Charles Slocum VS Northlake Driveline and Luba Casualty Insurance Co.

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STATE OF LOUISIANA COURT OF APPEAL IRST CIRCUIT PJ ZQ1 CA 1572 CHARLES S UI O VERSUS NORTHLAKE DRIVELINE Judgment rendered April 26 2013 On Appeal from the Office of Workers Compensation Administration District 6 Louisiana Docket No 02591 09 Honorable Gwendolyn F Thompson Judge Presiding MICHAEL W WHITEHEAD LIVINGSTON ATTORNEY FOR LA 2ND PLAINTIFF APPELLANT CHARLES SLOCUM RICHARD J VOELKER ORNEY ATl FOR LA COVINGTON APPELLEES DEFENDANTS NORTHLAKE DRIVELINE AND LUBA CASUALTY INS COMPANY DAVID T BUTLER JR ATTORNEY FOR BATON ROUGE LA APPELLANT RECONVENTION IN PLAINTIFF LEMIC INSURANCE COMPANY BEFORE KUHN PETTIGREW AND McDONALD JJ r f vta C PETTIGREW J Claimant Charles Slocum and one of his emFloyer insurers LEMIC Insurance s Company LEMIC appeal from a judgmenk of the O of Workers Compensation ce OWC For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY At all times pertinent hereto Mr Slocum was employed as a machinist and welder at Northlake Driveline Inc Northlake and had been so employed for over 20 years On April 2 2001 Mr Slocum suffered a work injury when a forklift blade fell on related his right foot crushing it Following this injury Mr Slocum returned to work in a modified capacity and continued working At the time of the 2001 injury Northlake was covered through a policy of workers compensation insurance issued by LEMIC LEMIC paid indemnity and medical benefits to Mr Slocum arising out of the 2001 injury Subsequently on ctober 1 2007 Mr Slocum experienced an electrocution accident while at work evaluated by a Mr Slocum was taken to Slidell Memorial cardiologist who determined there was no damage Hospital where he to Mr was s Slocum heart A few days later Mr Slocum was seen by his family physician who released him without restrictions Despite the fact that Mr Slocum did not file a claim for workers compensation benefits in the immediate aftermath of the electrocution Northlake and LUBA Casualty Insurance Company LUBA Northlake workers compensation insurer s at the time voluntarily gave Mr Slocum one week of TTD benefits for the week immediately following the incident Again Mr Slocum returned to work at Northlake and worked continuously from the date of his electrocution until November 2009 On March 31 2009 Mr Slocum filed a disputed claim for compensation against Northlake and LUBA alleging that no wage or medical benefits had been paid that he had been denied his choice of physician and that he had not been reimbursed for his prescriptions or mileage In addition Mr Slocum made a request for attorney fees and penalties In response thereto Northlake and LUBA filed exceptions raising the objections of no cause or and right of action and prescription 2 Following a hearing on the I I exceptions Mr Slocum was ordered by the OWC to file an arnended petition within the time allotted alleging a sn with specific Pacts ntal developrn ury On July 1 2009 Mr Slocum fied ar amended isputed claim or compensation Mr Slocum alleged in this am cfaim that h s a developmental injury nded ered af causing temporary disability more than o year but no later than hvo years from the e date of his accident entitling him to be However his amended claim was devoid of efits any specific facts in support of his alleged developmental injury Northlake and LUBA again responded with exceptions raising the objections of no cause and no right of or action and prescription In an order rendered on August 14 2009 the OWC sustained the no cause of action exception granting Mr Slocum an additional 10 days to plead specific facts and dates as to the developmental injury The prescription exception was deferred On August 24 2009 Mr Slocum filed a second amending claim alleging that the injuries he sustained on October 1 2007 aggravated the pre disability to his right existing foot and ankle and that the October 1 2007 injurles placed increased loadbearing tension stress and overuse on his left foot and ankle resulting in surgery to his left foot Northlake and LUBA filed an answer to Mr Slocum first and second amended claim s forms again reurging the prescription exception The prescription exception was heard by the OWC on October 8 2010 In an order dated October 12 2012 the OWC sustained the prescription eoffering the following written reasons cception Defendant paid one week of TfD on October 12 2007 after the related work accident on October 1 2007 Claimant did not file a disputed 1008 until March 30 2009 which was less than three years after the last indemnity payment was made Defendant does not urge that the SEB claim has prescribed Claimant filed an amended 1008 on June 29 2009 for a development injury and TTD This was filed within two years of the