Troy Franklin VS Slidell Police Department (2012CA0539 Rehearing Application)
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0539 TROY FRANKLIN li VERSUS t r n SLIDELL POLICE DEPARTMENT On Appeal from the Office of Workers Compensation Administration District 6 State of Louisiana Docket No 09 07345 Honorable Gwendolyn F Thompson udge Presiding Troy R Franklin Appellant Plaintiff Slidell LA Donald C In Proper Person Douglas Jr Thomas M Ruli uge Napolitano Guilbeau Ruli Frieman Whiteley Attorneys for Appellee Defendant City of Slidell Slidell Police Department Metairie LA BEFORE PARRO HUGHES AND WELCH J Judgment l i 0 tu no rendered E v 1 1 Z PARRO J Troy R Franklin an employee of the Slidell Police Department appeals a judgment dismissing his workers compensation claims of inental injury caused by mental stress The City of Slidell answered the appeal seeking reversal of the judge s finding that Franklin supervisor death threat was an event of sudden unexpected s s and extraordinary stress related to his employment For the following reasons we affirm the judgment and dismiss the answer to the appeal BACKGROUND Franklin has been employed by the Slidell Police Department the Department since 1991 On September 3 2009 he filed a disputed claim for compensation alleging traumatic post stress caused by a workplace incident with his supervisor Franklin stated in his claim that on the morning of September 5 2008 Captain Robert Jacobs had threatened to kill him Jacobs walked into the booking room where Franklin was typing a report and said in front of several other employees that he was feeling suicidal and was ready to take some other folks with him Speaking directly to Franklin Jacobs said he would be first on the list Franklin alleged that as a result of that incident he has experienced adjustment disorder depression anxiety acute distress disorder and post traumatic stress disorder He claimed he was denied medical benefits and workers compensation indemnity payments and his request for a second opinion from a doctor of his choice was ignored The City of Slidell the City disputed the claims noting that Jacobs and Franklin had long personal and professional conflicts that had resulted in one or more standing verbal altercations between them prior to this incident The City further argued that Franklin continued to work with Jacobs after this supposedly crucial incident finaliy leaving voluntarily and claiming mental disability about nine months after the event After a trial on the merits the workers compensation judge WCJ entered judgment finding that Franklin had proved by clear and convincing evidence that the death threat constituted a unexpected and extraordinary stress related to his sudden 2 employment However she found that he had not carried his burden of proving by clear and convincing evidence that any mental injury or illness he was experiencing was a result of that single event noting that t evidence presented showed that there he was continued harassment by claimant supervisor both on and off the job for many s months thereafter which could have been the cause of the mental health condition I Therefore his claims were dismissed on December 2 2011 The judgment dismissing his claims was signed Franklin filed this pro se appeal and the City answered the appeal seeking reversal of the WU finding that Franklin had proved by clear and s convincing evidence that the death threat constituted a unexpected and sudden extraordinary stress related to his employment APPLICABLE LAW Standard of Review In workers compensation cases as in other civil cases the manifest error or clearly wrong standard governs the appellate court review of facts s Bass v National Maint Corp 95 La App lst Cir 12 665 So 782 783 The Louisiana 0367 95 15 2d Supreme Court has posited a two test for the appellate review of facts in order to part rm a the factual findings of the trier of fact 1 the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact and 2 the appellate court must further determine that the record establishes that the finding is not clearly wrong manifestly erroneous See Mart v Hill 505 So 1120 1127 La 2d 1987 Thus if there is no reasonable factual basis in the record for the trier of fact s finding no additional inquiry is necessary to conclude there was manifest error However if a reasonable factual basis exists an appellate court may set aside a factual finding only if after reviewing the record in its entirety it determines the factual finding was clearly wrong See Stobart v State through Dep of Transp and Dev 617 So t 2d 880 882 La 1993 Moss v State 07 La App lst Cir 8 993 So 687 1686 08 2d 693 writ denied 08 La 11 996 So 1092 If the trial court findings 2166 08 14 2d s are reasonable in light of the record reviewed in its entirety the court of appeal may 3 not reverse those findings even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Smegal v Gettvs 10 La 0648 App ist Cir 10 48 So 431 435 see also Guidry v M Drilling Fluids Co 29 3d 36 I 2693 01 La App lst Cir 11 835 So 830 831 02 8 2d 32 Mental Injurv I caused bv Mental Stress In order to receive workers compensation benefits for mental injury caused by mental stress related to his employment a claimant must satisfy the requirements of S8 R1021 LSA 23 and d which state b b Mental injury caused by mental stress Mental injury or illness resulting from work stress shall not be considered a related personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless the mental injury was the result of a sudden unexpected and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence d No mental injury or illness shall be compensable under either Subparagraph b or c unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association