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Moran v. Rouse's Enterprises, LLC

Court of Appeals of Louisiana, Fifth Circuit

December 26, 2019

LEONTINE MORAN
v.
ROUSE'S ENTERPRISES, LLC AND GREAT AMERICAN ALLIANCE INSURANCE COMPANY

          ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 STATE OF LOUISIANA NO. 17-7076, HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, LEONTINE MORAN Daren Sarphie

          COUNSEL FOR DEFENDANT/APPELLEE, ROUSE'S ENTERPRISES, LLC AND GREAT AMERICAN ALLIANCE INSURANCE COMPANY Wade A. Langlois, III Brittany A. Cooper

          Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

          JUDE G. GRAVOIS JUDGE.

         Plaintiff/appellant, Leontine Moran, appeals a judgment of the Office of Workers' Compensation finding that she forfeited her right to workers' compensation benefits under La. R.S. 23:1208. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On October 9, 2017, Ms. Moran was working as a cook in the deli department for Rouse's Enterprises, L.L.C. ("Rouses") in Metairie, Louisiana, when she slipped and fell in a puddle of water that had leaked from a refrigerated display case. Ms. Moran reported the accident to her manager, Edward Drevar, and then returned to her work. After about 30 minutes, she began to experience leg pain. Ms. Moran left work, briefly went home, and then went to the emergency room at Tulane Lakeside Hospital where she complained of back and knee pain. She was diagnosed with a thoracic strain and a knee injury. Ms. Moran returned to work the next day and completed an injury report. She also submitted to a drug screen that day in accordance with Rouses' drug testing policy. The following week, Ms. Moran was informed that she was terminated from her position at Rouses after the results of her drug test revealed the presence of THC.[1]

         On October 14, 2017, Ms. Moran went to the emergency room at East Jefferson General Hospital ("EJGH"). She reported that she had a recent fall at work and complained of right-sided chest pain radiating to her right shoulder and neck. On October 19, 2017, Ms. Moran was treated at Daughters of Charity for complaints of pain in her neck, back, and arm. She was diagnosed with right shoulder impingement syndrome and given a steroid injection. On October 21, 2017, she presented to University Medical Center and was treated for back, chest, and right arm pain. She returned to Daughters of Charity on November 3, 2017 due to pain in her right shoulder. She continued to treat with Daughters of Charity and was referred to University Medical Center Orthopedics. She also received physical therapy at EJGH.

         On November 2, 2017, as a result of the accident and the injuries she allegedly sustained therein, Ms. Moran filed a disputed claim for compensation with the Office of Workers' Compensation against Rouses and its insurer, Great American Alliance Insurance Company. Defendants answered and denied the claim on November 6, 2017. In their answer, defendants alleged that in accordance with La. R.S. 23:1081, because of Ms. Moran's positive drug test, they are entitled to a presumption of intoxication and a denial of the claimant's benefits.

         On May 9, 2018, defendants filed a supplemental and amended answer to the disputed claim for compensation and a reconventional demand. Therein, defendants claimed that Ms. Moran made false statements that triggered the provisions of La. R.S. 23:1208. Accordingly, they alleged that Ms. Moran forfeited her right to all benefits. Specifically, defendants stated that Ms. Moran alleged injuries to her right knee, back, and right shoulder as a result of the subject accident. During her deposition, she testified that she only experienced knee pain at one particular time some years earlier, but could not remember exactly when. She denied having chronic knee pain prior to the accident and said the knee pain was not serious. Defendants stated, however, that according to the Daughters of Charity medical records, Ms. Moran has treated for knee pain since 2012 and complained of knee pain at least eight times between 2012 and the date of the subject accident. At her deposition, Ms. Moran also testified that she never experienced shoulder pain or back pain prior to the subject accident. Her medical records revealed, however, that on August 2, 2017, at the last appointment at Daughters of Charity before the accident, Ms. Moran was diagnosed with right shoulder impingement. Defendants also argued that during her deposition, Ms. Moran further denied ever experiencing a slip and fall prior to this accident. Medical records from University Medical Center revealed, however, that she experienced a prior slip and fall on April 20, 2013 that resulted in complaints of right knee pain, right wrist pain, and back pain. Defendants also noted that in the Second Injury Fund questionnaire Ms. Moran completed when hired, she denied prior knee and back problems. She also denied being treated or counseled on the use of drugs in both the questionnaire and in her deposition. Defendants stated that the medical records reveal that Ms. Moran was treated and counseled for excessive THC use in April 2013. Thus, defendants argued that based on these false statements, per La. R.S. 23:1208, Ms. Moran forfeited the right to all benefits, including penalties and attorney's fees.

         At defendants' request, Dr. Douglas Lurie, an orthopedist, examined Ms. Moran on May 10, 2018. After examining Ms. Moran and reviewing her medical records, Dr. Lurie opined that Ms. Moran's injuries were pre-existing and that she could return to work. At his deposition on May 22, 2018, Dr. Lurie stated that Ms. Moran "may have" experienced an aggravation of symptoms following her accident.

         Trial on the merits of the matter took place on November 29, 2018. On March 8, 2019, the trial court rendered judgment, finding:

1. Ms. Moran met her burden to prove that she sustained an on the job accident in accordance with La. R.S. 23:1021(1);
2. Ms. Moran met her burden to show that she sustained injuries related to a work accident;
3. Ms. Moran met her burden to show a causal connection between a work accident and her injuries;
4. Ms. Moran met her burden to show that she was disabled from work as a result of injuries sustained in the work accident;
5. Defendants are not entitled to the intoxication presumption due to the immediacy ...

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