accident However claimant contention that claimant was later again s disabled due to another condition related to the same accident is rejected s Claimant right to Temporary Total Disability benefits has prescribed Mr Slocum sought supervisory writs with this court from the October 12 2010 order of the OWC On December 17 2010 this court denied the writ appiication with the 3 following language We decline t exercise our supervisory jurisdiction Relator has an adequate remedy on appeaF after al matters at issue are resolved See Smith v UNR Home Products 614 2d So S4 2090 Driveline 2010 La App 55 54 1 Cir La 3993 See um Slo v Northlake I 17f10 ed 22 unpubfisl wret action During discovery conducted in this matter LU determined that Mr Slocum was F receiving medical benefits related to the injuries arising out of the work injury in related April 2001 at Northlake Accordingly LUBA filed a third party demand against LEMIC for indemnification of any amounts LUBA may be cast in judgment for arising out of the October 2007 work accident LEMIC answered the third parly demand admitting related that it insured Northlake at the time of the April 2001 incident and further acknowledging that it continued to pay benefits due to Mr Slocurn related to the injuries sustained in that accident Additionally LEMIC as plaintiff in reconvention sought reimbursement from LUBA for all amounts that LEMIC has paid that are attributable to the October 2007 incident LEMIC then amended its answer to the third party demand to allege that it last provided workers compensation coverage to Northlake on September 2 2004 and that any claim for indemnity benefits as to LEMIC have prescribed The matter proceeded to trial before the OWC on October 13 2011 and was taken under advisement Thereafter on February 15 2012 the OWC issued judgment dismissing Mr Slocum claim against LU6A with prejudice finding that Mr Slocum claim s s against Northlake for indemnity benefits had prescribed and dismissing it with prejudice dismissing LUBA third party demand against LEMIC for reimbursement with prejudice s and dismissing LEMIC reconventional demand against LUBA with prejudice s LEMIC timely filed an application for new triai which was denied by the OWC Mr Slocum and LEMIC have both appealed herein In his appeal Mr Slocum assigns the foflowing specifications of error 1 Whether the trial court committed manifest error by misinterpreting S R 1209A LSA 23 and holding that the prescriptive period for temporary total disability benefits was triggered by the voluntary and erroneous payment of one week of indemnity benefits for injuries to unrelated parts of claimanYs body and in absence of any disabling medical evidence legally required for entitlement to TfD indemnity benefits when all medical evidence revealed that claimanYs actual disabling condition for 4 which he did make a claim did not rnanifest itself until months following the date of his 10 accddent 07 01 2 The trial court comm manifest error by dismissing claimant SEB tted s indemnity claim against Northlake ariveline when th claimant timely filed his claim for indemnity ben within th years of his firsf receipt of fits ee indemnity from defendants as speci En ESF 23 ed R 1221 S 3 3 The trial court committed manifest and reversible error a issued a d judgment in contraventio caf vervuhelmfi n and lay evidence by dical ruling that claimant failed o carry his burden of proof for entitlement to SEB benefits pursuant to LSA 23 S3 R 1221 4 The trial court committed manifest error when it failed to recognize that defendant LUBA handling of the claim was arbitrary and capricious s when LUBA failed to both properly investigake the cfaim and award indemnity benefits when faced with uncontradicted disabling medical evidence that definitively linked claimant disability to his on job s the accident LEMIC assigns only one issue for our review as follows The trial court committed manifest error in holding that Charles s Slocum October 1 2007 accident did not cause any continuing disabilities or injuries and by holding it did not aggravate any pre existing conditions thus improperly concluding that the injuries by Charles Slocum were due to a progressive condition resulting from the April 2 2001 accident and not the responsibility of LUBA APPLICABLE LAW Standard ofReview In a workers compensation case as in otlher cases the appellate court review s of factual findings is governed by the manifest error or clearly wrong standard Smith v Louisiana Dept of Corrections 9 La 2 633 So 129 132 The 1305 94 28 2d part two test for the appellate review of facts is ij whether there is a reasonable factual basis in the record for the finding of the krial court and 2 whether the record establishes that the finding is not manifestly erroneous Mart v Hill 505 SoZd 1120 1127 La 