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White v. Fresenius Medical Care12/12/2001
AFFIRMED IN PART; REVERSED IN PART AND RENDERED.
The claimant alleges that she sustained neck and back injuries as the result of a work-related fall. The employer questions the timeliness of her claim for workers' compensation benefits. Following a hearing, the workers' compensation judge found that the claimant demonstrated the existence of a work-related accident and that she suffered a developmental injury , thereby permitting extended limitation periods for the filing of the claim. This extended period was found applicable to both medical and indemnity benefits. Penalties and attorney's fees were awarded. The employer appeals. For the following reasons, we affirm the award of benefits, but reverse the award of penalties and attorney's fees.
Factual and Procedural Background
The claimant was employed as a patient care technician at Fresenius Medical Center in New Iberia, Louisiana. She contends that while at work on June 18, 1999, she slipped on liquid, resulting in a fall. She contends that her ankles turned "sideways," her knees came together, and she fell onto the floor, hitting her tail bone. She described her head as whipping back. She testified that due to a recent foot injury , she was concerned with her ankles at the time. The record indicates that Ms. White reported the accident, complaining only of ankle pain. Despite the reported injury, Ms. White continued working and did not seek medical attention. She stated that the "strained feeling" in her ankles went away after a couple of days. She complains, however, that within one to two weeks, she developed other problems, namely, pressure in her back and pain in her groin area. She continued to work and reported no further injuries to her employer at that time.
During July and September visits to her gynecologist, the claimant made no report of either back or groin pain. In October, however, she reported to her gynecologist that she was suffering from pain in the left groin area. She was diagnosed with a hernia, which was repaired by an October 21, 1999 surgery. Due to this procedure, Ms. White requested leave from work on October 20. She has not returned to work since that time.
According to Ms. White's testimony, she recovered from the surgery and had no reason to believe that the pain suffered prior to the surgery was unrelated to the hernia, but that her pain continued to worsen. At that point, her physician felt the pain was not related to the hernia and referred her to Dr. Ricardo Leoni, a neurosurgeon. The claimant first saw Dr. Leoni in November 1999 and complained of back and leg pain. According to Dr. Leoni, an MRI revealed a herniated disc at the L4-5 level. In January 2000, Dr. Leoni performed a microdiskectomy at the L4-5 level.
After the lumbar surgery, the claimant contends she continued to experience pain, not only in her back, but in her neck as well. She testified, however, that she did not complain of the neck pain for a long period and did not, in fact, report it to Dr. Leoni until June 2000. Dr. Leoni's records and deposition confirm that she continued to complain of lumbar pain and, on June 27, 2000, also complained of left arm pain. By her July 25 visit, she reported that her neck and arm pain "had gotten much worse." She also reported numbness in her fourth and fifth fingers and weakness in her hand. An MRI revealed a herniated disc at the C5-6 level. Due to what Dr. Leoni considered to be a large herniation, a foraminotomy and a microdiskectomy were performed on August 7, 2000. In subsequent visits, Ms. White continued to complain of pain. At the time of his deposition, Dr. Leoni reported that he did not feel that the claimant could return to work due to
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