Under the statute a mental injury is compensable depending upon the type of stress that triggers the injury Partin v Merchants Farmers Bank O1 La 3 1560 02 11 810 So 1118 1125 The nature of the stress itself is to be evaluated rather than 2d the stress being evaluated from the s employee perspective Id The legislature intended to restrict recovery under subsection 8 to those mental injuries that result b from stresses which by their nature are sudden unexpected and extraordinary in the usual course of employment in that working environment Id The claimant cannot merely show that a mental injury is related to the general conditions of employment or to incidents which have occurred over an e period of time ended Tranchant v Environmental Monitoring Serv Inc 00 La App 5th Cir 12 777 So 1160 00 13 2d 516 519 Such a claim is commonly known as a mental mental claim Partin v Merchants 1560 La 3810 So 1118 1122 02 11 2d 4 Farmers Bank Ol The mental injury must be demonstrated by clear and convincing evidence and to be compensable must be diagnosed by a licensed psychiatrist or psychologist according to specific enumerated criteria Dangefield v Hunt Forest Products Inc 1324 10 La App lst Cir 3 63 So 214 219 To prove a matter by clear and 11 25 3d convincing evidence means a party must demonstrate that the existence of a disputed fact is highly probable much more probable than its nonexistence Our Ladk of Lake I Reg Med Ctr v Matthews 06 La App lst Cir 9 971 So 354 357 1584 07 26 2d Our supreme court has cautioned reviewing courts to analyze claimed disabilities caused by mental conditions carefully and with utmost caution recognizing the nebulous characteristics of inental conditions and the possibility of symptoms being easily feigned Charles v South Cent Indus 96 La li 0883 96 25 683 So 706 2d 709 Dan 63 So at 219 erfield 3d ANALYSIS As a preliminary matter the City has brought to our attention that Franklin s appellate brief in this case fails to comply with Rule 2 of the Uniform Rules of the 4 12 Courts of Appeal because it does not include the necessary statement of jurisdiction does not make any argument regarding the purported issues for review does not include any references or citations to the support the arguments made record Nevertheless in and does not cite any authorities to s light of Franklin pro se status in this appeal this court will consider the merits of his case despite the improper form of his appellate brief See Putman v Quality Distrib Inc 11 La App lst Cir 0306 11 30 9 77 So 318 320 3d Franklin states that he did not receive any in treatment or hospitalization patient for his mental problems and argues that his employer disregarded the workers compensation laws by failing to notify him concerning denial of benefits and by denying his right to a second opinion from a physician of his choice He also contends his employer made misrepresentations and seeks the imposition of a statutory penalty for 2 Franklin was represented by counsel from the period leading up to the filing of his disputed claim for compensation through the trial His attorney withdrew from representation after the judgment was rendered 5 I I those actions Franklin states the WU erred by assuming that the continued harassment from Jacobs may have been the cause of his mental injury rather than recognizing that this ongoing conflict simply delayed his recovery from the mental injury that he sustained when Jacobs threatened to kill him Franklin also claims the WCJ made a factual error by stating that his claim was not filed until after Jacobs moved into the apartment complex of Franklin friend Diane Mobley when in fact he filed a claim s with the Department on January 16 2009 and Jacobs did not move into that complex until May 2009 Finally he claims the City should be held responsible for providing him with counseling as he had requested in January 2009 We note first that contrary to the City arguments in its answer to the appeal s our review of the evidence reveals that a reasonable factual basis exists for the WCJ s finding that Franklin proved by clear constituted and unexpected sudden a convincing and evidence that the death threat extraordinary stress related to his employment Moreover this finding is reasonable in light of the record reviewed in its entirety The record shows that from the time he began his employment with the Department Franklin was harassed by Jacobs However although Franklin was understandably irritated by this behavior it did not cause him any significant or constant anxiety and he was able to handle these situations When Jacobs walked into the booking room and threatened to kill him this was the first encounter that occurred before other witnesses From this point on Franklin was hyper of Jacobs aware fearing that he might actually follow through on his threat Franklin reported the incident and Jacobs was moved to another job in a building some distance away from the corrections facility Yet even though Jacobs job duties no longer required him to have any contact with Franklin he continued to return to Franklin office at odd s intervals Franklin interpreted these unexpected visits as Jacobs way of showing him that in spite of the Department order Jacobs could still get to him at any time s Every workplace has its share of employment stress related Yet it is highly unusual and extraordinary for a supervisor to threaten to kill an employee No matter 6 I j what level of previous harassment or tension exists in the workplace an unprovoked death threat from a supervisor could never be anticipated by an employee Therefore we agree with the WCJ that the death threat constituted a unexpected and sudden raordinary stress related to Franklin employment