1987 Thus if there is no reasonable factual basis in the record for the trial s court 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 trial s court factual finding only if after reviewing the record in its entirety it determines the trial court finding was clearly wrong s See Stobart v State through Dept of Transp and Development 617 So 880 882 La 1993 2d Furthermore when factual findings are based on determinations regarding the credibility of witnesses the 5 manifest error standard demands grEat deference to t flndings of the trier of fact for e only the fact finder can be aware of the variati i demeanor and tone that bear so s r heavily on the listener understan a 3 w is said Ftosell v ESCO 549 s in ad hat be9f 2d So 840 844 La 1989 Th i as f tt2 fa tind findings are reasonable in light ct rs of the record reviewed in its er tC cou of appea9 rray not reverse even though tire t convinced that had it been sitting as the tr of fact it would have weighed the er evidence differently Sistler v Liberty Mut Ins Co 558 So 1106 1112 La 2d 1990 Consequently when there are two permissible views of the evidence the fact s finder choice between them cannot be manifestly erroneous Bolton v B E K Const 2001 p 7 App 1 Cir 6 822 So 29 35 0486 La 02 21 2d Burden ofProof Causation The Louisiana Workers Compensatior Act provi coverage to an employee for es personal injury caused by an accadent arising out of and in the course of his employment La R 23 An employee must prove the chain of causation S 1031 A required by the workers compensation statutory schemE as adopted by the legisfature and must establish that the accident was emplA reiated that khe accident caused merai the injury and that the injury caused t disability Hirstius v Tropicare Service he LLC 2011 p 2 App 1 Cir 12 0 So 1215 1216 1080 La 11 21 3d Initially a workers compensation claimar has the burden of establishing by a t preponderance of the evidence that an awcident occ on tne job and that he rred sustained an injury Id A werker testimony is su to discharge the burden of s cient proving an accident provided hat two elements are first satisfied 1 no other evidence discredits or casts serious doubt upon he wprker version of the incident and s 2 the worker stestimony is corroborated y the circumstances surrounding the aileged incident Carter v Lakeviewr Regional Medical Center 2004 p 4 App 1794 La 1 Cir 9j23 923 So 686 6 05 2d 8 Accident is defined in La R 23 as an unexpected or unforeseen S 1021 1 actual identifiable precipitous event happening suddenly or violently with or without human fault and directly producing at the time objective findings of an injury which is 6 I more than simply a graduai deterioration or proyressive degeneration Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by th trier of f Allman v Washington Parish ct Police ury 2004 p 3 Appo 1 Cir 3 907 So 86 88 0600 La 4j05 2d An employee in a workers comRen action has the burden of establishing a n i a causal link between the accident and th subsequent disabling condition Walton v Normandy Village Homes Ass Inc 475 So 320 324 La 1985 Where as n 2d here the employee suffered from a pre medical condition he may still prevail if existing he proves that the accident aggravated accelerated or combined with the disease or infirmity to produce death or disability for which compensation is claimed Id In Walton the Louisiana Supreme Court recognized the existence of a presumption to aid plaintiffs in cases involving a pre condition existing In order for the employee to recover it must be determined that the employment somehow caused or contributed to the disability but it is not necessary that the exact cause be found A claimant disability is s presumed to have resulted from an accident however if before the accident the injured person was in good health but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards providing either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and the disabling condition or that the nature of the accident when combined with the other facts of the case raises a natural inference through human experience of such a causal connection Preexisting disease or infirmity of the employee does not disqualify a claim if the work aggravated accelerated or combined with the injury disease or infirmity to produce deaEh pr disability for which compensation is claimed Correlatively when an employee proves that before the accident he had not manifested disabling symptoms but that commencing with the accident the disabling sympkoms appeared and manifested themselves thereafter and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition the employee s work injury is presumed to have aggravated accelerated or combined with his preexisting disease or infirmity to produce his disability Walton 475 So at 324 