie set early that morning, she stepped into a pothole and twisted her left foot into her body, injuring her left ankle, left calf, left knee, and aggravating her pre-existing back condition. Ms. Brown also contends that she suffered a right knee injury and increased blood pressure, anxiety, and depression as a result of the accident.

         On or about December 15, 2016, Ms. Brown filed a Disputed Claim for Compensation against EP and its insurer, AIG. The matter came before the workers' compensation court for trial on the merits on November 13, 2017. At trial, the parties stipulated that Ms. Brown was employed by EP and was injured in a work-related accident on August 31, 2015. They further stipulated that Ms. Brown injured her left ankle and left calf during the accident. Defendants disputed that any other injuries or damages were caused by this accident.

         At trial, Ms. Brown and her mother testified, and numerous exhibits, including medical records and several depositions, were admitted into evidence. In addition to testifying about the August 31, 2015 accident, Ms. Brown also testified regarding a prior work-related injury that she sustained in 2011 when she fell out of a van on another movie set. Ms. Brown suffered from back pain as a result of that accident, and she treated primarily with an orthopedist, Dr. Andrew Todd, and a pain management specialist, Dr. Paul Hubbell. Dr. Todd recommended surgery at L3-4 and L5-S1. Ms. Brown testified that she continued to work after the 2011 accident, albeit with pain, that she still had a "decent" quality of life, and that she could still perform daily activities.

         Ms. Brown received benefits for some time after the 2011 accident and she settled her claims arising from that accident in July of 2015. A few weeks later, the instant accident occurred on August 31, 2015. Ms. Brown did not seek medical treatment on the day of this accident. Rather, she noticed that her leg was swollen the next day, and a "medic" on the movie set told her to go to an urgent care clinic for an examination. On that date, September 1, 2015, Ms. Brown sought medical treatment at an urgent care clinic, Total Occupational Medicine, where she complained of swelling in her left knee and calf. She did not complain of pain in her right knee or back. A few days later, on September 4, 2015, Ms. Brown saw her primary care physician, Dr. Patricia Gendusa, and she again complained of left leg pain and left knee swelling.[1] The records do not indicate that Ms. Brown complained of right knee or lower back pain at that time.

         Ms. Brown testified that after the August 31, 2015 accident, her quality of life deteriorated and she was unable to perform chores or participate in many activities. Ms. Brown stated that she continued to work after this accident, because EP made accommodations for her. However, she had surgery on her left knee in December of 2015, and could not work for some time thereafter. Ms. Brown was paid indemnity benefits while recovering from this surgery.

         Ms. Brown admitted that she had back pain prior to the August 31, 2015 accident, but she stated that it was different from the pain she had after this accident. She testified that she did not notice that her back pain was different for some time after the accident, because she was focused on her excruciating left leg pain. Ms. Brown also testified regarding a subsequent accident that occurred in August of 2016. Ms. Brown stated that she was getting out of a van on a movie set when she "came down too hard" on her right side and heard a "pop." She indicated that this is when her right knee pain began.

         In November of 2015, Ms. Brown saw Dr. Deryk Jones, an expert in orthopedic surgery, complaining of left knee pain. Dr. Jones diagnosed a medial meniscus tear in her left knee, a ruptured Baker's cyst by her left knee, and a left ankle sprain. He examined her right knee at this visit and found it to be within normal limits. He performed surgery on her left knee on December 23, 2015, and she attended physical therapy thereafter.

         In his deposition, Dr. Jones testified that Ms. Brown did not complain of back pain until July 11, 2016, when she reported lumbar and lower back pain, and left sciatica pain. Dr. Jones testified that she first reported right knee pain on August 8, 2016, when she called his office and spoke with a nurse, indicating that she felt a "pop" in her right knee while getting out of a van at work. He performed surgery on her right knee for medial and lateral meniscus tears on November 8, 2016.

         Dr. Jones referred Ms. Brown to Dr. Eric Royster, a pain management specialist, and she first saw him in June of 2016. According to Dr. Royster, Ms. Brown reported that she had severe pain in her lower back and left knee. She reported that her left knee injury occurred at work in August of 2015 and that she had suffered from back pain for four years. After examining Ms. Brown, Dr. Royster concluded that she had chronic knee pain, sacroiliitis, low back pain, and muscle spasm. When he saw her in September of 2016, Ms. Brown reported that she had fallen onto her right knee a couple of weeks prior to this visit. When asked if he had an opinion as to whether the right knee injury had any causal relationship to the August 31, 2015 accident, Dr. Royster indicated that he did not believe so, though he agreed it is possible she could have torn the meniscus in her right knee due to compensating for injuries to her left leg. His records indicate that she had right knee surgery in November of 2016. At her December 2016 visit, based on the history provided by Ms. Brown, Dr. Royster believed her lower back complaints were related to the August 31, 2015 accident, because the radicular symptoms, nerve impingement, and radiating pain into the leg had recurred at the time of that injury. However, he admitted that if it was documented that she had radicular pain prior to the August 2015 accident, it could affect his opinion.

         Dr. Ralph Katz, an expert in orthopedic surgery, testified that he saw Ms. Brown on September 14, 2016, for an evaluation. Ms. Brown told him that before her left knee surgery, she had soreness in her lower back, which she had typically had in the past, but she started having more pain in her left buttock area, going to the left knee, after she had surgery on her left knee. Ms. Brown reported that she never had any issues with sciatica or left leg pain prior to this accident. Ms. Brown also indicated that prior to this accident, she had not had treatment for her lower back since August 2014 when she treated with Dr. Hubbell. Dr. Katz's examination of Ms. Brown revealed minimal tenderness in her lower back, with pain in her left buttock area going into her hamstring and calf. Dr. Katz did not examine her right knee, and he was not aware of any complaints regarding her right side.

         When he examined Ms. Brown, Dr. Katz did not have any records of Dr. Hubbell's treatment of Ms. Brown prior to August 2015 accident. Based on information from Dr. Hubbell's records prior to the accident indicating that she had radiating pain to the legs bilaterally and that her pain was "under poor control," Dr. Katz testified that she may have had continued ongoing leg pain at the time of the accident and that her back complaints, sciatica complaints, and buttock pain preexisted the August 31, 2015 accident. He stated that "more than likely" he would not relate back, leg, and buttock pain to the August 2015 accident.

         Ms. Brown saw Dr. Samar Shamieh, an expert in orthopedic spine surgery, on September 12, 2016. At this visit, she reported lower back pain with radiation down her left lower extremity and informed him that Dr. Jones had performed left knee surgery. She also reported that she had seen Dr. Royster for pain and he had given her an epidural steroid injection. Dr. Shamieh recommended a laminectomy at L4-L5-S1, which he stated was at a different area than where Dr. Todd recommended surgery prior to the August 31, 2015 accident. Thus, he would relate her back pain to this accident based on the information he was provided. However, Dr. Shamieh agreed ...


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