fulfilling one of the requirements e s of LSA 23 S8 R1021 b However the WC determined that the record did not support by clear and convincing evidence the conclusion that Franklin mental injury was the the result of s that sudden unexpected and extraordinary stress She stated in written reasons The evidence presented was not clear and convincing that the mental conditions complained of were a result of the September 5 2008 threat The evidence presented showed that there was continued harassment by claimant supervisor both on and off the job for many s months thereafter which could have been the cause of the mental health condition Some of the medical records referred to job stressors The medical records alone did not clarify this question of as a result of by clear and convincing evidence Accordingly although the Office of Workers Compensation Court was extremely sympathetic to the evidence of harassment and the threat by Captain Jacobs the law is e strict and does not allow recovery remely in workers compensation Based on this finding by the WCJ the direct causation element of LSA S R b 8 1021 23 was not met We have reviewed the evidence to determine whether this finding is manifestly erroneous s Franklin first meeting concerning the threat and his reaction to it was with an employee assistance counselor Ann Wilder about three months after the incident She recommended that Franklin be evaluated by a psychiatrist and that Jacobs be kept away from him The psychiatrist who evaluated him for the Department Dr Harold M Ginzburg agreed that Franklin and Jacobs needed to be separated at work However j he diagnosed Franklin with a problem and suggested Franklin may be relational exaggerating his symptoms in order to obtain a medical retirement In April 2009 Franklin sought treatment from his primary care doctor Dr Jose LeFran Dr LeFran diagnosed him with post stress disorder recommended traumatic that he not return to work and suggested he follow up with a psychiatrist 7 Franklin met with Dr Julie Ceasar a psychiatrist in May she diagnosed him with adjustment disorder post stress disorder sleep apnea and workplace stressors traumatic She prescribed Depacote but Franklin did not want to take it because it would negatively interact with the loss weight medicine he was taking Therefore Dr Ceasar recommended he seek treatment with someone else Franklin began seeing various social workers and psychiatrists at Ochsner Health System and participated in regular group and individual counseling sessions Because Jacobs continued to show up unexpectedly at his office Franklin stopped working on June 16 2009 He met with Dr Larry Warner regularly during the following months On September 21 2009 Dr Warner sent a letter to the Department advising that he was treating Franklin for adjustment disorder mixed type with depression and anxiety along with acute stress disorder both as a direct result of his current job related stress He recommended that Franklin remain away from work while undergoing treatment for an undetermined time Upon receipt of this letter the Department put Franklin on catastrophic leave with full pay and benefits In early 2010 Franklin treating physicians released him for administrative s duties and he asked to return to work in some capacity He was sent to another psychiatrist Dr Alan James Klein to be evaluated for his ability to return to work In his report on August 20 2010 Dr Klein concluded that Franklin had a serious psychiatric disorder quite possibly of psychotic proportions with evidence of paranoid thought processing that is likely alcohol induced He further stated that Franklin was not fit for duty in a law enforcement agency either as a Correctionai Officer or in performing administrative duties Based on this report Franklin then applied for disability retirement the Department sent him to Dr Lawrence D Wade for evaluation of his disability status Dr Wade criticized Dr Klein conclusions diagnosed Franklin s with an adjustment disorder and found him fit for duty The City then sent Franklin for another evaluation by Dr Cary D Rostow On May 17 2011 Dr Rostow concluded 3 This status was only available for one year When it was discontinued Franklin began to use up his sick leave 8 I that he found no compelling evidence that would indicate that Franklin was suffering a major mental condition that would disallow his ability to work as a police fficer Finally on July 1 2011 Franklin returned to work as a correctional officer with the Department The doctors reports are full of references to job stress depression related and issues on the job long conflicts at work etc standing Having examined the evidence we agree that the evidence tended to show that Franklin mental problems s were the result of the September 5 2008 threat However the evidence did not point so strongly toward that incident as the cause of his mental problems that it was highly probable that his mental injury was the result of that single event From the evidence it appears equally likely that his mental problems pre this event and existed were merely exacerbated by it Therefore the WCJ did not err in finding that the evidence did not meet the standard of being clear and convincing evidence that s Franklin mental injury was caused by the death threat CONCLUSION For the above reasons we affirm the December 2 2011 judgment All costs of this appeal are assessed to Troy Franklin AFFIRMED ANSWER TO APPEAL DISMISSED 9 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0539 TROY FRANKLIN VERSUS SLIDELL POLICE DEPARTMENT HUGHES J dissenting I respectfully dissent I would find that the claimant is entitled to benefits under the facts of this case
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