citations omitted 2d 325 The finding of disability within the framework of the workers compensation law is a legal rather than a purely medical determination Therefore the question of disability must be determined by reference to the totality of the evidence including 7 I both lay and medical testimony Uftimately tf question of disability is a question of e fact which cannot be reversed im tfhe a of rrianlfest error sence Batiste v Tenet Healthcare Corp 2009 4 A 1ir 2 35 So 352 355 writ 2p 11 La p 14 12 3d denied 2010 La 5IG 3 5a 64 0559 7 r3 Indemnity Bene ts An employee seeking to recover indeorr ity benefits for a temporary or permanent total disability must prove by clear and convincing evidence that he is physically unable to engage in any gainful occupation whether or not the same type of work he was engaged in at the time of the injury La R 23 and 2 S 1221 c 1 c To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable in other words much more probable than not Carter v Williamson Eye Center 2004 p 8 App 1 Cir 0527 La 2d 05 11 2 906 So 503 508 An employee is entitled to receive suppiemental earnings benefits if he sustains a work anjury that results in his inability to earn related ninety percent or more of his average pre wage injury La R 23 The S 1221 a 3 employee bears the burden of proving by a preponderance of the evidence that the related work injury resulted in his inability to earr that amount under the facts and circumstances of the individual case LaFleur v Alec Elec 2004 p 5 App 0003 La 1 Cir 12 898 So 47 478 writs denied 2005 2005 La 04 30 2d 0276 0277 05 8 4 898 So 1287 1288 2d Statutory Pena ties Under the applicable statutory provisions of La R S F 1201 23 penalties and attorney fees are recoverable unless the claim is re controverted or if such sonably nonpayment results from conditions over which th employer or insurer had no control La R 23 F A claim is reasonably controverted when the employer S 1201 2 has sufficient factual and medical information to reasonably counter evidence or presented by the claimant Pitre v Buddy Seafood 2011 10 La App 1 s 5p 017 Cir 8 102 So 815 823 writ denied 2012 La il102 So 12 16 3d 2058 12 16 3d 41 A determination of whether an employer has failed to reasonably controve a claim t 8 I is a question of fact and is subje tto the manifest error standard of review Atwell v First General Services 20Qfa p 13 La App 1 C 12 951 So 348 2 03 r 28 06 2d 357 writ denied 2007 La 3 95 Sc 699 The decision to impose 0126 07 16 2d penalties and attomey fees is ess a factuas isubje ntialiy sue tto the manifest error or clearly wrong standard of review Frith v Riveiwvood Inc 2004 p 12 La 1086 05 19 1 892 So 7 15 2d ANALYSIS In the instant case after hearing from the witnesses and considering the documentary evidence in the record the QWC concluded that Mr Slocum was within the course and scope of his employment with Northlake when he suffered work related accidents on April 2 2001 and October 1 20Q7 Following our exhaustive review of the record and exhibits in this matter we are unable to say the OWC erred in determining that Mr Slocum sustained these work accidents as defined in La related S 1021 R 23 The OWC is reasonable and supported by the record 1 sruling The next issue we must address is tthe OWC finding that Mr Slocum claim for s indemnity benefits against Northlake was prescribed With regard to the applicable prescriptive periods La R 23 provides as foilows S 1209 A A 1 In case of personal injury including death resulting therefrom all claims for payments shall be forever barred unless within one year after the accident or death the partoes haue agreed upon the payments to be made under this Cnapter flr unless within one year after the accident a formal claim has b filed as provided in Subsection B of en this Section and in this Chapter 2 Where such payments have been made in any case the limitation shall not take effect until the expiration of one year from the time of making the last payment exc that in cases of benefits payable pt pursuant to R 23 S 1221 3this iimitation shall not take effect untii three years from the time of making the last payment of benefits pursuant to S 1221 R 23 12 3 or 4 3 When the injury does not result at the time of or develop immediately after the accident the limitation shall not take effect until expiration of one year from the time the injury develops but in all such cases the claim for payment shall be forever barred unless th proceedings have been begun within three years from the date of the accident 4 However in all cases described in Paragraph 3 of this Subsection where the proceedings have begun after two years from the 9 date of the work accident but within tt years from the date of the work ree accident the employe may be entitled to temporary total disability