Workers' comp. benefit payments start 7 years after injury.

CASE ON POINT: Miller v. Christus St. Patrick Hospital, 2004 WL 840076 So.2d--LA

ISSUE: Ordinarily, when an employee is injured at work, he or she immediately loses time from work. Assuming the injury was incurred in the course of employment, the employee is paid workers' compensation for any lost time from work in addition to any medical expenses incurred. In this extraordinary Louisiana case, a nurse, who was injured in the scope of her employment continued to work for almost 7 years in various positions within the hospital before she actually gave notice that she was no longer able to work. The courts were confronted with the issue of whether or not the nurse should be allowed to collect workers' compensation for a recurrence of an injury that occurred 7 years prior to the date of her injury.

CASE FACTS: Marjorie Miller began working as a registered nurse at Christus St. Patrick Hospital on May 17, 1988. On December 21, 1993, while working as an emergency room nurse, she was preparing to place a patient in a decontamination tub when the lid from the decontamination tub fell off the wall, striking her in the neck and right shoulder. Prior to this accident, she did not have any problems with her neck and right shoulder. Following the accident, the nurse was treated by Dr. Lynn Foret, an orthopedist and Dr. John Raggio, a neurologist. In May 1995, Dr. Foret referred the patient to Dr. Ronald Kober, a thoracic and vascular surgeon. Dr. Kober diagnosed the patient with thoracic outlet syndrome (TOS), a nerve compression syndrome in which the nerves are compressed as they pass over the first rib going to the arm. Pain in the shoulder, arm swelling and hand numbness are typically associated with TOS. After her accident in 1993, Nurse Miller could no longer work in her emergency room position. She was moved to various positions in the hospital from 1993 to 2000, to accommodate her TOS. The hospital paid the nurse's medical expenses, including physical therapy, medications, and treatment with Drs. Foret, Raggio, and Kober. Clint Dobson, the hospital's claim adjuster, maintained that no weekly indemnity benefits were paid to the nurse because "she continued to work after the accident." Starting in January 2000, the hospital increased her work load and hours, and as a result, her right shoulder and arm began hurting more. On March 15, 2000, after an exceptionally arduous assignment, Nurse Miller reported to Maxine Guillory, the hospital's associate health nurse, that she could no longer work because of the aggravation of her TOS. Nurse Miller did not file an official accident report. The hospital did not investigate her complaint.

On December 13, 2000, Nurse Miller filed a claim for workers' compensation. The hospital filed an exception of prescription on the basis that all of Nurse Miller's injuries resulted from the December 21, 1993, accident. Nurse Miller maintained that the March 15, 2000, incident was a new accident; therefore, her claim had not been prescribed. The hospital's exception of prescription was denied. A workers' compensation judge (WCJ) found that Nurse Miller suffered a compensable accident, and as a result, she was temporarily and totally disabled. The WCJ awarded Nurse Miller weekly indenmity benefits of $384 per week as well as attorney's fees and penalties. The hospital appealed.

COURT'S OPINION: The Court of Appeal of Louisiana affirmed the judgment of the WCJ in favor of Nurse Miller. The court held, inter alia, that it was satisfied that Nurse Miller presented case facts from which a reasonable person could make a determination that she was, in fact, entitled to workers' compensation benefits. The court observed that this would be so regardless of whether the court would have reached the same conclusion the WCJ had.

LEGAL COMMENTARY: Factual findings in workers' compensation eases are subject to the manifest error or clearly wrong standard of appellate review. Under the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusions are reasonable ones. Where there are two permissible views of the evidence, a fact-finder's choice between them can never be manifestly erroneous or clearly wrong. Accordingly, if the trier of fact's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may nor reverse, even if it is convinced that had it been sitting as the trier of fact, it would have reached a different decision. The court observed that Nurse Miller maintained that at the time of the second accident, she was in Baton Rouge doing laptop training. She was working on a small laptop when she started feeling intense pain. She maintained that she had to take medication while on the job and had to take additional medication on her way home. The court noted that she maintained that her condition had not improved since the date of her last employment of March 15, 2000. The medical expert's testimony gave credence to the fact that there was an accident on March 15, 2000, that caused Nurse Miller's symptoms to be "permanently aggravated."

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority oh health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's who in American Law, and Who's Who in America.