benefits for a period nc to exceed six mar and the payment of such t ths temporary total disability benefits on acc wikh this Paragraph only rdance shall not operace to tosl or iraterrupt presrripti nas t4 any other benefit as provided in R 23 S 1 21 Mr Slocum sclaim for TfD beneits rises under Lao e 23 as follows S 122i 1 1 Temporary totaL a For any injury producing temporary total disability of an employee to engage in any self or occupation for wages emplayment whether or not the same or a similar occupation as that in which the employee was customarily engaged whera injured and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education training or experience si and two six y thirds percent of wages during the period of such disability On appeal Mr Slocum argues that the essential question for this court to consider is whether the voluntary and admittedly erroneous payment of one week of TTD benefits to Mr Slocum following the October 2007 incident triggered the prescriptive period in La R 23 Mr Siocum argues that he did not have a S 1204 A valid cause of action for TTD benefits related to his feet and legs at the time of the October 2007 incident as he was not aisablea Thus Mr Slocum maintains the payment of one week of TTD benefits related tu a heart and bloou pressure exam did not trigger the prescriptive period enunciated in La R 23 S 1209 A We agree with Mr Slocum argument that this one week payment of TTD s benefits when there was in fact no disability does not operate to start the clock on prescription as it relates to Mr Slocum claim for indesnnity benefits against Northlake s However our inquiry on the prescription issue does not end here As correctly pointed out in brief by Northlake and LUBA the underlying basis for the OWC conclusion that s Mr Slocum claim for indemnity benefits was prescribed was clearly not the one week s payment of TTD benefits to Mr Slocum in October 2007 Rather the OWC found Mr s Slocum claim for TTD benefits against NQrthlake to be prescribed because the accident that caused the alleged disabling condition was the 2Q01 accident wherein Mr Siocum s foot was injured by the forklift blade The OWC concluded that Mr Slocum did not carry his burden of proof that he suffered any continuing or eveloping injury due to 10 the October 2007 elFCtrica shack inciden n ad F prqve that the electrical shock ar incident aggravated a pre conditic pf h IQ4ver e existing r s remities Louisiana Revised Statutes 23 prc that an injury not resulting at A J9 s 1 vsd the time of or developin im afiter the accident is a de injury rediately loping Generally speaking development of the irjury actually means development of the disability and disability marks the time from wh it is clear that the employee is no ich longer able to perform the duties of his or her employment in a satisfactory manner Swearingen v Air Products Chemical Inc 481 So 122 124 La 1986 The 2d Louisiana Supreme Court has consistently heid that an employee who suffers a work related injury that immediately manifests itseif but only later devefops into a disabiliry has a viable cause of action until one year from the development of the disability rather than from the first appearance of symptoms or from the first date of treatment Winford v Conerly Corp 2004 p 5 3 897 So 560 564 Sevin 1278 La 11 05 2d v Schwegmann Giant Supermarkets Inc 94 p 4 4 652 So 1859 La 10 95 2d 1323 1326 The jurisprudence offers guidelines for establishing when a developing injury has reached the disabling point for purposes af applicabifity of this exception to the one year prescriptive period In the case of the retained employee who continues to work with symptoms that might have been held ko be disabfing if litigated but that did not become manifestly disabling to th empieyee untal h was physically forced to quit hfs work the disability does not become manifest or develop until tfhat date because to select an earlier date would be dealing ir conjecture In cases of this nature the policy is to encourage rather than penalize an employe co vvorking despite a who tinues related work medical condition which is painf but not then disabiing Pitre 2011 l 0175 at 8 102 So at 822 9 3d 11 In its written reasons for judg rendered on February 15 2012 the OWC nent thoroughly addressed the issues now ra by Mr Slocum and EMIC in the present d s appeals Ciaimant Charles Slc began work in June 1946 with empfoyer curn Northlake Drive Northiake as a welder and macninist ine The heart of this casz involvNS the same employer but tvuo separate related work work accidents with different insurers for each accident The first accident was a crushing injury te claimant right foot when the s insurer was LEMIC Ins Co LEMIC on April 2 200L The second accident was an electrical shock when the insurer was LUBA Casualry Ins Co LUBA on October 1 2007 Claimant was unable to work for a period of time due to the crushing accident in 2001 LEMIC paid medical bills and indemnity benefits Subsequently claimant returned to work in a modified position Claimant continued to work this same modified job until he eventually stopped working for Northlake in 2009 Claimant suffered another accident in 2007 when he suffered a related work electrical shock He was sent to the hospital and was found not to have any continuing medical problems nor did ciaimant make any claims that he did Claimant was paid one week of TTD indemnity Defendant Northlake exception of No Cause of Action and Prescription as s to TTD was heard on October 8 2010 and an order granting khese exceptions was signed on October 12 2010 In less than seven days claimant returned to work Claimant continued to w for Nort until January of 2009 ork lake when he testified hat he couEd no longer perform the work due to disability in his extremities and right eCS and feet t I No evidence presented by any doctor totaily disables elaimant from working at all due to any reasono After th 2Q07 accizlent Llaimant admits e to working light duty and the employer accommodated his restrictions regardless of the cause of them From the crushing injury in 2001 until before the electrical shock in 2007 claimant complaints and complications due to the crushing injury s continued to escalate as the years wenk on The medical records are detailed and all admitted into evidence In 2007 before the October 1 2007 electrical shock claimant saw various treating physicians for his lower extremities in January February April May June August and September Then on October 1 2007 he suffered the electrical shock s Claimant problems were continuin to getprogressively worse before the electrica shock r Domangue claimant treating pair management physician s opined that the electrical shock aggravated the pre injury because existing it was only after the electrical shock that claimant was referred to him for pain management by his physician Dr Hake However this basis does not carry claimant burden of proof because almost two years had passed s between the occurrence of the electrical shock and the referral to pain management 12 The OWC Court appointed aand neurologist to examine isf padiat and opine on claimank physic coa conditions Claimant had s aR pladnts d numerous treating physicsa an Jefenaarats f several second medical s ad opinion physicians Based on all the uvider prese e9aimant dia not carry his ce e burden of prooP that the eVectraca shock re i Z007 caused any r1 koa continuing disabilities or inju r did i aggravate any pre ies o existing conditions Claimant did not suf a er dEVelopmental injury aue to the electrical shock of October 1 2007 The campiaints by claimant were due to the progressive condition as a result of the injury of April 2 2001 All issues herein were reasonab9y controverted Hence no penalties and no attorney fees were assessed As this court has previously noted the determinations by the OWC as to whether Mr Slocum discharged his burden of proof was a fac determination that will not be rtual disturbed on review in the absence of manifest error The OWC concluded that the medical evidence shorved that Mr Slocum ompiaints were not due to the electrical s shock of October 1 2007 but rather due to the proe condition as a result of the ressive April 2 2001 injury to nis right foot Based upon a complete review of the record we decline to say that the OWC vvas clearly wrong n finding t Mr Sioc did not suffer at m a disability as a result of the 2007 accident r Slocum was clearVy not in good health prior to the 2007 accident such that he would be entitled to the presumption of disability simply by virtue of symptoms manifesting themselves after the accident See Walton 475 So at 324 There is a reasonable factual basis in the medical evidence 2d in the record to support the OWC finding that Mr Slacum complaints following the s s 2007 accident were not caused by the 2007 accident but rather were related to the 2001 accident and nis continuing medical problems that persisted as a result of that incident Thus while Mr Slocum proved a wark accident occurred he failed to related prove that the accident caus an injury v in turn caused a disability d hich See Hirstius 2011 at 2 80 So at 1216 Having faiied in his burden of proof Mr 1080 3d s Slocum claim for workers compensation benefits r also fail Accordingly we find ust no error in the OWC judgment and affirm in all respects 13 DECREE For the above and foregoing reasons the February 15 2012 judgment of the OWC is affirmed All costs ssociate en th peal re assessed equ between ith s lly the two appellar harles Sloc a LEMZC ts a ur AFFIRMED 14

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